HKSAR v. Jockey Club Kau Sai Chau Public Golf Course Ltd

HCMA 719/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 719 OF 2011

(ON APPEAL FROM KCS 37343 OF 2009)

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

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

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

JUDGMENT

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

1.The appellant pleaded not guilty to a re-amended summons of using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. The particulars of the offence are as follows:

“The appellant on 18/5/2009 at 1:15 pm at Unnamed Road near Hole 4 East Course inside Jockey Club Kau Sai Chau Public Golf Course did use a MOTOR VEHICLE on a road when there was not in force in relation to the user of the vehicle by you such a policy of insurance or such a security in respect of third party risks as complied with the requirement of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272.”

2.The appellant was convicted of the summons after trial and was fined $6,000.  The appellant appeals against the conviction.

Evidence of Prosecution

3.On 18 May 2009 at about 1:15 pm, Mr Li Man Yam, an employee of the appellant, acting on the instruction of his superior, drove 4 workers on board of a light utility vehicle to work at the unnamed road  near Hole 4 East Course inside the Jockey Club Kau Sai Chau Public Golf Course (‘the unnamed road”).  The light utility vehicle overturned, killing one of the workers.  It is not in dispute that the appellant permitted Mr Li to drive the light utility vehicle which did not have valid third party insurance.

Evidence of the Defence

4.The appellant elected not to call any evidence.

Basis of Conviction

5.The magistrate convicted the appellant on the basis that the unnamed road was a road and the light utility vehicle a motor vehicle within the meaning of the Motor Vehicles Insurance (Third Party Risk) Ordinance, Cap 272 (“MVI(TPR)O”), or alternatively the unnamed road was a private road within the meaning of the Road Traffic Ordinance, Cap 374 (“RTO”).

Grounds of Appeal

6.The grounds of appeal are as follows:

(a)  The magistrate erroneously concluded that the light utility vehicle was a motor vehicle;

(b)  The magistrate erroneously concluded that the unnamed road was a road within the meaning of MVI(TPR)O;

(c)  The magistrate erroneously concluded that the unnamed road was a private road within the meaning of the RTO.

Status of the Unnamed Road

7.For the sake of more systematic argument the court deals with the issue of the status of the unnamed road first.

8.A road is defined in section 2 of the MVI(TPR)O as follows:

“road means any highway and any other road to which the public have access and include any road upon which a member of the public is allowed to drive a vehicle only if in possession of permit issued by the Commissioner of Police or the Commissioner for Transport.”

9.The unnamed road is a road within this definition if the prosecution can prove beyond a reasonable doubt that the public have access to it.  The magistrate found that it was so proven and he is criticised by the appellant of failing to properly direct himself on the meaning of “the public”.

10.The magistrate adopted the meaning of “public” in section 3 of the Interpretation and General Clause Ordinance, Cap 1 (“IGCO”) which states that “public includes any class of the public.”  The appellant, however, points out that the section does not apply if contrary intention appears from MVI(TPR)O or the context of any other ordinance or instrument, citing section 2(1) of IGCO in support:

“Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance.”

11.The appellant submits that by enacting a specific definition of “road” in MVI(TPR)O, the legislature evinced such a contrary intention and the definition contained in MVI(TPR)O prevails over IGCO. This court has no argument about this so far as the definition of “road” is concerned and this proposition is supported by the authority of AG v Ng Kwan [1987] 1 HKC 183.

12.This court, however, cannot agree with the contention of the appellant that the magistrate erred in construing the word “public” by applying IGCO.  In MVI(TPR)O there is no definition of the word “public”. There is nothing in IGCO or MVI(TPR)O to the effect that the meaning of “public” in the former should not apply.  If the intention of the legislature was to have a different meaning for the word in MVI(TPR)O it would surely enact a new definition or expressly say so in it.  Such an omission must show that the intention of the legislature was that the meaning of “public” set out in IGCO applied to MVI(TPR)O.

