Chan King-lam v. The Queen

CACC000698/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 698 OF 1971

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Coram: Rigby, C.J.

Date of Judgment: 7th January, 1972.

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JUDGMENT

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1. The appellant was convicted upon two summonses preferred against him of:

2. The facts were relatively simple and straightforward. On the morning of 3rd April, a police inspector on motor-cycle duty saw the appellant driving a motor-cycle along the road in what the inspector then regarded as "an unsteady manner". The police inspector followed him, stopped him and asked him to produce his licence. Upon production of the licence, the police inspector then saw that it was a Provisional Driving Licence for driving motor-cycles. The police inspector then noticed that the appellant had no 'L' plates displayed on the motor-cycle, either on the front or on the rear. He accordingly told the appellant that he would be summoned.

3. In his defence, the appellant maintained that he had an 'L' plate on the front of the motor-cycle but he conceded that when stopped by the police inspector there was no 'L' plate on the rear of the motor-cycle. As to the rear 'L' plate he said that when he had started off on his journey the 'L' plate had been attached to the rear of the motor-cycle by a piece of string and that it must have become detached and fallen off on route and before the police inspector stopped him. The police inspector admitted in cross-examination that there was a rope trailing at the rear of the motor-cycle and that the appellant had told him at the time the police inspector was examining the motor-cycle, that the rope was used to fasten the 'L' plate on the rear and that it must have fallen off.

4. The police inspector denied, however, that there was any 'L' plate displayed on the front of the motor-cycle. The motor-cycle did not belong to the appellant and it had been borrowed by him from a friend for his use on this occasion. Clearly, there was ample evidence to support the conviction on the first charge of driving the motor-cycle without displaying 'L' plates in breach of the conditions of the Provisional Driving Licence granted to the appellant and the appeal against the conviction and sentence - a fine of $40 - in respect of this summons is dismissed.

5. Following upon the conviction of being in breach of the conditions of the Provisional Driving Licence granted to him, the learned magistrate held that the appellant had no third party policy of insurance in force at the relevant time and, accordingly, he convicted the appellant upon the second summons. Upon such conviction, the learned magistrate held that there were no special reasons present which would justify him from departing from the otherwise mandatory provision of disqualification, consequent upon such a conviction, for the minimum statutory period of twelve months. He accordingly fined the appellant $100 in respect of the conviction on this summons and disqualified him from driving a motor-cycle for a period of 12 months.

6. In the course of the proceedings before the magistrate the appellant produced the Provisional Driving Licence granted to him and also the Third Party Insurance Policy and Certificate of Insurance issued to the owner of the vehicle which he had borrowed. That Third Party Policy of Insurance was still valid in point of time at the time the appellant was stopped whilst driving the motor-cycle. However, the magistrate, following the decision of Hogan, C.J. in the case of Lee Shiu-ting v. The Queen⁽¹⁾, held that permission to drive a motor-cycle on a Provisional Driving Licence ceased when the conditions imposed by the terms of that Licence were transgressed and that, therefore, at the time the appellant was driving the motor-cycle in breach of those conditions he was not covered by the terms of the Third Party Policy of Insurance.

7. Mr. Gunston, for the appellant, has sought to persuade me that the judgment of the learned magistrate and, by necessary implication, that of Hogan, C.J., was wrong. In support of his argument, he referred me to the case of Rendlesham v. Dunne; Pennine Insurance Company Ltd. (Third Party)⁽²⁾. That was a civil case arising out of a motor-car accident. The plaintiff claimed damages for injuries sustained as the result of a collision with a car then allegedly being negligently driven by the defendant. The defendant was the holder of a Provisional Driving Licence. At the time of the incident, the defendant, in breach of the conditions of the Provisional Driving Licence requiring that he should at all times when driving be accompanied by the holder of a full Driving Licence, was alone in the car whilst driving it. The defendant, when sued, issued a third party notice against his insurance company claiming to be indemnified both against the plaintiff's claim and the costs of the action. The Policy, in respect of the car being driven by the defendant, covered any person driving with the permission of the assured provided that "..... such person holds a licence to drive such motor-car." It was not in dispute that the defendant was, in fact, driving with the permission of the assured. It was submitted on behalf of the insurance company that the defendant did not hold a licence within the meaning of that proviso in that what he held was only a Provisional Driving Licence to which, by the Road Traffic Act, 1960 certain conditions were attached with one of which (namely, that he must be accompanied by the holder of a full licence) he had failed to comply. After expressing some surprise that the insurance company had thought fit to resist the claim on such a ground, the learned county court judge said:-

"I have not been referred to any authority in point, but I find it impossible to construe the policy so as to restrict the meaning of the word 'licence' to that of a full licence. It is conceded that in the Road Traffic Act, 1960, the word 'licence' is used to include both types of licence and I cannot think that it is possible to say that a man has not got a licence to drive a car on the road Merely because he has failed to comply with a condition upon which he has been granted a licence."

8. The learned county court judge held that although there had been a breach of a condition under which the provisional licence had been granted, the defendant was covered by the insurance policy and, accordingly, he gave judgment for the plaintiff against the defendant and further held that the defendant was entitled to be indemnified by the insurance company for the amount claimed and costs.

