HKSAR v. Raiford, Richard Hawley Stevens

HCMA636/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.636 OF 2006

(ON APPEAL FROM TWS 3665 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 8September 2006

Date of Judgment : 8 September 2006

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J U D G M E N T

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1.The appellant pleaded guilty to ‘using a motor vehicle without third party insurance’, contrary to sections 4(1) and 4(2) of Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272.  He was fined $2,000 and disqualified from holding all forms of driving licence for 12 months.  He now appeals against the sentence, in particular, the disqualification order.

2.The appellant was the registered owner of a private car which was involved in a traffic accident on 22 October 2005.  It was found that the car was uninsured on that day.  He explained that he had purchased that car on 2 July 2005, and had entrusted his car agent to negotiate the endorsement of the balance of the insurance for his previous car to this car and to renew the insurance when the old policy expired on 1 September 2005.  Unknown to him, his agent forgot to renew his insurance policy for him.  By two letters to the court, his car agent Mr Chan admitted it was entirely his oversight in failing to renew the insurance on his behalf.

Grounds of appeal

3.The following grounds, I summarize, are advanced by Mr Morley acting on behalf of the appellant :

(1)     The magistrate, in denying the appellant an opportunity to call his car agent to give evidence, was deprived of an opportunity to acquaint herself with facts material to considering whether there existed ‘special circumstances’ or ‘reasons”.  Mr Morley, solicitor for the appellant, by Notice of Motion sought to apply to admit new evidence, namely, an affirmation of the appellant and two affirmations of Mr Chan, the car agent.

(2)     The magistrate erred in finding that no special circumstances justifying a departure from the mandatory disqualification exist as an honest belief if reasonably held could amount to such special reasons.

Respondent’s reply

4.It was submitted by counsel for the respondent that the appellant had been afforded with ample opportunity to give his version of events to the court himself or through his agent.  The appellant had fully mitigated and ventilated his version of events to the magistrate.  Further, the magistrate was fully aware of the contents of the two letters written by Mr Chan.  The respondent said that it was not the case that the appellant was prevented from advancing his version or calling Mr Chan, nor did the magistrate reject his version that he was unaware that his car was uninsured.  However, the magistrate found that delegation without supervision was simply insufficient to make out ‘special reasons’.

5.The respondent objects to the adducing of “new” evidence on the following grounds :

(1)     such material was readily available on the day of hearing before the magistrate and there was no explanation as to why such were not adduced at that time; and

(2)     such ‘new’ evidence, even if received, would not afford any ground for allowing the appeal as it was clear from the magistrate’s findings that it was the delegation without supervision that matters.  Therefore, counsel for the respondent submitted that it was unnecessary and inexpedient in the interest of justice to adduce such ‘new’ evidence.

6.Lastly, counsel for the respondent submitted that the magistrate was correct in finding that a bare belief that the insurance was renewed by an agent without any follow-up enquiries was insufficient to constitute any ‘special reason’.

My judgment

7.I shall first deal with the application to adduce ‘new’ evidence.  Under section 83V of the Criminal Procedure Ordinance, Cap.221, a court hearing the appeal shall admit such evidence if it thinks just or necessary unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal.  The criteria is set out as follows :

(a)  it appears that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b)  it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.

8.Section 118 of the Magistrates Ordinance, Cap.227 provides that the above section of the Criminal Procedure Ordinance applies to magistracy appeals.

9.Mr Morley complains that the assistance given by the magistrate to the appellant when the appellant was unrepresented, was insufficient, and the appellant should be allowed to give evidence on oath and call his witness to give evidence.

10.Having gone through the transcript of the proceedings in the magistracy, I am not convinced that the appellant was deprived of the chance to call Mr Chan to give evidence on his behalf.  He had been afforded ample opportunity to explain the circumstances leading to the commission of the offence to the magistrate albeit that he was not put in the witness box.  It is clear from the dialogue between the magistrate and the appellant that, having considered the version advanced by him and the contents of Mr Chan’s letters, calling Mr Chan to give evidence would add nothing to what was already said by the appellant.  It is also clear that the magistrate had told the appellant that even if what he put forward were to be accepted, that would not constitute special reasons (Appeal Bundle p.16L).

11.Further, for reasons which I am going to set out in the latter part of this judgment, I am of the view that the evidence, if received, would not afford any ground for allowing the appeal.  I do not think it just or necessary to allow the appellant to adduce such evidence on appeal.

