BabelCite

The Kowloon Motor Bus Co. (1933) Ltd. v. The Queen

Case No.CACC 772/1973
Court
Court of Appeal
Date08 Dec 1973
Judge—
Case Document
100%

CACC000772/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 772 OF 1973

-----------------

BETWEEN    
  The Kowloon Motor Bus Co. (1933) Ltd. Appellant
  and  
  The Queen Respondent

-----------------

Coram: Leonard, J. in Court.

Date of Judgment: 8th December, 1973.

-----------------

JUDGMENT

-----------------

1. The appellant in this case appeals against a conviction for having on the 14th November 1972 caused to be used on a road at Sheung Fung Street in Kowloon Kowloon Motor Bus AR 7725 in contravention of Regulation 104(1) of the Road Traffic (Construction and Use) Regulations in that all the tyres of that vehicle were not maintained so as to be free from any defect which might cause danger to persons on or in the vehicle or any other person using the road.

2. In the court below there was evidence that the bus was inspected after it had been involved in an accident while it was on a scheduled run. Apparently the brakes of the bus failed and it crashed into a lamp-post. Providentially no one was hurt.

3. The inspection revealed, that the speedometer was not working; secondly, that of the six tyres in use three were bald, there was no tread pattern left on them at all, it had completely disappeared; and thirdly, the brakes were defective because the front brake hose was leaking as a result of its having constantly come into contact with one of the wheels of the vehicle so that there was no reaction whatsoever when the brakes were applied. For reasons into which it is unnecessary to go here, the learned magistrate held there was no case to answer to charges of using a vehicle with a defective speedometer and using a vehicle with defective brakes, so that the only matter before me is that relating to the tyres.

4. The charge is that of "causing" the vehicle to be used on the road. Originally the defendant company was charged that they "did use" the vehicle. For some reason best known to himself in the course of the trial the prosecuting officer applied to the court to amend the charge. It was amended to "did cause to be used" the said vehicle.

5. There was ample evidence before the learned magistrate on which he was entitled to find and did find that on the occasion in question the motor bus belonged to the appellant, that it was driven on its behalf by its driver, on a regular, scheduled run and that three of its tyres were completely devoid of tread pattern. From these facts the learned magistrate inferred that the appellant used the bus on the day in question and caused it to be used. He went on to infer however that :

"(f) since the defendant company through its agents at management level had caused the said bus to be used at the time and place aforesaid and, since the lack of tread pattern on tyres the size of those fitted to single decker buses is glaringly obvious, those agents either knew of that lack or 'shut their eyes to avoid seeing the glaringly obvious';  
(g) the lack of tread pattern on a tyre is a defect which might in many ways cause danger to persons on or in the vehicle and other persons using the road."  

There are four grounds of appeal, firstly,

"That there was no evidence to support the learned magistrate's finding at page 14 of the Record, sub-paragraph (f), that 'the defendant company through its agents at management level had caused the said bus to be used at the time and place aforesaid.'"

Leaving aside for the moment the meaning of the expression "caused to be used" I have no doubt that the defendant company through its agents at management level had directed the use of the bus at the time and place in question. The bus was manned by the conductor and driver employed by the defendant and was on a scheduled run. Its activities must therefore have had the approval of the "management level".

6. The second ground of appeal was :

"that the learned magistrate was wrong in finding at page 14 of the Record, sub-paragraph (f), that 'the lack of tread pattern on tyres the size of those fitted to single decker buses is glaringly obvious' in that there was no evidence before the learned magistrate as to the size of the tyres fitted to single decker buses."

Whatever about the size of the tyres, I should have thought that "obviousness" of baldness on the tyres would be apparent only to one who looked at them and there was no evidence before the learned magistrate that anyone at "management level" had done so.

7. The third ground of appeal was :

"that the learned magistrate's finding at page 14 of the Record, sub-paragraph (f), that 'those agents' (meaning the agents of the defendant company at management level) 'either knew of that lack or "shut their eyes to avoid seeing the glaringly obvious"' is wrong in that it was completely unsupported by evidence."

