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

Press Summary (English)

Press Summary (Chinese)

FACC No. 2 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2013 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 719 OF 2011)

____________________

BETWEEN

____________________

____________________

J U D G M E N T

____________________

Chief Justice Ma:

1.For the reasons contained in the judgment of Mr Justice Fok PJ, I agree that this appeal should be dismissed.  The policy behind the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272 is, as Mr Justice Fok has pointed out, to protect the public from the use of motor vehicles intended or adapted for use on roads to which the public has access.  Whether or not a vehicle will come under the requirements of the Ordinance is a mixed question of law and fact.  In the present case, the relevant vehicle (a light utility vehicle) was subject to the requirements of compulsory third party insurance under the Ordinance.

Mr Justice Ribeiro PJ:

2.I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

3.I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

A. Introduction

4.The appellant was convicted of one charge 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 MVI(TPR)O).  The two contested elements of the offence were the status of the place where the use of the vehicle occurred and the status of the vehicle being used and this appeal accordingly raises questions concerning the definitions of “road” and “motor vehicle” in the MVI(TPR)O.

A.1 The facts

5.Kau Sai Chau is an island located off Sai Kung, on which there are three 18-hole public golf courses, namely the North, South and East Courses.  The golf courses are operated by the appellant, having been built with funds donated by the Hong Kong Jockey Club.  On the island there is a club house, a driving range and the three golf courses in question.  The evidence at trial was that any member of the public may visit the club house and use the driving range.  Subject to meeting certain qualifying handicap requirements, any member of the public can play on the golf courses.  Being an island, access is by ferry from Sai Kung and shuttle buses are available to take visitors from the ferry pier to the club house for access to the golfing facilities.

6.On 18 May 2009, at about 1pm, one of the appellant’s employees was instructed to drive four workers in a vehicle owned by the appellant to the 4^th hole of the Kau Sai Chau East Course.  The workers were engaged by a contractor of the appellant to carry out electrical engineering work at the golf courses.  One of the workers sat in the front passenger seat of the vehicle next to the driver and the other three sat behind them on a toolbox in the cargo bed of the vehicle.  At about 1.15pm, whilst travelling downhill on an unnamed road near the 4^th hole of the East Course, the vehicle overturned and the driver and its passengers were thrown from it.  As a result, all of the vehicle’s occupants were injured and, tragically, one of the passengers, who was in the rear of the vehicle, died from his injuries.

7.Photographs tendered in evidence showed the unnamed road to be part of what the Judge below described as “a very well-constructed road system with clear road markings and signs”, part of which was a “dual carriageway of substantial width”.[1] The evidence at trial established that golf carts could be driven, and golfers could walk, on the unnamed road.  The users of the road might be golfers playing the 4^th hole of the East Course or golfers using the unnamed road for access to the North or South Courses.  There was no physical obstruction preventing access to the unnamed road and there was no sign declaring the road to be private or restricted.  The state of the evidence was that any person who went to the island, whether golfers playing on one of the courses or users of the driving range, could go to the unnamed road without any hindrance.

8.The vehicle, described below as a light utility vehicle, was purchased new in about 2005 and used exclusively on the golf courses at Kau Sai Chau.  It was a left-hand drive four-wheeled vehicle with a petrol engine and its maximum speed was 24 km/h.  It was 2.8 m long and 1.25 m wide and had two seats in the front for the driver and a passenger and a cargo bed at the rear which tilted manually.  The owner’s manual for the vehicle described it as a “light duty utility vehicle” which was “designed and manufactured for off-road use” and “for use on improved roads (but not on public highways)”.  It had a flat plastic roof mounted on a metal frame over the driver’s and front passenger’s seats and a windscreen but it did not have doors.  Nor did it have rear view mirrors, seatbelts, left/right indicator lights at the front or rear, a speedometer or plates for the vehicle’s registration number or licence.  On the other hand, it did have brake lights, rear lights, an engine hour meter and a low oil pressure light as additional equipment.

A.2 The charge

9.The appellant faced a sole charge of using a motor vehicle without third party insurance contrary to sections 4(1) and 4(2) of the MVI(TPR)O.

10.Section 4(1) of the MVI(TPR)O provides:

“Subject to the provisions of this Ordinance it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance.”

And section 4(2) of the MVI(TPR)O specifies the penalties to which a person convicted under section 4(1) is liable.

11.As will be apparent, there are four constituent elements of the offence, namely: (i) the use, (ii) of a motor vehicle, (iii) on a road, and (iv) without a complying policy of insurance covering third party risks.

A.3 The proceedings below

12.The case was tried in the Kowloon City Magistrates’ Court in September 2011.  The appellant did not dispute the use of the vehicle (element (i)) or that there was no third party risks insurance policy in effect in respect of that user (element (iv)) and the Magistrate[2] was satisfied these two elements of the offence were established.

13.The Magistrate was also satisfied that the other two elements of the offence, which the appellant did contest, were also established beyond reasonable doubt. 

