THE QUEEN v. EDUARDO HERMIA JAVELOSA

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This is an appeal against the decision of Mr. I.T. Heath, sitting as Magistrate at the Causeway Bay Magistracy, who convicted the Appellant of driving without a licence contrary to Section 42 of the Road Traffic Ordinance. He gave the Appellant an absolute discharge, with no conviction to be recorded.

2. In the normal course of appeals from Magistrates, the appeal came on in the High Court. However, Hopkinson J., at the request of the defence and with no objection by the Crown, has referred it to this Court for decision. We do not find it easy to understand why that request was made or why the learned judge acceded to it.

3. The Appellant is a national of the Philippines. He came to Hong Kong on the 2nd July 1976 to be employed as a butler/chauffeur. He had, and has kept up to date, a licence to drive in the Philippines and also what is commonly called an International Driving Licence. But at no time has he had a Hong Kong licence. We understand that he could have obtained one at the time of his arrival by merely presenting his Philippine licence, but for reasons best known to himself he did not take that course.

4. The Appellant's initial contract was for 2 years, but it has been extended from time to time and he was still performing his duties under the same contract in December 1984 when he was involved in a traffic incident. There was no suggestion that his driving was in any way at fault, but the incident led to inquiries and eventually to the charge we have mentioned.

5. The defence put forward before the learned Magistrate was that the Appellant was a visitor to Hong Kong. A visitor is given the privilege of driving here without a Hong Kong licence for the period of one year from his last entry into Hong Kong, provided that he has either an International Licnce or a domestic licence from another country. It was suggested that time for the Appellant should run from the last date that he came into Hong Kong, which was the 2nd June 1984. On that occasion he arrived here from Manila and we think it safe to assume that he was returning from a personal holiday. That assumption is derived from the Agreed Facts. We should mention here that the case was dealt with below entirely upon facts agreed between counsel for either side. No evidence was called from any witness.

6. From the Agreed Facts we learn that every summer from and including 1976 up to but not including 1984 the Appellant left Hong Kong for periods ranging from 6 to 11 weeks. It was agreed that during those periods he continued to perform his duties as butler/chauffeur. We think it reasonable therefore to assume that on those occasions he was accompanying his employer. In the 4 or 5 years up to 1981 the Appellant made similar excursions for 4 to 5 weeks over the Christmas period.

7. In addition he was away from Hong Kong for 7 weeks in 1978 and for periods of 5 to 6 weeks each every year from 1981 onwards. On these occasions he departed for and arrived back from Manila, and that is why we assume that on those occasions, including the last, he was enjoying a personal holiday.

8. There is one other fact that we should mention. Not being a Hong Kong belonger the Appellant requires permission from the Director of Immigration to 1and or to remain in Hong Kong. It is the policy of the Director, as far as domestic servants are concerned, not to give that permission of periods of more than 6 months at any one time, although he is willing to continue granting successive periods of 6 months whilst the applicant is in employment and he may, for convenience, grant a 6 months' period in advance of the actual time to which it relates. In this way the Appellant has received permission to stay for all the time he has been here, but no individual permission has been for more than 6 months.

9. Were there no question of statutory definition we would say without hesitation that it does open violence to the English language to suggest that in the circumstances we have outlined the Appellant was a visitor to Hong Kong. However we are concerned with a statutory definition. It is to be found in the Road Traffic (Registration and Licensing of Vehicles) Regulations and reads-

"'visitor' means any person who arrives in Hong Kong other than to take up residence for a period exceeding 12 months;"

10. Mr. Ching, who appears for the Appellant, has with his usual charm and eloquence treated us to a detailed analysis of that definition and an interpretation of the words it contains, focusing on concepts such as 'purpose' or 'motive', and distinguishing them from "intention". With every respect to him we confess to finding no difficulty, or ambiguity, in the definition as it stands. The words "other than to" do, in our judgment, simply imply intention. Thus, if a person arriving in Hong Kong intends then to take up residence here for more than 12 months, he cannot take advantage of the visitor's privilege. We concede that there may be difficulties in the application of that definition in the particular, perhaps unusual, circumstances that Mr. Ching has suggested, but we see none in the present instance. We find the only possible inference to be drawn from the agreed facts is that in 1976 the Appellant arrived in Hong Kong with the intention of taking up residence for more than 12 months and that therefore he was not then a visitor, nor has he ever since so become.

11. We see no relevance in the requirement of permission from the Director of Immigration or in the fact that permission has never been extended to more than 6 months at any one time. That is a matter entirely for the Immigration authorities. It cannot have affected the intention of the Appellant at the time he arrived, although of course the refusal of permission then, or of further permission later, could have frustrated the Appellant's intention.

12. For these reasons we think the learned Magistrate was correct in the conclusion to which he came. We have no need then to deal with the point that we understand Mr. Hodge would have raised on behalf of the Crown, had we called upon him for his assistance, that the status of a visitor, being in effect a negative averment, was something which should have been proved by the Appellant. We merely observe in passing that the raising of that point at this stage is yet another example of the so often unsatisfactory consequences that flow from dealing with a case entirely upon agreed facts.

13. The appeal is dismissed.