13.AG v Ng Kwan concerned a road giving access to a refuse tip through a gate which was opened from 8 am to 5 pm.  The general public could not use the road unless authorised but there was no restriction on any member of the public coming to the road during the time when it was opened, provided they were doing so in order to dump refuse. The Court of Appeal, while ruling that the definition of “road” in RTO prevails over that in IGCO, did not specifically decide whether the word “public” in the definition of “road” in RTO has the same definition as that in IGCO:

“The question is then whether or not the public had access to it. We are satisfied that any member of the public, if he so choose, could enter into the road for the purpose of disposal of refuse…..Here the class of persons who could use the road were such members of the public who elected at any time to take refuse to the tip. Any member of the public could at any time, then bring himself within that class. We are therefore satisfied that even without calling in the aid the definition of ‘public’ in the Interpretation Ordinance, the public did have access to this road and that it was therefore a road within the meaning of the Road Traffic Ordinance. When one also considers the definition of public in the Interpretation Ordinance, it is then clear beyond any doubt.”

14.Judging from the last sentence in this quotation the Court of Appeal seemed to be of the view that the meaning of “public” in IGCO applied to RTO.

15.The appellant called in aid of the English case of Clark v Kato [1998] 4 All E R 417 in which the House of Lords considered the meaning of road which was defined in section 192(1) of the Road Traffic Act 1988 as “any highway and any other road to which the public has access”.  It was said that the element of public access had to be tested by reference to facts as well as rights and the question was whether the public actually and legally had access and that the public meant the general public.

16.It must be pointed out that this was only obiter dicta mentioned in passing by Lord Clyde who delivered the judgment of the House of Lords.  The case in fact did not concern the meaning of public access because the place in question was a car park and the House of Lords held that it was not a road.  Lord Clyde said (at page 420):

“In the present case we are not concerned with the matter of public access, but two observations on that phrase may be made….”

He then mentioned the obiter dicta above.

17.Another more important factor to be considered is that there is no equivalent enactment of section 3 of IGCO in England.  As such English authorities are of limited use.  There is also a further reason why the English authorities are of limited use and that is the lack of equivalent in the English legislation of the provision in MVI(TPR)O that the ordinance applies to a private road.  This court will deal with the issue of private road later. 

18.The magistrate considered the evidence of the 1^st, 3^rd, 5^th and 6^th prosecution witnesses (“PW1, 2, 3, 5 and 6”) before he came to the conclusion that the public had access to the unnamed road. 

19.PW1 was one of the 4 workers on board of the light utility vehicle at the time of the accident.  PW1 said that he had worked at the East Course many times.  According to what he saw pedestrians were not allowed to walk along the unnamed road when someone was playing golf there, but vehicles for playing golf were allowed to use the road and golfers were allowed to walk along the road.

20.PW3 was the Workshop Manager of the Turf Maintenance Department of the appellant.  He gave evidence that he had seen vehicles other than light utility vehicle using the road.  According to his experience golfers playing at hole number 4 would use their golf carts along the unnamed road which could lead to South Course and the North Course.  As far as he could remember there was no sign of “private road” erected there.

21.PW5 is the human resources manageress of the appellant.  Her evidence was that on the island of Kau Sai Chau there were a Club House, 1 driving range and 3 18-hole golf courses named the East, South and North Courses.  People going there could take a ferry and on reaching the island they could take a shuttle bus or walk to the club house.  The appellant did not have a membership system and any member of the public could on advance booking and payment of fee use the driving range of the golf course.  There were, however, different rules applied as to what places on the island members of the public could enter, but she was not sure about it.

22.PW6 was a police officer investigating the accident.  He went to the island on the day of the accident and also visited there several times afterwards to make investigations.  He saw that there was no gate to go through to travel from the Club House to the East Course and he remembered that there was no sign of “private road” at the unnamed road.

23.The appellant points out that the evidence of these witnesses was wholly inadequate for the court to reach a general conclusion that there was general access by the public to the unnamed road.  It should be pointed out at the outset that the magistrate reached his decision basing on the definition of “public” in IGCO which included a class of the public.

24.According to the evidence of these witnesses golf carts were allowed to be used on the unnamed road and golfers were allowed to walk there.  There was no physical obstruction preventing access to the unnamed road and there was no sign declaring the road to be a private road or restricted road.