14.He found, applying the definition of “public” in section 3 of the Interpretation and General Clauses Ordinance, Cap.1 (the IGCO),[3] that a class of the public, namely golfers playing the East Course, could have access to the section of the road where the incident occurred and so held that the unnamed road near the 4^th hole of the East Course was a “road” within section 2 of the MVI(TPR)O (see below) (element (iii)).  Alternatively, he held that it was a “private road”[4] so that this element of the offence was made out by reason of section 3 of the MVI(TPR)O (see below).

15.Applying the test laid down in Burns v Currell [1963] QB 433, the Magistrate also held that the light utility vehicle was a “motor vehicle” within section 2 of the MVI(TPR)O (see below) (element (ii)).

16.The consequence of the Magistrate’s conclusion in the alternative regarding the road (element (iii)) is that, by reason of the provisions of section 119 of the RTO[5] and assuming the light utility vehicle was correctly held to be a motor vehicle, it rendered moot the question of whether the road was in fact public or private.

17.Upon conviction, the appellant was fined $6,000.

18.The appellant’s appeal against its conviction for the offence was heard in the Court of First Instance on 30 August 2012.  By his judgment dated 8 October 2012, the Judge[6] dismissed the appeal affirming the Magistrate’s conclusions on the two contested elements of the offence.

19.As to the status of the unnamed road, the Judge held that the public had access to the unnamed road and thus affirmed the Magistrate’s conclusion that it was a “road” within section 2 of the MVI(TPR)O.  The Judge held that the Magistrate had been correct in adopting section 3 of the IGCO in construing the meaning of “public” in the definition of “road” in section 2 of the MVI(TPR)O. He found that the golfers playing on the Kau Sai Chau courses were a “class of the public” within the IGCO and that they were using or had access to the unnamed road.  Alternatively, he found that the users of the driving range were members of the general public and that they were using or had access to the unnamed road.  In any event, the Judge agreed with the Magistrate that, even if the road was not a public road, it was a private road within section 2 of the RTO and therefore this element of the offence was made out by reason of section 3 of the MVI(TPR)O.

20.The Judge held that the applicable test for whether a vehicle is “intended” for use on roads was that in Burns v Currell and that the Magistrate had correctly applied this test in concluding that the light utility vehicle was a motor vehicle within section 2 of the MVI(TPR)O.

A.4 The certified questions

21.On 4 December 2012, on the appellant’s application, the Judge certified four questions as points of law of great and general importance and, on 8 April 2013, the Appeal Committee granted leave to appeal on those four questions, namely:

(1) “Whether the inclusion of ‘public’, under section 3 of the IGCO, in the word ‘road’, under section 2 of the MVI(TPR)O, should be displaced by any contrary intention appearing either from the IGCO or from the context of MVI(TPR)O?”

(2) “What constitutes a special class of the public under common law or a ‘class of the public’ in section 3 IGCO?”

(3) “Whether the application of MVI(TPR)O to ‘private roads’ in section 3 of MVI(TPR)O expanded the Burns test of whether a reasonable person looking at the vehicle would say that one of its users was use on a ‘road’ as defined in section 2 MVI(TPR)O?”

(4) “Whether the Legislature intended a vehicle ‘constructed or intended for use for the carriage of passengers on golf courses’ (cf. Interpretation of ‘golf cart’ in section 2 RTO) to be a ‘motor vehicle’ in section 2 MVI(TPR)O?”

22.The first two questions relate to the status of the unnamed road where the accident occurred and the latter two questions relate to the question of whether the light utility vehicle was a motor vehicle within the statutory provision creating the offence. 

B. The road element of the offence (element (iii))

B.1 The provisions of the MVI(TPR)O apply even if the unnamed road is a private road

23.The relevant offence is committed by user of an uninsured motor vehicle on a “road” as defined in section 2 of the MVI(TPR)O.  Section 2 defines “road (道路)” as meaning:

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

24.The word “road” in the phrase “any other road to which the public have access” is not separately defined in the MVI(TPR)O.  In the IGCO, “road” is defined as having the same meaning as “street” and “street” is there defined as meaning:

“(a) any highway, street, road, bridge, thorough-fare, parade, square, court, alley, lane, bridle-way, footway, passage or tunnel; and

(b) any open place, whether or not frequented by the public or to which the public have or are permitted to have access”.

25.Subject to the question of whether the public had access to it, to which it will be necessary to return for the reasons explained in Section B.2 below, the unnamed road in the present case was a “road” since it clearly fell within paragraph (a) of the IGCO definition of “street”.  Nor can there be any doubt that the IGCO definition of “road” should apply here since no contrary intention appears either from the IGCO or the context of the MVI(TPR)O. [7] But, in any event, even applying the ordinary dictionary meaning of the word “road”[8], the unnamed road was plainly a road.  It was a thoroughfare designed for or regularly used by vehicles to get from one place to another and this characteristic is sufficient to constitute it a road.[9]

26.Be that as it may, the MVI(TPR)O was amended in 1988[10] to reflect a fundamental revision to the RTO (by the same amending ordinance) by the introduction of a definition of “private road” and the exclusion of a “private road” from the definition of “road” in the RTO and the express application of most (but not all) of the provisions of the RTO to private roads.

