POON JING v. THE QUEEN

Road Traffic - driving a motor vehicle while disqualified - whether disqualified driver sitting in driver's seat of parked car and in possession of car keys "driving" the car - whether "using" the car so that burden of proving the negative averment that the car was insured passes to him -Held: 1. Appellant was not driving; 2. Primary facts to be proven by Crown under third party insurance charge not established so immaterial that burden under negative averment not discharged by appellant; 3. Appeal upheld: both conviction quashed - Sections 2, 36, 39 and 44 Road Traffic Ordinance, Cap.374; Section 4(1) Motor Vehicle (Third Party Risks) Ordinance, Cap.272.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No.205 of 1985

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BETWEEN

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REASONS FOR JUDGMENT

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1. On 30th October 1984 the appellant was convicted of a speeding offence and disqualified from holding or obtaining a driving licence for a period of 6 months. Shortly thereafter on 18th November 1984 1984 he was sitting in the driver's seat of a car which was parked in Nanking Street, Kowloon. The car was parked in a restricted parking zone. A police constable observed the parked car in that zone and approached the appellant.

2. The police constable discovered that the appellant was disqualified from driving a motor vehicle. In the result the appellant was charged with driving while disqualified contrary to Section 44 of the Road Traffic Ordinance, Cap. 374 and driving a motor vehicle without third party insurance contrary to Section 4(1) of the Motor Vehicle. Insurance (Third Party Risks) Ordinance, Cap. 272.

3. The appellant pleaded not guilty but after trial was convicted on 15th January 1985 of both offences. On the first charge he was fined $50 and disqualified from holding or obtaining a driver's licence for a period of 12 months from 1st May 1985 and on the second charge fined $50. He has appealed against both of those convictions.

4. The crucial question is whether the appellant, when seated in the parked car, was "driving" the car for the purposes of the Road Traffic Ordinance? On the facts there was a conflict as to what occurred. The arresting police constable stated that the appellant was the sole occupant of the parked car. He was seated in the driver's seat; started the engine; turned the steering wheel left towards the kerb; and was about to get out of the car as the police constable approached. The police constable stated that at the scene the appellant told him that his brother-in-law would soon return.

5. The appellant asserted that he was driven as a passenger by his brother-in-law to where the car was found parked. The brother-in-law left the car to go to a nearby shop. The appellant stated that during the brother-in-law's absence he got out of the car and went round to the driver's seat to use the car keys to start the car's radio-casette. The appellant stated that when he sat down in the driver's seat he had left the driver's door half open and it was still half open when the police constable arrived. The appellant denied that he started the engine of the car.

6. The learned Magistrate faced with that conflict of fact, reached the conclusion that, as a matter of law, it was unnecessary for him to make any finding of fact to resolve that conflict observing:

"It is not necessary to resolve that dispute as even in the absence of starting the engine the appellant was on the prosecution fact still at the time in control of the vehicle or at the very least assisting in the control of the vehicle."

The material part of Section 44, under which the appellant was convicted, provides:

There is no definition of "drives" or "driving" in the new Ordinance but in arriving at his conclusion on the law, the learned' Magistrate relied on the definition of "driver" to be found in Section 2:

"'driver', in relation to any vehicle (other than a rickshaw) or tram, means any person who is in charge of or assisting in the control of it and, in relation to a rickshaw means any person pulling a rickshaws"

In the learned Magistrate's view "to drive" must have a like meaning. On the facts the appellant sat in the driver's seat; was in possession of the keys; and was in at least temporary charge or control of the car. The learned Magistrate was in no doubt that those actions amounted to driving. The appellant, on appeal, submitted that the Magistrate erred in law in reaching that conclusion.

7. Counsel for the appellant took me through the provisions of the new Road Traffic Ordinance which came into force on 25th August 1984. She submitted that the Ordinance preserves the former distinction between driving, attempting to drive and merely being in charge of a motor vehicle. For example, Section 36 creates the offence of causing death "by driving" a motor vehicle recklessly which may be contrasted with Section 39 which creates separate offences, for a person under the influence of drink or drugs who either "drives" or "attempts to drive" or is "in charge" of a motor vehicle on any road.

8. A "driver" as defined in Section 2, may therefore act in that capacity in a variety of different circumstances and may retain that, status even when not actually driving. Under the Ordinance a driver may:-

(a)    be "driving" or "drive";

(b)    "attempt to drive"; or

(c)    may merely be "in charge";

of a motor vehicle.

9. Historically, the clear distinction between a driver actually driving or merely being in charge of a motor vehicle developed as a result of various legislatures taking steps against persons under the influence of drink or drugs who did acts in relation to motor vehicles.

