Mak Dick Chung v. The Queen
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CACC000112/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 112 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 19 April 1968 ----------------- JUDGMENT ----------------- Huggins, J.: The appellant was the driver of a dual purpose vehicle and was charged before the magistrate with having unlawfully carried in it passengers for hire or reward contrary to Regulation 29(2) of the Road Traffic (Registration & Licensing of Vehicles) Regulations. It was further alleged that he drove the vehicle without third party risks insurance which was valid when the vehicle was being so used. 2. The particulars of the first charge were as follows:-
No doubt advisedly the solicitor who represented the appellant before the learned magistrate took no point as to the validity of the charge and Mr. Hampton has therefore not sought to take any such point on the appeal: he has been content to argue the case as though the closing words of the particulars were "which was registered as a dual purpose vehicle for use as a private car and as a goods vehicle". That the particulars should have been so drafted is apparent when one considers the precise terms of Regulation 29(2), the material parts of which are as follows:-
Mr. Hampton's argument has been that there was no evidence or no sufficient evidence that the appellant's vehicle was a dual purpose vehicle of the kind described in the Regulation. 3. At this stage it is convenient to examine the statutory provisions relating to dual purpose vehicles. Section 2(2) of the Road Traffic Ordinance lays down a classification of motor vehicles for the purposes of the Ordinance and Class (j) contains only "dual purpose vehicles". However, the Ordinance goes on to define dual purpose vehicles as follows -
It will be seen that sec.2(2) does not contemplate any further classification of motor vehicles but by sec.4(1) -
It was in the exercise of powers conferred by sec.4 of the Ordinance that the Governor in Council enacted the Road Traffic (Registration and Licensing of vehicles) Regulations. Regulation 19 prohibits, with certain exceptions, the use of any motor vehicle on a road unless licensed under that Regulation. It is further provided that any person who wishes to have a motor vehicle licensed must pay the appropriate fee specified in the Third Schedule. Item 16 of the Third Schedule prescribes the fees for dual purpose vehicles in these terms:-
It is by virtue of these provisions 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). 4. As evidence of registration the prosecution produced a certified true copy of an extract from the Register of Motor Vehicles. This showed the classification of the appellant's vehicle as "dual purpose" and it further showed that a licence fee of $480 was payable. What the dual purposes were was not stated, but Mr. Hampton is prepared to concede that the figure of $480 as licence fee is appropriate only to (a) a private car and goods vehicle or (c) a public car and goods vehicle - but not to (b) a taxi and a goods vehicle. Therefore, he says, on the evidence before the court the appellant's vehicle might have been a public car and goods vehicle, the use of which for the carriage of passengers for hire or reward would not be an offence under Regulation 25(2). It might well be that if the vehicle were a public car and goods vehicle the appellant was guilty of other offences under the Regulations but that is immaterial for the purposes of this case. The certificate of insurance which was produced to the learned magistrate is not before me but it has not been suggested that that document, even if it showed that the vehicle was registered as a private car and goods vehicle, would displace the clear evidence of the copy extract from the Register itself. 5. In my view the argument advanced on behalf of the appellant is sound. If it be desired to make use of regulations which depend for their validity upon the sub-division of the classification in sec. 2(2) of the Road Traffic Ordinance it seems to me that greater precision is required in the details recorded in the Register of Motor Vehicles. 6. In the circumstances it is unnecessary to consider the further grounds of appeal which were argued on behalf of the appellant. The appeal against conviction on the first charge must be allowed and the sentence set aside, and the fine, if paid, must be repaid to the appellant. 7. It is not contested that the conviction on the charge of driving when uninsured was wholly dependent upon there being sufficient evidence to justify a conviction on the first charge. A certificate of insurance was produced and there was uncontradicted evidence that it was in force: the contention for the prosecution had been that the insurance was avoided by reason of the use of the vehicle for a purpose for which it was not registered. Such use not having been proved, the conviction on the second charge must likewise be quashed, the sentence and order of disqualification set aside and the fine repaid. 19th April, 1968. Representation: Hastings & Co for Appellant. K. Mok. C.C. for Respondent. |