27.The amendment of the MVI(TPR)O in 1988 made it clear that the offence of using a motor vehicle without third party insurance could be committed by such user on a “private road”.  Section 3(1) of the MVI(TPR)O provides:

“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 the carrying on 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.”

28.Section 3(2) of the MVI(TPR)O provides that the term “private road (私家路)” means:

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

And in section 2 of the RTO, “private road (私家路)” is given the following very wide meaning:

“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 23 of 2002 s. 91)

(b) any part of the carriageway of the North-west Railway designated by the Commissioner for the purposes of the definition of road (道路) in this section by notice in the Gazette; (Added 80 of 1988 s. 3)”.

29.There can be no doubt that, if it is not a road to which the public have access, the unnamed road adjacent to the 4^th hole of the Kau Sai Chau East Course, where the use of the light utility vehicle at the time of the offence occurred, is nonetheless still a “private road” within section 3(2) of the MVI(TPR)O.

30.That being the case, the issue of whether the unnamed road was a “road” within the definition in section 2 of the MVI(TPR)O is academic so far as this particular element of the offence is concerned because, even if the unnamed road were a “private road” within section 3(2) of the MVI(TPR)O, user of a motor vehicle there would satisfy this element of the offence.

B.2 Was the unnamed road “a road to which the public have access”?

31.Although the relevant offence may now be committed by user of a motor vehicle on a private road, it remains relevant to consider whether the unnamed road was a road to which the public had access because, as will be seen, its status as such a road, or not, is relevant to the question of whether the light utility vehicle was within the definition of “motor vehicle” in the MVI(TPR)O.

32.The statutory definition stipulates that a “road” is either “any highway” or “any other road to which the public have access”.  The reference to a highway is to a road which forms part of the public road system of Hong Kong, which for convenience may be referred to as a public highway.  The unnamed road in the present case is not a public highway, and it was not the prosecution’s case at trial that it is, so one must ask if the public had access to the unnamed road to ascertain if it fell within the relevant definition.

33.The question of whether a place is one to which the public have access for the purposes of road traffic and ancillary legislation is largely a matter of fact and degree but it is a question of law in any case whether the facts are sufficient to support a particular conclusion.

B.3 The evidence of user of the unnamed road

34.The evidence before the Magistrate relevant to the user of the unnamed road was as follows:

(1) PW1, one of the four workers on board the light utility vehicle, who had worked at the East Course many times, said that 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.

(2) PW3, the workshop manager of the appellant’s greens maintenance department said that he had seen vehicles other than the light utility vehicle using the unnamed road.  He said that golfers playing the 4^th hole of the East Course would use their golf carts along the unnamed road and that the road led to the North and South Courses. There was no sign indicating the unnamed road was a private road.

(3) PW5, the appellant’s human resources manageress, gave evidence that members of the public could on advance booking and payment of a fee use the driving range.  The appellant did not have a membership system and members of the public who satisfied the relevant handicap qualifications could play on the various courses.

(4) PW6, an officer of the police traffic accident investigation team, gave evidence that it was not necessary to pass through any gate when going from the club house to the East Course and no personnel checking people entering the golf course, nor was there a “Private Road” sign on the unnamed road.

35.On the above evidence, the Judge held that:

“24. … 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.”

B.4 The Judge’s approach

36.The Judge approached the status of the unnamed road by reference to the meaning of public in section 3 of the IGCO, which he held applied to define the word “public” in section 2 of the MVI(TPR)O.  He held that:

“27. … 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.” (Emphasis added)

37.He then addressed the question of whether those golfers were “a class of the public” within the definition in the IGCO and how such a class of the public was to be determined.  He approached that question by reference to 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 had control over how the qualification could be obtained and the number of people so qualified.[11] He concluded that golfers playing on the Kau Sai Chau courses were a sufficiently large class of persons to constitute a class of the public within the IGCO definition.[12]

38.The Judge considered the users of the driving range and said they were of a different category.  Although he expressed his conclusion somewhat equivocally, the Judge appeared to conclude that they were members of the general public.[13]

B.5 Golfers on the golf course remained members of the general public

39.In my view, the Judge was, with respect, wrong to conclude that the golfers playing on the three courses at Kau Sai Chau were not members of the public in general.

40.Kau Sai Chau is a public golf facility and not a private club. Membership is not required in order to enter and use the facility and members of the public do so for the purpose of playing golf, practising or enjoying the surroundings of the golf courses.  The fact that having a particular golf handicap may be required to play on any of the three golf courses does not mean that they enter for any purposes other than their own purposes and in their capacity as members of the public.  They are not there to exercise their rights or privileges as a member of a private club.

41.The appellant contended that the imposition of handicap requirements for access to the golf courses constituted a screening process that distinguishes qualifying golfers from other members of the public and relied on Harrison v Hill (1932) J.C. 13 to support the distinction between the general public and golfers having a qualifying handicap as a special class of the public.

