Ready Mixed Concrete (HK) Ltd v. The Queen

CACC000058/1980

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Coram: Leonard J. in Court.

Date of Judgment: 8 February 1980

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JUDGMENT

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1. In this appeal I quashed the conviction and ordered that the fine of $250, if paid, be returned.

2. The appellant was charged with using a vehicle with defective brakes contrary to Regulation 101 of the Road Traffic (Construction & Use) Regulations and Section 8 of the Road Traffic Ordinance, Cap. 220. I allowed the appeal on the basis that the particulars of offence offended the rule against duplicity. On consideration I have concluded that I was wrong in allowing the appeal on this ground.

3. The particulars of offence were as follows:

"Ready Mixed Concrete (H.K.) Ltd., you are charged that on the 23rd day of June 1979, in this Colony, on a road there called Hong Chong Road near the junction with Cross Harbour Tunnel, in this Colony, you used a motor vehicle, namely concrete mixer, bearing registration number BT 4860 when every part of every braking system and the means of operation thereof was not maintained in good and efficient working order and properly adjusted."

4. The facts were as follows: The concrete mixer in question, a vehicle equipped with five braking systems, was being driven by an employee of the defendant company towards the entrance of the tunnel when it collided with the rear of a vehicle which had stopped at a booth to pay the Cross Harbour dues. The driver explained that the brakes failed. His evidence was contested and the magistrate found himself "not able to draw any firm conclusion from it". He confined himself to the question - as one of mechanics - "were these brakes at that time and place properly adjusted?" He accepted expert evidence - again disputed - that they were not and convicted. He did not concern himself with the question whether any particular one of the five braking systems was not maintained in good and efficient working order nor with the question whether any particular one of them was not properly adjusted but more sensibly (as I now realise) with the question "were the brakes properly adjusted".

5. The unfortunate wording of the charge clearly results from the following wording of Regulation 101 of the Road Traffic (Construction & Use) Regulations which reads:

"Every windscreen wiper and every direction indicator required by these regulations to be fitted to a motor vehicle and every part of every braking system and of the means of operations thereof fitted to a motor vehicle or trailer and all steering gear fitted to a motor vehicle shall at all times, while the motor vehicle is used on a road be maintained in good and efficient working order and shall be properly adjusted."

6. My attention throughout was focused, by the somewhat unfortunate wording of the charge, on the fact that the vehicle could have been deficient in a number of ways i.e. by anyone part of any one of the five systems not having been properly maintained or by the means of operation of any one part not having been properly maintained or by any one of the five systems not having been properly adjusted.

7. The multiplicity of ways in which a vehicle can offend against the canons of perfection required by this regulation caused me to overlook that the essence of the offence charged was a single act namely using the vehicle on the road when it did not comply with the provisions of the regulation.

8. Since the rule against duplicity is contravened only when one count charges the defendant with having committed two or more separate offences and since only one offence (using the vehicle on the road) was charged here the rule against duplicity was not contravened. I can draw but slight comfort from the observation in Archbold 40th Ed. at page 45

"The rule though simple to state is sometimes difficult to apply".

9. Although I was in error in holding that the charge was bad for duplicity I think it might well have been the subject of objection for uncertainty. I express no view on whether such an objection could have successfully met by further particulars as this was not the subject of argument.

10. Again I can express no view on the other grounds of appeal as they were not fully argued. I would however observe that one of these grounds was that the method of testing the brakes was "not the most efficient or desirable". I do not think that counsel for the appellant would have been entitled to succeed on this ground taken by itself. The expert called by the Crown conceded in cross-examination that there was better equipment and the magistrate observed that the meter used was "not the most advanced method of testing braking efficiency and that there are more sophisticated methods - but not at Moreton Terrace". The desirability of having more efficient equipment available is perhaps one which might be conveyed to the relevant authority.

11. As I see it, it is not open to me to re-open this appeal. If it were it would be unjust to the appellant for me to do so.

Representation:

Christopher Young (Deacons) for appellant.

Mr. E.H. Martin, counsel for Crown/respondent.