THE QUEEN v. LEUNG KA HING

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H E A D N O T E

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PERMITTING VEHICLE TO BE DRIVEN BY PERSON WITHOUT LICENCE - OFFENCE 'IN CONNEXION WITH DRIVING OF MOTOR VEHICLE' - DISQUALIFICATION ORDER UPHELD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 362 OF 1989

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J U D G M E N T

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1. The appellant was convicted of permitting a vehicle to be driven, by a person who was not the holder of a driving licence, contrary to section 42(3) and (4) of the Road Traffic Ordinance, Cap. 374. He was fined $750 and disqualified for 12 months. He now appeal's against, the disqualification order.

2. The driver was convicted of driving without a licence and without third party insurance. He was alone in the car when stopped by the police. He explained that the car belonged to the appellant who had gone into a restaurant and told him to wait in the car because there were no parking spaces. Ten minutes later the appellant arrived.

3. Power to disqualify is given by section 69 of the Road Traffic Ordinance, which provides:-

"(1) Without prejudice to any other provision relating to the penalty that may be or is required to be, imposed for an offence, a court before which a person is convicted of any of the following offences may order him to be disqualified for such period as the court thinks fit -

(a)    any offence under this ordinance in connexion with the driving of a motor vehicle;

(b)    an offence under section 63(6);

(c)    stealing a motor vehicle;

(d)    an offence under section 14(1) of the Theft Ordinance in respect of a motor vehicle;

(e)    an offence under section 27 of the Theft Ordinance committed with reference to the theft or taking of motor vehicles;

(f)    a contravention of any of the following provisions of the Road Traffic (Public Service Vehicles) Regulations, namely regulation 37(a), (b), (c) and (d) (relating to the obligations of taxi drivers) and regulation 47 (relating to prescribed taxi fares);

(g)    any offence under any regulation made under section 9 of using or causing or permitting the use on a road of any motor vehicle or trailer in contravention of any provision or requirement of any such regulation as to brakes, tyres or steering gear, except where the convicted person proves that he did not know and had no reasonable cause to suspect that the facts of the case were such that the offence would have been committed;

(h)    any offence during the course of which, or in order to escape apprehension for which, he uses a motor vehicle.

(2)    A disqualification -

(a)    imposed in respect of an offence specified in subsection (1)(f), shall be limited to the driving of a taxi; and

(b)    imposed in respect of any other offence specified in subsection (1) shall be a disqualification from holding or obtaining any driving licence.

(3)    When a person is convicted of aiding, abetting, counselling or procuring or inciting the commission of an offence under. Part V or section 52(l), and it is proved that he was present in the vehicle at the time of the commission of the offence, the offence of which he is convicted shall, for the purposes of this or Ordinance, be deemed to be an offence in connexion with the driving of a motor vehicle."

4. If the appellant was 'aiding and abetting, etc.' the driver, he cannot be disqualified under subsection 3 because he was not in the car. Mr Bruce, for the Crown, submits however that this is a deeming section, extending liability to auxiliary offenders, whereas the appellant is guilty of the substantive offence of 'permitting'. If that is right, the only question is whether 'permitting' is an offence in connexion with driving.

5. There is no doubt that ‘permitting' is a substantive offence. I do not think therefore that it was the intention of the legislature to include it under the 'aiding and abetting' provisions of subsection 3. The latter would cover the case of a friend of a driver, who was not the owner of the vehicle, but who encouraged the driver to drive knowing that he had no driving licence. It would be unjust to penalise such a person, unless he was actually in the car at the timer Not so in the case of an owner permitting the driver to drive. That is a more serious matter.

6. The phrase 'in connexion with the driving of a motor vehicle' is a wide one. As a matter of common sense and ordinary use of language, I think it must catch someone who hands over his car to be driven by another and thereby permits him to drive.

7. Mr Wong for the appellant submits that the facts are ambiguous and that it may not have been contemplated by either person that the car should be driven at all. The appellant may, he says, have meant only that any enquiring police officer should be told he would be along shortly. That submission fails in the face of the appellant's unequivocal plea to the charge of 'permitting' the driver to drive.

8. The only remaining question is whether the magistrate properly exercised his discretion to disqualify. Mr Wong submits that the public, interest does not require the appellant's disqualification, since it would be no deterrent to a repetition of the offence. He could continue to authorise employees to drive, even though he himself had been disqualified. Moreover if the appellant is allowed to drive in future there is no reason to suppose the public will thereby be put at risk. See R. v. Chan Kwok-cheung MA139/89.

9. The answer to that is that, if vehicle owners realise they themselves are at risk of disqualification in such circumstances, they will think twice before permitting unlicensed drivers to drive. In that connection the public interest is served by keeping incompetent drivers off the road.

10. I cannot say therefore that the magistrate exercised his discretion wrongly. The appeal is dismissed.