Leung Tak Kuen v. The Queen

CACC000630/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 630 OF 1972

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Coram: Rigby, C.J., Huggins & Pickering, JJ.

Date of Judgment: 19th December, 1972.

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JUDGMENT

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1. The facilities offered in Hong Kong by the franchised road-transport companies, namely two bus companies, and one tramway company, being, for whatever reason, inadequate to satisfy the legitimate requirements of the public for transportation, there arose, before and during the riotous disturbances of 1967, a widely-patronised, though unlawful alternative form of transport in the shape of the privately operated minibus. Such was the popularity of those supplementary fourteen-seater vehicles with the commuting public that, in 1969, the Government (acting possibly upon the view, frequently expressed in an inelegant maxim, that those whom one is incapable of defeating may yet form a useful ally, but more probably merely responding to a legitimate public demand) legalised the operation of minibuses which, now known as public light buses, have now proliferated upon our roads.

2. Side by side with the three forms of transport I have mentioned, there exist a high density of private motor-cars, a large number of taxis, which latter ply for hire in the streets, and a system of public vehicles, similar in passenger capacity to taxis, which are available from the premises in which they are normally accommodated.

3. This not inconsiderable assortment of methods of road transport (I have omitted commercial vehicles for we are concerned with the needs of passengers) might well be thought fully adequate for the requirements of the travelling public. That this is doubtfully so, however, is evidenced by the persistent presence on our roads of private cars for hire or "pak pais". These vehicles, being unlicensed for the carriage of passengers, their operation for that purpose is unlawful and indeed specifically made so by Regulations 29(2) and 44 of the Registration and Licensing of Vehicles Regulations.

4. However that may be such vehicles continue to operate in not inconsiderable numbers and, despite the efforts of the police and the Transport Department to drive them from the streets, their continued existence suggests that, despite their contribution to the arterial strangulation which is increasingly a feature of our road system, they may perform a social service; though no doubt many of those using them are unaware of the risk to which they are exposing themselves and other members of the public by virtue of the fact that invariably the insurance policy of such vehicles does not cover use for carriage for hire.

5. The Appellant was the driver of such a "pak pai" and was convicted of driving the vehicle for the carriage of passengers for hire or reward, contrary to the Regulation I have mentioned, and also of driving the vehicle without third party insurance contrary to s.4(1)of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272. On the first charge he was fined $150 and on the second $200 it being also ordered, in connection with the second charge, that he be disqualified from holding or obtaining a driving licence for twelve months. There was no limitation in respect of the class of motor vehicle to which this disqualification was to apply and it is against this aspect of his disqualification that the Appellant, a lorry driver, now appeals. The appeal has been referred to this Court by a single judge who, simultaneously with that reference, suspended the operation of the order for disqualification (save in so far as it related to private cars) pending the decision in this appeal.

6. In considering whether or not he had any discretion under the Motor Vehicles Insurance (Third Party Risks) Ordinance to limit the Appellant's disqualification to any particular class or classes of vehicle, the learned magistrate found himself in an initial difficulty by reason of the existence of conflicting decisions of the Supreme Court on that very point. In Reg. v. LEUNG Wan (No.1)⁽¹⁾ Huggins, J., following the English case of Burrows v. Hall⁽²⁾, had held that there was jurisdiction so to restrict such a disqualification whereas in CHENG For-Kar v. Reg.⁽³⁾ (as yet unreported) Leonard, J., whose attention was apparently never directed to Reg, v. LEUNG Wan (No.1)⁽¹⁾ or to Burrows v. Hall⁽²⁾ held that it was not open to a magistrate to impose a disqualification limited to a certain class of vehicles as he might do in respect of an offence under the Road Traffic Ordinance. The learned magistrate therefore considered, quite properly, that as far as he was concerned the matter was at large and that in the circumstances ho was not bound by Burrows v. Hall ⁽²⁾ In a thoughtful Statement of Findings the learned magistrate explains his reasons for the view that s.4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance requires disqualification in toto.

7. It will be convenient to set out s.4(2)(a) and 4(2)(b):-

8. Section 23 of the Road Traffic Ordinance (Cap. 220) reads in part:

9. The conclusion of the learned magistrate that, once an order is made disqualifying "from holding or obtaining a licence to drive a motor vehicle", that order is all embracing under s.4(2)(a) and cannot, at the same time, be a "disqualification imposed under this section" in terms of the proviso to s.23 of the Road Traffic Ordinance was that reached by Leonard J. in CHENG For-kar v. Reg.⁽³⁾ It was also the conclusion which commended itself to Huggins, J. in Reg. v. LEUNG Wan (No.1)⁽¹⁾ as being more logical and more consistent with the language of the statute than the decision in Burrows v. Hall⁽²⁾, although in the event the thought that he ought to assume that the Legislature, in adopting the language of the English statute after that language had been otherwise interpreted in Burrows v. Hall⁽²⁾, intended something different. Another eight years have passed since the decision in Reg. v. LEUNG Wan (No. 1)⁽¹⁾ and the reasons which impelled Huggins, J. to follow the short-lived Burrows v. Hall⁽²⁾ in 1964 (we say short-lived because in England the effect of that case was swept away by the 1956 Road Traffic Act, which took away the power of the Court to limit a driving disqualification to the driving of a motor vehicle of the same class or description as the vehicle in which the offence was committed) appear to us to have been fortified by the lapse of time. In CHENG For-Kar v. Reg.⁽³⁾ Leonard, J. said

"Disqualification of a professional driver

Representation:

(1) 1964 H.K.L.R. 327

(2) (1950) 2 All E.R. 156

(3) Cr. App. No. 316 of 1972.