HKSAR v. TSUI PAK SUN, PAXTON AND ANOTHER

HCMA 50/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 50 OF 2016

(ON APPEAL FROM TWCC NO 2395 OF 2015)

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J U D G M E N T

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1. The two appellants are father and son in this case. The son was D1 in the trial and he is the 1^st appellant whilst the father was D2 and he is the 2^nd appellant. They faced five separate charges at the Tsuen Wan Magistrates’ Court, namely :

(1)  Charge 1 (against D1 only): Speeding, contrary to section 41 of the Road Traffic Ordinance, Cap 374;

(2)  Charge 2 (against D1 only): Driving without a driving licence, contrary to sections 42(1) and 42(4) of the Road Traffic Ordinance, Cap 374;

(3)  Charge 3 (against D1 only): Using a vehicle without a third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicle Insurance (third Party Risks) Ordinance, Cap 272;

(4)  Charge 4 (against D2 only): Permitting vehicle to be driven by a person without a driving licence, contrary to sections 42(3) and (4) of the Road traffic Ordinance, Cap 374; and

(5)  Charge 5 (against D2 only): Permitting another to use a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicle Insurance (third Party Risks) Ordinance, Cap 272.

2. The 1^st Appellant pleaded guilty to Charge 1 and was convicted accordingly.  The two appellants pleaded not guilty to the remaining charges and on 30 December 2015, following a trial which lasted for two days, they were convicted as charged before Ms Rita K Y So (“the Magistrate”). The 1^st appellant was fined $2,000 for Charge 2 and $3,000 for Charge 3.  In addition he was disqualified from driving for 12 months on the latter charge.  The 2^nd appellant was fined $2,000 for Charge 4 and $3,000 for Charge 5.  Similarly he was disqualified from driving for 12 months on the latter charge.

3. This is their appeal against conviction in respect of Charge 2 to Charge 5 only and the disqualification imposed in respect of Charge 3 and Charge 5.

The Prosecution Case

4. The evidence adduced by the prosecution including the two Records of Interviews by the two appellants (Exh P3& P4) was not challenged during the trial.  They were produced in court by way of two Admitted Facts (Exh P1&P2).  The prosecution’s case was that the 1^st appellant was detected speeding by a police officer (Charge 1) at around 4:28 pm on 17 August 2015 when he was driving his father’s car along Tuen Mun Highway and as a result was intercepted by a police constable.  Notwithstanding the 1^st appellant was holding a Hong Kong Permanent Identity Card, it was found out that he did not hold a Hong Kong driving licence but only a United Kingdom (“UK”) driving licence (for driving private car) and an international driving licence (for driving two-wheeled or three-wheeled motorcycles) issued in the UK.  It was the prosecution case that the 1^st appellant was not allowed to drive lawfully in Hong Kong by using the UK driving licence (Charge 2). As the 1^st appellant did not hold a valid driving licence, the insurance policy in respect of third party risks over his father’s vehicle was invalidated when he was the driver (Charge 3).  As the owner of the vehicle, the 2^nd appellant had allowed his son to drive his vehicle without a valid driving licence (Charge 4) and hence also without a valid third party insurance (Charge 5).

