Lau Ping v. The Queen
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CACC000120/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 120 OF 1970 -----------------
Coram: Rigby, C.J. and Mills-Owens & McMullin, JJ. Date of Judgment: 6 June 1970 ----------------- JUDGMENT ----------------- Rigby, C.J.: 1. This appeal raises the important practical question as to whether the somewhat draconic provisions of Regulation 41B of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations fall within the powers of the Governor-in-Council to make regulations under the Road Traffic Ordinance. Regulation 41B(1) and (2) provide:-
2. It is relevant at once to consider the effect of this regulation. The Fourth Schedule of the Regulations specifies the sections of the Road Traffic Ordinance itself, and of many of the Road Traffic Regulation made thereunder, in respect of the contravention of which public light buses are liable to detention. It is to be observed that the Fourth Schedule provides that not only may such buses be detained in respect of some contraventions of the Ordinance itself, such as dangerous driving (section 11 (1), driving under the influence of drink or drugs (section 12(1)) or careless driving (section 14(1)), but also in respect of what would appear to be on the face of them minor contraventions of various regulations made under the Ordinance. For example, under the third item or heading of the Fourth Schedule, where the driver of a light bus has been convicted of parking his vehicle within fifty feet of a bus stop (regulation 3(2) of the Road Traffic (Parking and Waiting) Regulations), or picking up or putting down a passenger within fifty feet of a tramway stop (regulation 3 (2A) of the same Regulations), it is mandatory for the court, unless there are any special reasons to the contrary, to order that the light bus be detained for a period of seven days. Furthermore, such an order of detention for seven days is mandatory even though the owner of the vehicle (a) had no knowledge that such an offence had been committed, and (b) had given express instructions to the driver of the vehicle that under no circumstances was he to stop within fifty feet of a recognized bus or tramway stopping place Regulation 41B(4) provides that if the owner of the vehicle is in court he shall be given an opportunity to show cause why such a mandatory order of detention for seven days should not be made But there is nothing in the Regulations requiring the court to notify the owner of the vehicle that a contravention has been allegedly committed which may require the court to order the vehicle to be detained for seven days. The result is that it is perfectly possible - and, indeed, it may often be the case - that such an order for detention of the vehicle may be made without the owner knowing of the existence of any such proceedings which may obviously affect his property and without being given an opportunity to be heard before any order of detention is made. Indeed, as the Solicitor General has pointed out, the effect - and probably the intention - of the regulation was to require the owner of the vehicle virtually to be the insurer of the vehicle to ensure that nothing was done in relation to the driving or using of the vehicle which would, or might, result in a contravention either of the Road Traffic Ordinance itself, or the regulations made thereunder, such as to render the vehicle liable to temporary detention. To put it in another way, the effect of the regulation is to place an absolute liability on the part of the owner of the vehicle in respect of any contravention by the driver of the vehicle of any section or regulation of the Road Traffic legislation which, under the Fourth Schedule, might render the vehicle liable to detention. 3. No one can doubt the absolute right of the Legislature to make any law that it thinks proper so to do, and it is the fundamental duty of the courts loyally to administer the laws so made by the Legislature. The general rule of construction applicable to all statutes is "that the Legislature is presumed not to have intended to make any substantial alteration in the law beyond the immediate scope and object of the statute ............ Parliament can make whatever changes it likes in the law, but subordinate legislative authorities can make only such changes in the law as Parliament has expressly empowered them to make." 4. The two above passages, taken from the judgment of Diplock, L.J., as he then was, in the case of Mixnam's Properties Ltd. v. Chertsey Urban District Council(1) appear to me to be particularly apposite to the considerations in the present case. 5. The powers given by the Legislature to the Governor in Council to make regulations are contained in section 3 of the Road Traffic Ordinance. Section 3 provides that:-
6. Mr. Jackson-Lipkin, who has argued the appeal most admirably and exhaustively on behalf of the appellant, has contended that where a statute creates an offence the intention of the Legislature shall be presumed to include the requirement for mens rea, that is to say, guilty knowledge on the part of the alleged offender, unless a contrary intention is cleanly and unmistakably shown in the legislation itself. He referred to the relatively recent decision of the House of Lords in Sweet v. Parsley(2) and to the speech of Lord Reid in that case, in the course of which he said at p.148:-
Lord Morris of Borth-y-Gest, delivering his speech in the same case, quoted with appreciation the words of Lord Goddard in Brend v. Wood(3). Lord Goddard said this:-
7. In my view, however, these cases are inapplicable to the matter now under consideration, and for this reason: there is no question here of the owner of the vehicle being convicted of an offence committed without his knowledge. The Legislature has given express power to make regulations for the seizure, impounding and detention of any motor vehicle which has been used in contravention of the Ordinance. For the purposes of this appeal it is sufficient to say that under the Interpretation Ordinance the word "Ordinance" includes any subsidiary legislation made thereunder. Whilst it is, of course, obvious that the owner may well suffer injury and loss by the vehicle being detained, it seems to me clear that the liability attaches to the motor vehicle which is used in contravention of the Ordinance irrespective as to who the owner may be. 8. The liability for the contravention depends on the fact of contravention and not upon the intention to contravene. It is an absolute liability the consequences of which attach to the vehicle and not to the owner of the vehicle, although obviously it is the owner of the vehicle who must suffer from the inconvenience and detention of the vehicle Looked at in that light, I am of the opinion that the provisions of Regulation 41B fall strictly within the powers conferred by Section 3(1)(1) to make provision for the detention of vehicles used in contravention of the Ordinance. 9. But to my mind, a more powerful and convincing argument raised by Mr. Jackson-Lipkin was that Regulation 41B was contrary to natural justice and therefore bad in that it enabled an owner to be deprived of his property, albeit though only for a temporary period, without giving him an opportunity of first being heard. 10. A statute is not to be construed so as to deprive a man of his property without first having an opportunity of being heard (Halsbury's Laws of England, 3rd Ed. Vol. 36, p.413) If the enabling legislation does not contain the authority to abrogate fundamental principles of natural justice, then the delegated legislation cannot itself provide that authority.