25.PW3 said that it was the golfers playing at hole number 4 of the East Course who used their golf carts there, but the evidence of PW1 was simply that golf carts could use and golfers could walk on the unnamed road.  PW3 further said that the unnamed road could lead to South Course and North Course.  Although he added that they were far away it showed that golfers at these 2 courses could also use the unnamed road.

26.According to the evidence of PW6 there was no gate separating East Course and the Club House.  PW5 said that any member of the public on advance booking and payment of fee could use the driving range on the island. These people could always, if they chose to do so, go to the East Course and use the unnamed road.  The state of the evidence is such that any person who had gone up to the island, be they golfers or people using the driving range, could go to the unnamed road without any hindrance.

27.It is common sense that in any golf course people will only be admitted to play in the golf course if they have passed through a screening process to show that they are capable of playing golf. That is to say they must possess certain handicap qualification.  The only reasonable and inevitable inference is that the appellant would also require the golfers to have handicap qualification before they would be admitted to play in the golf courses.  The golfers allowed to go to play at the 3 golf courses on the island were no doubt a special class of the public as distinct from the general public.  The question is whether they were “a class of the public” within the definition of public in IGCO.

28.“A class of the public” under IGCO cannot be interpreted to include all classes of persons irrespective of their sizes and nature otherwise it would include the whole of the public.  What then constitute “a class of the public”?  There is no direct authority on this point.  The nearest one is the case of AG v Ng Kwan.  In this case while the Court of Appeal did not specify the meaning of “a class of the public” it was clearly of the view that the class of persons who elected at any time to bring refuse to the tip thus using the road was the general public instead of “a class of the public” in the definition of public in IGCO.  A similar view was held in the English case of DPP v Vivier [1991] RTR 205 which the court will come to later.

29.By the same token people who choose to eat in a restaurant or watch a movie in a cinema or to travel on board of a bus can be regarded as the general public.  This case no doubt serves as an authority that if a member of the public can at any time bring himself within a certain class of persons that class of persons are the general public, not merely “a class of the public” envisaged in the definition of “public” in IGCO.

30.It follows that “a class of the public” includes a class of persons even though members of the public cannot at any time bring themselves within the class.  For a class of persons which consists of a small number of people such as “invited guests” in a party, or “members” of a private club they are no doubt not “a class of the public” under IGCO.  It then comes the question of where to draw the line.  It is the view of this court that it will depend on the circumstances of individual cases.  The factors to consider will include the size of the class, the nature of the qualification required to become a member of the class, the difficulty involved for a member of the public to become qualified and who has the control over how the qualification can be obtained and the number of people so qualified.

31.No doubt the size of the class is an important factor to consider.  The bigger the size of the class the more likely that it is a “class of the public”.  There can be cases in which the size of the class is so big that it can only be “a class of the public”.  For example if the class refers to the students in Hong Kong the size will be so large that it must be “a class of the public”.  If, however, it refers to males over 100 years of age the size will be so small that it is unlikely to be so.

32.The nature of the qualification may be that the class is only confined to people having a particular quality, for example, people with colour blindness, or of a particular blood group or people of a particular surname or alumni of a particular school of a particular year.  Such are either born qualities which cannot be acquired at will or qualities which can only be acquired at a particular time after which the class is closed.  It is the view of this court that unless the class is of a big size it tends not to fall within “a class of the public”.

33.The easier the qualification is obtained the more likely that the class of persons is “a class of the public”.  In AG v Ng Kwan the qualification was so easy to obtain that the Court of Appeal even regarded the class of persons as the general public.

34.If the owner of a place or organiser of a function has direct control over how a member of the public can obtain the qualification for admission to the place or function and can limit the number of people so qualified to a minimum, it can be evidence that the class does not fall within “a class of the public”. A typical example is a private club which can stipulate the qualification of the membership and limit the number to a small number of people.  

35.Apart from the most clear cut cases none of these factors is conclusive and they have to be considered together to determine if a class of persons falls within “a class of the public” under IGCO.