42.In Harrison v Hill, the Scottish High Court of Justiciary addressed the construction of “public” in section 121(1) of the Road Traffic Act 1930 (the RTA 1930) which provided that: “‘Road’ means any highway and any other road to which the public has access, and includes bridges over which a road passes.”  An issue arose as to the status of an ordinary farm road which formed the access to a farm from a public highway.  It was found that members of the public not having business at the farm frequently walked upon it.  On the question of whether the road was one to which the public had access, the Lord Justice-General (Lord Clyde) said (at p.16):

“I think that, when the statute speaks of ‘the public’ in this connexion, what is meant is the public generally and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.” (Emphasis added)

43.It was said that this approach was “echoed” in A-G v Ng Kwan [1987] 1 HKC 183, a case concerned with whether a road leading to a refuse tip was a road within the meaning of section 2 of the RTO.  The general public could not use the road in question unless authorised but there was no restriction on any member of the public coming onto the road during the time when it was opened, provided they were doing so in order to dump refuse.  The Court of Appeal held that members of the public who entered on a road leading to a refuse tip were using the road as general members of the public and not as a special class of persons and said (at p.190D-F):

“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 [sic], could enter into the road for the purpose of disposal of refuse. The trial judge held that the general public could not use the road unless authorised, but he also held that there was no restriction on entry for vehicles bringing in refuse. We are satisfied that this does not mean that only a special class of persons had access to the road within the meaning of that expression as used in R v Beaumont. 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.”

44.I am unable to accept that the screening process constituted by the requirement of having a qualifying handicap was such as to change the character of those particular qualifying golfers as members of the public generally.  The screening process, which only applies to the golf courses themselves and not to the driving range or club house, does not endow them with any special characteristic that deprives them of their identity as members of the general public and instead turns them into a special class of the public.  To the point of the boundary of the golf facility, in practical terms the jetty on the island, these persons are plainly members of the general public and, when they disembark on the island to play golf, use the driving range and walk the courses, they do not lose that characteristic as members of the general public.

45.The evidence supports the findings of the Magistrate and Judge that golfers playing the golf courses used the unnamed road.  Although slightly equivocal as regards those playing the North and South Courses, there is no doubt on the evidence that golfers playing the East Course actually used that road.  The evidence regarding the users of the driving range is less clear and, whilst it demonstrated that they could use the unnamed road, I have some doubt that it amounted to evidence of actual user of that road on their part.  Be that as it may, the evidence amply supported the finding that golfers used and had access to the unnamed road.  For the reasons I have stated, those golfers did so as members of the general public and therefore the unnamed road was a road to which the public had access.

46.It is not necessary to demonstrate that any and all members of the public have satisfied the relevant screening restrictions imposed and I do not regard Harrison v Hill or A-G v Ng Kwan as suggesting this necessity.  It is sufficient that any member of the public can acquire a qualifying golf handicap.  Neither its acquisition nor its lack in any way diminishes the golfer’s or non-golfer’s status as a member of the public.  In the present case, this particular conclusion is supported by the wording of section 2 of the MVI(TPR)O which provides that a “road … includes any road upon which a member of the public is allowed to drive a vehicle only if in possession of a permit issued by the Commissioner of Police or the Commissioner for Transport.”  This demonstrates that the mere need to have a particular skill, namely an ability to drive sufficiently competently to pass a driving test, which clearly not everyone has, is not critical to remaining a member of the public.

B.6 Section 3 of the IGCO

47.That the unnamed road was one to which the public had access is all the more clear when one takes into account, as the courts below did, the fact that, by reason of the definition of “public” in section 3 of the IGCO, the public includes a class of the public.  On the hypothesis they are not members of the general public, there can be no doubt that golfers on the Kau Sai Chau public golf courses having the required qualifying golf handicap are members of a class of the public.

48.In the face of this difficulty, it was the appellant’s case that the IGCO definition of “public” was displaced by a contrary intention and that, instead, Lord Clyde’s construction of “public” in section 121(1) of the RTA 1930 in Harrison v Hill should be adopted so that access merely by a class of the public was insufficient to constitute the road one to which the public had access.  This contention was supported by extensive argument in the appellant’s printed case.

49.The appellant’s first argument was that the legislative history of the MVI(TPR)O is such that it should be construed consistently with equivalent provisions in the RTA 1930.  The argument proceeded as follows:  The MVI(TPR)O came into operation on 9 November 1951 before the IGCO, which came into operation as from 31 December 1966.  Although the IGCO applies retrospectively before its commencement, Hong Kong courts prior to its enactment must have applied English authorities.  In 1988, the Legislature amended the MVI(TPR)O to apply to private roads.  If the word “public” in section 2 of the MVI(TPR)O was understood to comprise a class of the public, then, as Lord Clyde observed in Harrison v Hill, a “road” in section 2 would include all private roads as well as public highways.  However, the Legislature chose to enact section 3 to extend the MVI(TPR)O to private roads. Thus, the meaning of a road to which the public has access in section 2 remained the same as Lord Clyde’s definition of road in section 121(1) of the RTA 1930.

