Chan Tai-lee v. The Queen
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CACC000667/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.667 OF 1972 -----------------
Coram: Rigby, C.J. Date of Judgment: 16th December, 1972. ----------------- JUDGMENT ----------------- 1. On the 2nd September the appellant appeared before Mr. Millar in the South Kowloon Magistracy on two charges: one, of driving a motor vehicle registered as a private car, on a road, for the carriage of passengers for hire or reward and the other charge, the usual consequential charge of using such vehicle in circumstances in relation to which there was not at that time in force a valid policy of insurance or security in respect of third party risks. Upon coming before the magistrate he pleaded not guilty to both those charges and the case was then adjourned to the 5th September for hearing. Upon the resumed hearing on the 5th September before another magistrate, Mr. Crawshaw, the appellant maintained his pleas of not guilty to both charges, whereupon the prosecution asked for - and I quote from the record of the magistrate - the "amendment of both charges to one of soliciting." Technically, I doubt whether that was an amendement of the charge so much as the preferment of a fresh charge. It is clear, however, that the more serious charge of using a private motor vehicle in such circumstances without having a valid policy of insurance or security in respect of third party risks in force, was abandoned. However, to that amended charge of soliciting passengers the appellant pleaded guilty. The brief facts were then put before the magistrate and, according to the record, admitted by the appellant as correct. The facts were of a nature that were all too common in such cases. 2. Two police officers, one male and one female, were on plain clothes duty. No doubt they had been especially detailed for duty in connection with the apprehension of persons driving private cars who seek to pick up passengers for hire or reward. In this instance the appellant stopped his car in front of them as they were standing on the pavement and asked them if they wanted a car. They replied in the affirmative, got into the car and were driven to their destination. It is said that the fare had been agreed upon in the sum of two dollars. As one or other of the police officers was about to hand over the fare, the appellant apparently suddenly became suspicious as to their identity and refused to accept payment. Assuming that the fare had, in fact, been agreed upon and that it was understood that it was to be paid at the end of the journey, it is difficult to appreciate why it was considered necessary to withdraw the original charge of driving a private motor vehicle for the carriage of passengers for hire or reward and to substitute in its place the charge of soliciting. However, the fact remains that that was done; the more serious charge of driving the said vehicle without valid third party insurance was withdrawn and the "amended charge of soliciting passengers" substituted therefor. The appellant had a clear record. He was employed as a cutter and tailor earning $400 a month, of which he remitted $100 per month to his parents in China. The magistrate imposed a fine of $100 and he also made an order disqualifying the appellant from holding or obtaining a driving licence for a period of six months. 3. The magistrate has given valid reasons for imposing the order of disqualification. He pointed out that this type of offence was all too common in Hong Kong and he further stressed the following relevant matters which are inherent in offences of this nature, namely:-
4. Finally, he mentions that the appellant was not earning his livelihood as a motor vehicle driver and that such driving was really incidental to his business occupation as a cutter and tailor. 5. On the other hand, I am informed by Crown Counsel that disqualification from driving is not a normal penalty imposed by magistrates throughout the Colony for the commission of this particular offence, and it is only where the more serious charge of driving in such circumstances without a valid policy of insurance is preferred, and a conviction arises thereon, that an order for disqualification is made. It is clear, of course, that where the more serious charge under section 4(2) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, is preferred and a conviction obtained, that a mandatory period of twelve months' disqualification is imposed unless good reason is shown why it should not be so imposed. 6. The point taken by Mr. Winter, who appears for the appellant, is really two-fold: first, he submitted as a matter of law that on a conviction for the charge of soliciting passengers no order for disqualification could validly be imposed; secondly, he urges that, in the circumstances of the case, it is contrary to the normal practice of magistrates to impose an order for disqualification and, for that reason, the order should be set aside. 7. Section 23 of the Road Traffic Ordinance provides:
8. The regulations under which the appellant was prosecuted, and the charge and offence to which he pleaded guilty, were made under the Road Traffic (Registration and Licensing of Vehicles) Regulations. Those regulations were themselves made under the Vehicle and Road Traffic Ordinance (then Cap. 220) and, by virtue of section 36(1) of the Interpretation and General Clauses Ordinance, continue to have the like effect as if they had been made under the Road Traffic Ordinance enacted in 1957. 9. There can be no doubt that the appellant, having solicited the two passengers, drove the car to the required destination. Whilst so driving such passengers for an agreed sum to be paid, he was using the car for hire or reward without there being in force in relation to such user, a valid insurance policy. Whether or not any specific charge under section 4(2) of the Motor Vehicle Insurance (Third Party Risks) Ordinance was preferred against him, he was clearly committing an offence "under this Ordinance (i.e. the Road Traffic Ordinance) or under any regulations made thereunder in connexion with the driving of a motor vehicle". I am in no doubt that in such circumstances the magistrate was empowered to make an order under section 23(1) of the Ordinance for disqualification. 10. I ought, perhaps, at an earlier stage, to have mentioned the fact that the magistrate in his Statement of Findings, has referred to the fact that in an earlier case which went on appeal - Criminal Appeal No. 449/71 - he had made a similar order for disqualification and that order was not interfered with or set aside on the hearing of the appeal. That is, indeed, correct, although I note that no formal judgment was given by the learned judge upon the hearing of the appeal. I take note of what Crown Counsel has told me that it is, indeed, not the practice in the Magistrates Courts to make an order for disqualification where the charge is only one of soliciting passengers and the usual additional charge of using a motor vehicle without third party insurance is not preferred. I have indicated my view that where there is evidence that the vehicle has, in fact, been driven whilst containing passengers solicited for hire or reward, I can see no valid reason in law why the usual charge under the Motor Vehicle Insurance (Third Party Risks) Ordinance should not be preferred. However, bearing in mind that the order made by the magistrate appears to be a departure from the normal practice of the magistrates and, to that extent, the appellant may justifiably regard himself as unlucky to have come before this particular magistrate, I think it appropriate to order that the period of disqualification should be varied to one of seven weeks, to run as from the day the order was made by the magistrate. 11. I have sought to make it clear that persons who make use of private cars for the purpose of soliciting passengers for hire or reward render themselves liable to a period of disqualification even though no express charge is preferred against them under section 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance. This decision should, therefore, serve as a clear warning to persons in future who are minded to commit the same offence. Representation: Winter of (Messrs. Gordon Hampton & Winter) for Appellant. Keil, S.C.C. for Crown/Respondent. |