HKSAR v. STEPHAN LEONARD

HCMA1118/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1118 OF 2003

(ON APPEAL FROM TWS 6925 & 6926 OF 2003)

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

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

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

JUDGMENT

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

1. On 22 October 2003 the appellant was convicted after trial in Tsuen Wan Magistrates' Court of two road traffic offences as follows :

(a) TWS 6925/2003 on 10 January 2003 permitting an unlicensed vehicle to be driven on a road, contrary to sections 52(1)(b) and 52(10)(a) Road Traffic Ordinance, Cap. 374.

and

(b) TWS 6926/2003 on 10 January 2003 permitting another person to use a vehicle without insurance, contrary to sections 4(1) and 4(2) Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272.

2. He was fined $1,000 in respect of each of the offences and in respect of TWS 6926 he was disqualified from holding or obtaining a driving licence for a period of 12 months.

3. The appellant appeals against his convictions upon the standard grounds set out in Form 101 saying simply (as he does) "all of the above". On 28 January I dismissed the appeal and these are my reasons for so doing.

4. The facts admitted by the appellant, at trial, were these :

"1. At 2249 hours on 10 January 2003, private car KG 3870 was found crashed into a tree near lamp post AC 1340 on South Lantau Road, Lantau by WPC 57199. The driver of the vehicle was Mr. Pearson Christopher Morgan. The vehicle was found uninsured because the licence had expired on 2 July 2002.

2. Private car KG 3870 is owned by Vortech Systems Limited at the material time. The defendant owns Vortech Systems Limited and is a director of the company together with his wife.

and

3. Mr. Pearson Christopher Morgan only became director of Vortech Systems Limited on 18 February 2003."

5. It is convenient, given what the appellant said to me at the hearing of this appeal, to set out hereunder some of the comprehensive findings of the Magistrate which are helpful in dealing not only with the evidence presented to him but also with his conclusions based upon that evidence :

" ... the defendant indicated that he had no dispute with the prosecution case as set out in the brief facts.

... Identity was not an issue in the case. The defendant also confirmed his caution statement had been given voluntarily. The prosecution therefore called no witnesses in support of its case.

I found the defendant had a case to answer on both summonses at the close of the prosecution case. I then reminded the defendant of his rights and he elected, after confirming he understood them, to give evidence and to call one witness. At the end of trial, I found the defendant guilty as summoned and he was fined $1000 on each of the summonses and disqualified from driving all vehicles for 12 months on summons TWS 6926/2003. I found there was no special reason for not disqualifying the defendant, or for reducing the period of disqualification.

I found from the prosecution evidence, inter alia, that private car KG3870 had been uninsured and unlicensed at the time it crashed into a tree on 10th January 2003 when Mr Pearson (DW1) was driving the car. I further found Vortech Systems Limited owned the car and the defendant was the person responsible in that company for controlling the use of the car and for licensing and insuring it. I found Mr Pearson had general consent from the defendant to use the car as and when he required it. I did not find there was any unfulfilled condition imposed by the defendant upon DW1 at the time the car was being driven by DW1 and it had the accident.

I listened carefully to the evidence given by the defendant and I gave myself both limbs of the 'Berrada' directions when so doing, but even after so doing I found that I was not impressed with his evidence and I found I did not believe he was telling the whole truth. I therefore rejected parts of his evidence.

The defendant said in evidence that he was responsible for licencing and insuring the car and that he had authorised DW1 to use the car for business purposes. DW1 had, he said, become a director/shareholder of his company (he called him a partner) before the accident and DW1 had been the principal user of the car. He said the road tax had expired about 2 months before the car was involved in the accident on 10th January 2003 ... and the insurance, he said, had expired on 6th December [2002]. He further said that on or about 20th December 2002 he had told DW1 at a company meeting in the company offices not to use the car, as the company could not afford to insure and licence it. He had also parked the car himself on about 13th December 2002 in a private road to avoid the car being placed on the public road. The only set of keys to the car (as far as he was aware) were kept in his drawer in the office. He did not know the car was being used at the material time and initially thought it had been stolen.