The Defence case

5. Both appellants testified during the trial.  No other defence witness was called. It was the defence case that the 1^st appellant was at the material time a “visitor” to Hong Kong albeit he has a right of abode in Hong Kong and he last entered the territory by using his Hong Kong Permanent Identity Card.  At the material time, the 1^st appellant was 19. He was born and raised up in Hong Kong.  At the age of 15 after finished studying From 4, he was sent by his parents to the UK to continue his study in a boarding school on the strength of a student visa issued by the UK authority. At the material time, he has finished studying the first year of GCSE A-Levels in the UK and he returned to Hong Kong to visit and reside with his parents during the summer vacation.  He said he also planned to pursue his university education in the UK.  He told the court that his father owns a business in the UK and he has discussed with his father the possibility of taking over the father’s business and running that business in the UK after graduation.  He has given evidence that he sees his future in the UK rather than in Hong Kong: all his friends are now in the UK; he had rented a flat for his accommodation and has a girlfriend, who is a local British.  He had obtained a UK driving licence, bought a private car there and had successfully taken out a motor insurance for his car.  The 1^st appellant told the court that he usually came back to Hong Kong during school holidays to visit his parents as they were too busy to travel to the UK to visit him instead.  Every time he came in and out of Hong Kong, he used his Hong Kong Permanent Identity Card and his stay in Hong Kong is not subject to any restrictions.  Before coming back to Hong Kong, he told his father that he wanted to drive in Hong Kong and he was told by his father that he was entitled to drive in Hong Kong using his UK licence or international driving licence.  He said that he also went to the relevant government office in the UK to make inquiry whether he could drive in Hong Kong using his international driving licence and the answer was affirmative.  He clarified that all along, he was not aware until the police found out that he was issued with an international driving licence which did not allow him to drive a private car.  Obviously the licensing authority in the UK had made a mistake there.  Anyway, relying on what his father had told him, he honestly thought he could drive lawfully in Hong Kong using his UK driving licence and hence the insurance company could not deny the validity of the motor insurance. 

6. The 2^nd appellant told the court that he knew his son did not have a Hong Kong driving licence but he still allowed his son to use his private car in Hong Kong on the day in question because he had conducted his own research into the Laws of Hong Kong in the internet concerning the definition of “visitor” and what driving licence was required for a person to drive in Hong Kong and he had also accessed websites of the relevant government departments.  From his own understanding of the law and also from his own personal experience of driving in the UK using his Hong Kong driving licence, he honestly believed that the 1^st appellant could also drive in Hong Kong using his UK driving licence despite his status as a permanent resident in Hong Kong and a holder of the Hong Kong Permanent Identity Card. 

The Validity of the Motor Insurance Policy

7. According to the letter issued by the insurance company, (Exh. P7), the motor insurance policy would be valid only when the person who drove the motor car was a holder of a driving licence which allowed him to drive lawfully in Hong Kong.   

The Magistrate’s Findings

8. In a nutshell, the Magistrate rejected the defence’s submission that the 1^st appellant was a visitor and therefore entitled to drive in Hong Kong using his UK driving licence.  Accordingly, she also rejected the submission that the 1^st appellant was covered by the insurance policy in place at that time.  The Magistrate also ruled that the 2^nd appellant could not rely on his own interpretation and understanding of the laws as well as his own personal experience of driving in other countries as a defence to the charges he faced in the trial.

The Main Issue

9. At issue in the trial and in this appeal in respect of both Charges 2 and 3 is whether or not the 1^st appellant was a “visitor” to Hong Kong entitling him to drive here lawfully on the basis of a UK driving licence or, as the prosecution alleged, he was not a “visitor” and by driving using that licence was guilty of Charges 2 and 3.  Charges 4 and 5 faced by the 2^nd appellant stands or falls together with the verdict reached on Charges 2 and 3.

The Law

10. Section 42(1) of the Road Traffic Ordinance, Cap 374 provides that :

“Except as otherwise provided by this Ordinance, no person shall drive a motor vehicle on a road unless he is the holder of a driving licence in respect of a vehicle of the class of vehicle which he is driving.”

Section 2 of the same ordinance provides that :

“‘Driving Licence’ means a driving licence issued under this Ordinance.”

11. There was no issue in the trial or in the appeal that the 1^st appellant had not been issued with a driving licence pursuant to the Road Traffic Ordinance, Cap 374.

