Chiu Kwai-for v. The Queen

CACC000133/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 133 OF 1980

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Coram: Silke, J. in Court

Date of Judgment: 26 March 1980

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JUDGMENT

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1. The appellant appeals against his sentence upon a conviction at Tsuen Wan Magistracy that he did use a public light bus on a road "when every part of the foot braking system and the means of operation thereof fitted to the said vehicle was not maintained in good and effective working order and properly adjusted contrary to Regulation 101 of the Road Traffic (Construction and Use) Regulations and Section 8 of the Road Traffic Ordinance CAP 220" - ("The Ordinance".)

2. He was convicted on trial and the evidence called at the hearing has relevance to the several grounds of appeal. The appellant conceded that he was the driver at the time of the offence.

3. The sentence imposed by the learned trial Magistrate was a fine of $250 and a disqualification from holding or obtaining a driving licence. The period of disqualification was, in the first instance, four months and that was reduced, on Review, to three months.

4. To impose such disqualification the learned trial Magistrate made use of the provision of section 23 of the Ordinance.

5. There are basically two grounds of appeal the main one being that:-

"the learned Magistrate erred in disqualifying the defendant as under section 23(1)(a) of the Road Traffic Ordinance CAP 220 the power of a Magistrate to disqualify a person convicted of any offence under the said Ordinance or under any regulations made thereunder is limited to the "driving" of a motor vehicle and not to the "user" thereof".

6. The second ground relates to the offender and says that the learned Magistrate:-

"wongly failed to address his mind to: the fact the defendant had no previous convictions: the fact that the inspection of the vehicle took place eight days after the incident and there was no direct evidence that the brake cylinder was leaking at the time of the incident: the fact of brake marks on the road which show that the braking system on the vehicle was in order apart from the near side front brakes: the fact that the defendant was not the owner of the vehicle."

7. There was added, and without objection, at the hearing of the appeal a particular additional to those in the second ground:-

"the fact that the defendant depended on having his driving licence for his livelihood."

8. The evidence at the trial, the transcript of which was before me at the request of Mr. Taylor who represented the appellant, was that of a motor vehicle examiner.

9. It would seem that an accident took place, though no one knows very much about that and, on the 9th July 1979, the witness examined the public light bus - he stated that:-

"foot brakes were defective as they pulled badly to the right because the nearside front brake slave cylinder which operates the shoes was leaking badly owing to corrosion of the cylinder body and brake fluid had seriously soaked the brake linings and drums."

10. In cross-examination the witness said that the cylinder was made of cast steel, rusty fluid was leaking and the inside bore was rusty: it was old but the seals were new.

11. The leak could not be caused by emergency braking and:-

"linings and drums were soaked and appeared to have been soaked for a long time and not a recent occurrence."

12. The witness went on that the driver should have noticed the pull to the right and that in the course of his test the pull was so strong - he described it as "terrific" - that he nearly hit a watchman's hut.

13. This evidence was uncontroverted.

14. In passing the sentence he did the learned trial Magistrate ignored, as was proper in these circumstances, the fact of an accident and went on:-

"I sentence you only on the basis that you must have been aware of the vehicle pulling to the right because of the soaked brake lingings well before the accident occurred. That is blameworthy not only in you but also on the owner."

15. In his Statement of Findings he had this to say:-

"the reason I ordered it (disqualification) was because it is dangerous to use a vehicle in this condition in the kind of traffic we are accustomed to in Hong Kong. Not only dangerous to the driver and his passengers, but also to other road users."

16. With respect I entirely agree with him. The sentence and period of disqualification, serious though its effects may be on a professional driver, was entirely a proper one on the merits.

17. This despite his previous clear record and the crack it would make in his rice bowl, for to drive what is a public service vehicle on the road in this condition, knowing the condition, is reprehensible.

18. The real question is did the learned Magistrate have the power to disqualify.

19. It is not disputed that Regulation 101 is a "use" regulation. It covers such diverse matters as windscreen wipers, direction indicators, brakes, and steering gear. They are required to be maintained in good and effective working order "and shall be properly adjusted".