These Regulations go even further in that they enable a man to be deprived of his property without being given an opportunity of being heard simply by reason of the fact that some other person has committed an offence. It is, of course, true that if the owner of the vehicle happens to be in court, Regulation 41B provides that the court shall allow him to be heard before any order of detention in respect of the vehicle may be made. But it is perfectly possible for the owner to be wholly unaware of the fact that any offence has been committed which may render his vehicle liable to an order for detention. It may be argued that even if the owner is notified that an offence has allegedly been committed and even if he is given an opportunity to be heard, there is very little that can be said by him against an order for detention being made having regard to the express provisions of Regulation 41B(2) that the fact that the owner of the vehicle -
as to why an order for detention should not be made. That is, however, no valid reason in itself as to why the owner should not be given an opportunity to be heard before an order is made depriving him of his property. In my view, in the absence of any express provision in the statute itself, that is to say, in Section 3(1)(1), enabling the Governor in Council to abrogate the common law principle that no man shall be deprived of his property without first being given an opportunity of being heard, Regulation 41B, as it now stands, is ultra vires and bad on the grounds that it is contrary to natural justice. 11. That affords a sufficient ground upon which to allow this appeal. But since the matter has been argued before us, I think it desirable that I should express my views upon a further point taken by Mr. Jackson-Lipkin. He has drawn attention to the words "used in contravention of this Ordinance" and, in particular, to the word "used". It is clear from the headings at the commencement of the Ordinance that the sections of the Ordinance are divided up into different parts: Part I is entitled "Preliminary."; Part II is entitled "Use of Vehicle" and Part III deals with "Driving Offences.". Section 8 of the Ordinance enacts that:-
of that class or description of vehicle shall be guilty of an offence. Again Regulation 96(2) of the Road Traffic (Construction and Use) Regulations provides that:-
a goods vehicle of an unladen weight of two tons or under with more than the specified number of persons in the vehicle. Regulation 98(2) of the same Regulations provides that:-
It is clear, therefore, that the Legislature itself recognizes a distinction between the expression "drive" and "use". In ordinary parlance, a man who "drives" a vehicle necessarily "uses" it. See, for example, the case of Gifford v. Whittaker(5) where the driver of a vehicle was convicted of using the vehicle with the load it was carrying not properly secured, contrary to the Motor Vehicles (Construction and Use) Regulations although the loading had been done under the supervision of the hirer's servant and the driver took no part in it. But a person may "use" a motor vehicle on the road without necessarily being the "driver" of it. See, for example, the case of Elliott v. Grey(6), where the Queen's Bench Divisional Court decided in criminal proceedings that the owner of a motor vehicle was "using" that motor vehicle on the road, although the motor vehicle in question had broken down and was left in the road outside the owner's house in a condition in which it could not be mechanically propelled because the engine would not work, the battery had been removed and there was no petrol in the tank. In his judgment, Lord Parker, L.C.J., indicated that the word "use" is equivalent to "have the use of" or, perhaps, "have the advantage of a vehicle as a means of transport". A person "uses" a motor vehicle if he has a measure of control or management over the vehicle even though he may not be the driver and may not be a passenger in the vehicle while it is being driven. See Brown v. Roberts(7). 12. The Solicitor General has contended that the expression "used in contravention of this Ordinance" is wide enough to cover "driven in contravention of this Ordinance" and on the basis that the greater includes the lesser it must be assumed that the expression "used in contravention of this Ordinance" must be held to include and embrace "driven in contravention of this Ordinance". That is, indeed, a submission based on sound common sense. But where the Legislature, in the course of the same Act or Ordinance and in subsidiary legislation made thereunder, has deliberately chosen to use different words "use" and "drive" in different sections and in different contexts and, indeed, in the Road Traffic (Construction and Use) Regulations, to use the words "drive" or "use" in the same regulation, it must be assumed that it intended different meanings to be attached to the use of those distinct words or expressions. Nothing would have been easier than to have inserted in section 3(1)(1) the words "driven or" immediately before the word "used". In my judgment, on the construction of section 3(1)(1) as it now stands, the powers conferred by the Legislature upon the Governor in Council to make regulations for the seizure, impounding and detention of vehicles for the restricted period specified in the section were powers limited to the user of the vehicle in contravention of the Ordinance, and they do not include powers in respect of the manner in which the vehicle has been driven. The word "used" attaches to the user of the vehicle as distinct from the conduct of the driver of the vehicle. Such a view seems to me to be consistent not only with the express word "used" but also with the general principles of fairness and justice. If the brakes of the vehicle are defective, if it is not properly licensed, or insured, if the vehicle itself is in a condition which fails to meet the requirements of one or more of the Road Traffic (Construction and Use) Regulations, these are all matters in relation to the user of the vehicle for which it would seem just and proper that the owner should bear full responsibility. On the other hand, if the vehicle is negligently driven, that is a matter for which the driver should assume responsibility - particularly a penal or criminal responsibility as distinct from a civil liability - and it may fairly be contended that it would seem unjust that the owner of the vehicle should have to suffer the penalty of having his vehicle seized, impounded and detained simply by reason of the direct and personal responsibility of the driver of the vehicle. In the case now before us for our consideration the vehicle was ordered to be detained consequent upon the conviction of the driver for careless driving. I would accordingly hold that regulation 41B, in so far as it purports under the first item or heading of the Fourth Schedule to require the mandatory detention of a public light bus where the driver of that bus has been convicted for any one of the driving offences specified in sections 11(1), or 11(3), 12(1) and 14(1) of the Road Traffic Ordinance, is ultra vires the powers conferred under section 3(1)(1) of the Road Traffic Ordinance itself. On that ground alone, if it had been necessary to do so, I would have allowed this appeal and set aside the order for the detention of the vehicle. 