12. However, Regulation 37(1)(b) of the Road Traffic (Driving Licences) Regulations, Cap 374B provides that :

“… a visitor who holds … a valid domestic driving permit or domestic driving licence, issued in a place outside Hong Kong may drive in Hong Kong, during the period of 12 months following the date of his last entry into Hong Kong, a motor vehicle of any class which he is authorized by that permit or licence to drive notwithstanding that he is not a holder of a driving licence issued under these regulations …”

“‘visitor’ (到港人士) has the meaning assigned to it by regulation 2 of the Road Traffic (Registration and Licensing of Vehicles) Regulations.” (Regulation2, Cap374E)

Section 2 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap 374E provides that :

“ ‘visitor’ (到港人士) means any person who arrives in Hong Kong other than to take up residence for a period exceeding 12 months”

13. According to Archbold Hong Kong 2016 (paragraph 34-142), as far as Charge 2 is concerned, the prosecution has to prove that the defendant used a vehicle on a road.  Once that is established it is for the defendant to prove that there was a valid policy of insurance in force at the time.  The provisions of section 94A of the Criminal Procedure Ordinance, Cap 221 (negative averments) apply.  In HKSAR v Lau Kok-lam, HCMA 513/1998 and HKSAR v Wong Chau-chi, HCMA 1171/2007, the courts ruled that the defendant charged with the offence carries the burden to prove on the balance of probabilities that there was valid third party insurance.

14. Section 94A of the Criminal Procedure Ordinance, Cap 221 provides :

“(1) It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2) For the avoidance of doubt it is hereby declared that in criminal proceedings-

(a) it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b) the burden of proving the same lies on the person seeking to avail himself thereof.

(3) This section applies to criminal proceedings in the District Court or a magistrate's court.

(4)  The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”

15. In Wong Chau Chi (supra.), the court was dealing with exactly the same two charges that the 1^st appellant was now facing in this appeal.  Saw J had succinctly clarified and identified the issues of the appeal which has to be resolved as follows :-

“5. As a consequence, given that the appellant did not have a licence issued to him pursuant to section 42(1) of the Road Traffic Ordinance, Cap.374, the burden of proving that he was legally entitled to drive a motor vehicle on the day of the offences fell upon the appellant to the civil standard. This is to my mind consistent with the approach of the Court of Final Appeal in HKSAR v. Tong Yiu Wah [2000] 3 HKLRD 565 The consequences of this in the instant case was that it was for the appellant to satisfy to the civil standard the magistrate that he came within the exception provided for in Regulation 37(1)(b) of the Road Traffic (Driving Licences) Regulations. Thus it was for the appellant to establish that he was a ‘visitor’ to Hong Kong. If he failed to do that then he was guilty of driving without a licence. Likewise once it was established that he was the driver of a motor vehicle on a road in Hong Kong, it was incumbent upon the appellant to prove again to the civil standard that he was covered by a valid third party policy of insurance. As it transpires and as will be seen later in this judgment the appellant could only establish this by coming within the exception provided for us, Regulation 37(1)(b) of the Road Traffic (Driving Licence) Regulation, Cap.374B. Thus in the case of each charge it was for the appellant to establish that he was a ‘visitor’.”

16. It was accepted by both prosecution and defence at trial that whether a person is a “visitor” to Hong Kong within the meaning of Regulation 37 of Cap 374B is a question of fact depending on all relevant evidence.  The above analysis in Wong Chau Chi (supra.) has been adopted by the Magistrate in her Statement of Findings and in my view, it equally applies to issues of this appeal which are fallen to be decided.

Appeal against Conviction

17. Mr. Paul Harris SC leading Ms. Cherry S.Y. Hui had raised three Grounds of Appeal against conviction on behalf of the two appellants which are as follows :-

“Ground 1

1. The learned magistrate erred in law and in fact in finding that the 1st Appellant was not at all material times a visitor to Hong Kong within the meaning of Regulation 37 of the Road Traffic (Driving Licences) Regulations, Cap.374, and so entitled by virtue of that Regulation to drive in Hong Kong on the date of the alleged offences.

