Ng Lai Sim v. The Queen
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CACC000651/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 651 OF 1975 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 21st August 1975. ----------------- JUDGMENT ----------------- 1. The Appellant was charged before a magistrate that being the owner of a public light bus she permitted it to be driven on a road by a man who was not the holder of a driving licence in respect of that class of vehicle. 2. The case on appeal in the event turns on a very short point. There is no doubt that the Appellant was the owner of the vehicle. She employed a man called Tam to manage that vehicle. Mr. Tam also drove the vehicle during day-light hours but a man called Au was taken on to drive on the night shift. After a time the Appellant's son, CHEUNG Lap-ching, came into the picture, and the Appellant's own evidence was that Mr. Cheung "took over" from Mr. Au. The whole difficulty arises because we do not know clearly what was the position of Mr. Cheung. The learned magistrate has said in his Reasons that the management lay in Mr. Tam and Mr. Cheung, the son. Mr. Remedios contends that there is no sufficient evidence to justify that conclusion. There is no doubt that, if the driver of this vehicle had been permitted by Mr. Tam to drive, then the authority given to Tam by the Appellant would have been sufficient to make the Appellant liable, but the driver was not authorised by Tam: he was given permission by Mr. Cheung, the son. In my view the evidence did not justify the conclusion that Mr. Cheung had any power of management or any right to allow other persons to drive this vehicle. That being so, with respect to the learned magistrate, I think that he was wrong to come to the conclusion that there was such authority in the son. The mere fact that Mr. Cheung was the son of the Appellant did not by itself give him any authority at all: one is not to imply an authority simply by virtue of that relationship. 3. There was some evidence by the Appellant herself which may have led the learned magistrate to come to the conclusion that he did. She said that when Mr. Cheung took over from Mr. Au she did not impose on her son a condition which she says she had imposed on Mr. Tam, namely that only Mr. Tam and Mr. Au (or, as it later became, Mr. Tam and Mr. Cheung) should be allowed to drive. Mr. Tam's evidence was that he was authorised to allow other persons, but "not too many other persons", to drive and that was believed by the magistrate. It could be argued that there was really no need to impose the suggested condition on Mr. Cheung unless there would otherwise be an implied permission to him, also, to let other persons drive. However, I think that is altogether too vague and there was no evidence to support the finding that this Appellant permitted the driver to drive. That being so no question arises of the application of the proviso to s.5(5) of the Road Traffic Ordinance, which makes it unnecessary to prove guilty knowledge: that proviso does not arise until there has been a "permitting to drive". 4. For these reasons, in my view, this appeal must be allowed and the sentence set aside. 21st August 1975. Representation: |