50.The appellant’s second argument was that the context of section 2 of the MVI(TPR)O indicates a contrary intention. Here, the appellant’s submission was that the Judge attributed too much weight to the omission of the Legislature to define “public” in the MVI(TPR)O and that a contrary intention to the IGCO could also appear in an ordinance where the Legislature omitted to define a particular word.  Thus, it was submitted that a contrary intention on the part of the Legislature could be inferred from the definition of “road” in section 2 of the MVI(TPR)O itself because, in contrast to the detailed definition of “road” in the RTO, there is a lack of detail in the MVI(TPR)O definition.  It was submitted that the Legislature’s decision not to qualify the word “public” in section 2 of the MVI(TPR)O was similarly deliberate.  Thus, it was submitted, a contrary intention to the application of section 3 of the IGCO was apparent and the Harrison v Hill definition of “public” should be followed.

51.The appellant’s third argument as to a contrary intention to the application of section 3 of the IGCO was based on the decision in A-G v Ng Kwan.  It was submitted that the Judge misinterpreted A-G v Ng Kwan.  The Judge correctly noted that Court of Appeal there did not decide whether the word “public” in the definition of “road” in section 2 of the RTO had the same definition as in section 3 of the IGCO. However, the manner in which the Court of Appeal determined whether the public had access “echoed”, it was submitted, the Harrison interpretation.

52.I do not accept those arguments and do not agree that there is an apparent intention not to apply the definition of “public” in section 3 of the IGCO to the meaning of the word “public” in section 2 of the MVI(TPR)O.

53.The absence of the IGCO section 3 definition of “public” prior to 1966 does not, in my view, mean that the Hong Kong courts would inevitably have reached the same conclusion on the meaning of the word “public” in section 2 of the MVI(TPR)O as was reached in Harrison v Hill.  In that case, the issue was whether a road came within the definition of that term in section 121 of the RTA 1930 and arose in the context of a charge of driving whilst disqualified.  The context of the MVI(TPR)O is different.  The long title to the MVI(TPR)O states that its purpose is: “To make provision for the protection of third parties against risks arising out of the use of motor vehicles”.  The primary focus of the MVI(TPR)O is therefore the protection of the public from the use of vehicles rather than the regulation of the places where such vehicles are used.

54.The contrast between the detail of the definition of “road” in section 2 of the RTO and the relatively more general definition in section 2 of the MVI(TPR)O does not take matters any further. The RTO and the MVI(TPR)O are different ordinances with different objects and purposes.  The former is an ordinance “To provide for the regulation of road traffic and the use of vehicles and roads (including private roads) and for other purposes connected therewith”, whereas the purpose of the latter is that set out above.  There is no reason to think that the more general definition of “road” in section 2 of the MVI(TPR)O was the result of a deliberate legislative decision to adopt the definition of “road” from the RTA 1930 or the specific ruling in Harrison v Hill.

55.Nor, in my view, does the addition in 1988 of section 3 of the MVI(TPR)O to extend the provisions of that ordinance to private roads assist the appellant.  In the first place, the provision was inserted “[f]or the avoidance of doubt”, thereby indicating that the intention had always been to include such roads.  Further, since, as I have held, one cannot discern a deliberate decision to adopt the Harrison v Hill definition of “road”, the argument that the Legislature should be taken to have intended to retain it when section 3 was added is not sustainable.

56.I do not consider the argument based on the omission to define “public” in the MVI(TPR)O to be sound. Whilst I accept that a contrary intention to the IGCO could also appear in an ordinance where the Legislature omitted to define a particular word, this would likely be in the nature of an exception rather than the rule.  It is true that, by way of example, the appellant was able to point to the Film Censorship Ordinance, Cap.392 (the FCO).  The FCO section 9(2) refers to the public without defining it, but it is clear from a reading of section 9(2) that section 3 of the IGCO clearly could not apply without producing an absurd or anomalous meaning.  In general, where an ordinance does not define a word, for which a definition is provided in the IGCO, the prima facie assumption will be that the latter general definition is intended to apply to the use of that same word in the ordinance in question unless, as in the case of the FCO but not here, a contrary intention applies by reason of absurdity or anomaly.

57.Finally, in relation to A-G v Ng Kwan, a first point to note is that it is not authority for the proposition that a contrary intention to the application of the definition of “public” in section 3 of the IGCO appears from the RTO.  Notwithstanding the headnote of the reported decision, whilst the ratio of A-G v Ng Kwan was that the definition of “road” in section 3 of the IGCO was displaced by a contrary intention in section 2 of the RTO, the court did not hold that the definition of “public” in section 3 of the IGCO was similarly displaced by the RTO.

58.Instead, it is clear from the judgment of the court[14] delivered by Penlington J that the decision proceeded on the basis that the court was satisfied that the road was a road within the meaning of section 2 of the RTO because the public had access to it (see pp.189H-190D).  After concluding that members of the public who entered the road for the purposes of disposing refuse were doing so as members of the public generally in the passage set out in paragraph 43 above, the Court continued (at p.190F):

“We are therefore satisfied that even without calling in 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.”

The Court would clearly not have said this if it were holding that the IGCO definition of “public” was displaced.