12.I now turn to the 2^nd ground, namely, whether the appellant held an honest and reasonable belief at the time of driving that the insurance had been renewed, which amounted to a special reason not to disqualify him.

13.It was the case of the appellant that throughout the years from 2003, he had entrusted insurance matters to Mr Chan and Mr Chan had performed up to his expectation.  Therefore, when he purchased the new Honda in July 2005, he had entrusted Mr Chan to endorse the balance of his old insurance policy to his new car for him and to renew the insurance when the old insurance policy expired on 1 September 2005.  He had even paid Mr Chan the premium in cash of $2,500.  His case was that based on past dealings, he had no reason to doubt Mr Chan  He did not keep insurance documents himself.  Solicitors for the appellant had cited authorities to the effect that a belief by a defendant that an insurance policy was still in force may amount to ‘special reasons’ : Lee Kam To v. The Queen [1980] HKLR 431; R. v. Cheung Kwok Leung [1989] 1 HKC 303.  Facts of those cases could easily be distinguished from the present.  In Lee’s case, the appellant had just got the car for about a week; in Chan’s case the insurance had expired for some nine days.  Chan made enquiries in respect of renewal of insurance about six days prior to the day when he was involved in an accident when he was assured that the policy had been renewed.

14.In the present case, the old policy expired on 1 September 2005.  Now according to the affirmations of the appellant and Mr Chan which solicitors sought to adduce as new evidence, both of them related a conversation between them as to renewal of insurance in August 2005.  Even if contents of this conversations were to be admitted, it remains that between that conversation and the time the appellant drove on 22 October, 2005, he had done nothing further to confirm Mr Chan had renewed the insurance for him and the car had a valid third party insurance, albeit that he had paid Mr Chan the premium.

15.In HKSAR v. Lui Kim Ying [2000] 3 HKLRD 622, Lugar-Mawson J said that a simple assumption that there was a policy of insurance, because it was the appellant’s belief that persons and companies who hire out taxis to drivers effected the insurance, was not belief based on reasonable grounds.  The law requires much more than that.

16.The spirit of the legislation has been succinctly expressed by Deputy Judge To in HKSAR v. Kwan Chi Wah [2000] HKLRD 667 :

“      In my view, because of the very important objective to be achieved by the Ordinance, the Ordinance imposes a strict liability on the owner to insure for third party risks.  Because this is a strict liability, one cannot delegate responsibility without retaining residual supervision.  If an owner may delegate responsibility and rely on that as a special reason then the second most powerful sanction under section 4 would be rendered nugatory. … Delegation without proper supervision cannot be a special reason.

Further, in my view, it is not enough just to place an order for renewal, he must check that the order is received and the renewal effected.  This is not an unreasonable obligation. …”

17.I also reiterate what I said in a Chinese judgment of HKSAR v. Luk Wai Keung, HCMA23/2004[1], and the following is the translation :

“The underlying spirit of the Motor Vehicles Insurance (Third Part) Risks Ordinance is to protect third parties from the risk caused by drivers on the road through mandatory insurance and draconian penalty.  A registered vehicle owner has an absolute duty in law to ensure that his vehicle is insured against third party risk and his duty does not simply cease after he has entrusted someone to take out a policy for him.  He certainly cannot rely on an excuse that he has entrusted the wrong person…

Otherwise the intention of the legislature would be rendered otiose.”

18.The magistrate was correct in saying that “being the registered owner, it is incumbent to make enquiries and supervise that the renewal is effected.  The seriousness of the offence and the possible consequences demand nothing less.”  I reject that having ensured Mr Chan performed insurance of his previous car to this new car and paid $2,500, the appellant had discharged what was required of him in law and had reasonable and honest belief when he drove on 22 October 2005 that the insurance when expired, had been renewed.

19.The magistrate was right in finding no special reason in the present case.  Whilst I fully sympathize with the appellant’s situation, I would have taken the same view had I been the trial magistrate.

20.The appeal against the 12 months’ disqualification order is dismissed.

Miss Polly Wan, SGC of Department of Justice, for HKSAR

Mr Christopher Morley of Messrs Haldanes, for the Appellant

[1]   「訂立《汽車保險(第三者風險)條例》的立法精神，是以強制保險及嚴峻判罸來保障第三者，免受駕駛者在道路上引致的風險。登記車主在法律上有絕對的責任去確保其車有購買第三者保險，其責任不會因為他付託他人代辦而告終。登記車主絕不能以所托非人作為推卸責任的藉口，……」否則……則法律原意蕩然無存。