36.Coming back to the present case the appellant argues that golfers with handicap qualification had passed through the screening process and were admitted to the golf courses on the island as such. Although it would take time and practice to acquire a handicap qualification it is still a qualification that could be obtained by members of the general public.  It is common knowledge that nowadays there are more and more people playing golf and the size of the class of golfers with such a qualification is certainly not small.  Golfers can obtain the handicap qualification not only from the appellant but also from other golf organisations.  More importantly the appellant has no control over the number of members of the public who may become qualified and the number keeps increasing with time.  After considering all these factors the court is of the view that the golfers who had access to the unnamed road were “a class of the public”.  

37.Those people using the driving range were of a different category.  They could use the driving range by advance booking and payment of fee.  Members of the public therefore could easily and at any time bring themselves within that category.  They clearly fell within “a class of the public” in the definition in IGCO and, as can be seen later, can even be regarded as members of the general public.  The result was that only these people alone was already sufficient to show that the public had access to the unnamed road.   

38.The appellant cited the English authorities of DPP v Vivier [1991] RTR 205 and R v Spence [1999] RTR 353 to support its contention that the magistrate erred in concluding that the public had access to the unnamed road.  In DPP v Viver the meaning of “road” in section 192(1) of the Road Traffic Act 1988 was considered.  In construing “public” as meaning the general public, it held that in considering whether a place to which persons were admitted was a place to which the public had access, the questions to be asked were whether those persons admitted formed a special class in that they passed through a screening process for a reason or on account of some characteristic personal to themselves or whether they were members of the public being admitted as such and being processed simply as to make them subject to payment and whatever other conditions the landowner chose to impose.  The House of Lords regarded the latter category as members of the general public.

39.If this decision and the decision of DPP v Ng Kwan are applied to the present case those people who went to the island to use the driving range could be regarded as members of the general public, not merely “a class of the public”.  This supports the conclusion that the public had access to the unnamed road.

40.In R v Spence it was decided that a special class of the public were not members of the general public.  The case concerned a car park which was for the use of the employees, customers and business visitors of the office building there and the court held that these users were a special class as distinct from members of the general public.  The case further held that there must be some evidence that the public utilised the access before the issue of physical obstruction to keep the public out arose.  This case, like the other English cases, is of limited use because of the lack of equivalent enactment of the meaning of “public” in IGCO.

41.This case is also different from the present case because there is evidence that “a class of the public”, or even members of the general public, if those using the driving range could be so regarded, were using or had access to the unnamed road.

42.The unnamed road is therefore a road within the meaning of MVI(TPR)O.

Private Road

43.Section 3 of MVI(TPR)O provides:

“(1) For the avoidance of doubt, it is hereby declared that the provisions of this Ordinance shall apply to private roads, other than private roads in areas wholly or mainly used for carrying out of construction work or industry, as they apply to roads and, for that purpose, the provisions of any other Ordinance which relate, in any way, to the provisions of this Ordinance shall apply accordingly.

(2) For the purpose of this section

…

“private road” means a private road within the meaning of the Road Traffic Ordinance (Cap 374)”

44.In the Road Traffic Ordinance, Cap 374, the meaning of private road is as follows:

“private road means every thoroughfare, street, lane, alley, court, square, car park, passage, path, way and place to which access by the public may be restricted under common law, irrespective of whether such access is so restricted, but does not include-

(a)(Repealed)

(b) Any part of carriageway of the North-west Railway designated by the Commissioner for the purpose of “road” in this section by notice in Gazette.”

45.The appellant submits that the test to be applied in determining whether a road is private or public is whether a person has a common law right to restrict the public’s access to that road and if the person has such a right, then it is private road, citing the Legislative Council Brief of the relevant Bill in support.  This court has no quarrel about this.

46.The appellant cites a number of English authorities setting out the different circumstances under which a place is a private place or public place.  As pointed above there is no equivalent English enactment of the meaning of “public” in IGCO and the application of MVI(TPR)O to private roads.  The English authorities are therefore of limited use.

47.The appellant criticises the magistrate of failing to clarify his findings of fact entitling him to conclude that access by the public to the unnamed road was restricted under common law.

48.The magistrate in fact found the unnamed road within the meaning of “road” in MVI(TPR)O.  He said:

“Having considered the evidence of the 1^st, 3^rd, 5^th and 6^th prosecution witnesses, the photos of the scene showing the shape of the road at the scene and the width of the road surface, and the signs erected on both sides of the road, etc., I found that any class of the public, meaning golf players of the East Course, could have access to the section of the road where the incident occurred. Therefore, I found that the abovementioned section of road fell within the legal definition of ‘roads’.”