59.A second point to note is that A-G v Ng Kwan was not concerned with the MVI(TPR)O at all but with the definition of “road” in the RTO.  The court held that the word “include” in the definition of road in the RTO meant “means and includes” because of the “extreme detail of the definition in the [RTO]” (p.190B-D).  Because of this a contrary intention to the definition of road in the IGCO was evinced.  No such detail exists in the definition of “road” in the MVI(TPR)O and there is no definition of “public” in that ordinance.

60.I do not therefore agree that the way the Court of Appeal construed “public” in A-G v Ng Kwan, even if it may be correct to characterise that construction as having “echoed” the interpretation in Harrison v Hill, means that the definition of “public” in section 3 of the IGCO is displaced for the purposes of the MVI(TPR)O.

61.For the above reasons, the unnamed road was clearly one to which the public had access.

C. The motor vehicle element of the offence (element (ii))

62.The other contested element of the offence was whether the light utility vehicle was a “motor vehicle” as defined in the MVI(TPR)O.

63.Section 2 of the MVI(TPR)O, provides that “motor vehicle (汽車)” 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 any other motor vehicle, nor any conveyance for use solely on railways or tramways; (Amended 31 of 1986 s. 8) [cf. 1930 c. 43 s. 1 U.K.]”

64.The term “village vehicle (鄉村車輛)” is in turn defined in section 2 of the RTO as meaning:

“(a) a driver operated village vehicle;

(b) a pedestrian controlled village vehicle; or

(c) a golf cart; (Replaced 80 of 1988 s. 3)”.

65.The latter term “golf cart (高爾夫球車)” is defined in the same section of the RTO as meaning:

“a motor vehicle having an overall length not exceeding 3.2 m and an overall width not exceeding 1.2 m constructed or intended for use for the carriage of passengers on golf courses, in addition to the carriage of a driver; (Added 80 of 1988 s. 3)”.

66.Although the light utility vehicle in the present case bears some resemblance to a golf cart, having a similar chassis and body structure, particularly at the front of the vehicle, it is not a “golf cart” as defined in the RTO since its width of 1.25 m exceeded the statutory maximum of 1.2 m. Furthermore, it was not “constructed or intended for use for the carriage of passengers on golf courses, in addition to the carriage of a driver”.  The vehicle was called, in the Owner’s Manual & Service Guide, a “Workhorse” and it was described there as “a light duty utility vehicle”.  Instead of a platform at the rear on which to store and secure golf clubs, typically found on a golf cart, this vehicle had a flat cargo bed and was clearly designed to be a work vehicle able to transport cargo.  Even disregarding the statutory dimensions, by reason of its design and obvious intended purpose as a work vehicle, the light utility vehicle could not properly be described as a golf cart and it was not suggested in argument that it was a golf cart.

67.Nor did either party suggest it was a village vehicle, that type of vehicle being a motorised cart “used to transport agricultural produce, building materials and other goods in rural and other areas which are inaccessible or closed to ordinary vehicles”.[15]

68.The material question is therefore whether the light utility vehicle was “a vehicle intended or adapted for use on roads”.

C.1 The test to determine if a vehicle is a motor vehicle

69.The correct test to be applied is the objective test propounded by Lord Parker CJ in Burns v Currell (at p.440),[16] namely whether a reasonable person looking at the vehicle would say that one of its users would be a road user.  This does not mean what the user or manufacturer intended and also does not mean user by someone “losing his senses” or isolated user or user in an emergency.  The tribunal of fact will have to ask whether it has been proved beyond reasonable doubt that any reasonable person looking at the vehicle would say that one of its users would be a use on the road.

70.The test was explained by Glidewell LJ in Chief Constable of Avon and Somerset v F (1987) 84 Cr. App. R. 345[17] at pp.350-351 as being:

“… what would be the view of the reasonable man as to the general user of this particular vehicle; not what was the particular user to which this particular defendant put it, either at the time in question or, indeed, generally. In other words, if a reasonable man were to say: ‘Yes, this vehicle might well be used on the road,’ then, applying the test, the vehicle is intended or adapted for such use.”

71.In DPP v Saddington [2001] R.T.R. 15,[18] Pill LJ observed (in 2000) that the test had been applied “for approaching 40 years” and should not readily be departed from.

72.In Hong Kong, the test has been consistently applied in order to determine whether a vehicle is within the definition of “motor vehicle” in section 2 of the MVI(TPR)O[19] and section 2 of the RTO.[20]

73.In applying the Burns test there will be cases in which it will not be necessary to have any evidence other than photographs and a description of the vehicle.  As Lord Parker observed (at p.440):

“… in the ordinary case it seems to me that there will be little difficulty in saying whether a particular vehicle is a motor vehicle or not.”

Thus, to take an obvious example, a standard motor car would readily be held to satisfy the Burns test on the basis that the tribunal of fact would conclude that any reasonable person looking at it would say that one of its users would be a use on the road since it was clearly intended for such a use as disclosed by its design, condition, equipment, functions and attributes.

74.There will, however, be other cases in which the answer to the question posed is not so obvious.  In those cases, it may be necessary, if the tribunal of fact is to be satisfied that it has been proved to the requisite criminal standard of proof that any reasonable person looking at the vehicle would say that one of its users would be a use on the road, for there to be other evidence beyond just photographs and a description of the vehicle.  An obvious example of such a vehicle which would not, without more, be so regarded, is a motorised lawnmower.  Another example might be a recreational vehicle patently designed to be used off-road, such as a dune buggy or a Go-Kart.

