Yu Woon v. The Queen
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CACC000058/1971 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO.58 OF 1971 -----------------
----------------- Coram: Rigby, C.J. Date of Judgment: 25th February, 1971 ----------------- JUDGMENT ----------------- 1. The appellant was convicted upon two charges preferred against him, one of driving an unlicensed vehicle and the other of driving the said motor vehicle without having the required Third Party Policy of Insurance in force. 2. The facts giving rise to the charge are of some interest and I propose to refer to them in some detail. I ought, perhaps, to add that all these facts were not before the learned magistrate at the time. A notice of additional evidence was given in this case and an application was made to me, to which I would most certainly have acceded, for additional evidence to be called. A copy of that notice of additional evidence was served on counsel for the Crown and he very properly has said that in the circumstances of the case he admits the correctness of the facts in respect of which further evidence would have been placed before this court. 3. The facts, therefore, are as follows: on the 9th of March, 1970 one LEUNG Kwan-pui was convicted of the offence of driving his private-car for the carriage of passengers for hire and reward. Subsequent to that conviction a letter dated 16th of April was sent by the Commissioner of Transport to Mr. LEUNG Kwan-pui requiring him to produce to the Commissioner of Transport the Motor Vehicle Registration Book and the Vehicle licence disc for cancellation. It is apparent that Mr. LEUNG Kwan-pui made no attempt to comply with that letter. Indeed, not only did he not comply with the terms of that letter but some time in April, 1970, he sold the car to a man named YAU Chun-wei without disclosing to him that an offence had been committed in relation to that car and he further concealed the fact that he, LEUNG Kwan-pui, had been required to submit the relevant documents relating to the car to the Commissioner of Transport so that the vehicle could be de-registered. Mr. YAU Chun-wei, therefore, purchased this car without any knowledge of the fact that any offence had been committed which rendered the car liable to de-registration. The car, at that material time, had been purchased by LEUNG Kwan-pui on the terms of a hire-purchase agreement, and when he sold to YAU Chun-wei, Mr. YAU Chun-wei took over the hire-purchase terms and thereafter continued monthly to pay the hire-purchase instalments. I should add that at the time the car was sold and physically transferred from the vendor to the purchaser the vendor handed over the vehicle registration book and the vehicle licence to the purchaser. The new owner, apparently, applied to the Transport Department for his name to be put down on the register as the new owner, but that application appears to have been refused by the Transport Department without any reason being given for such refusal. 4. On the 19th of November the new owner, YAU Chun-wei, lent the car to the present appellant, the appellant's own car not being available for his use at that time. Whilst so driving the car the appellant was stopped by a police party, and is appeared that the registration number of this car, which was a private car registration No. AN 2864, was on a list of missing vehicles, or de-registered vehicles, which the police had in their possession at that time. Indeed, the solitary police officer who gave evidence in this case said that when the car was stopped at a police barrier he checked what he described as the 'List of Missing Cars' and found that this car AN 2864 was in fact on that list. I think it must be clear that what he was referring to was a list of de-registered cars. However, remarkable though it may be, this police officer then actually gave evidence on affirmation saying that he took down the licence disc number of the vehicle, which was K.18024, and that the expiry date of the licence was October 1970. It is clear that that was an entirely inaccurate statement of fact because the Motor Vehicle Registration Book showed that the vehicle was licensed on 25.2.70. The magistrate assumed, and indeed correctly assumed, that the licence would therefore expire on the 25th of February, 1971. In fact, the licence disc has now been produced in evidence before me and it shows that the vehicle licence expired on 25.2.71. It really does seem to me remarkable that a police officer should categorically state in evidence that the expiry date of a vehicle was October 1970 - particularly having regard to the fact that he took the trouble to write down correctly the licence disc number of the vehicle which was shown as K.18024. One might reasonably expect him, at the same time, to have written down in his note-book the date on which that licence expired. However, it is clear that was not done. 5. Upon these facts the appellant was charged with the two offences of driving an unlicensed vehicle, and driving the same vehicle without having a third party insurance in force. In relation to that second charge it would appear that the original certificate of insurance which was issued to the original owner, Mr. LEUNG Kwan-pui, stated that the class of persons entitled to drive were the Policy Holder and "any other person who is driving on the policy holder's order or with his permission". Since, of course, the car had been sold to the new owner YAU Chun-wei, it could not be said that the appellant was driving this vehicle at the material time with the consent of Mr. LEUNG Kwan-pui; hence this charge of driving a motor vehicle without third party insurance. 