49.As analysed above the evidence of the witnesses referred to by the magistrate supported the conclusion of the magistrate that “a class of the public” had access to the unnamed road.  Although the magistrate gave an example that the passages in some golf courses could constitute “private roads” what he tired to bring out was that even if the unnamed road did not constitute a “road” within the meaning of MVI(TPR)O he still took the view that it fell under “private roads”.

50.PW5 at some stage of her evidence said that people could enter East Course if they possessed the handicap qualification. She later clarified that she was in fact not sure.  As pointed out above it is common sense that people could not enter a golf course to play golf unless they were capable of playing golf.  It is on this ground the appellant submits that people using the unnamed road was a special class of the public who were golfers with handicap qualification as distinct from members of the general public.

51.The magistrate decided the case on the basis that the meaning of “public” included any class of the public while the appellant maintains that “public” should refer to the general public and that golfers with handicap qualification were not members of the “public”.  If the appellant is correct, which this court has already decided otherwise, and that the access to the unnamed road was restricted then it comes to the issue of whether the unnamed road falls into the definition of private road.

52.It is not in dispute that the island was under the control and management of the appellant.  It no doubt had the legal right to impose restrictions on the access to the unnamed road and, indeed, to the golf courses and other parts of the island as well.

53.Golfers using the golf courses and the driving range were making use of the facilities provided by the appellant on the island on payment of fees and other conditions which the appellant might impose.  The relationship between the golfers and the appellant was basically a contractual one.  If the appellant was to restrict the access to the unnamed road to a certain class of the golfers it could do so by means of a provision in the contract.  Such restriction would be imposed by virtue of the contractual right of the appellant under common law. Apart from this the appellant who had control and management of the island could of course also impose the restriction in the access to the unnamed road to prevent trespass on its property.  Again, this was a restriction under the common law.  

54.More importantly, the right to prevent trespass on its property under the common law could be extended to non-golfers and the general public who did not have any contractual relationship with the appellant.

55.It follows that the appellant might restrict the access to the unnamed road by the public under common law and as such the unnamed road falls within the definition of “private road” in RTO no matter the appellant had so restricted the access or not.  MVI(TPR)O therefore applied to the unnamed road.

56.The inevitable conclusion is that if the unnamed road was not a road within the definition of MVI(TPR)O because of the restriction on its access by the general public it would still become a private road within the meaning of the RTO and the provisions of MVI(TPR)O were applicable to it.

57.No matter the unnamed road was a “road” or “private road” it does not affect the proof of the summons because section 119 of RTO provides:

“Where any provision of this or any other Ordinance creates an offence an element of which is that the offence occurs on or in relation to a place which is a road or private road, then, without prejudice to the proof of any other elements of that offence, it shall be sufficient in any proceedings alleging the commission of that offence for the prosecution to show that the place where that offence was committed was either a road or private road, without showing that the place was one or another, and a charge alleging the commission of that offence may be framed accordingly.”

58.Grounds of appeal (b) and (c) fail.

Light Utility Vehicle was a Motor Vehicle

59.This court now comes to the issue of whether the light utility vehicle was a “motor vehicle” within the meaning of MVI(TPR)O. According to section 2 of the MVI(TPR)OIO the definition of a “motor vehicle” is as follows:

“motor vehicle means a vehicle intended or adapted for use on roads, and propelled by any form of mechanical power, and includes a motor bicycle with or without a side-car or trailer, a motor tricycle and a bicycle or tricycle assisted by a motor, and a village vehicle within the meaning of section 2 of the Road Traffic Ordinance (Cap 374), but not a vehicle drawn by another motor vehicle, nor any conveyance for use solely on railways or tramways.”

60.It is not in dispute that the light utility vehicle was mechanically propelled within the interpretation of a “motor vehicle” in MVI(TPR)O.  The test of whether a vehicle is “intended” for use on roads, is the one formulated in Burns v Currell [1963] QB 433 which is whether a reasonable person, looking at the vehicle, would say that one of its uses would be use on the road.  In this connection the question is not whether there is an isolated use, or a use in an emergency, but whether some general use on the road is contemplated as one of the uses.

