THE QUEEN v. SUNWAY GAS AND ENGINEERING LTD

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.684 OF 1995

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JUDGMENT

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1. The Appellant was convicted on the 29th of May, by a Magistrate, after trial, of permitting to be used on a road a light goods vehicle the pneumatic tyre or tyres fitted to the wheel or wheels of which did not have a tread pattern with a depth of at least one millimetre throughout at least three quarters of the breadth of the tread and around the entire outer circumference of the respective tyre, contrary to the provisions of the Road Traffic (Construction and Maintenance of Vehicles) Regulations under the Road Traffic Ord. Cap.374.

2. It was not in dispute that on the 18th of March 1994 the driver of a light goods vehicle bearing the registration number FG8953, owned by the Appellant, was driven on a road by an employee of the Appellant when the vehicle was involved in an accident. A subsequent inspection of the vehicle revealed that three of the six tyres fitted to the vehicle were defective as they had less tread that is required by the above regulation. The driver of the vehicle gave evidence for the prosecution and testified that he was required to notify his employer of anything wrong with the vehicle and in particular to notify the Appellant if any of the tyres were defective. On the day of the accident he said he did not know that any of the tyres were defective.

3. A director of the Appellant testified, and it was not contested, that he employed the driver of the vehicle and instructed him "to be careful of safety, including maintenance of tyres and engines." He said the driver commenced work with the Appellant in 1992 and for the first six months of his employment the witness inspected the vehicle and that he satisfied himself the driver had sufficient skill to recognise deficiencies in the vehicle. He was not told by the driver at any relevant time of any defect to the tyres of the vehicle. He agreed he was responsible for the maintenance of the vehicle but seldom went to look at it and relied upon the driver to notify him of any defects. He said it was a condition of the employment of the driver that the latter maintained a check of the vehicle for obvious defects. The vehicle underwent a comprehensive examination in October 1993 including the tyres and no defects to the tyres were reported to the Appellant. The vehicle was purchased in about October 1992 and no new tyres had been fitted to it by the date of the accident on the 18th of March 1994.

4. It is an essential element of this offence as charged that the Prosecution must prove that the Appellant not only had knowledge of the use of the vehicle by the driver but also knowledge of the defects to the tyres. Where there is no proof of actual knowledge constructive knowledge may be proved by evidence that the person concerned wilfully closed his eyes to the obvious or deliberately refrained from making proper enquiry. In R. v. Kowloon Motor Bus (1933) Ltd (1973) H.K.L.R. 395 at 404 Pickering J. said

"I must respectfully differ from Lord Parker, who elsewhere has stated admirably the principle that if a defendant is charged for permitting an unlawful act to be done, there must be evidence of knowledge established by the prosecution, and if the prosecution seek to rely on the second limb of knowledge, that is to say, that the defendant turned a blind eye to the obvious then the prosecution must prove something more than mere negligence. Unless and until the prosecution has succeeded in proving either gross negligence, criminal negligence or recklessness there is no case for a defendant, in the absence of actual knowledge, to answer to a permitting charge."

5. The reference by Lord Parker to "mere negligence" is in Gray's Haulage Co v. Arnold (1966) 1 All E.R 896 at 898 where his Lordship referred to his words in the earlier case of Fransman v. Sexton (1965) "The Guardian", July 9th when he said:

"If they are meaning this, that knowledge was being imputed to the Appellant because in fact he had failed to discover the defect and might have taken steps which would have revealed a defect, then in my judgment the test is entirely wrong. Knowledge is not imputed by mere negligence but by something more than negligence, something which can be described as reckless, sending out a car not caring what happens."

6. The Learned Magistrate stated in his findings the correct test to be applied and adopted the words of Pickering J. which I have quoted above.

7. Miss Levy argues that whilst the Magistrate was correct in finding that the Appellant did not have knowledge of the defects to the vehicle, he was wrong in finding that permission was given to the driver to drive the vehicle subject to a reporting condition as to its state, which was unfulfilled, and wrong in finding that the Appellant did not make proper enquiries as to the state of the vehicle and did not adequately supervise the maintenance of the vehicle. The evidence was that the Appellant did place upon the driver the onus of reporting to it the condition of the tyres. It is a simple task not requiring mechanical knowledge or a great deal of experience. The driver acknowledged he was not permitted to enter the depot of the Appellant if the tyres on the vehicle were defective. On this aspect the magistrate misconceived the evidence.

8. The second limb of the Magistrates findings which the Appellant appeals amounts to a finding that the Appellant was reckless. In this finding the Magistrate appears to have relied heavily on the evidence that the vehicle had been owned by the Appellant for some 17 months from new without being fitted with new tyres but with daily use. With respect to the Magistrate there was no evidence as to the rate of wear of tyres on a vehicle such as this. From the report produced in evidence it is clear that the vehicle was fitted with six tyres of which three were satisfactory and three were defective. In the light of that report the only reasonable inference to be drawn is not that such tyres must be defective after 17 months daily use. The Learned Magistrate was wrong in coming to the conclusion that the Appellant "sent out a car not caring what happens" this being the appropriate test for recklessness. He imputed knowledge to the Appellant by adopting a test that the Appellant failed to discover the defect and might have taken steps which would have revealed the defect. This test has been disapproved.

9. The appeal against conviction is allowed, the conviction is quashed and the order for the payment of a fine of $3000 together with payment of costs in the sum of $1000 is set aside.