The Kowloon Motor Bus Co (1933) Ltd v. The Queen
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CACC000090/1982
_______________ Coram: Barnes, J. Date: 21 May 1982 ___________ JUDGMENT ___________ 1. If the number of passengers carried on an omnibus is greater than the maximum number registered as the passenger capacity of the vehicle the owner is guilty of an offence and liable on conviction to a fine of $2,000 pursuant to the provisions of Regulations 137(3) and 169(2) of the Road Traffic (Construction and Use) Regulations ("the regulations"). 2. Kowloon Motor Bus Company (1933) Limited ("KMB") has been convicted of that offence more than a thousand times. If it had been fined a mere $5 for its first offence and only another $5 more in arithmetic progression for each subsequent offence, it would have reached the maximum penalty long ago without any harsh treatment along the way. Can it then complain that a fine of $2,000 imposed for each such offence now is excessive? 3. In September 1981 it did complain, by way of appeal to Barker, J., (as he then was), after a learned magistrate had imposed the maximum penalty in respect of each of 29 convictions. On the hearing of the appeal (1) the Crown contended and KMB accepted that the object of the regulations was the safety of the passengers. Barker, J., acknowledged that object as
but went on to add that:
4. KMB, at the hearing of that appeal, put before the court material designed to explain why overcrowding occurs, how KMB has sought prevent it, why the "how" has not been successful and the extent to which overcrowding can be tolerated before it becomes overloading involving a safety risk. According to that material, each of the vehicles there involved had been designed and built to carry in safety a load 3,584 1bs heavier than the estimated weight of the maximum number of passengers it was licensed to carry. As the notional bus passenger in Hong Kong seen through the eyes of bus designers and road transport planners weighs a trim 112 lbs, each bus could therefore carry 32 passengers more than the licensed maximum number before it became a safety risk through overloading. Those "circumstances of the case", taken together with a consideration of the range of penalties then being imposed by other magistrates, led Barker, J., to conclude that the sentences were excessive. 5. He therefore reduced the fines in each case. In 25 of the cases the number of passengers carried in excess of the licensed maximum number ranged from 5 to 25. In each of those cases the fine was reduced to $250. In one of the remainder, where the number in excess was 30 but the estimated all-up weight did not exceed the designed safe-weight limit, the fine was reduced to $500. In the other three remaining cases there were 37, 39 and 48 "excess passengers" and the estimated load exceeded the designed safe-weight limit by 560, 784 and 1,792 lbs respectively. The fines in those three were reduced to $750, $750 and $1,000 respectively. Thus, a base fine of $250 was considered appropriate for all cases of overcrowding where there was clearly no risk to public safety through the bus being loaded beyond the limit of its designed safe-weight load. With a margin of 3,584 lbs between the assumed weight of the licensed number of passengers and the actual weight the bus was designed to carry in safety, there was no apparent risk provided the number of excess passengers was 25 or less. But once a bus is loaded with more than 25 excess passengers the margin between the assumed weight and the safe-weight limit is so narrow that, even though the assumed weight is within the safety limit, there is a real risk that the actual weight may exceed it. So a higher range of fines is appropriate once the overcrowding becomes overloading involving a possible risk to public safety. That possible risk becomes a definite risk when a bus is loaded with 32 or more excess passengers because the bus is then virtually certain to be carrying a load in excess of the load it was designed to carry in safety. In those circumstances the range of fines should be higher still, increasing in proportion as the degree of risk increases with the increased overload. The effect of that decision was that, where the circumstances of a case were similar to the circumstances of the cases then being considered, the appropriate penalties would be found within the following guidelines: -
6. On 17 December 1981 KMB pleaded guilty by letter to 14 further summonses alleging contraventions of the regulations. In its plea in mitigation it asked the court "to distinguish between overloading which may endanger the safety of passengers and overloading which does not". The plea went on to submit material, similar to that put before Barker, J., with a view to showing that overloading was inevitable at times and that KMB had explored all practical methods to try to prevent it but had been unsuccessful. It also contained details of the safe-weight load of each bus showing (not expressly but in effect) that all were "base fine" cases. The learned magistrate, however, imposed a fine of $1,000 in each case. KMB applied for a review. That application was granted. At the conclusion of the review proceedings on 8 January 1982 the magistrate reduced the fines in five cases to $500 and in seven cases to $750. He did not vary the penalties in the remaining two cases. KMB now appeals against all sentences on the grounds that they "were too severe". 7. There is no case in which it is alleged that the number of' excess passengers was greater than 25. If, therefore, there is such a similarity of circumstances between the two sets of cases so that the guidelines of the earlier decision ought to be followed, then there is here no case calling for the imposition of a higher fine than the base fine of $250. KMB, however, argues that even that figure is too high as the base. In support of that submission counsel for KMB put before the court both the material submitted at the earlier appeal and additional material not then available either because it was covered by a veil of confidentiality which has since been lifted or because it was not then in existence. 8. Broadly, the point made is that KMB has done, and is doing, all that it could reasonably be expected to do in planning to meet future needs. As a result of that planning there would be no overcrowding today if certain unforeseeable events had not occurred (for example, the sudden increase in population and the massive increases in fuel costs), if certain problems not within the power of KMB to solve had not arisen (such as traffic congestion) and if an important part of its planning, such as route development was not restricted by the need "to avoid upward pressure on fares". The first two matters received scrutiny in the earlier appeal. The additional material reinforces the position there taken that overcrowding "is inevitable at times, that it is the policy of KMB to prevent it if it can", and that, in pursuit of that policy, it has examined all apparent solutions (such as, among others, employing additional regulators and/or bus crew, installing warning signals) only to find that none is practicable. It is the third matter which is of material significance on this appeal. 9. KMB claims that:
