HKSAR v. CHEERWAY HOLDINGS LTD

[English Translation - 英譯本]
HCMA635/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 635 OF 2010

(ON APPEAL FROM TWS 4847 AND TWS 4848 OF 2010)

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J U D G M E N T

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1.  The appellant legal person Cheerway Holdings Limited (“the appellant”) was summonsed for two offences before the Tsuen Wan Magistrates’ Court:

(1) Summons No. TWS4847/2010

Failing to have brakes complying with regulations, contrary to Regulations 19(1)(a) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Ordinance (sic) made under the Road Traffic Ordinance, Cap.374.

The particulars of the offence are as follows:

Information has been laid that you on 6 November 2009 at 10:15 am at Route Twisk near lamp post W2691 did use a public bus displaying registration mark LN4730, on a road when the braking system of the said vehicle did not have brakes acting on all the wheels of the vehicle which as applied by one means of operation had a total braking efficiency of not less than 50 per cent.

(2) Summons No. TWS4848/2010

Failing to maintain braking system in good and efficient working order, contrary to Regulations 5(4) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Ordinance (sic) made under the Road Traffic Ordinance, Cap.374.

The particulars of the offence are as follows:

Information has been laid that you on 6 November 2009 at 10:15 am at Route Twisk near lamp post W2691 did use on a road public bus displaying registration mark LN4730, when every part of the parking braking system and the means of operation thereof fitted to the said public bus was not maintained in good and efficient working order and properly adjusted.

2.  The appellant, having pleaded not guilty to the above two summonses, was convicted after trial of both offences and fined $2,000 for each.  The appellant now appeals against the two convictions.

3.  The appellant was unrepresented at the trial, and is now represented by Mr Henry Cheng of counsel in this appeal hearing.

Background

4.  The facts of the case showed that the appellant was the registered owner of the bus bearing registration number LN4730.  On 9 November 2009, PW1, Mr Lee (transliteration) who was employed by Kam Wing Travel Company (transliteration) (金榮旅遊公司), was responsible for driving that bus.  At around 10:15 am on that day, he was driving the said bus at 30-40 km/h, going downhill along Route Twisk in the direction of Tsuen Wan.  While driving, PW1 noticed that the foot brake of the bus did not work. Despite having stepped on the foot brake repeatedly, he could not stop the bus.  In a moment of emergency, he pulled up the hand brake to try to slow down the bus, however, that system also did not respond.  He had no alternative but swerved the bus towards a vehicle which was going uphill, i.e., in the opposite direction.  It was only after the two vehicles had collided did the bus come to a halt.  Subsequently the traffic police came to the scene for investigation.

5.  The bus in question was subsequently towed to the carpark of Transport Department in Tai Lam.  On the afternoon of the same day, PW2,  a Transport Officer of the Transport Department surnamed Chong, was assigned to examine the braking systems of the said bus.  The witness found that both the service braking system and parking braking system of the bus were not up to standard. The efficiency of these two braking systems was only 43.4% and 9.6% respectively, which were below the statutory minimum requirement of 50%.

6.  The prosecution called four witnesses at the trial.  PW1 was the driver who was responsible for driving the bus in question on the material day.  PW2 was Mr Chong, an officer of the Transport Department responsible for examining the vehicles in question.  PW3 and PW4 were respectively the police constable who investigated at the scene and Mr Chan who was the driver of the vehicle that collided with the bus in question.

7.  PW2, Mr Chong, testified as an expert for the prosecution.  In the afternoon of the day of the accident, he examined the footbrake and handbrake of the bus in question and found that both had not been properly adjusted.  The braking efficiency of both systems failed to meet the statutory minimum requirement.  He was also of the view that that the braking systems were below standard was not caused by the driver’s improper driving on that day, nor was it related to the downhill movement of the vehicle at the material time.  It was in fact a problem arising from the daily maintenance of the bus.  Subsequently summonses were issued against the appellant for the abovementioned two offences.

