Lee Fat v. The Queen

CACC000059/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 59 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 23 March 1970

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JUDGMENT

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1. The appellant pleaded guilty to two charges preferred against him under Regulations 97(a) and 169 of the Road Traffic (Construction and Use) Regulations (Cap.220). The particulars of the charges were that on the dates specified therein the appellant did use a dual purpose vehicle exhibiting the specified registration mark for the carriage of 12 passengers, being more than one in excess of 9 passengers, the number of passengers prescribed in the registration book in respect, thereof. Upon conviction he was fined $200 on each charge and further disqualified in respect of each charge from driving for a period of two months, such periods of disqualification to run concurrently. He appeals against that sentence.

2. The learned magistrate in his statement of findings has himself pointed out that the particulars of the charge would appear to be incorrect in that the offence prescribed is in relation to the number of passengers prescribed in the vehicle licence and not in the registration book as stated in the charge itself. I do not propose at this stage to enquire as to whether the particulars in the charge being incorrectly stated, the charges themselves were nullities. I propose to deal with the main substance of the argument advanced by Mr. Hampton, who appears for the appellant, as against the order of disqualification.

3. Mr. Hampton has referred to Wilkinson's Road Traffic Offences, the 4th Edition, at page 21, where it is clearly emphasised that there may be a multiplicity of offences of using a motor vehicle without actually driving it. Section 23 of the Road Traffic Ordinance provides that a person convicted of an offence under this Ordinance, or under the Regulations, in connection with the driving of a motor vehicle may be disqualified for such period as is therein prescribed.

4. The argument put forward by Mr. Hampton is that upon the bare charge to which the appellant pleaded guilty, namely, using the motor vehicle, it was not open to the learned magistrate to disqualify the appellant. The point has to some extent been dealt with by the Full Court in the case of YIP Wai-kay v. The Queen⁽¹⁾. However, in that case it is clear from the charge itself that the appellant was the driver of the vehicle in question. The charge was one under Regulation 169 of the Road Traffic (Construction and Use) Regulations of contravening the provisions of Regulation 96(2)(a) by driving a goods vehicle of a weight unladen not exceeding two tons for the carriage of more than one person in the rear of the vehicle. The Court there held, and I read from the headnote:-

"Driving with excess passengers is an offence which can only be committed if a motor car is driven. There was clearly a connection between the carrying of the passengers and the driving of the vehicle: the former could not be done without the latter."

And at page 340 Huggins, J., who delivered the judgment of the Court, said:-

"As it seems to us the offence of driving with excess passengers is an offence which can only be committed if a motor car is being driven. It is immaterial that there is a further offence created by reg. 96(2) of using or causing, suffering or permitting a vehicle to be used with excess passengers, an offence which it is just possible could be committed without the vehicle's being driven at all."

Now in this case the charge, I repeat, is one of using a motor vehicle and carrying passengers in excess of the number prescribed. It may well be that if there had been any statement made before the learned magistrate as to the facts it would have become perfectly clear that in using the motor vehicle the appellant was himself the driver of that vehicle. If there had been such a statement made - and the appellant had admitted those facts - I think it might well be argued that the admitted facts, taken together with the charge itself, would have enabled the magistrate to exercise the power of disqualification contained in Sect.23 of the Ordinance. But there were no facts at all in relation to the charge placed before the Court. It is equally possible that the appellant might have been the owner of the vehicle sitting at home in his own house whilst the vehicle was being driven by someone else on his behalf.

5. In those circumstances, as it seems to me, it is quite clear that he could not have been the subject of a disqualification order under Section 23, which deals with the driving of a motor vehicle. In these circumstances I am of the opinion that the orders for disqualification were bad and the appeal will be allowed to the extent that the orders for disqualification be set aside.

Representation:

Mr. Hampton of Messrs. Hastings & Co. for Appellant.

Winter, C.C. for Crown/Respondent.

(1) 1969 H.K.L.R., p.335.