13. One further matter remains for our consideration. Regulation 41B provides that where a person has been found guilty by a court of an offence specified in the Fourth Schedule in respect of a public light bus the court shall order the detention of that vehicle "unless for any special reason the court otherwise orders". This court has been asked to indicate what are such "special reasons" as would justify a court in not ordering detention of the vehicle and, in particular, to state whether a slight degree of carelessness may amount to a special reason within the meaning of the regulation. 14. The Solicitor General has condeded that where the facts of the case indicated that only a slight degree of carelessness is disclosed in relation to the manner in which the vehicle has been used, then it would be open to a court, in the exercise of its discretionary power, to abstain from making an order for detention. What amounts to only a slight degree of carelessness must in each case depend upon its own facts. For my part, I would be disposed to agree with the view expressed by the Solicitor General and hold that where only a slight degree of carelessness has been shown as to the manner in which the vehicle has been used that would afford "a special reason" such as to entitle the court to abstain from making what would otherwise have been a mandatory order for detention. I would only add that where a judge or magistrate declines to order detention by reason of "special reasons", then he should state upon the record what are the "special reasons" which have caused him to come to that conclusion. 15. In the result, I would allow this appeal and set aside the order for detention of the vehicle on the grounds that first, that Regulation 41B, as it now stands, is ultra vires and bad by reason of the fact that it is contrary to the principle of natural justice and, second, that the first item or heading in the Fourth Schedule of these Regulations (Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations) is ultra vires the powers conferred upon the Governor in Council under section 3(1)(1) of the Road Traffic Ordinance. Representation: Jackson-Lipkin & L. Wright (Peter Mo & Co.) assigned for Appellant. Sneath, S.G. & Astin, C.C. for Crown/Respondent. (1) (1964) 1 Q.B. 214 at 237. (2) (1970) A.C. 132 (3) (1946) 175 L.T. 306,307. (4) A & E Reps N.S. Vol 16, p.162 at 171. (5) (1942) 1 All E.R. 604. (6) (1960) 1 Q.B. 367. (7) (1963) 2 All E.R. 263. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 120 OF 1970 -----------------
----------------- Coram: Full Court (Rigby, C.J., Mills-Owens & McMullin, JJ.) Date of Judgment: 8 June 1970 ----------------- JUDGMENT ----------------- 16. This case comes before us on appeal from the decision of a magistrate in ordering the detention of a vehicle following on the conviction of its driver on a charge of careless driving. 17. A number of difficult points have been raised by Mr. Jackson-Lipkin on behalf of the appellant in appealing from the order for detention. The Order was made by the learned magistrate in purported exercise of his power under Regulation 41B of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations a provision which first appeared in the law in 1969 following upon the legalization, as a form of public transport, of the public light buses familiarly known as mini-buses. The net point for decision is whether Regulation 41B of those Regulations is within the rule - making powers conferred upon the Governor in Council by sec. 3(1)(1) of the Ordinance, a provision which was introduced also in 1969. Since it will be necessary to refer to these two sets of provisions frequently in the course of this judgment I shall simply refer them as 3(1)(1) and 41B respectively without quoting the word section or regulation in every case. 18. The main arguments put forward are these: firstly it is said that the inclusion of sec. 14 of the Ordinance in the schedule of offences to the mini-bus regulations exceeds the powers conferred by 3(1)(1) because the phrase, "used in contravention of the Ordinance", which appears therein is said not to be wide enough to include such offences as careless driving; secondly it is said that the mandatory provision for detention of vehicles is improper because it amounts to the imposition of a strict liability upon the owner of the vehicle whereas there is nothing in 3(1)(1) to indicate that the Governor was to have power to impose strict liability by regulations made thereunder. In this connection counsel invoked the primary requirement of the common law that a man is not to be penalized criminally in the absence of mens rea unless the Legislature has clearly said that this may be done; thirdly the Governor in Council is said to have exceeded his powers in that 41B as framed is in breach of the rule of natural justice which requires that before a man may be injured in his property or deprived of his property by a judicial or ministerial act he must be given an opportunity to appear and be heard in defence of it. I shall take the point of mens rea first. 19. While I feel we are indebted to counsel for the appellant for a very clear and thorough exposition of the principles involved and for a careful investigation of the relevant authorities, I am satisfied that any consideration of mens rea in relation to the circumstances of this case would be beside the point. What is clear beyond doubt is that neither 3(1)(1) nor 41B purports to create any offence. Both are concerned with what is to occur after the proof of an offence in a court of law. 3(1)(1) makes provision for something wholly apart from criminal liability. It seeks to empower the seizure of vehicles and does so in terms so wide that, as the Solicitor General pointed out, there was no need to provide in the regulations for proof of guilt in court. Nevertheless the Governor saw fit to provide that the power should be exercised subject to that safeguard. None of the "strict liability" authorities to which we have been referred dealt with a situation like that. In every case what was debated was whether the wording of the relevant legislation was sufficiently clear to justify the conviction of a person charged with a criminal offence when it was clear that the defendant neither know or approved of the act which constituted the offence. Thus it seems to me that the decisions in Sweet v. Parsley(1); Wright & Ford Motor Co.(2); Lim Chim Aik v. Reg.