In his report on its operations compiled in October 1980 the Commissioner for Transport supported that claim. He said then that KMB was providing
10. If the 43 cases which have been the subject of the two appeals are typical of overcrowding cases generally then the claim is fairly accurate. Thirty-eight were detected between 7.30 a.m. and 9 a.m.; two at 5.30 p.m.; two at times "unknown" and one at 10.47 a.m. The last, the only case known to be outside peak hours, involved eight excess passengers on a bus travelling along that part of Nathan Road which traverses what is reputed to be "the world's most densely populated area". 11. In 1980 KMB sought a doubling of its fares on most routes in order "to comply with the expansion programme" planned for 1981 and approved by the Commissioner for Transport. In April 1981 the Government approved a much smaller "politically acceptable increase" and, at the same time, set up a body to review KMB's operations. One "sub-group" of that body was appointed to examine route development. It eventually examined three proposals each with different "peak frequencies" and related fares. At that time surveys by KMB had revealed that "the average bus was 20% overloaded in the peak hour in the peak direction". One proposal sought to "eliminate overloading" altogether. Of the other two, one would have maintained "the status quo", while the other would "seek to improve the figure to 10% overloading". The final recommendation of the sub-group was that the last mentioned programme should be followed. Thus, a body which comprised, in addition to representatives nominated by KMB, two Government representatives, two members of the Transport Advisory Committee and two "members of the public" recommended that
12. The sub-group accepted that the provision of extra buses to eliminate overcrowding involved increased expenditure justifying an increase in fares. The significance of its choice is that it indicates that the community is prepared to accept a degree of overcrowding rather than pay for its elimination. 13. Counsel for the respondent, in supporting the magistrate's decisions, submitted that I should disregard all the documentary material tendered at the hearing of the appeal (except KMB's written submission) on the ground that it had not been properly produced. Among the documents referred to in the written submission were the Commissioner for Transport's report on KMB in October 1980 and the report of the Route Development Sub-group dated 26 November 1981. I have found it useful to refer to them notwithstanding that formality has not been complied with because without access to the full reports I could not determine to what extent, if any, the written submission indulges in "special pleading". Counsel for the respondent having taken that stand did not seek to argue against some of the submissions made even though he could have had an adjournment to take instructions about them as, in his submission, they were matters properly to be considered "by lobbying in another place". He also submitted that the regulations were not concerned with weight-load factors nor concerned solely with the safety factor but with other matters such as comfort, ventilation and accessibility to exits in an emergency as well. 14. Although counsel for the respondent submitted that I was not bound to follow the decision on the earlier appeal, he did not advance any convincing reason why I should depart from it. Equally, I see no reason why I should depart from the guidelines which found favour then unless the circumstances differ. There is this important difference. The cases then under appeal were alleged to involve buses all of which had a maximum permitted gross weight of 16 tons. On that basis it was appropriate to regard all as having the 3,584 lbs safety margin mentioned earlier. But the tables supplied in some of the material before me disclose that that margin does not apply to all KMB buses and that KMB is not always consistent with its claims about gross weight. The material put before the learned magistrate, for example, showed two buses (cases 223222 and 223223) each with a gross vehicle weight of 16 tons, whereas Table 4.2.4 (a) in the written submission before me shows each with a gross weight of 12½ tons. Using KMB's own formula those buses are as seriously overloaded with 25 excess passengers as the 16 ton buses are with 32. A magistrate has no way of knowing that fact from the information supplied to him. Thus, the new material discloses the impracticability of devising a tariff based on the sole criterion of the "safe-load factor". 15. The gravamen of the offence is the carrying of a number of passengers in excess of a figure set for that particular vehicle. That set number is the reference point for determining whether an offence has been committed. The greater the degree by which the carried number exceeds the set, the more serious the offence. Carrying two passengers on a bicycle is a more serious offence against "construction and use" regulations than carrying 16 passengers in a public light bus. Increasing penalties as the number in excess increases accords with the principle of increasing penalties in proportion to the increasing gravity of an offence only where the licensed maximum number is the same in all cases. The licensed maximum is not the same in all cases here. It seems to me, therefore, that the proper method to assess penalties in these cases is one which has regard to the degree by which the licensed maximum was exceeded in order to determine relative seriousness. 16. I accept, from the material put before me, that the community will connive at a 10% excess. A fine of $100 - the "standard" set by one of our most experienced magistrates - seems to me to be appropriate in such cases. Where the excess is above 10% but below 25% I think that the appropriate range is $150 to $500. Within that range of excess the Legislature envisages that a fine of $500 plus imprisonment could be imposed on the drivers of other types of vehicles committing the offence for the first time(2). For an excess of 25% and above the offence is so serious that fines ranging from $750 to the maximum could be appropriate. 17. I allow the appeals by varying the learned magistrate's decisions as follows:-
18. In case No. 223223 the licensed maximum was 73 and number in excess 21. The learned magistrate imposed a fine of $1,000. I do not think that fine is excessive. That appeal is dismissed.
(1) Cri. App. No. 616 of 1981. (2) Regulation 169(1). Representation: Mr. Oderberg, Crown Counsel, for the Crown/Respondent. Mr. Henry Litton, Q.C., with Mr. B. Yu instructed by Messrs. P.C. Woo & Co. for the Appellant. | ||||||||||||||||||||||||||||||||||||||||||||||||||