2. The learned magistrate should have found that on that date the 1^st Appellant:

(1) was resident in the United Kingdom;

(2) was visiting his parents in Hong Kong at the date of the offences with which he was charged; and therefore

(3)was a visitor to Hong Kong as defined by Regulation 2 of the Road Traffic (Regulation and Licensing of Vehicles) Regulations; and so

(4) was entitled under the provisions of Regulation 37 of the Road Traffic (Driving Licences) Regulations to drive in Hong Kong using his United Kingdom driving licence.

Ground 2

3. Having wrongly found that the 1^stAppellant was not entitled to drive in Hong Kong on his United Kingdom driving licence the learned magistrate further erred in law and in fact in finding that the 2^nd Appellant knowingly permitted the 1^stAppellant to drive in Hong Kong without a valid licence.

Ground 3

4. Alternatively to Ground 1 and 2, or additionally, the learned magistrate should have found that:

(1) The definition of a ‘visitor’ in Regulation 2 of the Road Traffic (Regulation and Licensing of Vehicles) Regulations was ambiguous and/or uncertain in its ambit;

(2) In consequence the conviction of the Appellants of the Second to Fifth Charges would be unfair in that it would breach the principle against doubtful penalization;

and therefore should have acquitted the Appellants on those charges.  The Appellants rely on R v Bloxham [1983] 1 AC 109.”

Discussion

18. It is obvious that the arguments in support of both Ground 1 and Ground 2 are closely-connected and revolving around the finding by the Magistrate that the 1^st appellant was not a “visitor” and hence he was not permitted to drive in Hong Kong using his UK driving license.

Was the 1^st Appellant a Visitor or Resident of Hong Kong ?

19. It was the 1^st appellant’s evidence that his parents were residing in Hong Kong and he was still supported by them, being an overseas student studying A-Levels in the UK.  There was no suggestion that he was estranged from them.  As said, he was born and raised up in Hong Kong and he received local education until he was 15.  He was issued with, and he still holds, a Hong Kong Permanent Identity Card which means he is a permanent Hong Kong resident having the right of abode in Hong Kong.  The 1^st appellant returned to Hong Kong during the long holidays such as Christmas and summer vacation and every time he travelled in and out of Hong Kong, he used his permanent identity card as his travel document.

20. The Magistrate concluded that notwithstanding that the 1^st appellant have plans to work and live in the UK after university education, those were no more than plans for the future and from the totality of the evidence adduced by the 1^st appellant, she concluded that he failed to satisfy the court on the balance of probabilities, that he was a “visitor” :-

“However, in the present case, I noticed that what D1 had shown to the Court about his plan and intention to stay in UK, as supported by the defence exhibits, including renting a flat, obtaining a UK driving licence, buying a car, having his friends and girlfriends in UK, coming back to HK to visit family during school holidays etc were nothing unusual, if not labeled as typical, for a youngster studying overseas. Even taking into account D1’s plan to continue his studies in UK, to work in UK for his father’s business after graduation and to reside in UK, it would be no more than a future plan, subject to future application and future approval from the UK government. At the moment, on the date of incident, having considered all the circumstances and the evidence as a whole, I was of the view that D1 did not fall into the category of being a visitor.” (see para 21 of the Statement of Findings)

21. In other words, the 1^st appellant was, at the material time, seen by the Magistrate as simply a returning overseas student like numerous others from the UK during the summer vacation.  The Magistrate concluded that since the 1^st appellant was not a “visitor” within the meaning as defined in Regulation 2 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap 374E, he was permitted to drive lawfully in Hong Kong only when he held a Hong Kong driving licence.  In coming to the conclusion, she took into account the whole of the evidence before her which included the evidence of the two appellants.  At paragraph 19 of the Statement of Findings, the Magistrate sets out the matters she had taken into account when considering the 1^st appellant was not a visitor which included but were not limited to the fact that he held a Hong Kong Permanent Identity Card :-

“The Court had considered the whole of the evidence, including in particular the following:-

(a) D1 was born and raised in HK until he left HK to pursue his study in UK after Form 4 education in HK.