(3), whilst ample, and indeed decisive cover for counsel's contention on the grounds of mens rea, are of no assistance in determining the matter now before us. I take the view that detention is not a penalty in the sense of forming part of the sentence any more than is an order for disqualification under the Ordinance (see The Queen v. Surrey Quarter Sessions(4)). But even if it were part of the sentence it is not, regarded as sentence, in any way referable to the owner. It is true that, in the common meaning of that term, the owner who is not the driver, has been subjected to a penalty or, to put it more plainly, he has been penalized for his driver's default, but the regulation does not attempt to impose vicarious liability upon the owner for the driver's act. If it did so, the owner too must necessarily be convicted with the driver. The owner may be damnified by his servant's act but he is not incriminated with his servant. He is not a party to the proceedings at all except in the sense that he has a clear private interest in the result of them. But even thus regarded he is an aggrieved and not a sinning party. That this is a practical and not merely a verbal distinction may readily be appreciated if one remembers that the consequences of a conviction for certain motoring offences can be extremely serious including fine, imprisonment and disqualification as well as posing practical difficulty in relation to insurance of the vehicle. 20. If 41B had sought to impose a conviction for the driver's offence upon an innocent owner then indeed it could be said to have attempted something beyond the power conferred by 3(1)(1). But it is most carefully restricted to implementing the consequences provided by 3(1)(1) for any contravention although it has been restricted to particular sorts of contravention in relation to one class of vehicles only. That section is clearly aimed at offending vehicles regardless of who is the offender. As far as mens rea is concerned, I agree therefore with Mr. Sneath when he says that if the changes made in the law in 1969 are found to be offensive to notions of fair play or the rights of private property the odium must attach not to the regulation but to the section. 21. A point which seems to me to be of much greater difficulty is the question whether the wording of 3(1)(1) is wide enough to empower the Governor to include sec. 14 (relating to careless driving) among the scheduled provisions a proven breach of which is to result in the mandatory detention of a vehicle. 22. Counsel for the appellant bases his argument in this regard on the proposition that the word "use" with its grammatical variants has, in the context of traffic law, a special limited meaning and that it is not normally employed to cover driving. He directed our attention firstly to the fact that the Ordinance itself is divided into separate parts, each part dealing with a separate subject. Thus Part II deals with use of vehicles and Part III with driving offences. Sec. 8 in Part II makes general provision for compliance with enactments relating to the construction or use of vehicles. Sec. 14 declare that careless driving shall be an offence. He then pointed to certain provisions of the Road Traffic (Construction and Use) Regulations as affording a good example of the way in which this distinction is maine. He pointed out that there are three categories of regulation relevant to the present question: (a) regulations in which the term employed is "use" or "used"; (b) regulations where the term employed is "drive" or "driven"; and (c) regulations where both these terms are employed. 23. These regulations he said, show that the Legislature makes a careful distinction between the terms "used" and "driven" and shows it by the way in which these terms are employed in different contexts. If either term invariably appeared alone in a regulation or a section it might be said that the wider term was always employed to include the narrower but the fact that both terms are sometimes employed in the same section or regulation shows that whenever the word "used" appears alone, it is to be understood as excluding "driven" unless the Legislature is to be accused of wasting time and space upon a tautology. 24. Before considering this argument I think it should be noted that there is, at the outset, a special difficulty in its way. It is the very substance of counsel's objection to 41B, that it does not reflect the intention of the Legislature because the Governor in Council as the agent appointed by the Legislature under sec. 3 to make such regulations has, in this instance, exceeded the mandate given by that section. To sustain the argument a distinction must be drawn between the intention of the Legislature as shown in the Ordinance itself and that intention as interpreted by the Governor in regulations made under the power conferred by the Ordinance. But all the existing subordinate legislation under sec. 3 has been made by the Governor in Council. Thus in seeking to explain the intention of the Legislature by referring us to the subordinate legislation counsel's argument at least bears the appearance of invoking the very authority he impugns. Even if the Governor has exceeded his powers in this instance it is no proof of that fact that he did not do so on other occasions. In effect, this argument assumes the impropriety it seeks to prove. 25. It is of course open to counsel to point to the places where he thinks the Governor has used his powers correctly and to contrast them with the points at which he is said to have gone beyond them. But the proof alike of propriety as of excess must necessarily be drawn from the source where, untainted by delegation, the intention of the Legislature can be assumed to run clear. The intention of the Legislature in this primary sense can only be found within the Ordinance itself. 26. Even if, however, the terminology of the regulations can be no sure guide to the mind of the Legislature as it is displayed in the Ordinance it can, nevertheless, be argued that the regulations hitherto made disclose, whether by accident or design, a consistent pattern of usage. It may be said that this usage is conformable with the intention displayed in the Ordinance by: (a) the recourse to the phrase "used in contravention of the Ordinance" 3(1)(1); and (b) the allocation of driving offences and use of vehicles to different parts of the Ordinance; and (c) the fact that the wording 3(1)(1) finds an echo in sec. 8 which is absent from sec. 14. In this restricted form, the argument would seem to derive its force from the inference, which we are asked to draw, that in Part II the subject dealt with is use of vehicle as distinct from conduct of drivers, the subject dealt with in Part III; subjects which are said to be mutually exclusive. The intention of the Legislature is thus finally made to rest on the logical distinction between these categories and upon the fact that this distinction is, it is said, manifestly maintained by the Legislature in the separation of subject matter between Parts II and III. 27. I turn now to the general proposition with which Mr. Jackson-Lipkin began his argument. This was the proposition that, in the context of traffic law, the term "used" is a special term, not a layman's term which is always found to be referable to the vehicle as distinct from the driver. I understood him to mean by this, principally, the condition of the vehicle as distinct from the behaviour of the driver. If it was intended to state the matter so broadly I can only say at once that none of the authorities on which he relied in this part of his argument seem to me to carry him so far. (Elliott v. Grey(5); Gifford v. Whittaker(6) etc.). It is one thing to say that one can use a car, within the meaning of the legislation, without driving it and quite another to say that the idea of its use is only referable to the way it is constructed or equipped. Commonsense alone would suggest that the word cannot be so narrowly interpreted. If it were it would mean that Governor's regulations might legitimately provide for the detention of a bus with a faulty silencer or some similar defect but not for detention of one which was overloaded or which carried excess passengers. Whatever intention the Legislature may have had such a result could scarcely have been part of it. I may have misunderstood Mr. Jackson-Lipkin's contention at this point. But if his argument went wider to include such matters as carrying excess passengers then already the sharp distinction between things referable to the vehicle and things referable to the conduct of the driver has become blurred. 