HKSAR v. Dineley Robert Andrew and Another

HCMA990/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 990 OF 2008

(ON APPEAL FROM ESCC 2332 OF 2008)

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Before: Deputy High Court Judge Lugar-Mawson in Court

Date of Hearing: 4 March 2009

Date of Judgment: 4 March 2009

Date of Reasons for Judgment: 5 March 2009

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J U D G M E N T

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1.The 1^st appellant,Andrew Robert Dineley (“Andrew”) and the 2^nd appellant, Paul Dineley (“Paul”), are brothers of British (UK) nationality, resident in Hong Kong.  They are partners in an unincorporated decoration business, registered in the name of G.G. Dineley & Sons (Asia).  The business owned a Mazda van, registration number LK 9376, which was registered and insured in Paul’s name.

2.Around 10.45 p.m. on 3 March 2008, while Andrew was driving the van, it was stopped in a routine police traffic check.  Andrew was unable to produce a driver’s licence.  He had reported its loss to the police on 7 May 2007.  It was subsequently found that it was a United Kingdom licence, which although by virtue of Regulation 37 of the Road Traffic (Driving Licences) Regulations, Cap. 374B  (“the Driving Licences Regulations”) permitted Andrew to drive in Hong Kong as a visitor when he first arrived here, no longer gave him that permission once he became a resident.  He could have obtained the issue of a Hong Kong driving licence by producing his United Kingdom licence and paying the prescribed fee.

3.It was also found that the van’s vehicle licence had expired on 13 June 2007.

4.Andrew was charged with:

(1) driving without a driving licence contrary to sections 42(1) & (4) of the Road Traffic Ordinance, Cap. 374 (“the Ordinance”);

(2) driving an unlicensed vehicle contrary to sections 51(1)(a) & 52(1)(a) of the Ordinance; and

(3) using a vehicle without third party insurance contrary to sections 4(1) & 4(2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272 (“the Third Party Risks Ordinance”);

5.Paul was charged with:

(4) permitting a driver to drive without a driving licence contrary to sections 42(3) & (4) of the Ordinance;

(5) permitting to drive an unlicensed vehicle contrary to sections 51(1)(b) & 52(1)(a) of the Ordinance;

(6) permitting use of a vehicle without third party insurance, contrary to sections 4(1) & 4(2)(a) of the Third Party Risks Ordinance.

6.On 6 May 2008, Andrew and Paul appeared unrepresented at Eastern Magistracy and each pleaded guilty to the charges against them, admitted the brief facts and were convicted.  However, on 18 & 30 June 2008, after receiving legal advice, they made a successful application for leave to withdraw their pleas on charges 3 & 6, relating to the lack of third party insurance.  They did not ask for a review of their convictions or sentences on charges 1, 2, 4 and 5, for which they received fines only.

7.Their trial on these charges took place on 15 October 2008 before Special Magistrate Veronica Heung Shuk Han.  Both were convicted.  Andrew was fined $2,000 and disqualified from holding or obtaining a driving licence for 12 months.  Paul was fined $2,000 and disqualified from holding or obtaining a driving licence for 12 months.

8.Andrew now appeals against his conviction.  Paul now appeals against his conviction and sentence.

9.The facts of the case were not disputed and were agreed pursuant to section 65C of the Criminal Procedure Ordinance.  Neither Andrew nor Paul gave evidence at trial.

10.It was agreed that Andrew first arrived in Hong Kong on 24 May 1995 as a visitor and was permitted to remain until 24 May 1996.  At the time of his arrival he held, and still holds, a United Kingdom driving licence, No. 17885748 issued by the Northern Ireland Authorities.  This licence permits him to drive vehicles of various categories including a light truck or van such as the one he was driving on 3 March 2008.  The licence’s validity runs from 3 August 1989 to 29 March 2012.  The licence has never been suspended.  Andrew has never been disqualified from driving or obtaining a licence to drive either in the United Kingdom or in Hong Kong.  Andrew became a Hong Kong resident in November 1995.  He currently holds a Hong Kong Permanent Identity Card No. P551817(6).

