Lau Yiu Sum v. The Queen

CACC000565/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 565 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 22nd September, 1972.

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JUDGMENT

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1. The appellant in this case was convicted upon charges of driving a private car for the carriage of passengers for hire or reward, and the consequential charge which arises from the commission of the first offence, namely, that he was using the said private car, there not being in force in relation to its use on that occasion the required policy of insurance or third party risks.

2. The only points that arise in this case are the two technical points as to whether the prosecution sufficiently proved that it was, in fact, the appellant who was driving the car at that material time, and whether the car itself was a private car. The appellant was represented at the trial by a solicitor. At the conclusion of the case the appellant, no doubt on advice given to him, did not elect to give any evidence on his part; his solicitor relying upon the technical points raised to which I have just referred. As I have said, the only questions in issue are whether the appellant was proved to be the driver of the car and whether the car was a private car.

3. The learned magistrate, in his Statement of Findings, makes reference to the fact that throughout the time the police officers were giving their evidence they referred to "the defendant" : the only defendant in court in relation to this case was, of course, the present appellant. Moreover, the questions put to the police officers in cross-examination clearly were questions in reference to the defendant himself who was then in court. I am satisfied that there was clearly sufficient prima facie evidence to establish that the appellant was, in fact, the driver of the car at the relevant time.

4. The normal practice in cases of this nature is for the prosecution to produce an extract from the Register of Motor Vehicles, showing the car in question was, in fact, registered as a private car. No such extract was produced in this case. It is, in my view, clearly desirable - as a salutary rule of practice - that in these cases such an extract should be produced. However, in this case the first police officer who gave evidence said that he saw a private car and that that was the car driven by the defendant. He described it as "a private car AJ 7121" and described it as "a green car." The magistrate, in his grounds of decision, has said that in his opinion that description of the car by the police officer was at least prima facie evidence that the car of which the registered number was given was a private car. Reference was made by him to the unreported case of TO Kiu v. Reg.⁽¹⁾ in which Mills-Owens, J., when faced with a somewhat similar problem, expressed the view that - and I quote - "If a person is seen to be driving a vehicle bearing a licence disc and number plates indicating that it is a private car there is, in my view, sufficient prima facie evidence that it is a private car."

5. In this case, the evidence was given by a police officer. He expressed the statement that what he saw was a private car AJ 7121, a green car. There was no suggestion of any cross-examination to refute the evidence given by the police officer that it was a private car.

6. In my view, there was sufficient prima facie evidence that the appellant was, in fact, driving a private car. For these reasons, I am satisfied that this appeal must be dismissed.

Representation:

(1) Criminal Appeal No. 322 of 1968.