20. It does seem to me, though this has not of direct relevance to this appeal, that the failure to maintain brakes or steering is in a much more serious category than a failure in respect of a windscreen wiper or a traffic indicator, and it is unfortunate that they be lumped together.

21. One then goes to section 8 of the Ordinance by which, inter alia, the use on the road of a vehicle not properly maintained is prohibited - conviction on first offence leading to a maximum fine of $500 or three months imprisonment, the penalty on the second or subsequent being $1,000 fine or 6 months imprisonment.

22. Section 23, which is contained in Part IV of the Ordinance under the heading "Enforcement" reads, in its subsection (1):-

23. The words for consideration are "in connection with the driving of a motor vehicle".

24. And this wording has been considered at various times by Courts of Appeal.

25. Chronologically: in Ho Kwan Pui v. The Queen⁽¹⁾ McFee Ag. J. held that by carrying fifteen passengers in his motor vehicle the appellant was not committing an offence "connected with the handling or manipulation of the car in the process of driving it". In this he was adopting the phraseology of Alverstone C.J. in R. v. The Justice of Yorkshire (West Riding) ex parte Shackleton⁽²⁾ where Lord Alverstone said:-

".......... The words any offence in relation to the driving of a motor car when read in their context in s. 4 of the Motor Car Act, point to offences connected with the handling or manipulation of the car in the process of driving it."

26. There the offence was allowing a motor car to stand on a highway so as to cause an unnecessary obstruction thereof but, as that offence was not one connected with driving the driver, upon refusal to produce his driving licence for endorsement, cannot be convicted for that refusal.

27. But that case turned rather on its own facts for the learned Chief Justice felt himself bound by the decision in Reg. v. Lyndon⁽³⁾ where it was held that an offence of wilfully obstructing the free passage of a highway, punishable under the Highway Act 1835, is not an offence in connection with the driving of a motor car within the meaning of the Motor Car Act 1903.

28. In any event Ho Kwan Pui⁽¹⁾ was overruled in Yip Wai Kay v. The Queen⁽⁴⁾ in which the Full Court held:-

"Driving with excess passengers is an offence which can only be committed if a motor car is driven. There was clearly a connection between the carrying of the passengers and the driving of the vehicle: the former could not be done without the latter."

29. In delivering the judgment of the Full Court Huggins J., (as he then was), reviewed in extenso the English authorities and then went on at p. 340:-

"As it seems to us the offence of driving with excess passengers is an offence which can only be committed if a motor car is being driven. It is immaterial that there is a further offence created by reg. 96(2) of using or causing, suffering or permitting a vehicle to be used with excess passengers, an offence which it is just possible could be committed without the vehicles being driven at all. With respect to Mr. Justice McFee we think he applied the dictum of Lord Alverstone in a way which was not justified by the context in which it was first used. In the ordinary sense of the words there was clearly a connection between the carrying of the passengers and the driving of the vehicle: the former could not be done without the latter."

30. There of course the appellant was charged with actual "driving".

31. In Lee Fat v. The Queen⁽⁵⁾ the appellant was charged with using a dual purpose vehicle for the carriage of excess passengers. No facts in relation to the charges were placed before the Magistrate.

32. It was held:-

"In the circumstances the appellant could not have been the subject of a disqualification order under section 23 which deals with the driving of a motor vehicle."

33. In the course of his judgment Rigby C.J., having referred to Yip Wai Kay v. The Queen⁽⁴⁾, had this to say at page 202:-

"Now in this case the charge, I repeat, is one of using a motor vehicle and carrying passengers in excess of the number prescribed. It may well be that if there had been any statement made before the learned Magistrate as to the facts it would have become perfectly clear that in using the motor vehicle the appellant was himself the driver of that vehicle. If there had been such a statement made - and the appellant had admitted those facts - I think it might well be argued that the admitted facts, taken together with the charge itself, would have enabled the Magistrate to exercise the power of disqualification contained in section 23 of the Ordinance."

