Hong Kong Electric Co. Ltd. v. The Queen
Read the full judgment text of CACC 896/1981 on BabelCite. This Court of Appeal judgment.
1. The defendant company appealed against its conviction of an offence against regulations 24(1) and 44(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations. At the conclusion of the hearing, I dismissed the appeal and said that I would give my reasons later, which I now do.
Cited by 2 cases
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CACC000896/1981 Case No.: Criminal Appeal No. 896 of 1981 Date of hearing: 9th November, 1981. Date when judgment was delivered: 9th November, 1981. ORDER: Appeal against conviction dismissed. Cases cited by Counsel in agrument: 1) James & Son Ltd. v. Smee (1955) 1QB 78 2) Ross Hillman Ltd. v. Bond (1974) RTR 279 3) Crawford v. Houghton (1971) RTR 125 4) Richardson v. Baker (1975) RTR 56 5) WONG Yun-fai v. The Queen (1977) HKLR 404
----------------- Coram: Roberts, C.J. Date of Judgment: 9th November, 1981. ----------------- JUDGMENT -----------------
Preliminary 1. The defendant company appealed against its conviction of an offence against regulations 24(1) and 44(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations. At the conclusion of the hearing, I dismissed the appeal and said that I would give my reasons later, which I now do. 2. The information laid against the defendant was in the following terms -
The evidence 3. The evidence given at the hearing was short and can be summarised as follows. The defendant is the registered owner of a motor vehicle, registration number BM7523. P.C. 4308 (P.W.1), a police officer on duty in the area, saw the vehicle parked on the pavement of Fennie Road. He noticed that no vehicle licence was visible on the windscreen or anywhere else on the vehicle. 4. P.C. 4308 was the only witness. At the close of his evidence, the solicitor representing the defendant submitted that there was no case to answer, his main argument being that there was no evidence to show that the defendant had caused the vehicle to be used, as was alleged in the particulars. After his submission was overruled, he called no evidence on behalf of the defendant. Nature of the offence 5. Mr. Stone, who argued persuasively on behalf of the appellant, submitted that since the information alleges that the defendant had "caused" the motor vehicle to be used on the road, the prosecution must prove that the defendant took some active steps to create the offence, and that there is no evidence that it did so. 6. Regulations 24(1) and 44(1) do not contain any reference to cause. In my judgment, however, the use of the wrong wording in an information, though it may in some cases have the effect of invalidating the charge, cannot impose upon the prosecution a burden which does not lie on it at law. 7. Mr. Stone further argued that there must be proof of mens rea, by which he meant knowledge by the defendant both that the vehicle was being used and that the required vehicle licence was missing. 8. Is the nature of regulation 24(1) such as to require evidence of "causation" or of mens rea? I think not, for I have no doubt that a contravention of that regulation is an absolute offence. Authority for this may be found in the judgment of Lord Widgery in Strowger v. John(1) in which he describes the similar English offence of failure to exhibit an excise licence as one which involves no moral stigma and may be committed with no mens rea on the part of the defendant. The requirement, he said, was to maintain the disc on the vehicle and if a defendant took it off, or if it fell off, and the car was kept on the road, the offence was committed. Evidence of user 9. Mr. Stone also submitted that the defendant should not have been convicted because there was no evidence that the motor vehicle in question had been "used" on a road, in view of the wording of the information ("caused to be used") and of the terms of regulation 44(2), which provides -
10. I do not think the phrase "is upon or used in any road" in regulation 44(2) is intended to add any additional element of proof to the various provisions listed in regulation 44(1). If, for example, it is shown that a vehicle has been parked on a road in contravention of regulation 24(1), this itself establishes that the vehicle was "upon or used in" a road. I do not regard regulation 44(2) as bringing in by the back door an obligation to show an act of positive use by a registered owner, if the latter has been shown to have been guilty of parking his car in contravention of regulation 24(1). Liability in law 11. The vehicle in question was found parked on a road with no valid vehicle licence displayed on its windscreen. There was, however, no evidence as to how it got there or who put it there. However, I do not regard the absence of such evidence as fatal to the prosecution, because of the provisions of regulation 44(2). 12. Were it not for that regulation, the prosecution would have to show that the defendant had parked the vehicle on a road without a valid licence being displayed. 13. Regulation 44(2), however, makes the registered owner guilty of an offence, irrespective of knowledge, let alone conduct, on his part, if the constituents of an offence under regulation 24(1) are established. If such constituents have been proved, regulation 44(2) makes the owner, registered owner, driver and person in charge of the vehicle at the time of the contravention all guilty of the offence. The prosecution can proceed against any, or indeed all, of them. 14. Therefore, I conclude that it is not necessary for the Crown to prove who was in charge of the vehicle when a contravention of regulation 24(1) occurred, since the registered owner is guilty of an offence whoever it was. Although there is no evidence as to who parked this vehicle, somebody must have done, or it could not have been there. There has thus been a contravention of regulation 24(1) which makes the defendant, as registered owner, guilty of an offence, by virtue of regulation 44(2). 15. It was suggested that this could be unreasonable in its effects, in that the registered owner of a vehicle might find himself guilty of an offence under regulation 24(1) when the licence had been removed or stolen from the vehicle without his knowledge or authority. This may well be so, and it is to be expected that in such a case, the magistrate before whom such a prosecution comes would take such circumstances into account when determining what penalty should be imposed. The wording of the charge 16. It was also argued that the wording of the charge was wrong, and had prejudiced the appellant to such an extent that his conviction should be quashed, because during his trial the defence was based on the wording of the information, which alleged that the registered owner "did cause a motor vehicle .......... to be used on a road." 17. At the conclusion of the evidence of P.W.1, the solicitor for the defendant submitted that there was no case to answer, basing his argument on the failure of the prosecution to show that the defendant had "caused" the vehicle to be used on the road. The magistrate ruled that there was a case to answer, because regulation 24 placed "an absolute responsibility on the owner of the vehicle" to display a valid licence on the vehicle. 18. When his submission was rejected, the solicitor for the defendant called no evidence. According to counsel for the appellant, this course was adopted because, once the magistrate had ruled that regulation 24(1) creates an absolute offence, there was no point in calling any evidence even if this might have shown that the vehicle was parked without the defendant's knowledge or authority and that it had thus not "caused it" to be parked. 19. I do not think that the solicitor's decision can be criticised for it is difficult to see how any evidence could have excused the defendant from his liability as registered owner, once it had been shown that the vehicle was found parked in a road without a licence being shown. 20. Consequently, the defence cannot have been prejudiced, once the magistrate had made it clear that he considered regulation 24 to be an absolute offence. 21. Although I agree that the wording of the charge was defective, in that it did not follow that of the regulations, the defect was not of such a nature as could be said, in view of the absolute nature of the offence, to have caused any prejudice to the defendant, who must also be deemed to have known of the effect of regulation 44(2). 22. I suggest that, in future, informations for offences under regulations 24(1) and 44(1) should contain no reference to causation. Thus the information in this case should merely have read that the defendant
Representation: W. Stone (Johnson, Stokes & Master) for Appellant Lunn, Crown Counsel, for Respondent (1) (1974) R.T.R. 124 |
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