Here again it is quite true that there was no evidence as to whether the agents of the defendant company at management level either knew of that lack or shut their eyes to avoid seeing the glaringly obvious. Indeed, there is no evidence that any of the agents of the defendant company at management level saw the vehicle at any time that day. I sincerely hope they did not since to have permitted this vehicle to be on the road, in its then state would have amounted to negligence in the highest degree.

8. The fourth ground of appeal was :

"that the learned magistrate's finding at page 14 of the Record, sub-paragraph (g), that 'the lack of tread pattern on a tyre is a defect which might in many ways cause danger to person on or in the vehicle and other persons using the road' is wrong in that there was no expert evidence to show the likely consequences of a vehicle being driven on a road while having one or more 'bald' tyre or tyres completely devoid of tread pattern."

As to this I consider it unarguable to that a magistrate is entitled to take judicial notice of the fact that baldness in tyres might in many ways cause danger to persons using the vehicle or using the road. I think it is quite notorious even among the very young that a defect of this nature in a tyre on a motor bus is fraught with danger. I will say no more about that ground of appeal.

9. It was conceded by the Crown at the outset that if knowledge is a prerequisite or necessary element in the charge of "causing to be used" a vehicle, the conviction could not be upheld; in turn it was conceded by the appellant that if knowledge is not a prerequisite then subject to the fourth ground of appeal which I have rejected the appeal could not succeed. The simple issue before me, then, was whether "causing to be used" was an absolute offence in the same way as "using a vehicle" is or was an offence involving knowledge of the defect complained of on the part of the "causer". On this basis counsel for the appellant, Mr. Martin Lee, argued with skill and persistence that one could not cause a defective vehicle to be used unless one knew, not only that it was to be used, but also, that it was defective. He pointed out that the learned magistrate had clearly assumed that knowledge was necessary and that his references to the knowledge "at management level" showed this. It may well be that the learned magistrate did so assume. The question before me is whether the assumption was correct. It is well settled law that before a master can be criminally liable for acts of a servant acting in the scope of his employment the master must have actual knowledge of the facts out of which the offence arose and that before a master who was an individual could be held liable he must have actual knowledge of the circumstances constituting the offence, the only possible exception being where he was indifferent as to whether the servant had performed his duty or not. It is further well settled that there is, fundamentally, no difference between an individual and a limited company except that, in the case of a limited company, the knowledge must be the knowledge of those who could be described as "the brains of the company". See Henshall v. Harvey(1). It is further well established that permission to use a vehicle is not necessarily permission to use it in contravention of the law. Thus permission to use a vehicle that is defective is not an offence unless the person permitting the user has knowledge of the defect. James v. Smee(2) and Criminal Appeal No. 455/73 (as yet unreported) in which, I regret to say, the present appellant was also the appellant. In that case there was no evidence that the "brains or management level" of the appellant company had knowledge of certain defects in the vehicle and it was held that they could not be guilty of "permitting" the vehicle to be used. Pickering, J. there made many remarks pertinent to my considerations in this. The appellant company was charged with "permitting" to be driven on a road public omnibuses which were in disrepair. The omnibuses were undoubtedly defective but there was no evidence of any knowledge of this on the part of the appellant company, and no evidence that the drivers employed by the company were aware of the defects. Pickering, J. remarked :

"There was complete failure on the part of the prosecution to prove that the appellant company had knowledge of the mechanical defects in the vehicles in question and the appeal must succeed upon this ground."

He went on to say :

"That this should be so is unfortunate; and the fault lies with those whose duty it was to draft or to supervise the drafting of the charges. The formula used in all these charges was 'permitted'. It is notorious that in the permitting cases the prosecution rarely succeeds or if it does the conviction fails on appeal. It would have been open to the prosecution in these cases to have charged the appellant company with 'using' when a conviction must have followed almost as certainly as night follows day. Much judicial time, which as it is, has been wasted, could have been saved for the charge of 'using' might well have been answered with a plea of guilty and even had that not transpired an appeal after conviction might well have been deemed not worthwhile. In that event much time would also have been saved to the Crown Law Office. Here we have a large public company carrying members of the public past and through other members of the public in heavy vehicles, one of which had an empty foot-brake fluid reservoir caused by fatigue of rubber seals which should have been replaced some time beforehand and another of which had a hand-brake registering only 5% efficiency whereas the acceptable minimum level is 25%. Had that company been charged with the proper offence it would have been punished, as it is it escapes scot free because the charges were incorrectly laid."