34. In Cheung Ah Chap v. The Queen⁽⁶⁾ Mills-Owens J., in a waiting within 50 feet of a bus stop case, made reference to Lee Fat v. R.⁽⁵⁾ and went on:-

"The regulation under which the appellant (before him) was convicted states the offence in the alternative, namely 'cause or permit' the vehicle to wait. The appellant was charged in terms that he did 'cause' it to wait. Otherwise there is nothing on the record to indicate that he was the driver. However it appears to me that it is implicit in the form of the charge that he was the driver so that section 23 of the Ordinance applied and he was liable to an order of disqualification."

35. The learned judge appears there to be saying once the "driver" is proved then section 23 does apply where a "cause" is charged.

36. It was, to use the words of Lord Alverstone, an "offence in connection with the locomotion of the car."

37. In Lau Ping v. The Queen⁽⁷⁾ the Full Court had for consideration the vires of Regulation 41B of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations, and the detention of Public Light Buses upon conviction of a person for certain offences under the fourth scheduled of the Regulations. A cause celebre of its time.

38. The Regulations as to detention were held to be ultra vires and at p. 351 - having so held - Rigby C.J. went on:-

"That affords a sufficient ground upon which to allow this appeal. But since the matter has been argued before us I think is desirable that I should express my views upon a further point taken by Mr. Jackson-Lipkin."

That point was the distinction drawn by the Legislature between the word "use" and the word "drive" in various parts of the Road Traffic legislation.

39. The Solicitor General had argued that "used in contravention of the Ordinance" was wide enough to cover "driven in contravention of the Ordinance" and the then Chief Justice himself said (at p. 351):-

"In ordinary parlance a man who drives a vehicle necessarily uses it ......... But a person may use a motor vehicle on the road without being necessarily the driver of it."

40. While accepting that the Solicitor General's submission was based on sound common sense the then Chief Justice continued at page 352:-

"But where the Legislature, in the course of the same Act or Ordinance and in subsidiary legislation made thereunder, has deliberately chosen to use different words 'use' and 'drive' in different sections and in different contexts and, indeed, in the Road Traffic (Construction and Use) Regulations, to use the words 'drive' or 'use' in the same regulation, it must be assumed that it intended different meaning to be attached to the use of those distinct words or expressions."

41. He appeared to conclude that the phrase "used in contravention of the Ordinance" attached to the user of the vehicle, as distinct from the conduct of the driver of the vehicle but went on p. 353:-

"If the brakes of the vehicle are defective, if it is not properly licenced, or insured, if the vehicle itself is in a condition which fails to meet the requirements of one or more of the Road Traffic (Construction and Use) Regulations, these are all matters in relation to the user of the vehicle for which it would seem just and proper that the owner should bear full responsibility."

He went on to contrast this with the negligent driving of the vehicle by the driver for which the owner would, if the regulation were vires, have to bear the penalty of his vehicle being detained by reason of the direct and personal responsibility of the driver.

42. In agreeing that the Regulation was ultra vires Mills-Owens J. based his decision on the "innocent owner being penalised" argument. He did however consider (p. 356) the question whether the words "used in contravention of the Ordinance" appearing therein should be given a limited meaning that is to say, as indicating offences strictly of illegal user of vehicles as opposed to driving offences - offences of illegal user being more indicative of offences attributable to the neglect or default of owners as being offences which it lies within their power to prevent. And he went on "I would incline to that view."

43. He was much more concerned with the vicarious liability question - as was Rigby C.J. - than with the relevance of the word "use" and "drive" to a person who is himself driving the vehicle and using it in a defective condition known to him. Both their Lordships were considering what was, in effect, an academic point.

44. McMullin J., (as he then was), the third member of the Full Court, was in disagreement with his brothers on the "use" and "drive" point. He said at page 363 in connection with the general proposition of Mr. Jackson-Lipkin:-

"This was the proposition that, in the context of traffic law, the term 'used' is a special term, not a layman's term which is always found to be referable to the vehicle as distinct from the driver. I understood him to mean by this, principally, the condition of the vehicle as distinct from the behaviour of the driver. If it was intended to state the matter so broadly I can only say at once that none of the authorities on which he relied in this part of his argument seem to me to carry him so far. It is one thing to say that one can use a car, within the meaning of the legislation, without driving it and quite another to say that the idea of its use is only referable to the way it is constructed or equipped."