I disbelieved the defendant when he said he had told DW1 not to use the car whilst it was uninsured and unlicensed. The defendant said he had also told DW1 at this time that there was no money to pay for the insurance and licence fee on the car. I believed that if that had been the case, DW1 would have remembered being told of this fact, as I found receiving no money would have been very important to him if he was a director and shareholder of the company, as he would be receiving no income.

The defendant said that the licence had expired a couple of months before the incident. I found that if he knew that was the case he would have also thought that the car insurance had expired about the same time. I found in such circumstances he would have therefore told Mr Pearson not to use the car at that time (ie. well before 1st December) as he knew at that time the car could not be driven on a public road. However [according to him] he did not do so until about 20th December 2002. I found from the evidence that the truth was he did not realize the licence and insurance had expired on the car until the police had told him.

I found that if the defendant had carefully placed the car off the road at a site that was well away from the office in order to make sure it was not on the public road and being used, DW1 would not have used it. I found that DW1 had on that day simply taken the car as usual and used it. I found the car keys were not locked into the office drawer in order to prevent the car's use and these keys I found could have been used by DW1 if he had not had his own set.

I found the defendant would have told the police officer at the time of the interview that Mr Pearson had taken the car without his permission because I found he would have clearly remembered telling him not to use the car. I found the reason the defendant did not mention this to the police officer was because it was not the truth.

I also listened carefully to the evidence given by DW1 but I was not impressed with his evidence and I found him very vague in his evidence. I found I did not believe he was telling the whole truth about the situation. I therefore rejected parts of his evidence. I believed him when he said he did not recall being told not to use the car by the defendant and I believed him when he said he thought the car was licensed and insured at the time he had the crash. However, I disbelieved him when he said he had been reminded by the office accountant later of what the defendant had told him, as I believed that if he had been told not to use the car only 10 days before because the company could not afford the licence and insurance he would have remembered.

.....

I found at the end of the day that the prosecution standing on its own two feet had proved so that I was satisfied beyond reasonable doubt that the defendant was guilty of both summonses and I therefore convicted the defendant."

6. Before me the appellant took issue with the magistrate's findings concerning where the keys to the car were kept; concerning the appellant's evidence to the effect that he had parked the vehicle elsewhere than on a public road, and concerning the adverse inferences which the magistrate plainly drew from what the appellant told the police in interview.

7. As to the first two of those matters I am unable to say that the magistrate erred in any way in reaching those conclusions. As to the third matter, that relates to two answers given by the appellant on 13 January 2003 which were as follows :

"Question:	Do you know the motor vehicle licence of KG 3870 has expired?
Answer:	Not sure when [it] expired.
and
Question:	Do you know [that] the third party insurance for KG 3870 has expired?
Answer:	Today I find out yes because the insurance company inform me that it expired on 6 December 2002 after I made enquiry."

Again I find myself unable to say that the magistrate erred in any way in drawing the inferences which he did draw from those answers which inferences are set out in the 'Reasons' which I have recited in paragraph 5 above.

8. As I explained to the appellant at the hearing of the appeal, my function as an appellate judge is not to retry the case and to draw my own conclusions, but it is to consider in the light of submissions made to me, whether or not the tribunal of fact had fallen into error. In this case I am quite satisfied that the magistrate had not done that.

9. In the course of his submissions before me the appellant also sought to say that the driving disqualification imposed upon him was causing real hardship to both his business and his family. That may well be so. However the magistrate found that there were no special reasons to do other than to disqualify the appellant from driving for a period of 12 months in accordance with section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 which reads as follows :

" If a person acts in contravention of this section, he shall be liable to a fine of $10,000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction."

10. It was for all of these reasons that I dismissed this appeal.