11.The van was insured under a third party insurance policy issued by the Pacific Insurance Company and valid from 24 May 2007 to 23 May 2008.  The insured was Paul and cover under the policy was extended to the ‘insured driver.’  This term is defined in clause 5 of the policy as being:

“(a)    whilst the vehicle is used in connection with the Insured’s business or the business of any person to whom the Motor Vehicle is hired;

(i)    the Insured or any other person who is in the Insured’s employ and is driving on the insured’s order or with his permission; or

(ii)   … irrelevant;

(b) whilst the Motor Vehicle is used for social, domestic or pleasure purposes, the Insured or any other person who is driving on the Insured’s order or with his permission:

PROVIDED that the person driving holds a licence to drive the Motor Vehicle or has held and is not disqualified from holding or obtaining such a licence and the term ‘licence’ means a licence or other permit required under the laws or regulations or by the licensing authority of the Geographical Area.”

12.The policy defines ‘the Geographical Area’ as the territories of Hong Kong.

13.It was accepted at trial that Andrew was driving with the insured’s (Paul) permission; although it was not ascertained if the driving was in connection with the brothers’ business, or if it was for social, domestic or pleasure purposes.  Given that the van was stopped at 10.45 p.m., I believe that there can be no doubt that the driving was for social, domestic or pleasure purposes.  The use, however, should have been ascertained as it could have been determinative of the question as to whether or not the driver was covered by the third party insurance policy.  This should be done in future prosecutions for offences contrary to sections 4(1) & 4(2)(a) of the Third Party Risks Ordinance where the driver claims to have been acting on the insured’s orders, or with his permission.

14.At trial, it was argued by their solicitor, Mr Beukema, that as Andrew had held a valid United Kingdom driver’s licence ever since arriving in Hong Kong as a visitor in 1995, and had never been disqualified from holding or obtaining a licence, either in the UK or in Hong Kong, and as Regulation 37 of the Driving Licences Regulations had permitted him to drive in Hong Kong as a visitor on the authority of his United Kingdom licence for the 12 months following the date of his entry into Hong Kong, the correct reading of the proviso to clause 5 of the policy, by its use of the past tense in the phrase ‘… or has held and is not disqualified from holding or obtaining such a licence…’, was that he had been covered by its terms when driving the van on 3 March 2008 and therefore was not driving whilst uninsured against third party risks.

15.Regulation 37 of the Driving Licences Regulations provides:

“(1)    Subject to paragraph (2), a visitor who holds–

(a)   a valid international driving permit; or

(b)   a valid domestic driving permit or domestic driving licence, issued in a place outside Hong Kong may drive in Hong Kong, during the period of 12 months following the date of his last entry into Hong Kong, a motor vehicle of any class which he is authorized by that permit or licence to drive notwithstanding that he is not a holder of a driving licence issued under these regulations, but so long as he has attained the age specified in regulation 7 for the issue of such driving licence in respect of the class of motor vehicle.

(2) Paragraph (1) shall not authorize a person to drive a motor vehicle of any class if he is disqualified from holding or obtaining a driving licence to drive a motor vehicle of that class.”

The word ‘visitor’ is not defined either in the Driving Licences Regulations, or in the Ordinance.

16.The Magistrate did not accept Mr Beukema’s argument; she held that the proviso to clause 5 meant that:

“The 1^st appellant came within paragraph 5 of the Certificate of Insurance.  The definition of licence where reference is made to licensing or other laws or regulations must of necessity refer to the relevant Hong Kong legislation.  The plain and obvious meaning of the proviso to clause 5 of the Certificate of Insurance is that the driver must hold a licence or permit issued by the relevant Hong Kong authority or be permitted to drive in Hong Kong by reason of an exemption to that requirement, or that the driver has held and is not disqualified from holding or obtaining such a licence.  Here, for ‘such a licence’, it means a licence or permit issued by the relevant Hong Kong authority (HKSAR v. Wong Chau Chi HCMA 1171/2007).