75.One such type of evidence would be evidence that the vehicle was registered and licensed for use on the road.[21] Other types of evidence would be evidence as to the vehicle’s capability to get through traffic and its speed[22] or evidence that the vehicle was in good condition and roadworthy.[23]

76.A further type of relevant evidence would be evidence of user.  In Percy v Smith [1986] R.T.R. 252, the Divisional Court held, at p.258H, that the justices were entitled to take into account the actual use made of the vehicle by the defendant.  The evidence of use on a road might demonstrate an intention on the part of the user that it be so used and could be evidence supporting an inference that the user would continue so to use it.[24] On the other hand, evidence of the user of the vehicle might demonstrate that it was not intended to be used on the road.[25]

77.Such evidence of user might also include evidence concerning the number of vehicles of similar design in circulation[26] or the user of the same type of vehicle other than the particular vehicle the subject of the charge.[27]  Thus, in Burns v Currell, Lord Parker noted (at p.440) that “[t]here was no evidence that other people used these vehicles on the road”.

C.2 The evidence of user in the present case

78.The evidence before the Magistrate relevant to the user of the light utility vehicle was as follows:

(1) PW1 said that he had ridden on this type of vehicle about 5 times when he had previously gone to the golf course for work. 

(2) PW2, one of PW1’s co-workers, said he had ridden on the light utility vehicle in question previously when working on the golf course and about twice before on the day of the accident.

(3) PW3 said that both utility vehicles and golf carts would go past the section of the road where the accident occurred.  This meant that players on the 4^th hole of the East Course would go past this section of the road which could also lead to the North and South Courses.  His evidence was that the light utility vehicle was only used within the golf courses and would not be used outside the golf courses.  The appellant did not require drivers of the light utility vehicle to have a driver’s licence.

(4) PW4, the supervisor of the appellant’s property maintenance department, said the light utility vehicle had been used since around 2004[28] by the maintenance department to take workers out onto the golf courses for work and that he had personally used the light utility vehicle to do so.

79.In the light of that evidence, the Judge held as follows:

“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 [road] was not an isolated incident and general and habitual use of the vehicle on the unnamed [road] was contemplated.”

C.3 Did the courts below apply the correct test?

80.The Magistrate and Judge both expressly applied the Burns test in arriving at the same finding that the light utility vehicle was a “motor vehicle” within the statutory definition.

81.The appellant’s printed case posited a misdirection in law on the part of the Judge, namely that he allowed the fact that the offence could be committed on a “private road” to infect his objective assessment of whether the light utility vehicle was intended for use on roads.  The appellant contended that this was an unconventional and therefore erroneous application of the Burns test.

82.The definition of “motor vehicle” in section 2 of the MVI(TPR)O refers to a “vehicle intended or adapted for use on roads …”.  The term “road” is itself defined in section 2 to mean “any highway and any other road to which the public have access …”.  Although section 3 declares the provisions of the MVI(TPR)O to apply to “private roads” (as defined in the RTO), there is nothing in that section which suggests that the definition of “motor vehicle” or “road” in section 2 – or, more particularly, the meaning of the word “roads” in the definition of “motor vehicle” there – is affected by that declaratory statement.  Further, the linkage between road user and the relevant statutory definition of “road” is supported by Burns v Currell at p.441 and A-G v Ho Kam Mun at p.614F.[29]

83.The appellant is therefore correct, in my view, in contending that the Burns test must be posed by reference to road user on a highway or any other road to which the public have access.

84.I do not accept, however, the appellant’s further contention that the Judge failed to apply the conventionalBurns test and that the Judge erroneously applied some expanded version of that test by reference to the reasonable person’s view that the light utility vehicle would be used on a private road.

85.The relevant part of the Judge’s judgment reads as follows:

“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.”

86.The Judge expressly proceeded to apply the Burns test in paragraph 73 of his judgment on the basis of his finding that the unnamed road was a road to which the public had access and not by reference to the fact that the offence could be committed by user of the vehicle on a private road by virtue of section 3 of the MVI(TPR)O.

87.That being the case, his application of the Burns test to the light utility vehicle taking into account its user on a road to which the public had access was an orthodox and proper approach.  Applying that test, the Judge came to the same conclusion as the Magistrate and therefore confirmed the latter’s finding that the light utility vehicle was a “motor vehicle” within section 2 of the MVI(TPR)O.

88.The Judge’s remarks in paragraphs 74 and 75 of his judgment, on the footing that the road was one to which the MVI(TPR)O applied because it was a “private road”, were obiter and, for the reasons set out above, should be disregarded.

C.4 Did the Judge reach the correct conclusion in applying the Burns test?

89.In applying the Burns test, each case will turn on its own facts.[30]

90.I have described the light utility vehicle in Section A.1 above and summarised the evidence of its user in Section C.2 above.