45. After going on to consider various Regulations and their wording, in which "use" and "drive" appeared, and the arguments adduced, McMullin J., concluded on this part, at page 368:-

"I do not believe therefore that counsel has established that there is any usage in traffic law generally which requires that the word 'used' must always, where it appears alone, be interpreted to exclude 'driver'. To my mind the proposition should be the other way: that is to say one should not seek to limit the ordinary grammatical width of the term unless there is something in the context which appears to require that it should be so limited."

46. He also allowed the appeal but on the ultra vires ground.

47. Lee Fat⁽⁵⁾ (then unreported) and Yip Wai Kau⁽⁴⁾ were not referred to in the several judgments.

48. In the Kowloon Motor Bus Co. (1933) Ltd and others v. The Queen⁽⁸⁾ Pickering J., (as he then was), referred to Lau Ping⁽⁷⁾ and cited in extenso the judgment of Rigby C.J. as to "use" and "drive". He went on:-

"With this view, that the legislature intended different meanings to be attached to the terms 'drive' and 'use' Mills-Owens J. agreed - though it is fair to say that McMullin J. dissented. Mr. Carolan for the Crown, says that the majority view there expressed was obiter and does not bind me. However that may be I find myself in complete agreement with the majority view and therefore follow it having just checked that the Legislature had not seen fit to amend ss 96(2) and 98(2) of the Road Traffic (Construction and Use) Regulations, but has been content to let them stand with their separate reference to 'drive' and 'use'."

49. In the Kowloon Bus case all three summonses against the drivers were framed as "driving". The offence consisted of "using". At page 413 Pickering J. went on:-

"And since the Legislature has drawn a distinction between 'driving' and 'using' it follows that, in the particular circumstances of these cases the summonses revealed no offence. No doubt an owner driver would be both driving and using but, in the case of an employee for the reasons stated by Rigby C.J. in Lau Ping v. Reg., that is not so. Undoubtedly there exists a serious moral obligation on the part of an employee not to take out upon the road a vehicle with a defective braking system of which he is aware, but as the law stands it is a moral and not a legal obligation."

50. With the greatest respect to Pickering J., and his opinions are ones to which must be given considerable weight, I would think the final portion of his judgment to be obiter and, further, to extend the reasoning of Rigby C.J., who was concerned with innocent vicarious liability, and with the expression "used in contravention of the Ordinance" in the context of draconic legislation, to a different set of circumstances - a defective summons.

51. And I distinguish the Kowloon Bus case⁽⁸⁾.

52. For my part I would adopt the phraseology of Lord Alverstone "in the locomotion of the vehicle" and the views of McMullin J. in Lau Ping where he felt that word "used" should not always, unless the context so indicated, exclude "driving".

53. I might interpolate here that modern English Road Traffic legislation has separate penalties included in its Construction and Use Regulations whereby, in certain sections, endorsement and disqualification can be imposed as a penalty and in certain sections not. They can be imposed in respect of brake offence and it is therefore unnecessary to rely on the equivalent of our section 23.

54. I find support for the view I take in Yip Wai Kay⁽⁴⁾ and Lee Fat⁽⁵⁾ and in McMullin J.'s "common sense" approach. The appellant here was the driver who was using the vehicle knowing the brakes to be defective. That user was an offence in connection with the driving of a motor vehicle. There might well be circumstances where an owner of a defective vehicle would be liable as opposed to the driver or where the use of a defective vehicle might not be in connection with the driving of it and to that extent each case must depend upon its own facts.

55. But here I would hold that the offence fell within the confines of section 23 and that the learned Magistrate had power to disqualify.

56. The appeal is therefore dismissed.

Representation:

Mr. Taylor of (Hastings & Co.) for appellant

Mr. Reid for Crown

(1) [1960] H.K.L.R. 122

(2) [1910] 1 K.B. 439

(3) [1908] 72 J.P. 227

(4) [1969] H.K.L.R. 353 (F.C.)

(5) [1970] H.K.L.R. 200 (23rd March 1970)

(6) CA 208/70 (16th June 1970) (unreported)

(7) [1970] H.K.L.R. 343 (6th June 1970)

(8) [1973] H.K.L.R. 395