HKSAR v. Chan Wai Man

[English Translation – 英譯本]
HCMA 717/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 717 OF 2003

(ON APPEAL FROM WSS NO. 1966 OF 2003)

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Before: Hon Deputy Judge Pang in Court

Date of Hearing: 20 August 2003

Date of Judgment: 20 August 2003

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JUDGMENT

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1.The Appellant pleaded guilty to, and was accordingly convicted on, one count of “using a motor vehicle without insurance in respect of third party risks”, contrary to section 4(1) and (2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272, Laws of Hong Kong. He was sentenced to a fine of $1,000 and a 12-month suspension of his driving licence. Acting in person, he now appeals against conviction and sentence.

Background

2.The Appellant was the owner and driver of the motorcycle in question. On 1 November 2002, he was driving his motorcycle along Pok Fu Lam Road and was intercepted by the police for speeding. The police found that the licence for the motorcycle had expired for almost one month. The Appellant was then charged with the abovementioned offence.

Appeal against conviction

3.The Appellant appeals against conviction despite of his guilty plea. He raises only one ground of appeal, which, put simply, is that the date of the summons showed that the prosecution had exceeded the time limit prescribed by section 26 of the Magistrates Ordinance, Cap. 227, Laws of Hong Kong, which required an information to be laid within 6 months from the time when the matter of such information arose. For this reason, the magistrate should have dismissed the charge.

4.This argument is in fact a reiteration of an argument to the same effect which Counsel for the Appellant had put forward at trial and which the magistrate had rejected.

5.It was an undisputed fact that the police had issued several summonses to the Appellant. The earliest summons was dated 13 February 2003, whereas the latest summons (which was also the only summons that the Appellant had received) was dated 2 June 2003. The only reason given was that the Appellant had changed his address and the earlier summonses failed to reach the Appellant.

6.In other words, the first summons was indeed issued within 6 months from the date of the offence. Under the common law (or case law), in the above circumstances, the second, third and subsequent summonses were an extension of the first summons and, provided that all these summonses originated from the information that had been laid within the statutory time limit, it did not matter that these summonses themselves exceeded the statutory time limit: see Archbold 2003, 1-201.

7.On this issue, I notice that whether in the first summons or the last summons, the information was expressly stated to be laid on 12 February 2003 by Cheung Ho Kit, Sergeant at the Central Traffic Prosecutions Bureau, Hong Kong. This was in compliance with the aforesaid requirement under common law or case law. The magistrate also mentioned this in her oral verdict.

8.Furthermore, section 4(3) of the Motor Vehicles Insurance (Third Party Risks) Ordinance provides that, notwithstanding any other statutory provisions, “proceedings” for an offence under section 4(3) may be brought “within a period of 6 months from the date of the commission of the alleged offence; or within a period which exceeds neither 3 months from the date on which it came to the knowledge of the prosecutor that the offence had been committed nor 1 year from the date of the commission of the offence, whichever period is the longer”. Put simply, this means exceeding the 6 months prescribed by section 26 of the Magistrates Ordinance.

9.This conclusion of course depends on the meaning of “proceedings”. In the absence of a different interpretation being offered by either party, I agree with the magistrate’s view that the term “proceedings” is equivalent to (or at least includes) the “information” mentioned above. This is the only reasonable interpretation that can be placed on the Ordinance.

10.On this basis, leaving aside the fact that the information in the present case was laid 12 days after the date of the offence, the last summons was issued merely 7 months from the date of the offence, and this was in full compliance with section 4(3) of the Motor Vehicles Insurance (Third Party Risks) Ordinance.

11.The Appellant’s appeal against conviction is dismissed.

Appeal against sentence

12.The Appellant’s ground of appeal is that, in relying on the case of Chan Yiu Nam [2001] 1 HKC 570, the magistrate had accorded too much weight to the fact that the defendant in that case was only a driver and not the owner of the vehicle in question, and had neglected the fact that although the Appellant was the owner of the motorcycle in question, he also had “special reasons” for exemption from suspension of his driving licence. What he means is this: he owns two motorcycles, one of which (i.e. the one involved in the present case) is frequently used whereas the other is not. In any event, all expenses of the two motorcycles are borne by the Appellant’s employer, but unfortunately the employer has, without the Appellant’s knowledge, only taken out insurance for the seldom used motorcycle, and as a result the Appellant has fallen into the legal trap.

13.The magistrate had in fact addressed the Appellant’s contention. She said:

The defence seeks to rely on the case of Chan Yiu Nam and point out that the defendant has no knowledge whatsoever of the lack of third party insurance for the motorcycle in question. This argument cannot be sustained. In Chan Yiu Nam, the defendant was not the car owner and he merely borrowed a car from a friend by chance, upon which the offence was committed. In the present case, however, the defendant is the owner of the motorcycle and frequently uses that motorcycle. He does know or ought to know matters relating to third party insurance for his motorcycle, and he cannot and should not delegate this responsibility to any other person. In HKSAR v Kwan Chi Wah [HCMA 1251/1999], Deputy High Court Judge To said in his judgment that:

… the Ordinance imposes a strict liability on the owner to insure for third party risks. Because this is a strict liability, one cannot delegate responsibility without retaining residual supervision. If an owner may delegate responsibility and rely on that as a special reason then the second most powerful sanction under section 4 would be rendered nugatory.

Furthermore, according to the letter from the defendant’s employer, “[the defendant] may seek reimbursement from the company for the licence fees, insurance and gas charges in respect of his personal motorcycle” (emphasis added). This appears to mean that the defendant is to pay the expenses first and then claim reimbursement from the company, and does not mean (as Counsel for the defendant suggests) that all matters and expenses relating to insurance are arranged and paid by the company.

14.The above analysis, which involves certain findings of fact, is in my view wholly reasonable. I cannot interfere with the analysis and findings without good reasons.

15.The Appellant’s appeal against sentence is also dismissed.

Ms. Rosaline Leung, Senior Government Counsel, for the HKSAR.

The Defendant in person.

Translated by Mr. Edmund Cham, Solicitor