(b) D1 was a holder of HK Permanent identity card.

(c) D1 used his HK Permanent identity card every time he went in and out of HK.

(d) D1’s stay in HK is not subject to any restrictions.

(e) D1 had travelled in and out of HK using his HK Permanent identity card.

(f) The number of days D1 stayed in HK and stayed in UK (as shown in Exhibits P5 and D9) and the reason of his staying pattern was because of his full time study in UK.

(g) D1 had not yet renounced his residency in HK.

(h) D1 had just turned 19. He left HK to study in UK since he was 15.

(i) D1 travelled to UK with his passport, together with his student visa, which had to be renewed from time to time.

(j) D1’s stay in UK is subject to conditions while studying as a student.

(k) D1 was not a permanent resident in UK.

(l) D1 had not yet applied for any permanent residence in UK.” (see para. 19 of the Statement of Finding)

22. In coming to her conclusion that the 1^st appellant was not a “visitor”, it is obvious that the Magistrate had considered the matter by reference to the whole of the evidence and not only the fact that he held a Hong Kong Permanent Identity Card. 

23. In this appeal, it is submitted on the 1^st appellant’s behalf that he was living in the UK but returning to Hong Kong periodically to visit his parents during the school holidays.  He is not a permanent resident of the UK but he is ordinarily resident there.  Mr. Harris placed heavy reliance on the fact that the 1^st appellant was already an adult who did not live with the parent’s under the same roof in Hong Kong anymore :-

“27. As an adult, the 1^stappellant has no right in law to reside in his parent’s home in Hong Kong. When he visits his parents during school holidays he is in law a visitor there. A visitor is in law ‘an invitee or a licensee’ (Greenhalgh v British Railways Board [1969] 2 All ER 114,117).

28. The position as to residence might be different if the Defendant were only 17 as he would then be a minor, and so in law under the care of his parents, who would have an obligation to accommodate him, and his school in England would be loco parentis. However these considerations do not apply in law to an adult of 18.” (see paras. 27 and 28 of the Appellant’s Submission)

24. There is no dispute that the 1^st appellant was, at the material time, a holder of Hong Kong Permanent Identity Card and hence he was a permanent resident of Hong Kong pursuant to Article 24(1) of the Basic Law who has the right of abode and it is very important to note that he also used his permanent identity card to enter and leave Hong Kong every time he came back from the UK during the holidays.  Leaving that aside, the frequency of his returning home to Hong Kong during the long vacations and the fact that he was still financially dependent on his parents has, in my view, militated against the force of the appellant’s argument that he should be treated as an adult in the eyes of the law and he was just returning to his parent’s home in Hong Kong from the UK as a “visitor” or “licensee” as submitted.  Also, as a matter of fact, I have grave doubt whether in reality, the 2^nd appellant and his wife would only treat the 1^st appellant, their only child in the family, as only a visitor when he returned home to reside with them during school holidays. 

25. Mr. Prakash L Daryanani, Senior Public Prosecutor, on behalf of the respondent, has reminded me during his reply that as a permanent resident, the 1^st appellant has also the right to vote in Hong Kong and the right to social welfare pursuant to Articles 26 and 36 of the Basic Law.  As I see it, the plain fact remains that, at the material time, the 1^st appellant was not a holder of a full UK passport and much as he said in evidence that he hoped and planned for the future to stay in the UK after finish his study in a university there (which would still be a few years away), he has not taken any single step to even begin to apply for a full UK passport.  Further, as also properly emphasised by the prosecutor at trial and also by the respondent in this appeal, the 1^st appellant’s claim in court that his father has been running a business in the UK was not supported by any documentary evidence.  No tax return or financial statement of the company concerned was ever produced by the appellants.  No particular was ever given during the trial about the details of the business operation.  The bare assertion by the 1^st appellant that his father was running a business in the UK was therefore so vague and considering the evidence in the trial by way of re-hearing, I too would reject the 1^st appellant’s claim as only a wishful thinking on his part because based on the evidence adduced by the appellants, without knowing the details of the investment, the court was simply not in a position to assess whether the 1^st appellant was really financially capable to apply to be a permanent UK resident as he claimed. 