8.  The defence called a Mr Lee (transliteration), who was a vehicle repair technician by occupation, to give evidence.  Mr Lee claimed that on 8 November 2009, i.e. two days after the accident, the vehicle in question was towed from Tai Lam vehicle examination centre to his garage.  After examination, he found the sign of burnt brake pad with the vehicle.  His view was that the burn might be caused by prolonged downhill travel and driver’s improper driving manner at the material time.  Since Mr Lee did not testify as an expert, his opinion was only hearsay evidence.

9.  The magistrate found both PW1 and PW2 to be honest, reliable and accurate witnesses.  He accepted the motor vehicle examination report (prosecution exhibit P5) produced by PW2 and found the appellant guilty of both offences.

Grounds of Appeal

10.  Mr Cheng for the appellant has put forward three grounds of appeal in this case.  First, he stated that the trial magistrate had failed to find beyond reasonable doubt that the Appellant was “using” the bus in question at the material time.  Second, the trial magistrate had erred in law.  Since he wrongly found the offences under sections 5(4), 19(1)(a) and 121(1) to be of “absolute liability”, he did not put into consideration that the appellant was entitled to rely on the common law defence of “honest and reasonable belief”.  Third, basing on the aforesaid second ground, the two convictions made by the magistrate were unsafe and unsatisfactory.

Application for introducing new evidence by the appellant

11.  On the day of the appeal, counsel representing the appellant applied to the Court pursuant to section 118(1)(b) of the Magistrates Ordinance, Cap. 227 by way of motion for introducing new evidence to support the appeal.  The motion asked this Court to accept new evidence in three aspects: first, allowing Mr Ho (transliteration), director of the appellant company, to give evidence in court on the vehicle maintenance and repair arranged by the appellant company, and on the correct driving manner that general public bus drivers should adopt in driving down a long slope; second, accepting a record of repair work done for the bus in question by Luen Shing Bodywork (transliteration)(聯誠車身工程) on 31 October 2009 to be produced as an exhibit; and third, accepting an expert report submitted by an engineer Mr Lo (transliteration) on 18 October 2010 on the braking systems of the bus, and permitting him to give evidence in court as an expert.

12.  As to whether or not new evidence should be accepted by the appellate court at the stage of appeal, the legal principle can be seen in the decision of the Court of Appeal in the case of HKSAR v Cheng Wui Yiu, CACC532/2004.  In the case of HKSAR v Shortall Terence Joseph, HCMA801/2009, V. Bokhary J set out the relevant legal principle in simple and clear terms. The paragraph concerned is quoted verbatim in the following (P5 L–S):

“… In the light of all of that, the general rule is the conditions to be satisfied before further evidence will be received on appeal are as follows:

(i) the evidence was unavailable at trial or a reasonable explanation for its non-production at the trial is provided;

(ii) such evidence must be relevant to the issues;

(iii) it is likely to be credible; and

(iv) it might have led to a different verdict or verdicts so that it renders the conviction or convictions appealed against unsafe or unsatisfactory.”

13.  As far as this case is concerned, by the first point in the motion, the appellant asked me to allow Mr Ho, director of the appellant company, to give evidence in the appeal hearing.  Mr Ho’s evidence would address the safe driving manner that should be adopted by general bus drivers in going down a long slope.  Mr Ho in his affirmation stated that he had driving experience of over 20 years.  If the Court permits Mr Ho to testify in court, he should do so as an expert.  However, in the content of the affirmed documents supporting the application, nothing suggested Mr Ho wished to testify as an expert.  There was not even a single word mentioning his professional qualifications.  I have no way to know if he has ever been accepted by the Court in any legal proceedings as an expert witness and testified as such.  Conversely, if Mr Ho does not give evidence as an expert, his evidence on correct driving manner will only be hearsay evidence which the Court cannot accept.  Basically he could have testified as a defence witness at the trial.  However, the applicant did not explain why Mr Ho had not been called as a defence witness.  Therefore, I find that Mr Ho’s evidence does not meet the requirements under the legal principle in the above case of Shortall Terence Joseph.