28. In any event, rather than rely on any generalization as to what "traffic law" implies by the term, it is more rewarding to look at sec.3(1) as a whole to see if there is any indication that "used" in 3(1)(1) has a special limited meaning. It does not seem unreasonable to suppose that it must cover at any rate contraventions of the sort falling to be dealt with under the enabling powers (a) to (p) these being its own immediate context, unless there is some indication, either there or in the Ordinance at large, that it is to bear a special meaning. If, therefore, the only power specifically relating to use other than 3(1)(1) itself, which deals with construction and use, was that power contained in 3(1)(b) there might be some cause to hold the ambit of "used" in 3(1)(1) restricted to such things as 3(1)(b) provides for. In that case it might indeed be necessary to limit it to such matters as construction and condition of the vehicle and its equipment or to kindred matters of user as counsel suggests. But immediately succeeding 3(1)(b) the next paragraph provides for regulations to be made:
This is the only other power in sec. 3(1) which expressly relates to the using of vehicles and it specifically provides for the control of the conduct of drivers on vehicles. I interpret the first part of that sentence to include the conduct of a driver in using his vehicle. If this is correct then any regulation made pursuant to this power may enjoin or forbid some manner of using a vehicle by a driver and if it does so it may be contravened by the conduct of the driver doing the act forbidden or failing to do what was enjoined. And if he uses his vehicle in such a way one may surely ask how it can be other than a vehicle "used in contravention of the Ordinance". 29. Insofar, therefore, as counsel for the appellant wished to maintain that 3(1)(1) can have no reference to the conduct of drivers I think he is wrong because the very context in which that power is given seems to indicate that it may. 30. If it be said that 3(1)(c) refers to conduct of persons in using vehicles other than conduct in the way they drive them this is a distinction which does not appear to be well observed in the subordinate legislation on which counsel especially relied as showing, by the selective employment of the separate terms, and intention to exclude "driven" from the ambit of "used". Regulation 114 of the Construction and Use Regulations seeks to impose a duty on a driver not merely as to his conduct while on the vehicle but specifically as to the manner in which he must conduct himself in the driving of it. A driver might contravene this regulation through inadvertence or negligence or outright recklessness. Indeed this kind of uncontrolled driving could obviously amount, even on its own, to careless or dangerous driving given the requisite external circumstances. Yet this regulation, though it deals with driving relates specifically to the manner of driving although it appears in a part of the regulations dealing solely with "use". 31. A better example still can be found in Regulation 107 which was one of the regulations to which we were referred by counsel for the appellant. Here the rule making authority has made the clearest possible distinction between use of a defective vehicle and misuse of a sound one. Paragraph 1 of that regulation refers to noisy vehicles while paragraph 2 is unmistakably aimed at noisy drivers. The operative word in both paragraphs is the word "used" although in both driving is clearly included: user by driving simpliciter in para. 1 and user by manner of driving in para.2. 32. Keeping these provisions in mind, if one looks back to the wording of 3(1)(c) it seems plain that a contravention of either of these regulations will come about only through the conduct of someone in using his vehicle in the prohibited manner irrespective of whether or not the regulation describes it as using or driving. If this is correct it becomes very difficult to see that the vehicle has not been "used in contravention of the Ordinance" although the user is neither more nor less than a particular manner of driving. Yet the conduct itself is clearly of that sort which counsel has described as being concerned with the thoughts of the driver viz: thoughtless, careless, inconsiderate, negligent or annoying conduct. 33. It seems to me that there remain only two possible ways in which the appellant might evade the implications of these provisions. Firstly it might be said that even if 3(1)(c) is wide enough to include conduct in user and even if the kind of conduct dealt with by Regulations 107(2) and 114 is conduct in user yet a further distinction is to be made between conduct of that kind and conduct of the kind dealt by sec. 14. It seems to me that if there is a valid distinction it must be a very subtle one and for my own part I cannot distinguish between noisy or uncontrolled or careless driving on any basis which would justify ascribing one of them to the conduct of the driver and not the others. All alike seem to me to be referable to the will and opinion of the driver and to issue in his conduct. 34. The second and only remaining alternative would be for the appellant to accept that there is no valid distinction between the kind of act dealt with by sec. 14 and the kind dealt with by Regulations 107(2) and 114 and to say boldly of the latter that these too are ultra vires. This was not suggested by counsel and would be against the drift of his argument. His reference to the subordinate legislation other than the 41B and in particular to the Construction and Use Regulations was for the purpose of showing consistency on the part of the Governor in Council in hitherto regulating his practice upon a principle of which counsel approves. If such conduct as is dealt with in Regulations 114(2) and 107 is covered by the language in 3(1)(c) there seems to be no good reason to say that it is not covered by 3(1)(1). 