10. During the early years of road traffic legislation the offence of driving under the influence of drink or drugs was held in a number of countries not to include a person, although seated in a motor vehicle and in possession of the vehicle's keys who took no step to drive or attempt to drive the vehicle. Commonly a person under the influence of drink or drugs was found in such circumstances either resting or sleeping in a motor vehicle. In a number of countries the new offence of being in charge of a motor vehicle while under the influence of drink or drugs was created. The lesser charge was often easier to prove and carried lesser penalties.

11. The difference between driving and being in charge of a motor vehicle, which quickly evolved in Commonwealth and other common law countries, was considered by Richmond, J., as he then was, in Stoop v. Police (1961) NZLR 320. In that case it was held that a person could be convicted of being in charge of a motor vehicle even though he had no intention whatsoever of driving nor did any onus rest on the prosecution to prove that the defendant intended to drive the vehicle or that there was some reasonable possibility that he would drive. Before the introduction of breath and blood tests and the creation of offences of having proportions of milligrammes of alcohol to millilitres of blood, in excess of the prescribed limits, the distinction between driving and being in charge was perhaps of more practical importance and was certainly more frequently before the courts. In countries where, unlike Hong Kong, breathalyser legislation exists, prosecutors more often prefer to bring charges under that evidentially simpler legislation, than under the older driving under the influence of drink or drugs or in charge legislation.

12. However, in some countries such as the United Kingdom, the distinction remains of daily importance. For under Section 2(1) of the Road Safety Act 196'7 a police constable may only request a breath test of a person if he is first satisfied that person was driving or attempting to drive a motor vehicle. One of the many English cases which, in varying factual situations, have considered whether a particular person was driving is the House of lords decision Pinner v. Everett (1969) 3 All E.R. 257. In that case the police stopped a motor vehicle to make enquiries of the driver who they did not suspect of having committed any road traffic offence. Some time after the driver had alighted and spoken to the police they suspected that he had consumed alcohol. The driver agreed to a breath test which was positive but refused the subsequent blood test.

13. After Lord Reid criticised the Divisional Court for the wording of the second point of law posed, which asked whether a person no longer actually driving could be described as a driver, Lord Reid, at page 259 continued:

"I decline to answer that question. It asks me to choose between two phrases 'actually driving' and 'the-driver', neither of which is to be found in the Act. It is in effect substituting 'the driver for the statutory words 'person driving or attempting to drive.' The two are not the same. A person can often be properly called the driver although for quite a long time he has neither been driving nor attempting to drive. Suppose several people go off for the day in a car to the seaside and only one is to do the driving; throughout their sojourn by the sea it would in ordinary parlance be proper to call that one person the driver, but it could not be said that throughout that period he was either driving or attempting to drive the car.

 

        I must therefore consider in what circumstances a person can, by the ordinary useage of the English language, properly be said to be driving a car ..... suppose the driver pulls up at the kerb and leaves the car to go shopping. I do not think that it can be said that he is driving the car while he is buying groceries. And I do not think that it would make any difference if he remained in the car while his passenger was doing the shopping; he would then not be driving but waiting for his passenger."

14. The latter passage was strongly relied on by the appellant who argued, of course, that his position was even stronger as he was always only a passenger. On the facts before the House of Lords, Lord Reid, after finding the case to be very near the border-line, agreed with the majority, that the appellant was no longer driving, within the ordinary meaning of the words, by the time the police decided to ask for the breath test. The law lords disagreed with the previous wider test of Lord Parker L.C.J. in R. v. Prince (1968) 1 WLR 1858 which was in these terms:

"... what one might call generally 'the driver', somebody who is not only at the steering wheel while the vehicle is in motion but somebody who is in the driving driving seat while the vehicle is stationary; and what is more, somebody who has got out of the driving seat albeit temporarily and can still be termed, in general terms, 'the driver'."

15. The House of Lords subsequently in Sakhuja v. Allen (1972) 2:All E.R. 311 considered the same question, Lord Hailsham, L.C. at page 317 summarised the rejection of Lord Parker's view thus:

"This view was equally decisively rejected as too wide by the House of Lords in Pinner v. Everett, principally on the ground that the words in s.2(1) are not 'the driver' but 'driving or attempting to drive,' "

16. Later Lord Reid's dictum to use only the ordinary meaning of "drive" was firmly applied by Lord Widgery L.C.J. in two appeals where, on the facts, the appellants actions were closer to driving than in the instant appeal. In R. v. MacDonagh (1974) RTR 372 a disqualified driver was asked by the police to move his car. He did so by standing on the road, pushing the car manually and steering it by extending one hand inside the car to the steering wheel. There was a conflict whether the engine was also running in which event, the Court of Appeal observed, the appellant would have been properly convicted. But the trial jduge's direction to the jury was similar to the trial magistrate's conclusion on the law, in the present appeal. The direction to the jury was that even if the engine was not running, if the appellant in a substantial sense controlled the movement and direction of the car, by pushing and steering, that amount to driving. The conviction was quashed Widgery L.C.J. stating:

"Although the word 'drive' must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor car in any ordinary use of that word in the English language. Unless this is done absurdity may result ..."