26. Despite the able submission of Mr Harris, in my view, the fact remains that the 1^st appellant was just one of the many Hong Kong students studying in the UK who came back to Hong Kong during the summer holidays.  The Magistrate was entirely correct when she observed that the evidence adduced by the 1^st appellant was “nothing unusual” or only typical for an overseas student living abroad such as renting a flat or buying a car.  In my judgment, an overseas student originates from Hong Kong who returns home during school holidays, without more, would not possibly affect his or her status as a “Hong Kong permanent resident” and suddenly converts the long standing status of a “permanent resident” into a “visitor”.  I entirely agree with the respondent’s submission that the arguments advanced on behalf of the appellants both at trial and during this appeal that the 1^st appellant was a “visitor” were artificial and untenable.

27. Another aspect which was not mentioned by the Magistrate in her analysis, but which was highlighted by the respondent in their reply, is that under regulation 11(3) of Road Traffic (Driving Licences) Regulations, Cap 374B, as a holder of a UK driving licence, the 1^st appellant could simply apply to the Transport Department to issue him with a full Hong Kong driving licence instead of artificially claiming himself to be a “visitor” under regulation 2 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap 374E. In fact, during the trial, the 1^st appellant has also testified that he has since obtained a Hong Kong driving licence after his arrest in the present case.

28. During the appeal hearing, as a result of the diligent research by Mr Daryanani, the respondent was trying to go further than the judgment in Wong Chau Chi (supra.) and attempted to persuade me to rule that a person with a Hong Kong Permanent Identity Card can never be a visitor.  It was argued that the definition of “visitor” in regulation 2 of the Road Traffic (Diving Licences) Regulations, Cap 374E does not apply to Hong Kong Permanent Identity Card holders as they are already permanent residents of Hong Kong having the right of abode and therefore they cannot possibly “take up residence” as defined in the Regulations by virtue of their status as permanent residents. 

29. I must say there is some force in this bold argument but this is something which obviously requires a careful and detailed analysis of the law.  A provision in a statue is to be construed in its context.  As the respondent rightly submitted, the purposive approach rather than the literal approach of interpretation of the term “visitor’ is to be preferred.   

30. One of the important aspects, and very often the most important aspect, in the context is the purpose for which the statue was enacted.  It would be wrong to ignore this material fact in the construction exercise.  In this regard, the respondent properly referred me to the heading of regulation 37 of the Road Traffic (Driving Licences) Regulations, Cap 374B as it is the very provision which allows a visitor who holds a valid international or domestic driving licence to drive in Hong Kong.  The relevant heading reads :

“Visiting drivers from abroad”

It is submitted by the respondent that it is clear from the heading of the regulation that it concerns visiting drivers from abroad and not drivers from Hong Kong who are Hong Kong Permanent Card holders and therefore have a right of abode in Hong Kong.

31. Further, it is further submitted that if the meaning of the term “visitor” was to be interpreted literally, it would create a loop-hole in that any Hong Kong permanent resident who claims to leave Hong Kong within 12 months will be considered as a “visitor” which cannot be the intention of the legislation. 

32. In my view, in construing the term “visitor”, it is necessary to bear in mind the context for this particular regulation.  Clearly, the regulation serves a particular purpose to allow a visitor from abroad to use a valid international or valid domestic driving licence to lawfully drive in Hong Kong during their stay here if it is not more than 12 months without the trouble and expense to apply for a Hong Kong driving licence.  The literal approach adopted by the appellants in their arguments has largely ignored the purpose of the regulation as stated in the heading and is just contrary to the spirit and intention of the legislation.  