The appellants… sought to argue that the wording of paragraph 5 of the Certificate of Insurance and in particular the proviso meant the 1^st appellant was insured as he had once been permitted to drive in Hong Kong on his UK licence when he first came here in May 1995 on a tourist visa and he still held a UK licence on the date of the offence. I did not agree.  As soon as the 1^st appellant had become a resident of Hong Kong his UK licence (whether expired or not) became invalidated i.e. he was no longer entitled to drive in Hong Kong on the strength of the UK licence. Since then, whether or not his UK licence had expired, he was only permitted to drive in Hong Kong on a licence or permit issued by the relevant Hong Kong authority.”

17.Mr Beukema advanced the same argument before me.  I am in agreement with him.  The case of R v. Cheung Kwong Siu [1976] HKLR 871, which he relied on, concerned a driver whose driving licence had expired.  He was unrepresented at trial and pleaded guilty to offences of driving without a valid driving licence and without third party insurance.  He was fined and disqualified from driving for 12 months.  He appealed against the disqualification.  After hearing argument, Morley-John  J treated the appeal as one against conviction on the insurance offence and remitted the case back to the magistrate for retrial.

18.In his judgment, Morley-John J said this, at pages 872, 873:

“In this case from her statement of findings the learned magistrate would appear to give the impression that she believes that if a person’s driving licence was out of date then automatically such a person was driving without third party insurance.  This clearly is not so.  The question of insurance cover depends upon the wording of the relevant policy.  In this case upon the appellant agreeing that he was consequently without third party insurance cover the learned magistrate recorded a plea of guilty without more ado.  The normal proviso regarding drivers in a private motor vehicle policy is as follows:

‘Provided that the person driving is permitted in accordance with the licensing or other laws or regulations drive the motor car or has been so permitted and is not disqualified by order of a court of law or by reason of any enactment or regulation in that behalf from driving such motor car.’

The insurance policy in relation to the car being driven by the appellant contains this proviso.

The learned author of Wilkinsons’ Road Traffic Offences 8th Edition states at page 368:

‘A common form of policy allows driving with the permission of the insured person by any person who holds or has held a driving licence and is not disqualified.  Thus if the driver has once held a driving licence he will be covered even though it may have expired.’

The learned author quotes the case of Edwards v. Griffiths [1953] 2 All ER 874…Although this case turned primarily on the meaning of the phrase ‘disqualified from holding or obtaining a licence’ it is clear from that case that if a driver has once held a driving licence he will be covered even though it may have expired, so long, of course, as he is not disqualified from holding or obtaining a licence.”  [The emphasis is supplied in the report]

19.Morley-John  J followed the same reasoning in another Magistracy Appeal heard before him on the same day (22 October 1976); R v. Fung Siu Kwan [1973–1976] HKC 496.  Li J also followed Cheung Kwong Siu in the personal accident action Luk Bik Yu v. Fong Wing Fook Alfred & Anor HCA No. 2819 of 1976 (unreported).  Although now over 30 years’ old, it appears that the decision in Cheung Kwong Siu has never been overruled, or called into question.

20.The passage from Wilkinson’s Road Traffic Offences 8^th edition quoted by Morley-John J is found, in much the same form, in the present 23^rd (2007) edition.  The current wording, at para. 10.22, page 1/686, is:

“A common form of policy allows driving， with the permission of the insured person, by any person ‘who holds or has held a driving licence’ and is not disqualified, or any person ‘who holds or has held a driving licence’.  The exact wording should always be checked.  With that form of wording, if the driver has once held a driving licence, he will be covered even though it may have expired and even though it was only provisional.”

21.It was agreed at trial that Andrew’s initial immigration status in Hong Kong was that of a visitor.  For the 12 months following the date of his entry into Hong Kong, so long as he retained that status, Regulation 37 of the Driving Licences Regulations permitted him to drive in Hong Kong on the authority of his United Kingdom licence.  The Magistrate fell into error when she held that Andrew’s United Kingdom licence became ‘invalidated’ when he became a Hong Kong resident.  It did not, it remained a perfectly valid licence, but one that no longer permitted him to drive here.  However, the fact that his permission to drive in Hong Kong as a visitor holding a United Kingdom driving licence ended in November 1995, when he ceased to be a visitor and became a resident, does not take away the fact that he once—admittedly nearly over 12 years ago—had permission required and in fact granted to him, by regulations of Hong Kong to drive the vehicle covered by the insurance policy.  And that was sufficient to put him within the ambit of the proviso to clause 5 of the policy.