In the case before me, as counsel for the appellant freely conceded, had the charge been that of "user" alone there would have been nothing which he could say on this ground of appeal. Here the fault lies, however, not with the drafters of the charges but with the prosecuting officer; who for some reason not shown on the record, thought fit as the case proceeded to change the charge from "using" to "causing to be used". Mr. Lee placed considerable reliance upon the House of Lords' decision in Sweet v. Parsley(3). In that particular case the occupier of premises was charged with permitting them to be used for the smoking of cannabis resin. There the House of Lords held that "permitting" was not an absolute offence. The several judgments of the Law Lords are studded with most useful obiter as to the principles involved in deciding whether or not the legislature has created an absolute offence. Thus at p. 473 Lord Reid said :

"Our first duty is to consider the words of the Act: if they shew a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea."

Again Lord Morris of Borth-y-Gest said :

"The words must be looked at in order to see whether, either expressly or by necessary implication, they displace the general rule or presumption that mens rea is a necessary prerequisite before guilt of an offence can be found. Particular words in a statute must be considered in their setting in the statute and having regard to all the provisions of the statute and to its declared or obvious purpose."

I will pause to remark that the obvious purpose of these regulations coupled with the Ordinance is to ensure that vehicles which are defective to the possible danger of their users or of the public generally should be kept off the roads. There is obiter in the judgment of Lord Pearce which is perhaps particularly relevant :

"           Parliament might, of course, have taken what was conceded in argument to be a fair and sensible course. It could have said, in appropriate words, that a person is to be liable unless he proves that he had no knowledge or guilty mind. Admittedly, if the prosecution have to prove a defendant's knowledge beyond reasonable doubt, it may be easy for the guilty to escape. But it would be very much harder for the guilty to escape if the burden of disproving mens rea or knowledge is thrown on the defendant. And if that were done, innocent people could satisfy a jury of their innocence on a balance of probabilities. It has been said that a jury might be confused by the different nature of the onus of satisfying 'beyond reasonable doubt' which the prosecution have to discharge and the onus 'on a balance of probabilities' which lies on a defendant in proving that he had no knowledge or guilt. I do not believe that this would be so in this kind of case. Most people can easily understand rules that express in greater detail that which their own hearts and minds already feel to be fair and sensible. What they find hard to understand is rules that go 'against the grain' of their own common sense. If a judge on a drug case, feeling disheartened, perhaps, after a close study of Warner's case [1968] 2 W.L.R. 1303, had given the jury no direction as to the law, and had simply said that they must consider the facts and do their best with the charge. I believe that they would evolve their duty in some such form as this; First, I suppose, we must make sure that there really was drug smoking on the premises .... and then it is up to the defendant to persuade us that he did not know, or was not guilty for some other good reason.' If I am right in this surmise, any judicial elaboration of their own instinctive reactions would be quite easy for them to understand.  
            If it were possible in some so-called absolute offences to take this sensible half-way house, I think that the courts should do so. This has been referred to in Warner's case [1968] 2 W.L.R. 1303. I see no difficulty in it apart from the opinion of Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions [1935] A.C. 462. But so long as the full width of that opinion is maintained, I see difficulty. There are many cases where the width of that opinion has caused awkward problems. But before reducing that width your Lordships would obviously have to consider all the aspects of so far-reaching a problem."  

Lord Diplock, having referred to the fact that the :

"mere fact that Parliament has made the conduct a criminal offence gives rise to some implication about the mental element of the conduct proscribed."

goes on to say :

" This implication stems from the principle that it is contrary to a rational and civilised criminal code, such as Parliament must be presumed to have intended, to penalise one who has performed his duty as a citizen to ascertain what acts are prohibited by law (ignorantia juris non excusat) and has taken all proper care to inform himself of any facts which would make his conduct unlawful.  
            Where penal provisions are of general application to the conduct of ordinary citizens in the course of their everyday life the presumption is that the standard of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject-matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. But such an inference is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation".  

while this paragraph makes a very considerable appeal by virtue of its common sense and of its applicability to the facts before me I cannot see that I am justified in distinguishing between a small time haulier and the Kowloon Motor Bus Company (1933) Limited, notwithstanding the franchise which the latter enjoys to which I will refer later.

