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CACC000987/1977
| IN THE SUPREME COURT |
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Criminal Appeal |
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1977 No. 987 |
| BETWEEN |
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CHUNG Koon-wang |
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CHAN Wai-chung |
Appellants |
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and |
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The Queen |
Respondent |
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Coram: Leonard, J.
Date of Judgment: 13th October, 1977.
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JUDGMENT
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1. This was a consolidated appeal against decisions of the learned magistrate in Cases No. CS 23117 and CS 23116 of 1977. In each case the appellant had been found guilty of using a motor vehicle on a road when every part of the foot-brake system was not maintained in good and efficient working order and properly adjusted contrary to Regulation 101 Road Traffic (Construction And Use) Regulations Cap. 220 and section 8 of the Road Traffic Ordinance Cap. 220. On the occasion in question the motor vehicle was undoubtedly being driven on a road and the foot-brakes were clearly faulty as a result of which the vehicle went out of control and two persons were killed. The appellant, CHAN Wai-chung, was the owner of the vehicle and CHUNG Koon-wang was the driver. I will deal first with the appeal of the CHAN Wai-chung, the owner.
2. The facts found by the learned magistrate which are of importance in considering his appeal are that he was the registered owner of the vehicle in question and owns a fleet of 21 such vehicles all private light buses. Three days prior to the incident the driver had reported to him that something was wrong with the brakes of this particular vehicle. He brought it to the garage for repair. It was not properly repaired. The learned magistrate's finding was:
"The system for running this public light bus - typical of many - is that the drivers of each of two shifts pay $65 - as a market price - for the hire of the bus for a shift. Drivers vary - they may be casual, regular or even substitute. They are, however, responsible for such matters as petrol, for which they pay them selves, and route. There is, however, a nominated garage to which the vehicle can and should be taken for repair, and whose bills will be met by the owner. The 'owner' - in this case the registered owner - inspects the vehicle when shift is changing and, of course, collects the hire money. The present owner has 21 buses and has a small office or shop in Java Road, North Point where this sort of business is transacted, and the change over takes place. Otherwise the buses spend their time on the street or at bus 'termini', i.e. parking spaces."
The first question for decision is that whether on these facts the learned magistrate was correct in holding that the owner could properly be said to have been "using" the vehicle. The learned magistrate in the course of his statement of findings states:
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In this statement of findings, I will not enumerate the decisions, of which there are many, on the question of 'user' of motor vehicles, but will confine myself to mentioning those which directly influenced my decision. |
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First there is the very recent case of WONG Yun-fai v. The Queen - Criminal Appeal No. 480 of 1977, the facts of which are very similar to this case. This would be binding on me were I not able to distinguish it on the facts. This I felt I could do because there are an infinite number of degrees of usage - ranging from owner - driver to plant hire, and it is a question of fact whether in a particular case the owner as registered owner is 'using' the vehicle. I held in this case he was. Ofiminal Appeal No. 480 of 1977 seems - with respect - to rest on the fact that the driver was a substitute driver so that the owner, it was held, was not using the vehicle. In the circumstances of this case, however, I held that the owner was rightly charged." |
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I regret that my judgment in that case of WONG Yun-fai v. The Queen was apparently not clear to the learned magistrate. It is correct that the driver there was a substitute driver. I did not intend to indicate by pointing out that fact that my decision rested on it. My decision rested rather on the fact that the driver was not the servant of the owner. In my own defence I would remark that I went on to say, having dealt with the question of substitution,:
"Be that as it may it would clearly be an extension of the term 'user' to apply it to the appellant in this case for the driver was not his servant even if he was about his business."
I must, however, plead guilty to being in part the author of the learned magistrate's error. Although I quoted from the judgment of Ashworth, J. in Balfour Beatt & Co. Ltd. v. Gnindey(1) my quotation was not in extenso. Had I quoted the entirety of following passage the learned magistrate could have been left in no doubt to my meaning.