35. Therefore even if I were to hold that regulations made under 3(1)(1) were intended to be restricted to such matters as are dealt with by the Construction and Use Regulations it does not appear that the latter afford any good ground for the simple distinction between driving and user which counsel has sought to make. 36. I am sensible of the force of this argument as to the meaning of the phrase used in 3(1)(1) and it is for that reason that I have been at some pains to elaborate my reasons for rejecting it. I do not think they are impractical reasons. As the learned Solicitor General has pointed out, the attempt at a commonsense interpretation of sec. 3(1)(1) which would restrict "use" to such matters as are dealt with in certain of the Construction and Use Regulations on the theory that it is just that an owner should be made responsible for the condition of the vehicle and the way in which (in the narrower sense) it is used and that it is not just to ask him to supervise the conduct of his driver breaks down at this very level of commonsense. If the intention of the Legislature can be shown by applying the yardstick of the regulations one would, I think, be ascribing to the Legislature a kind of consistency which was maintained at the expense of practicality and fairness. For if user, in its narrower sense, was truly what was intended in 3(1)(1) then we must assume that the Legislature was content to see imposed the consequence of detention on an owner whose driver, though carefully chosen for his competenoe and sobriety, might, nevertheless, put the vehicle in jeopardy by some blameless infraction of the "use" regulations as, for example, the temporary malfunctioning of a headlamp, while leaving unburdened the owner whose vehicle was carelessly driven because the driver was carelessly chosen. And this notwithstanding that the safety of the public must have been a very large consideration in the choice of language word in conferring what is ostensibly a very wide power. 37. I do not believe therefore that counsel has established that there is any usage in traffic law generally which requires that the word "used" must always, when it appears alone, be interpreted as excluding "driven". To my mind the proposition should be other way: that is to say one should not seek to limit the ordinary grammatical width of the term unless there is something in the context which appears to require that it should be so limited. As for the objection that where the 2 words appear in a single regulation they either imply a distinction or display a tautology, I must point out that if the latter is the truth the tautology is that of the Governor in Council rather than that of the Legislature. One can, however, find in sec. 17 of the Ordinance some indication that when the Legislature itself is speaking it is not careful to make the restrictive distinction upon which counsel relies. Although the word "used" there appears it is clear from the context not only that it does not exclude "driven" but even that it is to be understood as meaning "driven" and that it absolves, for reasons of civic emergency, a driver from blame for what would otherwise be a peculiarly dangerous manner of driving. In my view a motor car carelessly driven is one which has been used in contravention of the Ordinance. 38. The second part of Mr. Jackson-Lipkin's argument under this head was that, if the phrase in sec. 3(1)(1) is wide enough to include "driven" it is nevertheless impossible to include careless driving among the scheduled offences because even if it constitutes use of a vehicle it is not a use in contravention of the Ordinance. This is an intriguing and also somewhat startling argument and counsel, who covered this and all other aspect of his case with great skill and patience, will, I hope, forgive me if I say that I feel he has put it forward as a kind of philosophical make-weight in the train of arguments which he himself feels to be of more substance. It is said that the Legislature never tries to control the thoughts of the subject and that careless driving is something which is wholly dependent upon the thoughts and feelings of the subject whereas such offences as, for example, carrying excess passengers can be measured by the objective standard of a positive prohibition contained in the law. I think, with respect, that this is in relation to the matter in hand, a play with words. It is not enough to say that in the one case there is a definite choice of a definite act which the law forbids while in the other it appears that there is a, possibly inadvertent, neglect of the standard which the law seeks to impose. In either case there is an objective test measured by which the subject's conduct can be seen to be at fault. It does not seem to me to derogate from the objectivity of this test that the proof of the offence is simpler in the one case that it is in the other. It is true that what constitutes careless driving is a matter of opinion whereas an extra passenger is a matter of brute fact. In the one case one piece of evidence alone will be conclusive proof. In the other it will be necessary to tender evidence of a variety of circumstances which may vary case by case and which will fall to be evaluated afresh each time in the judgment of the court. The law, however, says that it is wrong, that is illegal, to drive carelessly just as it is wrong to carry an excess passenger. Either of these offences might be committed by acts of positive choice or by negligence or inadvertence. If by positive choice then, in one case, the subject is doing something which would not in the ordinary sense be regarded as wrong but which is made wrong by a provision in the law and in the other he chooses to do something which the common deliverance of a man's conscience would denote to be wrong whether or not the law prohibits it. Before he does the act complained of he can consult, in the one case, the law and, in the other, his conscience or he may simply neglect to pay sufficient attention to what he is doing but in any case he is judged by an objective standard and he has either chosen to do something which was positively forbidden or else so behaved that he can hardly be said to have chosen anything at all. It may be that the enforcement of the law is in this regard complicated by an apparent antithesis between matters of fact and matters of opinion but in either case what the Legislature seeks to affect is the conduct of the subject. In both cases acts of choice are involved and they are performed against the background of a certain standard. The subject's thoughts remain his own although this may be little satisfaction to the subject who is forced to alter his conduct because of thoughts induced in him by the acts of the Legislature. 39. Finally comes the point as to audi alteram partem, the argument from natural justice. Before I deal with that argument specifically I would like to make one observation which has reference to the topics already discussed and which may serve to bring the appellant's case into focus both as to is strength and itsweakness. Counsel for the appellant in the course of his argument generally, made a very close association between his arguments from the common law and from natural justice. Thus he sought to overcome the patent difficulty put in his way by the fact that the person primarily aggrieved by the order may not be the defendant driver by saying that his contention as to mens rea should apply more rigorously still to the case of the owner than to that of the driver since the owner had not even been charged with an offence. The right to eliminate mens rea by creating strict liability in the regulation should not, he said, be deduced merely from silence in the parent Ordinance. Whatever the value of this contention I cannot but think that it confuses the issue. It has been pointed out that neither 3(1)(1) nor 41B