9. The relevant clause of the policy of insurance issued in the case now before me was in these terms:-

Provided that the person driving is permitted in accordance with the licensing or other laws or regulations to drive the Motor Cycle 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 the Motor Cycle."

I have no doubt that this is a common-form clause in such insurance policies: the proviso is in fact in terms identical with the proviso in the Lee Shiu-ting case⁽¹⁾ save that in that case the vehicle covered was a motorcar whereas in the present case it is a motor-cycle.

10. For my part, bearing in mind the serious implications and practical consequences which may well arise from the decision in the Lee Shiu-ting case⁽¹⁾ in relation to cases where the hapless victim of a motor-car or motor-cycle accident may seek to recover damages for his injuries from the driver of the offending vehicle who may be the holder of a Provisional Driving Licence and driving in breach of the conditions attached to that licence, I would infinitely have preferred to have followed the very much more liberal construction and interpretation taken by the county court judge in the Rendlesham case⁽²⁾ and to have held in the instant case that the mere fact that the appellant was driving in breach of a condition of his Provisional Driving Licence, did not, ipso facto affect the validity of the Third Party Policy of Insurance. But, regrettably, I feel impelled to follow what seems to me to be the entirely logical reasoning of Hogan, C.J. in the Lee Shiu-ting case⁽¹⁾. In that case, Hogan, C.J. contrasted the distinction between an ordinary driving licence and a Provisional Driving Licence and pointed out that the former is not issued subject to conditions limiting its efficacy and does not purport to restrict the right to those periods when the driver is observing all the rules of the road. The Provisional Driving Licence, on the other hand, does contain limiting conditions. He went on to say:-

"In other words, the permission" (in the case of a Provisional Driving Licence) "ceases when these conditions are transgressed, which is a very different matter. If this distinction is borne in mind then it does, I think, become clear that the permitted driving to which reference is made in the clause" (i.e. the proviso clause in the Insurance Policy) "means driving in accordance with the terms of the permission given; driving outside those terms is not permitted, whereas, in the case of the ordinary unrestricted licence, driving is permitted even though the holder of the permit may, at the time, be infringing traffic regulations. This does not mean that he has a permit to infringe those regulations but he does have a permit to go on driving even whilst doing so. ..... Sight must not be lost of the fact that what the insurance company is insuring is the use of the motor car whilst it is being driven by a person who has or has had permission from the appropriate authority. One would not normally say that a person was driving a car with my permission if, in fact, he was driving it in a manner and at a time and place which I had expressly forbidden."

11. The offence alleged is driving without having a Third Party Policy of Insurance - or other security in respect of third party risks - in force. To consider whether there has been an offence, one must look at the policy of insurance itself. Here, the condition which governs the validity of the policy is that:-

"..... the person driving is permitted in accordance with the licensing ..... laws or regulations to drive the Motor Cycle."

12. The relevant regulation provides that the person to whom a provisional licence is granted shall not drive a "motor vehicle except in accordance with the express conditions under which such Provisional Driving Licence has been granted." If he drives not in accordance with those conditions, how can it be said, within the express words of the policy itself, that his act of driving was "permitted in accordance with the licensing ..... laws or regulations"?

13. I have, therefore, albeit with very considerable reluctance, come to the same conclusion as Hogan, C.J. in the Lee Shiu-ting case⁽¹⁾ and, for that reason, I am of the opinion that the learned magistrate was correct in holding that there was no valid Third Party Policy of Insurance or security in relation to third party risks in force at the relevant time.

14. In my view, however, having regard to the fact that an entirely adequate penalty is provided in Regulation 24 of the Road Traffic (Driving Licences) Regulations for a person who infringes the conditions of a Provisional Driving Licence granted to him, it was both unnecessary and unreasonable, in the circumstances of this case, to have added the consequential and very much more serious charge of driving whilst uninsured. In this respect, I would most emphatically endorse the concluding words of Hogan, C.J. in the Lee Shiu-ting case⁽¹⁾, where he said:-

"One can well appreciate that there are cases where it is very appropriate or even essential for the police to bring a charge of driving without insurance cover. But where the real gravamen of the offence is a breach of the conditions of the driving licence and a suitable punishment is provided for that, I cannot help wondering whether, particularly when the matter turns on the difficult question of the proper construction to be placed on a none too clearly drawn clause in an insurance policy, it is really necessary or desirable to bring, in addition, the much more serious charge of driving without a policy, with its mandatory penalty."

15. In the result, the appeal against conviction and sentence on the summons under Section 4(1) of the Motor Vehicles (Third Party Risks) Ordinance will be allowed to the extent that in accordance with the provisions of Section 36(1)(a) of the Magistrates Ordinance, the appellant will be granted an absolute discharge with no conviction being recorded against him. It follows that the fine of $100 imposed upon him in relation to this summons and the order of disqualification for twelve months must both be set aside. The fine, if paid, must be refunded to the appellant and the order for disqualification must be expunged from his Provisional Driving Licence.

16. I would only add that I come the more readily to this conclusion since Crown Counsel, who appeared on the hearing of this appeal, did not seek to support the conviction on this summons.

Representation:

Gunston of Messrs. Gunston & Chow for Appellant.

Mrs. Jackson-Lickin, C.C. for Crown /Respondent.

(1) (1965) H. K. L. R. 1140

(2) (1964) I Lloyd's Rep. 192