33. Construing the definition of “visitor” in its proper context, I take the view that it only applies to visitors from abroad and generally does not apply to Hong Kong permanent residents having the right of abode in Hong Kong.  I say it is a general position as I can envisage that there may still be exception in some cases.  Accordingly, I am reluctant to go down the path as suggested by the respondent that this definition does not apply to Hong Kong Permanent Identity Card holders at all.  In reality, there may be cases where a Hong Kong permanent resident may also be regarded as a visitor as a result of his or her own choosing.  We know many permanent residents in Hong Kong are also passport holders of other foreign countries.  According to Schedule 1 of the Immigration Ordinance, Cap 115, the status of a permanent resident in Hong Kong of Chinese nationality would never be lost even if he or she is absent from Hong Kong continuously for many years and cease to have ordinarily resided in Hong Kong.  In simple language, over the years many Hong Kong residents chose to immigrate to western countries such as Australia, Canada, USA or UK.  For those Chinese citizens from Hong Kong, they would still be permanent Hong Kong residents even though they have been living abroad continuously for so many years and ordinarily reside in that foreign country.  However, when they subsequently come back to Hong Kong for holidays, for reasons best known to themselves, they can still choose to return as “visitors” by entering with their foreign passports and not by their Hong Kong Permanent Identity Cards.

34. This is a simple question of fact as far as evidence is concerned and it is also a clear and unequivocal manifestation of such a permanent resident’s real intention as to whether he or she should be regarded as a “permanent resident” or a “visitor”.  In those cases where the Hong Kong Permanent Identity Card holders still chose to enter Hong Kong by their foreign passports, I judge it would be wrong and illogical to disregard their conscious decisions and not to treat them as “visitors” as such.  Therefore, I do think it is appropriate and I decline to resolve the issue by a general sweeping statement proposed by the respondent that a Hong Kong Permanent Identity Card holder can never be a “visitor”. Clearly, a whole host of the factors should be considered in the weighing exercise. If however a permanent Hong Kong resident with a foreign passport chose to use his or her permanent identity card to enter and leave Hong Kong as opposed to his or her foreign passport, whilst not conclusive, this will strongly suggest that he or she was not a “visitor”. 

35. This complication, however, did not arise in the present appeal as the 1^st appellant was a holder of the Hong Kong Permanent Identity Card and all along a permanent Hong Kong resident and he did not even have any foreign passport, not to mention a UK passport, at the material time.  The fact that he ordinarily resided in the UK as he was studying there was irrelevant.  Despite his claims that he wanted to stay in the UK after graduation, it remains to be seen whether his dream would come true in the end.  Therefore, in his case, the analysis should be relatively simple and straightforward.  He entered Hong Kong by using his Hong Kong Permanent Identity Card and in so doing, it is clear that, as a matter of fact, he entered Hong Kong as a resident, not as a visitor.  During the trial, it was for the 1^st appellant to establish that he was permitted to drive with a UK driving licence.  He did that by arguing that he was a “visitor” by reason of Regulation 37 of the Road Traffic (Driving Licences) Regulations, Cap 374B.  This he failed to do and the Magistrate’s reasons for rejecting his submission cannot be faulted.  I would not interfere with her finding on Charge 2.

36. In the trial, the 1^st appellant was also trying to satisfy the Magistrate that there was in place a valid insurance policy of the type contemplated by the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. The policy holder was the 2^nd appellant and the 1^st appellant was driving on the policyholder’s permission.  The plain and obvious meaning of the proviso to clause 5 of the Certificate of Insurance is that :-

“The person driving holds a licence to drive the motor vehicle or has held and is not disqualified from holding or obtaining such a licence. The term ‘licence’ means a licence or other permit required by the licensing or other laws or regulations.”

