Chiu Koon Kwong v. The Queen

CACC000613/1968

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 613 OF 1968

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Coram: Blair-Kerr, Mills-Owens & Huggins JJ.

Date of Judgment: 12 May 1969

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JUDGMENT

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Blair-Kerr, J.

1. The appellant was charged before the magistrate with using for the carriage of passengers for hire or reward a motor vehicle which had been registered as a dual purpose vehicle for use as a private car and as a goods vehicle contrary to Reg. 29(2) of the Road Traffic (Registration and Licensing of Vehicles) Regulations (hereinafter referred to as "the Regulations"). He was also charged with driving the vehicle when there was not in force in relation to its use a policy of insurance which complied with the requirements of the Motor Vehicles Insurance (Third Party Risks) Ordinance Cap.272, contrary to s.4(1) of that Ordinance.

2. In pleading guilty to both charges the appellant admitted that when driving the vehicle in Nathan Road, Kowloon, he picked up two persons (who in fact were police constables) and conveyed them to Chatham Road; and that when one of the constables expressed a desire to alight from the vehicle in Chatham Road he asked the constable for $1 which was thereupon paid to him.

3. The appellant has now appealed against his conviction on two grounds namely:-

4. Section 2(2) of the Road Traffic Ordinance, so far as relevant, reads:-

5. Section 4(1) of the Road Traffic Ordinance provides as follows:-

"The Governor-in-Council may by regulation prescribe or provide for:-

Part I of the Regulations deal with registration; and Reg.3 provides that:-

The licensing of vehicles is dealt with under Part II; and Reg.19(4) provides that:-

The Regulations do not provide for the sub-division of the class "dual purpose vehicles" specified in s.2(2)(j) of the Ordinance; but the Third Schedule (which contains a list of fees payable upon licensing) contains this item:-

In Mak Dick Chung v. R.⁽¹⁾ Mr. Justice Huggins said:-

"It is by virtue of these provisions (i.e. item 16 of the Third Schedule) that a motor vehicle can be registered 'as a dual purpose vehicle for use as a private car and as a goods vehicle' so as to be caught within the net cast by Regulation 29(2)."

In that case it was not argued that Item 16 of the Third Schedule was ineffective because, in the absence of express power to register a vehicle as a private car and goods vehicle, s.19(4) prevented its being licensed as such. The judge assumed that Item 16 was an effective provision and that if a fee was prescribed for a particular form of licence it must have been intended to confer power to issue such a licence. From this he concluded that there must be implicit in the regulations power to register a vehicle for any purposes mentioned in Item 16.

6. In Ng Chi-foon v. The Queen⁽²⁾ Mr. Justice Mills-Owens found difficulty in agreeing with this conclusion; and, in his judgment, he said:-

"The Third Schedule and Part II of the Regulations are concerned only with licensing fees. The lawful use of motor vehicles is dealt with by section 2(2) of the Ordinance .............................................................................................. In the terms of that sub-section, therefore, the class in which a vehicle is registered is to be taken to 'indicate the purpose for which the vehicle may be lawfully used'. This provision must override any implication which one might be minded to draw from the fact that a sub-division of class (j) has been adopted for licence fee purposes."

The gist of the decision in Ng Chi-foon⁽²⁾ is summarised towards the end of the judgment in these words:-

"Summarising the position: lawful user is governed by the Ordinance (section 2(2)); lawful user depends on the class, or sub-division of a class in which the vehicle is registered; so long as class (j) remains unsubdivided for registration purposes, dual purpose vehicles may lawfully be used for the purposes specified in class (j); class (j) contains no restriction as to user being not for hire or reward; Reg. 29(2) is therefore at variance with sec.2(2) (j); the provisions of the Ordinance must prevail - that is to say, until a sub-division of class (j) for registration purposes has been made by regulations under section (1)(a). In the absence, therefore, of any regulation sub-dividing class (j) for registration purposes (which is what Reg. 29(2) depends upon) dual purpose vehicles may lawfully be used, as section 2(2) and paragraph (j) thereof indicate, for the carriage of passengers without any such restriction as Reg. 29(2) purports to import."

On mature reflection we are of the view that sub-division of any class of vehicles listed in s.2(2) of the Ordinance must be effected by regulation; and counsel for the Crown admitted that there has been no sub-division of class (j) by regulation. However, the respondent's submission is that there is nothing in the Ordinance or the Regulations to prevent the Commissioner from registering a vehicle in more than one class; and that, on a plain reading of the entry in the register of motor vehicles (viz. "dual purpose vehicle (Private car/goods vehicle)" the court should take the view that the vehicle had been registered in three of the classes enumerated in s.2(2) of the Ordinance, that is to say, as a goods vehicle, as a private car, and as a dual purpose vehicle (classes (a), (d) and (j)).

7. We are unable to accept this submission. There is nothing in the Ordinance or the Regulations to suggest that a vehicle may legally be registered in more than one class. Indeed the whole tenor of the phraseology used in the Regulations suggests the contrary; and that would appear to have been the view of the Legislature because class (j) did not appear in s.2(2) when the Ordinance was originally enacted. It was added by Ordinance No.36 of 1958. Clearly, the vehicle in this case was registered under class (j) as a dual purpose vehicle for use as a private car and for the carriage of goods.

8. We were referred to s.19 of the Interpretation and General Clauses Ordinance which reads:-

It is very tempting to argue that because the Governor-in-Council has made provision for the fees to be charged upon the issue of licences in respect of three different classes of dual purpose vehicles, class (j) has been impliedly sub-divided for purposes of registration and licensing. It may well be that that was the intention but that was not what the Legislature said. In our view there is a serious hiatus in the legislation. Indeed, counsel for the Crown frankly admitted that the drafting of the Regulations leaves a good deal to be desired. Be that as it may, in this case we are concerned with the legality of a conviction for a criminal offence; and courts of law should not be asked to uphold charges framed under regulations which have no sure legislative foundation.

9. We agree with the decision in Ng Chi-foon⁽²⁾; and for the above reasons the conviction and sentence on the charge under Reg. 29(2) is quashed.

10. In support of the second ground of appeal, we were referred to the concluding remarks of the judgment in Ng Chi-foon⁽²⁾ which reads:-

"I therefore allow the appeal. The remaining charges relating to third party insurance are dependent on the validity of the charge under Reg. 29(2) and accordingly the appeal succeeds also on those charges."

Mr. Justice Mills-Owens agrees that these remarks were not intended to be of general application. What he was saying was that in that case unless the policy were avoided by reason of the commission of an offence by the carriage of passengers for hire or reward the vehicle was insured. In our view the validity of a charge laid under s.4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance does not, as a matter of course, depend on the validity of any other charge founded on the same facts and laid under another statutory provision. Accordingly this ground of appeal fails.

12 MAY 1969

(1) Criminal Appeal No.112 of 1968

(2) Criminal Appeal No.393 of 1968