91.The fact that the absence of doors, rear view mirrors, seatbelts, indicator lights, a speedometer and licence plates meant that the light utility vehicle might not have been roadworthy in the sense of being able to be used safely on roads,[31] or for the purposes of the legislation relating to motor vehicles, [32] is not decisive.  Nor is the stated intention in the owner’s manual that the vehicle was intended for off-road use and not for operation on public streets.[33]  It is not necessary, to be a motor vehicle, that it be capable of being driven in traffic in the way that another vehicle might, and it may be one even if its being driven might require the adoption of an ungainly posture.[34]  It does not have to be capable of being driven at a particularly fast speed.[35]

92.Although use on a road will not be determinative,[36] there was evidence of user of the light utility vehicle itself and other similar vehicles on the unnamed road and other roads on Kau Sai Chau.  I have set out paragraph 72 of the Judge’s judgment above.  It is not clear that it was established by evidence that there are roads on the island other than roads within the golf course and related to that facility, nor was there evidence of actual use of them by members of the public.  However, for the reasons explained above, the unnamed road where the accident took place was clearly a road to which the public had access.  In my view, the evidence before the Judge justified his holding that the general and habitual use of the light utility vehicle on the unnamed road, a road to which the public had access, was intended.  The evidence was that the light utility vehicle was regularly used to transport people and equipment along a road and the user was clearly not an isolated or emergency user, nor could it be said to be a user by someone losing his senses.

93.Having regard to the evidence concerning the light utility vehicle and in particular of its user on a road to which the public had access, I have no doubt that in the present case the Magistrate and Judge were correct to find, applying the Burns test, that a reasonable man looking at the vehicle with full knowledge of its characteristics would say that one of its users was use on a “road” as defined in section 2 of the MVI(TPR)O.

D. Not necessary to address the certified questions

94.It follows from the discussion above that the unnamed road was a road to which the provisions of section 4 of the MVI(TPR)O applied and the light utility vehicle was a motor vehicle.  Therefore, the two contested elements of the offence are determined against the appellant without having to resolve the issues which gave rise to the four certified questions and it is therefore unnecessary to give specific answers to those questions.

95.However, since the issue giving rise to certified question 1 has been addressed above, the answer to that question is “No”.  Similarly, the issue giving rise to certified question 3 has been addressed above and the answer is also “No”.

96.Certified questions 2 and 4 do not arise for decision.  However, I would add, in respect of certified question 2, which arose from the Judge’s approach as to how to determine what constitutes a “class of the public” under section 3 of the IGCO, that, whilst the Judge was certainly correct to say that this will depend on the circumstances of individual cases, I would not endorse his approach of looking to factors such as the size of the class, the nature and difficulty of the qualification required to become a member of it and the degree of control over how the qualification is obtained.[37] But it is not necessary to this appeal to resolve certified question 2 because it is clear that, since golfers having the required qualifying golf handicap are members of the general public, they must in any event form a class of the public.

E. Conclusion

97.For the reasons set out above, the appellant was properly convicted of the offence under section 4 of the MVI(TPR)O and the appeal against conviction must be dismissed.  The light utility vehicle was a motor vehicle which was being used on a road to which the provisions of the MVI(TPR)O applied and so there should have been in force in relation to that user an effective policy of third party insurance.

Lord Phillips of Worth Matravers NPJ:

98.I agree with the judgment of Mr Justice Fok PJ, and just wish to add some brief comments about the consequences of this judgment. I shall adopt the same shorthand references to the relevant legislation.

99.The MVI(TPR)O was passed in 1951. Roads in Hong Kong were very different in 1951 from roads in Hong Kong today. And the types of motorized vehicles found in Hong Kong in 1951 were very different and much less varied in nature than the motorized vehicles that exist today.

100.The origins of the RTO can be traced back to 1947, but the RTO has been amended and revised on a number of occasions since then. The current RTO, for the first time, draws a clear demarcation between “roads” and “private roads”. Many of the provisions of the RTO apply to both, but some do not – see sections 117 and 118. Significantly, if a vehicle is only driven on private roads it does not have to be licensed and, in consequence, does not have to comply with construction regulations that have to be satisfied if a vehicle is to be registered and licensed.

101.Compulsory third party insurance in relation to motor vehicles reflects the enhanced risk of damage or injury to third parties inherent in the use of such vehicles. That risk is readily apparent in relation to vehicles designed to be used on “roads” as defined in the RTO.

102.There are, however, types of vehicle designed to be used only on “private roads” that do not pose the same degree of risk to third parties, such as battery driven vehicles capable only of low speeds. I question whether, as a matter of public policy, the risk posed by such vehicles justifies requiring those who own and operate them to take out motor insurance against third party risks in respect of them. Indeed, it is open to question whether the risk posed by the vehicle the subject of these proceedings justified imposing a requirement to take out such insurance.

103.The MVI (TPR)O has not been the subject of significant amendment since 1951. The object of this short judgment is to suggest that there is a case for reviewing the ambit of its operation.

Mr Michael Ozorio SC and Mr Eric Tsoi, instructed by Baker & McKenzie, for the Appellant

Ms Vinci Lam Ag SADPP, of the Department of Justice, for the Respondent