61.In DPP v Saddington [2001] RTR 15 the English Divisional Court applied the test of Burns v Currell and held that a Go-ped was a “motor vehicle”.  Pill LJ said:

“…I do not accept the… view that the roadworthiness of a conveyance, which I understand to mean its capability to be used safely on roads, is decisive on the question whether its use on the road must be contemplated.

…

The test is not whether a reasonable person would use a Go-ped on a road, which in ordinary circumstances he probably would not because of the dangers involved.  The test is whether a reasonable person would say that one of its uses would be use on the roads.  The person must consider whether some general use on the road must be contemplated and not merely isolated use or use by a man losing his senses. The design and capabilities of the Go-ped and the possibilities it offers will be considered and considered in the context of an assessment of peoples’ wish to get quickly through traffic and the pressure of time upon people.”

62.The test was also applied in the cases of Clark v HM Advocate 2004 JC 66 and Grant v Mchale [2005] HCJAC 86 which the court will come to later.  The magistrate rightly considered all these cases in determining whether the light utility vehicle was a “motor vehicle”.

63.The appellant has no dispute that the test to be applied is the one in Burns v Currell, but it submits that the magistrate erroneously concluded the light utility vehicle to be a “motor vehicle”.  The appellant points out that PW1, PW2 and PW4 testified that they had ridden on this type of vehicle during their course of work only in the golf course and PW3 said that the light utility vehicle was for use only within the golf courses.  The court accepts that the light utility vehicle was being used on the island only and it was not contemplated that it would be used outside the island.  This, however, does not mean that it cannot be a “motor vehicle”.  The court will come to this again later.

64.The appellant also raises a number of matters to say that the light utility vehicle was not a “motor vehicle”.  The court is, however, of the view that none of these matters is conclusive in determining this issue.

65.The first matter raised is that the light utility vehicle did not have doors, rear view mirrors, seatbelts, indicator lights and speedometer.  In short it did not have such parts as one would expect to find on a “motor vehicle”.  The appellant also brings out the evidence of the 7^th prosecution witness (“PW7”), the motor vehicle examiner who examined the light utility vehicle on the next day after the accident.  He gave evidence in court as an expert.  He agreed that the light utility vehicle was designed for use on golf course and not on roads.  He, however, added that it did not mean the light utility vehicle could not be used on roads.  He was of the view that it could be used on rugged or non-rugged roads.

66.The appellant further refers to the owner’s manual of the light utility vehicle which repeatedly pointed out that the light utility vehicle was not an all terrain vehicle and was manufactured for off-road use, not being equipped for operation on public streets or public highways. As rightly pointed out by the respondent such information was neither here nor there because it was also stated in the owner’s manual that “some countries may permit these vehicles to be operated on their streets on a limited basis and in accordance with local ordinances”.  The respondent further submits that it is not known what “road” and “off-road” meant in the manual.

67.The design of the light utility vehicle, the evidence of PW7 and the contents of the owner’s manual, either alone or together, are not conclusive in determining whether the light utility vehicle was a “motor vehicle”.  This was the view taken in many authorities.

68.In Clark v HM Advocate an off-road trail bike which had no lights, indicators or stop light and the seat was raised much higher than a standard motorcycle because of its off-road use was nevertheless held to be a “motor vehicle”.  In Grant v Mchale a mini-moto was held to be a “motor vehicle”.  As stated above, in DPP v Saddington it was held that a Go-ped was a “motor vehicle”.  These decisions were mainly founded on the finding that some general use of the vehicles on the roads was contemplated.

69.That was exactly the reason why in Philip Coates v Crown Prosecution Service [2011] EWHC 2032 the English Divisional Court affirmed a decision that a Segway, a form of personal transportation consisting of a small gyroscopically stabilised platform mounted on 2 wheels, on which the traveller stood, powered by a battery-driven electrical motor, was a motor vehicle because the use of the Segway on the roads would not be an isolated incident.  It can therefore be seen that ultimately the question has to be decided in accordance with the test of Burns v Currell.