6. Mr. Soh, Crown Counsel, has said he does not seek to support the conviction on the first charge, that is to say of driving an unlicensed vehicle, having regard to the fact that the Registration Book and the licence disc had never in fact been submitted by LEUNG Kwan-pui to the Commissioner of Transport for de-registration, and therefore, of course, the vehicle, to all intents and purposes, was still validly licensed at the time this offence was committed. It follows, therefore, that the conviction and the fine imposed on the first charge must be set aside. 7. Turning now to the conviction for driving a motor vehicle without third party insurance. Mr. Martin Lee, who appears for the appellant, had originally appealed against both the conviction and the order for disqualification imposed in respect of that charge. He informs the court, however, that having regard to the decision of the Full Court in the case of Tse Wan-yuen and Another v. The Queen(1), in which that court held that the offence of driving a motor vehicle without proper insurance contrary to section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance was an absolute offence, he does not feel that he can properly advance any argument against a conviction for this offence. He submits, however, that in the special circumstances of the case there were grounds upon which the learned magistrate could properly say that there were special reasons relating not only to the offender, but also to the offence itself, which entitled the magistrate to desist from the making of a mandatory order for disqualification of the appellant from holding or obtaining a driving licence for a period of 12 months. The learned magistrate, in imposing the order for disqualification, held that he was bound by the case of The Queen v. CHANG Kwan-woon(2). That was a case of the driver of a "Pak Pai" or hire taxi who was driving a private-car for hire or reward. The magistrate, in the circumstances of that particular case, held there were present factors which entitled him to refrain from what would otherwise have been a mandatory order for disqualification for 12 months from holding a driving licence. The Full Court, however, took a contrary view and said that, and I quote:-
Mr. Lee has pointed out that that case was in fact the case of a private car being driven for hire or reward, and he seeks to distinguish that case from the circumstances of the present case. Here, it is clear that the appellant borrowed this car from the lawful owner with the full knowledge and consent of the owner. The appellant is himself a driver and the most that can be said against him is that he did not seek to enquire from the owner as to whether or not the policy of insurance covered both the owner of the vehicle and any person driving the car with his authority or permission. This case can readily be distinguished from CHANG Kwan-woon's(2) case, and in my view there were special reasons in this case which justified and entitled the magistrate to refrain from ordering disqualification. I think it is clear from reading the learned magistrate's statement of findings that he would, indeed, have refrained from making an order for disqualification if he had not considered that he was bound by CHANG Kwan-woon's(2) case. As I have said, in my view the facts and circumstances of that case can readily be distinguished from the present case. 8. In those circumstances, whilst the appeal against conviction on this second charge must be dismissed, the order for disqualification will be set aside. 9. One further small matter: it does not appear from the record of the case that the learned magistrate gave an opportunity to the appellant to call witnesses if he so desired. Mr. Martin Lee has referred me to an old case, the case of YEUNG Cheung v. The Queen(3), in which the Full Court there expressed the view that magistrates' courts should not only ensure that persons charged before them were informed of their right to call witnesses but they should also make a note to the effect that that had been done. The words actually used in that judgment are these; and I quote:-
10. The result, therefore, of this appeal is that the conviction on the first charge of driving an unlicensed vehicle must be quashed and the fine of $25.00 set aside; the conviction on the second charge of driving a motor vehicle without third party insurance will stand and the fine of $25.00 imposed thereon will also stand; the order for disqualification will, however, be set aside. Representation: (1) [1969] H.K.L.R. p.261. (2) [1957] H.K.L.R. p.25. (3) [1959] H.K.L.R. p.338. |