10. Nor, as the matter was argued, can I, in construing this regulation, taken any such "sensible halfway house" as that which Lord Pearce advocated. I must decide whether the legislature in using the word "causes" intended to dispense with the necessity of proving mens rea as it does in its use of the word "uses" simpliciter or did not so intend; in other words, does "cause to be used" fall on that side of the fence occupied by "use" or on the other side occupied by "permit to be used"?

11. Mr. Lee also referred me to the chapter entitled "Causing" in Mr. J.Ll. J. Edwards Book "Mens Rea in Statutory Offences" and to many of the cases there quoted "To cause", he suggests, involves in the words of Lord Wright in Houston v. Buchanan(4) (a civil case) a "positive mandate" which in its turn presupposes knowledge on the part of the person charged with "causing" of the facts which constitute the particular offence. This argument seems to me to be somewhat circular when one is dealing with the interpretation of a regulation which undoubtedly creates an absolute offence "using" and equally undoubtedly creates an offence requiring mens rea that of "permitting to be used". The passage from Lord Wright's judgment in which the word "mandate" occurs is as follows :

"To 'cause' the user involves some express or positive mandate from the person 'causing' to the other person or some authority from the former to the latter, arising in the circumstances of the case. To permit is a looser and vaguer term. It may denote an express permission, general or particular as distinguished from a mandate. The other person is not told to use the vehicle in the particular way but he is told he may do so if he desires".

Mr. Lee pressed on me in particular a paragraph at page 150 of Mr. Edward's textbook. It reads :

"Humphreys, J., after citing Evans v. Dell 1937 1 All E.R. 349 as authority for the proposition that in the case of permitting at least lack of knowledge may be a complete defence, added that the wording of Section 72(10) of the Road Traffic Act 1930 did not suggest that the legislature intended that different considerations should apply to 'using' and 'causing' as opposed to 'permitting'. In other words the learned judge was of the opinion that absence of knowledge was a good defence to a charge of 'causing' a vehicle to be so used in contravention of the statute" (I pause to remark - "Not so in our case where 'knowledge' is essential to 'permitting' but not essential to 'user' simpliciter") "The same view was taken by Devlin, J. ... 'mens rea' he declared 'is admittedly necessary for the offence of permitting the use. I think that it would also be necessary for the offence of causing the use' .... later on in his judgment Devlin, J. categorically stated that guilty knowledge is as essential for the offence of 'causing' as it is for that of 'permitting'. This opinion, related, it is true, to an offence in which the word 'causing' is used as a direct alternative to 'permitting', is in line with the other authorities discussed wherein the Courts have consistently accepted the application of mens rea when 'causing' appears isolated from any other epithet.

Mr. Corrigan, Crown counsel, urged that in the interpretation of the regulation we should strive to return to basic principles and have regard to the fact that the purpose of the regulation is directed towards preventing user on the road whether that user be user per se or "mandative" user. "To cause to be used" was he suggested an entirely different "mandate" from "to permit to be used" the former imported a direction while the latter did not. He conceded and indeed he had no option but to do so in the light of the trenchant remarks of Pickering. J. in Criminal Appeal 455/73 that the charge should never have been changed from "using" to "causing to be used" but pointed out that to a layman it would not appear at first sight that the company as such used the vehicle but that it would appear that it was directing it, or causing it, to be used.

12. In F. Austin (Leyton) Ltd. v. East(5) the appellants had been convicted for unlawfully causing to be used on a road a motor vehicle a part of which was in a condition dangerous to users of the road. The dangerous condition was so far as one can tell from the inadequate report, due to a latent defect. The conviction was nevertheless upheld. The learned commentators adopting a similar argument to that put forward by Mr. Lee before me regard the decision as "unfortunate". It is nevertheless the decision of a strong Divisional Court (Parker C.J., Ashworth and Elwes JJ.) and what is "unfortunate" is the inadequacy of the report.