70.The courts in Hong Kong take a similar approach.  In AG v Ho Kam Mun [1996] 2 HKC 609 the court found that a fork lift was not a “motor vehicle” because there was no evidence of previous use or repeated use on the road.  It was held that having the attributes of a vehicle alone did not prove that the vehicle was intended or adapted for use on roads and all the circumstances had to be taken into consideration in applying the test in Burns v Currell. 

71.The light utility vehicle clearly had more attributes of a motor vehicle than the vehicles in these authorities such as mini-moto, Go-ped and Segway.  PW1 said that it travelled at a speed of about 20 kph to 30 kph.  These are of course not conclusive.  As seen from all these authorities one very important criterion is whether some general use of the vehicles on the roads was contemplated.

72.According to the evidence of PW1 he had travelled on the light utility vehicle or a similar type of vehicle to go to work on the island for roughly 5 times or more before the accident and PW2 said that he had also done the same.  PW2 even said that on the day of the accident he had travelled on it for 2 times.  PW3 said he had seen light utility vehicles as well as golf carts travelling along the unnamed road.  All these show that the light utility vehicle was for general use on the roads on the island including the unnamed road.  On the day of the accident the use of the light utility vehicle on the unnamed was not an isolated incident and general and habitual use of the vehicle on the unnamed was contemplated.

73.It has already been found by the court that the unnamed road was a road for the purpose of MVI(TPR)O.  Applying the test in Burns v Currell any reasonable man looking at the light utility vehicle would say that one of its uses would be use on the roads.  The magistrate correctly applied this test and his conclusion that the light utility vehicle was a motor vehicle within the meaning of MVI(TPR)O cannot be faulted.   

74.The court has to ask one question – what if the finding of the unnamed being a road under MVI(TPR)O by the magistrate and this court was wrong and the road was a private road because golfers allowed to use the unnamed road were a special class of people not constituting “any class of the public”?  Could it then be argued that general use of the light utility vehicle on a “private road” was different from such use on a “road” and therefore the light utility vehicle was not intended or adapted for use on “roads”?

75.There is clear evidence that golfers had access to the unnamed road.  Even if they were wrongly held by the magistrate and this court to be “a class of the public”, they were still people using the unnamed road to which MVI(TPR)O applied.  As can be seen from the photographs of the scene the unnamed road was part of a very well-constructed road system with clear road markings and signs and some part of it was of dual carriageway of substantial width.  Taking all these into consideration and applying the test in Burns v Currell any reasonable man looking at the light utility vehicle would say that one of its uses would be use on the roads.  The light utility vehicle would still be a motor vehicle for the purpose of MVI(TPR)O.

76.Ground of appeal (c) fails.

Statutory Interpretation

77.The appellant makes a rather lengthy submission on statutory interpretation of MVI(TPR)O, pointing out that a purposive construction of section 2 of MVI(TPR)O should be adopted so as to give effect to the legislative intent and the courts should not distort or even ignore the plain meaning of the text and construe the statute in whatever manner to achieve a result which they consider desirable.  This court accepts that this is a well-established legal principle, but this court does not see any departure from this principle by the magistrate in the interpretation of not only section 2 of MVI(TPR)O but also other relevant statutes.

78.The appellant also discusses in detail the legislation relating to golf carts and village vehicles and other statutes including English enactments.  As rightly pointed out by the respondent the light utility vehicle does not fall within the definition of golf carts and village vehicles and these 2 types of vehicles are in any event required to have effective third party insurance when being used on roads.

79.The court accepts that if any mischief is not sufficiently covered by the legislation it is for the legislature to correct the situation and not for the courts to construe the statute against the intention of the legislature in order to achieve a desirable result.  This is, however, not the situation in the present case.  The court is of the view the magistrate correctly interpreted the statutes involved.

Conclusion

80.The appeal against conviction is dismissed.  

Ms Vinci Lam SPP of Department of Justice for the respondent

Mr M Ozorio SC and Mr Eric Tsoi on the instruction of Messrs Baker & McKenzie for the appellant

Please refer to FACC2/2013 for the relevant appeal(s) to the Court of Final Appeal.