THE QUEEN v. LAI TUNG SANG

Magistracy Appeal No. 845 of 1990

-----------------

HEADNOTE

-----------------

TRUCK CRANE - CONSTRUCTED OR ADAPTED FOR USE ON ROADS AND THEREFORE A "VEHICLE" - PRIMARY USER IRRELEVANT.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 845 OF 1990

----------------

JUDGMENT

----------------

1. The appellant was convicted by Miss Kwan on 21st May, 1990, at Western Magistrates Court on the following six summonses:

2. The truck crane is a monster machine measuring 11.99m x 2.75m and weighing over 30 tons. It is used for lifting building materials at construction sites. By virtue of its size, it fails to come within any of the categories of registrable vehicles in the First schedule to the Road Traffic (Construction & Maintenance of Vehicles) Regulations, Cap.374.

3. The case arose out of a fatal accident in Wanchai when the truck crane was being driven under its own power, but connected by a tow rope to a goods vehicle in front. It was not, in fact, being towed; the rope was there purely to give that impression.

4. It was submitted by Mr Chong, for the appellant, that the truck crane was not a vehicle within S.2 of the Road Traffic Ordinance; in other words, it was not "constructed or adapted for use on roads". In that event the provisions of the ordinance would not apply and the convictions could not stand.

5. I did not accept counsel's argument and dismissed the appeal. I now give my reasons.

6. Appellant's case depended on two principal submissions:

7. It was not disputed by the Crown that the primary user was at construction sites, but Mr Leung submitted that this was irrelevant because it could only reach those sites by road. The appellant admitted in his evidence that the truck crane had made up to ten such journeys.

8. Mr Chong relied on Burns v. Currell [1963] 2 Q.B. 433. In that case, decided undern the 1960 Road Traffic Act, the Court held that a Go-Kart was not a vehicle "intended or adapted" for use on a road.

9. There is however a significant distinction to be drawn between the two cases. The Go-Kart was admitted to have made only one venture onto a road. Indeed one would not expect to see a Go-Kart on a public road, any more than would expect to meet a Formula racing car on the Tolo Highway. The Go-Kart had no horn, proper brakes, mirrors etc., whereas the truck crane had all the attributes of a road vehicle.

10. There is also the difference in the wording of the two pieces of legislation. Until 1984 S.2 of the Ordinancd also contained the words "intended or adapted". The change to "constructed or adapted" is a significant - and clearly deliberate - narrowing of the definition. A Go-Kart may not have been intended for use on a road, but it was certainly constructed for such use.

11. I was satisfied that the magistrate was correct in ignoring the question of primary user. It followed, having regard to the truck crane's specifications, that it was "constructed or adapted" for use on a road and therefore a "vehicle".

12. This is hardly surprising, since, had it fallen into any of those classes, it would have been registrable as such.

13. By virtue of its excessive dimensions and the Commissioner's discretion under S.24(2) to refuse to register any vehicle, this vehicle was refused registration. All the magistrate could find therefore was that the vehicle did not fall into any of the recognised classes.

14. Mr Chong complained that the effect of such a negative finding was to reverse the burden of proof. I do not agree. No other finding was open to the magistrate in the circumstances.

15. It was not disputed that the appellant had permitted the driver to drive. The driver of the vehicle could not have had a licence to drive a vehicle that fell into no recognised class and the magistrate so found. She was unable to find specifically that the driver lacked a licence to drive a particular class of vehicle. His vehicle was unregistrable and only usable with the express permission of the Commissioner under Regulation 6(2) of the Construction and Maintenance Regulations.

16. The appellant acknowledged that he did not apply, in the present instance, for such a permit, because it is invariably issued only after a delay of a week or more. This is hardly surprising, given the size and weight of these truck cranes. one of the conditions that he is entitled to attach concerns the route and this is something that requires proper consideration. In this case, for example, it is unlikely that he would have approved a route that took the vehicle along Lockhart Road, followed by a left turn into Stewart Road, a manoeuvre that had fatal consequences for a pedestrian waiting to cross the road at that corner.