A similar conclusion had earlier been reached in the Scots case of Ames v. MacLeod (1969) SC 1.

17. In Blavney v. Knigt (1975) RTR 279, Widgery L.C.J. returned to the same question on an appeal by a man who had temporarily sat in the front seat of a taxi, with automatic transmission, to talk to two friends who were passengers. The driver had left the taxi for a moment and the engine was running. The appellant had no intention to drive but his foot accidentally touched the accelerator and the taxi moved forward. Lord Widgery L.C.J., in holding that the appellant did not in those circumstances drive the taxi, observed:

"The word 'drive' in this kind of context has been in contest and defined more than almost any other word in the English language, but it is of importance to remember that in one of the most recent cases Reg. v. MacDonagh a full Court of Appeal decided, among other things, that an activity could not be described as driving despite the wide meaning of the word if the activity was something which could not be accepted as driving in any ordinary use of the word in the English language."

18. When I consider the provisions of our Road Traffic Ordinance against the background of these authorities, I am well satisfied that if the appellant was merely sitting in the car, in the manner he described, he was not driving. I do not require to consider the conflicting prosecution version of what occurred at this stage, as the learned Magistrate elected to reach his verdict without resolving that conflict. However, if the car had been started and the wheel turned, even if only towards the kerb, that would be strong evidence of driving. If a disqualified driver used the car key in a mufti purpose lock merely to start the radio or casette that would raise rather interesting factual issues which do not concern me in this appeal.

19. What is clear is that the learned Magistrate overlooked that a person falling within the definition of a "driver'' under Section 2, when acting in that capacity does not necessarily have to drive a motor vehicle. For as a matter of law, he is equally a driver, even though not driving, if he is merely in charge of a motor vehicle. The learned Magistrate was therefore wrong in law in holding that "to drive" must have a like meaning to the statutory definition of "driver". The appeal on this ground succeeds.

20. Moving on to the second conviction Counsel for the Crown acknowledged that in terms of the charge on which the appellant was convicted, which alleged that he "drove" without third party insurance, the conviction in that form could not be supported if the appeal on the first conviction was successful. However, she pointed out that the form of the second charge was defective, as the offence under Section 4(1) Was :-

".. to use, or to permit any other person to sue, a motor vehicle ..."

The Crown asked for the charge to be amended on appeal to "use". In that event, under Section 94A of the Criminal Procedure Ordinance it was submitted the onus would have been on the appellant to prove that the motor vehicle was insured as that element of the charge was a negative averment. At the trial no current policy of insurance had been produced by the appellant.

21. Counsel for the appellant opposed the amendment on the ground that the trial had proceeded in relation to the second charge too, on the express basis that the appellant drove. Under Section 119(d) of the Magistrate's Ordinance, Cap.227, I have the power to make the amendment sought even at this late stage. However, in my view, even if the amendment were made, it would not assist the Crown. Because before any burden passed from the Crown it would have to prove "use" on the part of the appellant. There was no evidence before the learned Magistrate as to who owned the motor vehicle. The evidence only went so far as an admission by the appellant in cross-examination that the motor vehicle was in his custody" while his brother-in-law was in the shop.

22. The word “use" is not defined in the Motor Vehicle Insurance (Third Party Risks) Ordinance but has on many occasions been considered in relation to other road traffic legislation - Lau Ping v. R. (1970) HKLR 343, C.A.: Lee Fat v. R. (1970) HKLR.200; Kowlooa Motor Bus Co (1933) Ltd. v. R. (1973) HKLR 395; and R. v. Wong Yun-fai (1977) HKLR 404. In short, the effect of those decisions is that where persons are charged with the "use" of motor vehicles, they are either the non-driver owners of the vehicles or the drivers themselves. The various offences typically arise where an owner permits an unlicensed or disqualified driver to drive a motor vehicle otherwise currently licensed or alternatively where the motor vehicle is wholly unlicensed.

23. In the instant appeal there is no evidence that the appellant was the owner. There is no finding of fact from which it follows, matter of law that he was the driver. A mere passenger of a motor vehicle does not use the motor vehicle in terms of Section 4(1). I therefore hold that even if the charge were amended it, would not have been necessary for the appellant to have established under Section 94A that the motor vehicle was licensed unless use" was first proven by the prosecution. I therefore hold that the appeal on the second conviction also succeeds.

24. The only remaining question is whether, as urged by the Crown I should in view of the conclusions I have arrive at remit the proceedings to the learned Magistrate for him to make a finding on the unresolved conflict, as to the actions of the appellant in the car, when observed by the police constable. In the circumstances I consider this is not a proper case to be remitted back to the learned Magistrate.

25. The appeal against both convict ions is upheld. The convictions and the consequential fines and disqualification order are quashad.