"'Use" that word has given rise to decisions in the past and it is fair to say, as Mr. Henderson candidly admits, that unless he can persuade this court that the cases in question can be distinguished, or that there is some lurking loophole through which he may escape on this occasion, he is tied by those decisions, and I agree with him. Perhaps it is convenient to turn to one of the latest of the decisions reported, and that is the decision of this court in Crawford v. Haughton (1972) R.T.R. 125. The headnote [in (1972) 1 All E.R. 535] reads:
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Although the owner of a vehicle may be "using" the vehicle for the purposes of section 64(2) of the Road Traffic Act 1960, as amended, when it is being driven by his servant, he is not using it when it is being driven by a person other than his servant even though it is being driven at the owner's specific request and with his full knowledge.' |
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That was a case involving a stock car which was being taken along a road near Liverpool to Kirkby Stadium where it was to take part in some races, and unluckily for the owner and everyone it was found on the way, and naturally enough the vehicle did not comply with the relevant regulations. After reviewing earlier decisions of this courts, in particular the decision in Windle v. Dunning & Son Ltd. (1968) 1 W.L.R. 552, Lord Widgery C.J. said, (1972) R.T.R. 125, 129C-F:
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I have not found this a particularly easy case because I find it difficult to accept that, if a man can use a vehicle through the hands of his servant, he cannot be said to use it at the hands of someone who at his specific request drives it on a journey at the express orders and with the full knowledge of the owner. No doubt the line must be drawn somewhere, and the judgments of Lord Parker C.J. to which I have referred show a tendency to restrict the capacity of persons using in cases where the alternatives of permitting or causing to be used are provided. I have thought for some time that it might be right for us to say in the present case that there is yet another category of user for present purposes, not merely the actual driver or his employer, but someone who by specific and immediate direction causes a vehicle to be driven in the manner in which it was driven in this case'- |
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I may break off there to say that if the judgment had stopped there, some little assistance might have been gained by Mr. Henderson to say that the door was left open. But the next sentence closed it abruptly -
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But in the end I have come to the conclusion that it would not be right, in view of the authorities, to strive to extend the meaning of "use" for the present purposes, and that only confusion may follow in subsequent cases if we endeavour so to do.' |
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If I may respectfully say so, the principle there stated is as plain as can be, and I can see no way out for the prosecutor in the present case who chose to charge the defendants with using when, if he had thought about it and had been mindful of that decision, he ought to have charged them with causing or permitting the use of the vehicle. In those circumstances I do not think it necessary to go further in regard to charges 1 to 5 and charge 8. The authority is so compelling that I would find no way out for Mr. Hendorson seeking to maintain the justices' decision."
My judgment in Criminal Appeal No. 480 of 1977 then was intended to convey that an owner could not be said to be "using a vehicle" as distinct from "permitting its use" unless he or his servant was the driver and it was being driven about the owner's business.
3. I should make it clear that I have every sympathy with the learned magistrate in seeking to distinguish this case for the position resulting in Hong Kong from following the decision of the court in Balfour Beattv & Co. Ltd. v. Grindey(1) is unfortunate. The learned magistrate rightly held that offence of using without efficient brakes is an absolute one. It is absolute because it is most difficult for the Crown to prove mens rea in such cases. The general purpose of the law in this respect is to keep inefficient vehicles off the road. "Permitting the use" of a vehicle without efficient brakes has been held not to be absolute. Because "to permit" imports mens rea, it is very difficult for the Crown to prove an offence against an owner if he be not a user. It would, for example, be most difficult for the Crown to prove in a case such as this that the owner of 21 vehicles knew that the brakes of one of them was deficient. It would be only just then that the offence should be absolute where the system followed was that described by the magistrate in this case, but the remedy here is not in the hands of the magistrate or of me but in the hands of the Legislature. In Criminal Appeal No. 480 of 1977 that it was with regret that I decided that that appeal must be allowed. It is with still greater regret that I so decide here. The conviction is quashed and the fine, if paid, is to be returned.
4. I turn then to consider the appeal of the driver.
5. The particulars of this ground of appeal as filed do not suggest that the driver was not using the vehicle or that he should have been charged rather with driving it. I do not think it could be so contended. For here the driver was clearly driving the vehicle for his own benefit as distinct from the benefit of an employer and he must therefore be said to have been using it.
6. The grounds of appeal seek rather to suggest that this was not an absolute offence. It has been held time and time again that knowledge of the defect is not an essential ingredient of the offence of using and I do not propose to spend time on this. Accordingly I dismiss the appeal of CHUNG Koon-wang, the driver.
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(P.F.X. Leonard) |
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Judge of the High Court |
Representation:
Mr. Edward Chan (John Ip & Co.) for Appellant.
Mr. David Marash, C.C. for Crown/Respondent.
(1) (1975) R.T.R. 156.
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