THE QUEEN v. TSE SUN KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 125 OF 1916

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded not guilty to two charges: one, alleging that he committed an offence of permitting a vehicle to be driven by a person without, a valid licence, contrary to Section 42(3) of the Road Traffic Ordinance, and the other of permitting the driving of a vehicle without third party insurance, contrary to Section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance and Section 89 of the Criminal Procedure Ordinance.

2. In respect of the latter charge, the particulars alleged that he, being the owner of the taxi, permitted it to be driven on the road when there was in force a policy of insurance which complied with the requirements of the Ordinance. To allege an offence contrary to Section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, the particulars should have alleged that there was not in force such a policy of insurance or other security which complied with the requirements of that Ordinance.

3. The magistrate at the conclusion of the hearing, without amending that charge in any way, found it proved and convicted the accused accordingly. The Appellant was therefore convicted on a record showing no offence proved.

4. The evidence before the court in support of the charges consisted of three documentary exhibits. One document was a certificate issued under the Road Traffic Registration and Licencing of Vehicles Regulations proving that the vehicle in question was registered as a taxi and, therefore, was a taxi within the meaning of the Ordinance. Another document was the certificate of insurance in respect of the vehicle, which showed that there was no cover for third party risks where the driver at the time was not the holder of a valid licence entitling him to drive that class of vehicle. The third document was referred to throughout the proceedings as "agreed facts". It has been said that "there can be a statement of admitted facts but it may be open to question whether there can be an agreed statement of facts otherwise than for the purpose of deciding a preliminary point of law".⁽¹⁾ The document in question does not indicate, nor is there anything in the record to indicate, whether it is a statement of facts admitted pursuant to Section 65C of the Criminal Procedure Ordinance. If the document was tendered as a statement of admitted facts, it was defective in that neither it nor the record stated who admitted what. Under Section 65C of the Criminal Procedure Ordinance, it is important to know which party makes the respective admissions contained in the admitted facts because that section provides that the admitted fact is conclusive evidence against the party making the admission. Section 65C envisages that both the prosecution and the defence may make admissions for the purposes of the trial. It is not clear from this document who has made the admissions. Even if that difficulty is overcome, there arises a further difficulty in that depending on how one construes the document, different results can be arrived at. The document has a footnote and the context of the document suggests that the footnote is not relevant to these proceedings but was relevant to proceedings against another defendant on related charges. If the footnote is part of the document, then the document purports to assert in one place that the Appellant was not the holder and never was the holder of a licence entitling him to drive taxis, but in another part, it says that he was once entitled to hold a licence in respect of several classes of vehicle but, at the time the document was tendered, was disqualified in respect of one class of vehicle namely, a taxi. The date of the disqualification order is not mentioned. If the footnote does not form part of the document, then the document is defective in that it alleges that the person who was driving the vehicle "was only a licence holder for class 1, 2, 3 vehicles".

5. The offence with which the Appellant was charged was that he permitted the driving of a vehicle by a person who was not the holder of a driving licence of the class to which such vehicle belonged. Under the Road Traffic (Driving Licences) Regulations, motor vehicles are divided into some twelve classes, but the classes are not distinguished by way of numerals. They are set out in regulation 5 in paragraphs identified by letters of the alphabet. The figures 1, 2 and 3 are used by the Transport Department as a classification code, that is, as a shorthand means of identifying the classes on the driving licence itself. But, as far as the offence under the Road Traffic Ordinance is concerned, what has to be proved is that the person concerned was not the holder of a licence in respect of a class of vehicle, as that class is described by the Driving Licence Regulations I have just mentioned. Consequently it seems to me that the "agreed facts" were not precise enough to support a finding that the driver of the vehicle was not the holder of the relevant class driving licence.

6. The material before the learned magistrate was in too unsatisfactory a state, in my view, to support a conviction on either charge. A number of matters have been argued before me arising from other grounds of appeal upon which the Appellant attacks the convictions. I have not referred to them and I do not propose to deal with them because I think the appeal can be disposed of without any need on my part to give a definitive ruling on the meaning in particular of the proviso to Section 42(3) of the Road Traffic Ordinance. I think that the state of the material before the magistrate was such as to make a conviction based on that material unsatisfactory. I therefore allow the appeal, and quash the convictions and sentences, and set aside any orders which were made in consequence thereof.

(1)     The Attorney-General v. Wong Pang, [1979] H.K.L.R. 61,68