22.Both the Respondent and the Magistrate relied on the case of HKSAR v. Wong Chau Chi HCMA No. 1171 of 2007 (unreported).  Wong Chau Chi can be distinguished and I am in no way bound by it.  The appellant in that case, who travelled extensively out of Hong Kong, claimed to be a visitor within the meaning of Regulation 37 of the Driving Licences Regulations and therefore permitted to drive here on his Californian driving licence.  He held a Hong Kong Permanent Identity Card and his wife and children lived here.  The issue at trial was; was he a visitor?  The magistrate decided that he was not and thus not permitted to drive here as the holder of a Californian driving licence.  The decision was upheld on appeal.

23.Although the appellant in Wong Chau Chi faced (among other charges) a charge of using a vehicle without third party insurance contrary to sections 4(1) & 4(2)(a) of the Third Party Risks Ordinance and was convicted of that charge, and the conviction upheld on appeal; all the judge said in relation to it was this, at page 11 of the judgment:

“29.   The policyholder is the appellant’s wife. He came within paragraph 5(b).  The definition of licence where reference is made to licensing or other laws or regulations must of necessity refer to the relevant Hong Kong legislation.  The plain and obvious meaning of the proviso to clause 5 of the Certificate of Insurance is that the driver must hold a licence or permit issued by the relevant Hong Kong authority or be permitted to drive in Hong Kong by reason of an exemption to that requirement.  The appellant sought to argue before the magistrate and before me that the wording of paragraph 5 and in particular the proviso would permit him to drive on his Californian licence in Hong Kong.  The magistrate did not agree and neither do I. The intent of clause 5 and the proviso to it is obvious and unambiguous.

30. The insurance policy only covered the appellant if he satisfied the magistrate that he was a visitor pursuant to Regulation 37(1)(b).  If he did not he was not insured.”

24.The decision in Cheung Kwong Sui was not considered, neither was the commentary in Wilkinson’s Road Traffic Offences.  I am sure that had the judge received the same benefit of argument on the point as I have, his decision in relation to the Third Party Risks Ordinance offence would have accorded with mine.

25.In Cheung Kwong Siu, Morley-John J, at page 874, quoting words of Lord Goddard CJ in Edwards v. Griffiths, stressed the need before bringing prosecutions under section sections 4(1) & 4(2)(a) of the Third Party Risks Ordinance, where the defence is that the defendant had the required insurance cover, for the prosecuting authority to ascertain the exact terms of the policy. I echo what he said.  If that is the defence, it is incumbent upon the advising public prosecutor to see the policy and to satisfy himself that its terms do not extend the cover required by the Third Party Risks Ordinance to the prospective defendant.  It would be best, wherever possible, for this to be done before any charge is laid.  As, by virtue of section 94A of the Criminal Procedure Ordinance, the burden of proving that he has the required cover falls upon the defendant, persuading him to produce the policy should not be difficult.

26.For the reasons given, I quash Andrew’s conviction for using a vehicle without third party insurance contrary to sections 4(1) & 4(2)(a) of the Third Party Risks Ordinance, remit his fine and quash his 12-month disqualification.  I also quash Paul’s conviction for permitting use of a vehicle without third party insurance, contrary to the same sections of the Third Party Risks Ordinance, remit his fine and quash his 12-month disqualification.  Both Appellants are granted their costs in respect of the review proceedings before the magistrate on 18 & 30 June 2008, as well as their trial on 15 October 2008 and these proceedings before me.  The costs are to be taxed if not agreed.

Ms Lily Ho May Yu, SPP of the Department of Justice, for HKSAR

Mr John Beukema, of M/s Littlewoods, Solicitors, for the Appellant