Case Document

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CACC000629/1981

Road Traffic - owner not necessarily also the user - If owner is not also the driver of a defective vehicle he should be charged with causing or permitting use - not simply using.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 629 OF 1981

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BETWEEN
	FAN CHUN-KEUNG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Penlington J. in Court

Date of Judgment: 12th August, 1981.

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JUDGMENT

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1. This is an appeal against conviction. The facts as found by the learned Magistrate in the Court below were not seriously in dispute. There were four summonses brought against the Appellant, all being that he "used" a goods vehicle and a trailer which had a defective braking systems. Evidence was called by the Crown from a vehicle examiner, and the Magistrate accepted his evidence, that he examined the vehicle concerned and found that the foot brake of one of the vehicles and both foot and hand brakes on the other were defective. It was also not in dispute that the Appellant is the owner of both vehicles but there was no evidence that at any time he had driven the vehicles or that he knew of the defective braking system. The driver of the vehicles at the time of the accident was not called. It was therefore not in dispute there had been a breach of Regulation 101 of the Road Traffic (Construction and Use) Regulations in that the braking system of the two vehicles had not been maintained in good and efficient working order. What was in dispute was whether, under section 8 of the Road Traffic Ordinance, the Appellant used the vehicles as charged.

2. It is the case for the Crown that section 8 creates in effect an absolute offence. If a person is shown to be the owner of the vehicle that is sufficient evidence of use. The learned Magistrate based his decision on the proviso to subsection (3) of section 9 of the Road Traffic Ordinance. The proviso reads as follows:

"Provided that it shall be a good defence under this section for the defendant to prove that he had reasonable cause to believe that the vehicle would not be used on a road in the Colony or would not be so used until it had been put into a condition in which it might be used without contravening any such provisions."

Here no evidence was called of such belief. Section 9 however relates to the offence of selling or supplying a vehicle which does not comply with the regulations or of altering a vehicle so that it does not so comply. The proviso does not relate to section 8 which refers simply to using or causing or permitting to be used on any road a vehicle which did not comply with the regulations. The Magistrate was wrong in basing his decision upon that proviso.

3. The question then is whether section 8 creates an absolute offence in respect of a person who owns a vehicle i.e. does owning equate with using. In Wong Yun-fai v. The Queen⁽¹⁾, this same point came before Leonard J. (as he then was). He referred to the case of Windle v. Dunning & Son Ltd.⁽²⁾ where it was held that on a true construction of the words "a person who uses a motor vehicle or trailer in contravention of this subsection or causes or permits the vehicle to be so used" the alternative of "or causes or permits" restricted the meaning of "uses" to the actual driver and "perhaps also to the driver's employer if the driver was about his master's business". He referred to the judgment of Parker, C.J. at p.556:

	"The presence in the section of the alternatives of causing or permitting the use must limit the scope of what is 'using'. Normally, 'using' is applicable to the actual driver.
	I entirely agree with that, and in my judgment 'using' when used in connection with causing and permitting has a restricted meaning. It certainly covers the driver, it may also cover the driver's employer if he, the driver, is about his master's business, but beyond that I find it very difficult to conceive that any other person could be said to be using the vehicle as opposed to causing it to be used."

In Balfour Batty & Co. Ltd. v. Grindey⁽³⁾, Ashworth, J. said:

"I can see no way out for the prosecutor who chose to charge the defendants with using when, if he had thought about it and had been mindful of that decision, he ought to have charged them with ..." permitting the use of the vehicle."

4. I think therefore the position is clear. If the Crown can show that the owner of the vehicle caused the vehicle to be used or permitted it to be used (and the two terms are by no means synonymous) he should be charged accordingly. That could perhaps have been achieved in this case if the charges had been so framed by calling the driver but that was not done. It is in my view straining the meaning of the word to say that because a person owns a vehicle he must have used if only because it was on the road. Here the Crown's case did not even go that far. The only evidence was that the vehicle was examined by a vehicle examiner of the Transport Department. I do not think that on that evidence the Appellant could be convicted of using it, as he was charged. The appeal must therefore be allowed, the convictions quashed and the fines, if paid, be remitted.