creates any offence. The argument from mens rea therefore was, in a sense, an elaboration by analogy to cover the case where a man, though neither charged with nor convicted of a criminal offence, is nevertheless affected by something that bears the appearance of a penal sanction. In fact, although Sweet v. Parsley(1) and the other decisions dealt with what are sometimes called absolute offences, counsel was dealing with something quite different which, in deference to the analogy, might perhaps best be called an absolute penalty. There was no question of an absoute offence. The driver was convicted in the ordinary way upon evidence of careless driving. The owner was not convicted of anything at all. But when one looks at the terms of 41B one sees that, even on the basis of analogy, there is no question of an absolute penaly. The penalty does not fall simply upon the conviction of the driver but only after he has failed, when given an opportunity, to advance special reasons why it should not fall. If no opportunity whatsoever were given to any one to show cause against the detention of the vehicle and if no reason was permitted to be advanced against its detention then I can conceive that the arguments from mens rea and from natural justice might have come together. In arguing the common law point, Mr. Jackson-Lipkin said that the law holds the protection of a man's property in equal esteem with the protection of his person. If an absolute penalty was involved, therefore, it might be argued that such a denial of natural justice was not to be repaired merely by letting one show cause but by permitting one to show cause at large so as to be at liberty to urge absence of guilty complicity among any other matters. But as it stands, the regulation is so framed that it unsettles both arguments. It neither establishes an absolute penalty nor does it forbid the owner to be heard in defence of his property. The two points therefore remain separate and that as to mens rea can to my mind be of no great help. 40. But it seems to me that there is still something wanting from the side of natural justice. Although there is provision for the owner to be heard in defence of his property, should he be present at the hearing, there is no provision that he should be summoned to show cause. Mr. Sneath argued that there could be no failure from the side of natural justice unless the regulation were positively to shut the owner out from a hearing. But it was to the credit of an argument which was advanced with fairness and care that he was prepared to acknowledge the force of the contention from natural justice to the extent of making something in the nature of a concession. While maintaining that the regulation did not offend because there was nothing in the enabling power expressly requiring that notice be given he nevertheless conceded that if natural justice had been denied then it was only the order of the Magistrate that might be open to challenge on the ground that notice had not been given. I would like to say that I thought that the argument of the learned Solicitor General, which I found in every other department succinct and persuasive, at this point only had a somewhat defensive ring. I think he very properly allowed his reservations to be manifest in this way for, as he candidly admitted throughout, the law we are considering is a strong law. Nevertheless although I am attracted by this distinction I think that in justice and common sense it is not to be sustained. Although it may be said that the magistrate is not forbidden by 41B to give notice to the owner before making a detention order, the regulation itself seems to require that he should not delay in order to do so once a conviction has been recorded. Paragraph 1 enjoins him to make the order once the driver is convicted unless special reasons are shown. The limitation imposed by paragraph 2 on the nature of special reasons makes it clear that the owner and his problems are to be no concern of the Court. The owner in fact turns up as an afterthought in para.4 where his position of sufferance is manifest. 41. In my view the line of authorities commencing with Cooper v. The Wandsworth Board of Works(7) and sustained through Hopkins v. Smethwick Local Board of Health(8) and the principle in which was most recently invoked and affirmed in Durayappah v. Fernando & ors.(9) constitutes a continuous bulwark, still unbreached, in defence of the principle that no man shall be deprived of his property without having an opportunity of being heard. In one sense the regulation does afford an opportunity to an owner of being heard but it is an opportunity which depends entirely upon accident. What it fails to provide is that there shall be notice to the owner that the opportunity exists and that he will neglect to avail himself of it at his own risk. 42. It may be true that in many cases the mere summoning of the driver to answer a charge in court will in fact constitute immediate notice to his employer of what is afoot. That possibility cannot affect the principle. Mr. Sneath's argument that the principle is not breached because the regulations do not specifically abrogate it is a logical sleight but I do not think it will do in such a weighty matter. The regulation does not provide for notice and the cast of it is against the giving of notice. What may be lost to an owner in consequence of his not receiving notice is substantial for although his mouth is partially stopped by 41B he, or his lawyer may be better able to urge special reasons than would his driver. 43. Finally I think that the argument that the regulation is not at fault although an order made in compliance with it might be, although ingenious, is unsubstantial. It imputes a kind of purposeful ambiguity to the Legislature in expressing its intention as though the Legislature was not quite prepared to breach the rule itself but was content to leave the matter to the fall of chance or to a magistrate's whim. The Legislature must be presumed to foresee that the words ascribed to it at least incline in the direction of a breach of natural justice and if that is so it must be presumed to have intended it. But without the warrant of clear words in the Ordinance it is wrong to ascribe such an intention to the Legislature. I agree with Mr. Jackson-Lipkin that such an intention may not be presumed from silence. 44. In my view 41B inasmuch as it must be construed as excluding the giving of notice is objectionable and beyond the powers intended by 3(1)(1). It is for this reason only that I would allow the appeal. (1) (1970) A.C. 132. (2) (1967) 1 Q.B.D. 230. (3) (1963) A.C. 160. (4) (1963) 1 Q.B. 990. (5) (1960) 1 & 2 Q.B. 367. (6) (1942) 1 K.B. 501. (7) 14 C.B. (N.S.) 180. (8) (1894) Q.B. 712. (9) (1967) 2 All E.R. 152. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 120 OF 1970 -----------------
----------------- Coram: Full Court (Rigby C.J., Mills-Owens, McMullin, JJ.) ----------------- JUDGMENT ----------------- Mills-Owens J.: 45. Counsel for the appellant based his submissions mainly on the following passage from Lord Diplock's speech in McEldowney v. Forde (H.L.N.I.)(1969) 3 W.L.R. 179, at p.199, where he said:-