13. In Clark v. Hunter(6), a decision of the High Court of Justiciary, Regulation 104 of the Motor Vehicles (Construction and Use) Regulations 1955 called for interpretation. The particular Regulation in question read :

"If any person uses or causes or permits to be used on any road a motor vehicle in contravention of .... any of the preceding regulations ...."

The brakes of the vehicle in question were defective but the appellant did not know of the defect. The vehicle had been driven on his instructions. The appellant was charged with causing or permitting his employee to use the vehicle. It was conceded that had the charge been one of permitting alone the appeal must be allowed but submitted that the word "cause" gave rise to an absolute duty. The court, the Lord Justice General (Clyde), and Lord Russel, (Lord Sorn dissenting) held that an absolute duty had been created, the Lord Justice General remarking that to hold otherwise "would confine cases where it is an offence to cause a vehicle to be used in a certain condition to cases where the employer deliberately sent it out in such a condition - and such cases must be rare indeed." He went on to say :

"There is no novelty in holding that a statutory offence may be committed although there is a complete absence of mens rea. Indeed these regulations are designed to cover not merely deliberate omission ... but careless or ignorant omissions as well."

Later he said :

"In the complaint the appellant is charged not merely with causing but also with permitting the driver to use the lorry ... but the Crown are not seeking to maintain a conviction under either charge in respect of such permission. Causing and permitting are two quite different things. In the former case the responsibility remains with the person who causes the use."

14. I must confess that this seems to me to be a commonsense approach to the regulation and one which enables one to treat it as being remedial. These regulations were enacted to protect the public against the presence on the road of defective vehicles and I can see no justification for the supposition that the legislature intended to rule that a person who used a defective vehicle on the road should be under a greater onus than one who caused such a vehicle to be used on the road by his servant. This is the more so in the case of vehicles driven by paid drivers who incidentally may well think they might lose their jobs if they refused to take defective vehicles on to the road. Again I cannot see how a company could use a vehicle on the road with out also causing it to be used. This appeal is therefore dismissed.

15. There is one final matter to which I feel it my duty to refer. To my mind this appeal demonstrates not only an inadequate system of vehicle inspection on the part of the appellant company but also a complete failure on the part of its management to appreciate its proper function in our community. The appellant has been, by the terms of the Public Transport Services (Kowloon and New Territories) Ordinance, granted the exclusive right to maintain and operate certain public transport services. It is a public utility and the rights which have been granted to it must carry with them correspondingly heavy duties to the public.

16. They are not in business only to make money; they have a public function and the duty resting on them to see that their vehicles are roadworthy is I consider heavier than that resting on ordinary road users. The papers before me when considered together with the judgment in Criminal Appeal No. 455 of 1973 suggest to me that they are well-nigh contemptuous of that duty.

17. Pickering, J. in Criminal Appeal No. 455 of 1973 said :

"Here we have a large public company, carrying members of the public past and through other members of the public in heavy vehicles one of which had an empty foot brake fluid reservoir caused by fatigue of rubber seals which should have been replaced ... and another of which had a hand brake registering only 5% efficiency".

In the case before me not only did the Motor Vehicle Inspector find 3 tyres on their bus to be bald he also found the foot brake to be defective and the speedometer inoperative. In each case, having no merits whatsoever on the facts, and having been found guilty in Magistrate's Courts, they have seen fit to appeal to this Court on pure technicalities. That is their constitutional right of which no one can deprive them. It does however seem to me that the exercise of that right on the facts disclosed shows a lack of public responsibility. I emphasize those words "on the facts disclosed" for it must be seldom indeed that the exercise of a right of appeal could be said demonstrate such a lack.

  (P.F.X. Leonard)
  Puisne Judge

Representation:

Martin Lee (C.Y. Kwan & Co.) for appellant.

Corrigan, S.C.C. for the Crown/Respondent.

(1) [1965] 2 W.L.R. 758.

(2) [1954] 3 All E.R. 273.

(3) [1969] 2 W.L.R. 470.

(4) [1940] 2 All E.R. 179.

(5) [1961] Crim. L.R. 119.

(6) [1956] Scots Law Times 188.