14.  Mr Ho in his affirmation also sought to produce a report issued by Luen Shing Bodywork as an exhibit in the appeal hearing.  That document was part of the repair record of the bus in question.  The date shown on the document was 31 October 2009, i.e. 6 days before the accident in this case.  The document was addressed to “Kam Wing”.  It contained eight items of bodywork repair work at a total cost of $3,800.  However, the document did not mention if the braking systems of the vehicle had been examined.  Nor did Mr Ho’s affirmation mention at all who the author of the document was.  I find that the content of this document has no direct relation with this case, and the content of which is hearsay.  The Court should not accept this document as an exhibit while its source is unidentified and content not relevant to the issues in this case.

15.  The appellant also requested the Court to accept an expert report written in English by a registered mechanical engineer Lo and permit Mr Lo to appear in court as a defence witness.  The report was dated 18 October 2010, and the content addressed the problem of the braking systems of the bus in question. It was on 15 September 2010, i.e. 10 months after the accident, that Mr Lo examined the bus, and subsequently on 13 October the bus was further driven to Tai Mo Shan Road for test.  In the report, Mr Lo concluded that the readings of the braking systems on that day after the accident were below the statutory requirement because of PW1’s incorrect driving manner.  Had PW1 driven downhill in a correct manner, the readings of those two braking systems would have been above the statutory minimum requirements.

16.  It was not until 10 months after the accident did Mr Lo examine the bus in question.  I find that the result of Mr Lo’s examination cannot reflect the actual condition of the braking systems of the bus on the day of the accident. Defence witness’s evidence showed that the bus was examined at the carpark of the Transport Department in Tai Lam after the accident, and was subsequently towed to a defence witness’s garage and examined again.  Therefore, I cannot rule out the possibly that the bus might have been repaired or tempered with in other ways during the said 10 months period.  The intactness of the braking systems of the bus during Mr Lo’s examination should be highly questionable.  Therefore I cannot permit Mr Lo to give evidence in court or accept his expert report as a new exhibit.

17.  The appellant’s motion for introducing new witnesses and exhibits is dismissed.

First Ground of Appeal

18.  For the first ground of appeal, the counsel acting for the appellant contended that although according to precedents, the term “use” in the legislation could cover the driver and his employer at the time of accident, as far as this case is concerned, there was not sufficient evidence to support the court to find beyond reasonable doubt that the appellant was PW1’s employer on the day of the accident.  Therefore the magistrate has obviously been wrong in the decision of the two offences.

19.  Regarding the issue of who PW1’s employer was, the magistrate in para. 13 of the statement of findings said:

“13. The representative of the appellant company indicated in court that he did not contest that PW1 was an employee of a subsidiary company under his company. Because of the licensing system of the Transport Department, the appellant company had many companies under it to facilitate obtaining licences for business operation. PW1 of this case was actually in the employment of the appellant company at the time of the accident, and was assigned by the appellant company to drive the bus involved in this case.”

I find that the above finding of the magistrate must be basing on the conversation between the magistrate and the representative of the appellant at the trial, which is quoted verbatim as follows:

“MR HO: Your Worship, if the defence does not … does not need us to call any further witness, I … this is the prosecution case.

Court: Yes. Regarding this Kam Wing Travel Company, does the defence have any dispute, that is to say, Kam Wing Travel Company was in fact an organization of Cheerway Holdings Limited?

Representative of Defendant Company: In fact it’s not, Kam Wing was a company, which also belonged to us. But the driver, he might have some … that Lee Sai Wing (transliteration)(李世榮), he should be of Wing Kee Travel Co. Ltd. (transliteration)(榮記旅運有限公司).

Court: Yes.

Representative of Defendant Company: Yes. Since, for us, there was the system of licenses being issued separately, according to the license issuance system of the Transport Department, there could not be too many vehicles for each company, only eight to ten for each. Since we had tens of vehicles, it had to be separated into many companies, but as one when being grouped together. That’s right.

Court: Um.

