HKSAR v. LAM WAI KWOK

HCMA1008/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1008/2005

(ON APPEAL FROM TWCC 1614 OF 2005)

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J U D G M E N T

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1.  The Appellant appeals his sentence of disqualification of 12 months for driving without insurance. 

2.  It arose out of the fact that he solicited a fare at the airport.  The lady whom he offered to carry for hire turned out to be an undercover police officer standing by the side of the road with an enormous pile of luggage.  It gave rise to three charges:  offering services at the airport without permission; driving a motor vehicle for carriage of passengers for hire or reward, contrary to section 52 of the Road Traffic Ordinance; and using a vehicle without third party insurance.

3.  The fact is that the policy of insurance that did exist did not cover use of the vehicle for hire or reward, but what became apparent at the last hearing of this appeal - and I hasten to add none of this was mentioned before the Magistrate - was that a rather unusual situation concerning the insurance had arisen.  The vehicle, a van, but also with more seats than just the usual front row, was owned by Dah Chong Hong, the well-known, large company in Hong Kong, and they had a commercial vehicle insurance policy.  They then leased the vehicle to a man called Chan and the insurance covered Mr Chan using it.  Mr Chan, with the knowledge of Dah Chong Hong, then subleased to the Appellant who was covered by the insurance policy taken out by Dah Chong Hong.  What would happen is that Dah Chong Hong would obtain contracts to carry people and goods.  One such contract was with the government, whereby passengers were carried.  They came from the Food and Environmental Hygiene Department.  That contract to carry those government employees was negotiated by Dah Chong Hong who, in turn, gave the benefit of it to Mr Chan, who in turn gave the benefit of some of it to this Appellant.

4.  This arrangement whereby people were being carried for reward was known to the insurance company.  Both Dah Chong Hong and the insurance company have been approached and have indicated to, I think, the officer conducting the inquiry that they had agreed that, in the circumstances I have outlined, the carrying of passengers was allowed.  Neither have responded to requests to provide further written, or indeed oral, details of exactly what the arrangement was.  It looks like there was an oral variation of the written insurance contract.  Its exact extent, because it was oral, is not clear but it looks like it was limited to carrying those people from the government department that I have mentioned. 

5.  In the circumstances, I am satisfied that in fact, on the occasion in question, the Appellant was not insured and that his unequivocal plea of guilty should stand. 

6.  He does not urge otherwise.  He merely wants to have his licence back so he can earn a living and support his family.  It seems to me that he does now, on these facts that have come to light, have grounds to argue that there is a special reason to reduce the length of disqualification of 12 months that would otherwise apply.  He is not blameless because it is the responsibility of a driver to make sure that he is insured in any situation in which he actually chooses to drive.  But I can quite see here how the particular circumstances of the case whereby he was habitually carrying passengers for reward in his work would have led him to be less vigilant than the reasonable motorist should have been.  He has always admitted he did wrong in seeking to make a bit of extra money by taking the lady back from the airport into Hong Kong.  He was allowed to take on other work.  He was not restricted to the carrying of the government employees.  The policy was not held by him; it was held by Dah Chong Hong and/or Mr Chan and was in a language he could not read.  These are his first convictions of any nature.  In those circumstances I can understand how, when he fell prey to the temptation to offer the lady a ride back into Hong Kong for money, he did not address the issue of insurance. 

7.  The case was last before me on 22 November.  The disqualification had commenced on 28 September.  That was 56 days, or 2 months, before.  I suspended the disqualification on 22 November.  Because he was not blameless, I am not going to lift the disqualification entirely but, in the circumstances, I judge it right to reduce it to the period of 2 months.  It means that the Appellant can continue to drive.  I know, because he appears to be a decent man, that he will never be tempted to tout for business again at the airport.

8.  May I just repeat, none of these facts were before the Magistrate who cannot be criticised.