HKSAR v. TANG YIU SANG

[English Translation – 英譯本]
HCMA 159/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 159 OF 2008

(ON APPEAL FROM KCS 10873 of 2007)

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

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

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

J U D G M E N T

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

1.  The Appellant pleaded guilty to, and was accordingly convicted on, one count of “using a motor vehicle without insurance in respect of third party risks”, contrary to section 4(1) and (2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272, Laws of Hong Kong.  He was fined $800 and disqualified from holding or obtaining a driving licence for 12 months.  The Appellant now appeals against sentence.

Charge

2.  The prosecution’s case was that on 9 January 07 at On Hing Car Park in Olympic Avenue, the Appellant used a private car bearing the registration mark HT 2905 on a road when a policy of insurance in respect of third party risks as complies with the law was not in force.

Facts

3.  The trial magistrate summarized as follows the facts admitted by the Appellant when he pleaded guilty: (the original can be seen in the written verdict of the trial magistrate):

“2. At 12:20pm on 9 January 2007, the complainant found that the left rear part of the private car HT 2905 had been damaged when he was examining the said private car at On Hing Open Space Car Park in Olympic Avenue for the Appellant.  He therefore informed the Appellant and reported the case to the police.  However, the complainant did not know how the private car was damaged.  After the accident, police officer arrived at the scene to conduct investigation and the Appellant decided not to pursue the matter any further.

3. Later, another police officer took over the case for investigation.  It was further revealed that the policy of insurance in respect of third party risks of the Appellant’s motor vehicle had already expired on 23 September 2006.  The police took a record of interview from the Appellant.  Under caution, the Appellant indicated that he intended to sell the private car, so he did not renew its vehicle licence after it expired on 23 June 2006.  The policy of insurance in respect of its third party risks also expired on 23 September 2006 but the Appellant did not renew it either.”

Issue

4.  The Appellant does not challenge the correctness of conviction.  In fact, the Appellant has pleaded guilty to a charge of “using a motor vehicle without a valid vehicle licence” in respect of the same vehicle in another proceedings (KCS 10874/2007) which arose out of the same incident.  This offence normally is coupled with the offence of using a motor vehicle without third party insurance.

5.  The issue raised by the Appellant is the disqualification order which disqualifies him from holding or obtaining a driving licence for 12 months.  He contended that the order was too harsh although he accepted the fine of $800.

6.  Pursuant to section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, a person convicted of using a motor vehicle without insurance in respect of third party risks shall be disqualified for not less than 12 months nor more than 3 years unless the court for special reasons thinks fit to order otherwise.  

7.  In this case, the magistrate did not think there was any “special reason”.  He said in his verdict:

“8. I have considered the facts of this case and the mitigation submitted by the counsel representing the Appellant.  The vehicle licence of the car in question expired on 23 June 2006 while the third party risks insurance expired on 23 September 2006.  That means the insurance had already expired before the incident for more than 3 months.  Obviously, the Appellant deliberately did not renew the insurance because he intended to sell the car.  The paragraph (b)(i) on page 112 of the book “Road Traffic Offence in Hong Kong” written by Mr. J.L. Saunders points out that even the insurance is not renewed unintentionally, that does not constitute a special reason for not ordering disqualification, let alone the Appellant of this case who intentionally did not renew the insurance!” 

“9. The counsel submitted that the car left in the car park would not put the society at risk.  With respect, I do not agree.  How can prospective buyers conduct a trial run of the car without the third part risks insurance?  Furthermore, the longer the car is left unused, the greater the chance it would be damaged.  Losses and injuries may be caused by the car slipping forwards or backwards.  Loss can also be caused when the car is driven by some unknown person.  Since all these may happen, the risk of leaving the vehicle in a car park can not be ruled out.”

8.  However, I agree with the Appellant’ plea and disagree with the magistrate’s conclusion.

9.  The Respondent confirmed with me that the “complainant” as mentioned in the facts had told the police that the vehicle in question had been left at unmoved the abovementioned address for more than a year.  The defence lawyer has pointed that out in the first instance hearing, but at that time the prosecutor raised no objection.  In other words, the time when the vehicle was being left in the car park is at least six or seven months earlier than the expiry date of the vehicle licence (23 June 06), and nine or ten months earlier than the expiry date of the third person risks insurance.

10.  Since it is the case, I do not think there is evidence showing that the Appellant has the intention to sell the vehicle immediately.  The risks likely to be caused by test drives or other reasons as suggested by the magistrate, I think, are simply theoretic rather than actual.

11.  I have to clarify one point, unless there is any problem to interpret a car park as a road (this appeal does not involve any issue in this regard), otherwise I do not think it is wrong to prosecute the Appellant.  It is stated in these English cases: Adams v. Evans [1971] C.L.Y. 10361; Elliot v. Grey [1959] 3 All ER 733, that a car which cannot be set in motion due to removed tires or malfunctioned engine, should not be left on the street without the third party insurance, because there are still risks for leaving the car on the street.

12.  The problem is that the vehicle in question was indeed not on the street.  The purpose of the Appellant was, I think, just to keep the vehicle there.  Furthermore, it was not mentioned at all in the judgment as to whether the defendants of the two cases cited above were disqualified or not.

13.  Besides, the magistrate in citing the authorities was right in principle to say that those people who deliberately do not renew the insurance cannot rely on “special reasons” to avoid disqualification.  However, we still have to look into the details of individual cases.  For example, the English Court suggested in DPP v. Powell [1993] R.T.R. 266 that a father, after he had fixed his 4-year-old son’s toy motorbike and went to have a test drive, had reasons to believe he needed not buy the third party insurance like driving a normal motorbike.

14.  Similarly, I am of the opinion that a person, who leaves a car in the car park on a long term basis without the intention of using it, has reasons to believe he needs not renew the vehicle licence and the third party insurance.  This is, of course, a deliberate action and is also against the law (if a car park can truly be regarded as a road), however, in view of the spirit of the case DPP v. Powell, the offender should be considered as having a “special reason”.

15.  Certainly, in order to prevent people from making it an excuse, the prosecution have to be on guard when something similar happens.  The prosecution should not accept too easily what is put forward by the offenders, instead they should be left to persuade the court themselves. 

Decision

16.  The appeal is allowed.  The fine remains the same, but the disqualification order is quashed.