Representative of Defendant Company: He, at that time, the driver should be his … as I can see ……

Court: No, this doesn’t matter, but it doesn’t matter which one he belonged to.

Representative of Defendant Company: Right, this is not too important.

Court: That’s to say, what’s the most important, the Court thinks what’s the most important is to confirm if Cheerway Holdings Limited has any dispute, i.e. do you, representing the company, have any dispute that this Lee Sai Yeung (transliteration)(李世洋) who was basically driving this vehicle ……

Representative of Defendant Company: No dispute.

Court: ……it’s your company who assigned him to drive this vehicle？

Representative of Defendant Company: Yes.

Court: There is no dispute over this?

Representative of Defendant Company: No dispute.”

20.  The conversation above showed that the appellant was indeed PW1’s employer.  Therefore the magistrate did not err in his decision in this regard.  The appellant was also a “user” of the bus at the time the bus had the accident.

Second and Third Grounds of Appeal

21.  The second ground of appeal states that the magistrate has erred in finding both offences to be of “absolute liability” instead of “strict liability”.  If I agree Mr Cheng’s legal argument, the appellant may rely on the “honest and reasonable belief” as a defence in this case.  However, since the magistrate has found the offences in this case to be of “absolute liability”, the appellant could not rely on the abovementioned defence because of the magistrate’s wrong finding.

22.  Precedents of relevant law clearly showed that offences relating to the use of vehicles were generally of “absolute liability”: see Mickleborough v BRS (Contracts) Ltd [1977] RTR 389；and The Kowloon Motor Bus Company (1933) Ltd (No. 2) v The Queen [1973] HKLR 602.  I firmly believe that Mr Cheng would not find these two cases unfamiliar.

23.  In the judgment of Hong Kong Court of Final Appeal in the case of HKSAR v Hin Lin Yee [2010] 2 HKLRD 826, Ribero PJ pointed out some offences which might be interpreted as of “absolute liability”:

“156. A second class of cases where absolute liability may have a justifiable utility involves the statutory imposition of a duty on a person (which may be a corporate body) where the conduct or task which is the subject of the duty is in practice likely to be carried out by someone else, such as an employee or a contractor. Such situations are commonplace in factories and other workplaces where the legislation places the duty on the owner of the enterprise or the employer concerned. For convenience I shall simply speak of ‘the employer’.

157. To construe the offence-creating provision in such a situation as requiring proof of mens rea may make little sense. The job having been assigned to an employee or contracted out, the employer may truthfully know nothing about the conduct and circumstances constituting the breach. The intermediate defence may not be enough to secure the statutory purpose. The employer may plausibly say that he took all reasonable care to entrust the task to a competent employee or specialist contractor and honestly and reasonably believed that the duty was being properly discharged.

158.    The justifiable effect of imposing absolute liability in such cases is that it makes it insufficient for the employer passively to assert an honest and reasonable belief.  It promotes proactive management and diligent supervision on his part to see that the duty is in fact being properly discharged.  If the employer knows that he will be held to account, even without actual fault on his part, if his contractor or employee is slack or careless or incompetent on the job, he has every incentive to make sure that the job is properly done and to replace contractors or employees who are not up to the task.”

24.  I am of the view that previously many employers in similar cases, by contending that they had assigned the daily procedures to the employees or self-employed persons or assigned the operation to a third party, evaded the liabilities that they should bear.  Thus the decision in the above case has specifically and effectively plugged the long existing loophole in law.

25.  The trial magistrate has stated clearly in the last paragraph of the statement of findings that he had made reference to the judgment of Hin Lin Yee case before confirming both offences in this case to be of “absolute liability”.  Basing on this reason, the magistrate further found that the appellant could not rely on “honest and reasonable belief” as a defence against the two offences.  At the trial, the magistrate did also clearly explain to the representative of the appellant the rights that the defence was entitled to.

26.  I find that all three grounds of appeal advanced by Mr Cheng for the appellant are not substantiated.  The appeal is dismissed and conviction of both offences upheld.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.