This passage, in my view, circumscribes the ambit of the present case, so that the sole question for our determination is whether regulation 41B is intra or ultra vires section 3(1)(1) of the Ordinance. 46. It was a point made for the appellant that as the regulation could, admittedly, result in the impounding of the vehicle of an owner who had committed no offence, its provisions were contrary to the general principle that no one is to be rendered liable to a criminal sanction in the absence of mens rea. This derives from the mandatory nature of the provisions of paragraphs (1) and (2) of the regulation. In Utah Construction v. Pataky (1966) A.C. 629 at p.642, their Lordships of the Privy Council said:-
Even if, therefore, it were to be accepted that the impounding of vehicles is a penal provision to which the general requirement of mers rea applies, it would not follow that the regulation is bad simply because it imposes strict liability. I would approach the matter differently. 47. Regulation 41B, in the contention of the prosecution, means that the vehicle of an owner who is innocent of any offence may, indeed must, be impounded - unless there is a special reason. It is to be noted that paragraph (2) of the regulation precludes the owner from asserting virtually any special reason where the offence giving rise to the impounding is a driving offence, such as dangerous or careless driving. In the present case we are concerned with an offence of careless driving. The situation thus obtaining under the words of the regulation, in the contention of the prosecution, has in my view a two-fold bearing. First, there is the general question whether such a situation is within the contemplation of section 3(1)(1); secondly, the question arises whether the words "used in contravention of this Ordinance", appearing therein, should be given a limited meaning - that is to say, as indicating offences strictly of illegal user of vehicles as opposed to driving offences - offences of illegal user being more indicative of offences attributable to the neglect or default of owners, as being offences which it lies within their power to prevent. I would incline to that view. If it were not so then certain observations made in the House of Lords case of Sweet v. Parsley ((1970) A.C. 132) become pertinent. Thus, at p.156, Lord Pearce said:-
This was said in relation to a contention that a person concerned in the management of premises where dangerous drugs are used ought to be liable although he had no knowledge and no guilty mind, it being argued that enforcement of strict liability in such a case was 'a practical act intended to prevent a practical evil'. So here, it might be argued that what was intended by the Legislature was the regulation of the user of public light buses by the strictest means, regardless of any likelihood that innocent and guilty would suffer alike; to paraphrase words used by Lord Pearce: only thus can owners be made alert to prevent offences being committed by their drivers. The learned Lord of Appeal found the argument wholly unacceptable; I am respectfully of the same opinion in the present context. 48. No doubt there is a certain category of cases where the Legislature may be concerned, as a matter of policy, to impose strict vicarious liability, such as where contaminated foodstuffs are sold by a shop-keeper's employees or where a duty is imposed on a factory occupier to ensure the safety of his employees. In such cases, however, vicarious liability is imposed upon the basis that the defendant has chosen to undertake a particular form of activity with its inherent risks. The case of the operation, as an owner, of a particular form of public transport cannot fall within any such category, as it appears to me. Here I would refer to the following passage from the Privy Council case of Lim Chin Aik v. R. (1963) A.C. 160 at p.174:
49. Obviously, if an owner of a motor vehicle is to be penalised for driving offences by his employee with which he is not in any way concerned he is being punished for something which he has no real power to prevent. 50. It was a point also for the appellant that under the regulation an order may be made impounding a vehicle without notice to the owner, without affording him any opportunity to show cause why it should not be impounded; the opportunity to show cause being restricted to the case of the owner who happens to be present in court (although he may not necessarily be the defendant in the proceedings). It is contended for the prosecution that there is nothing in the regulation to prevent the magistrate from ordering notice to be given to an absent owner and adjourning the proceedings for his attendance. But if that is so why was it thought necessary to provide, expressly, only for the case of the owner who happens to be present? In my view, counsel for the appellant is clearly correct in his contention that the maxim 'expressio unius exclusio alterius' applies, the regulation providing, in terms, only where the owner is present in court at the proceedings for the offence under prosecution is he to be heard. 51. It is also for consideration, as it appears to me, that the regulation is confined to a certain class of vehicle, public light buses, whereas the enabling provision, section 3(1)(1), refers to motor vehicles generally. The section is not drawn in terms such as are commonly employed when it is desired to give power to discriminate in the regulations to be made thereunder. The regulation is so framed as to apply only to a certain type of motor vehicle used for public transport, not all types of public transport vehicles (see reg.41A). 52. It is clear that regulation 41B - (a) whilst being imperative in its terms, operates on innocent and guilty owners alike, if it extends to driving offences which I think it does not; (b) is discriminatory in selecting only one form of public transport vehicle for the penalty of impounding; and (c) is to be enforced without notice or opportunity to be heard (unless the owner happens to be present). Whilst it undoubtedly lies within the power of the Legislature to bring about such a situation, no matter how unjust, if that is its policy, the intention so to do and the policy it is pursuing must be found in the language it has chosen to employ. Clearly, such an intention is not lightly to be imputed. On the single aspect of discrimination - no doubt it lies within the competence of the Legislature to bring about a state of inequality before the law, but an intention to empower a delegate to legislate in such unusual terms requires, in my opinion, the clearest expression. No such expression is to be found in section 3(1)(1). 53. Even placing upon section 3(1)(1) the most liberal construction, it fails, in my view, to evince an intention to authorise regulations of the imperative, discriminatory and over-riding effect of regulation 41B in the senses which I have described. Accordingly I would hold the regulation to be ultra vires. I would add that no reliance was placed by the prosecution upon any of the provisions of the Interpretation Ordinance (Cap.1). 54. I agree with what my Lord has said concerning 'special reasons'.
Representation: Mr. Jackson-Lipkin for appellant. Sneath, S.G. Astin c.c. for Crown/respondent. |
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