The 1^st appellant sought to argue before the Magistrate that he believed that since at the material time he was holding a valid UK driving licence and he was a visitor to Hong Kong, the Certificate of Insurance was in force.  The insurance policy only covered the 1^st appellant if he satisfied the Magistrate that he was a “visitor”.  If he did not he was not insured.  Whilst it may be that the 1^st appellant believed that he was covered by the insurance policy the fact as found by the Magistrate was that he was not and as a result, I totally agree with her finding on Charge 3.

37. Ground 1 therefore fails.

38. It was already accepted by the appellants in their submission that the convictions on Charge 4-5 of the 2^nd appellant stands or falls with the convictions on Charge 2-3 of the 1^st appellant.

39. Based on the above analysis for Charge 2-3, there is no reason to disturb the findings on Charge 4-5.  Accordingly, Ground 2 also fails.

Was the definition of “Visitor” in Regulation 37 of Cap 374B ambiguous?

40. In Ground 3, the Mr. Harris submitted, in the alternative, that there is a sufficient degree of ambiguity and uncertainty about the meaning of the word “visitor” in Regulation 37 of the Road Traffic (Driving Licences) Regulations, Cap 374B and the court should adopt the meaning which is more favourable to the appellants, namely that “visitor” includes a person who originates from Hong Kong but returns to Hong Kong for a visit, so that such a person does not commit an offence if they drive in Hong Kong on their overseas licence.

41. The principle against doubtful penalization has to be applied in conjunction with all other relevant criteria and often outweighed by “the need to protect the public against vicious criminals” (see Bennion, Statutory Interpretation, 5^th edition, pp517-518).

42. In the present case, the appellants contend that the need to protect the public against criminals does not appear to be relevant.  The 1^st appellant at the date of the offence held a valid, clean driving licence from the United Kingdom.  If he was allowed to be treated as a “visitor” under the law, he may drive in Hong Kong for up to 12 months, irrespective of whether or not he has a clean licence or has motoring convictions resulting in penalty points having been placed on the licence.  It is submitted that to apply a wider interpretation of the term “visitor”, contrary to the principle against doubtful penalization, would not therefore help to protect society against criminals.  It would on the contrary have the unjust effect of criminalizing law-abiding citizens on an ambiguity.

43. Absent countervailing considerations regarding protection  of the public, Mr. Harris argues that the principle against doubtful penalization should therefore prevail in the interpretation of Regulation 37 and Section 42(1), so that the two appellants are not guilty of the offences.

44. In my judgment, the appellants’ argument that the 1^st appellant, being a Hong Kong permanent resident (and not an overseas passport holder) studying in the UK should be construed as a “visitor” when he returned to Hong Kong for holidays and entered the territory with his identity card is apparently strained and artificial which cannot stand with the evidence adduced by the appellants.  Looking at the heading of Regulation 37 which is “visiting drivers from abroad”, it is clear that the provision only concerns visiting drivers from abroad and not drivers from Hong Kong who are Hong Kong Permanent Card holders and therefore have a right of abode in Hong Kong.

45. With every respect to Mr. Harris, I must confess to finding no difficulty, or ambiguity, in the definition of the term “visitor” as defined in the relevant regulation.  While I concede that there may be some complications in the application of that definition in the unusual circumstances that I have envisaged at paragraph 33, I see none in the presence instance.  I find that the only possible interpretation from the evidence adduced by the appellants is that the 1^st appellant was a Hong Kong permanent resident and his status would not be lost simply because he went to study in the UK.  When he returned to Hong Kong during school holidays with his permanent identity card, for all intent and purposes, he returned as a “ permanent resident” and not as a “visitor” no matter how eager he would like to be settled in the UK in the future. 

46. I also fail to understand the appellant’s argument that in the present case the need to protect the public against criminals does not appear to be relevant.  Obviously Mr. Harris has failed to consider the impact on the public particularly in relation to Charge 3 and Charge 5.  As rightly submitted by the respondent, by driving without valid third party insurance, had a serious accident occurred which resulted in property damages, personal injuries or even fatality the consequences would be devastating because the affected persons would not be covered by the insurance.  Thus, it is necessary to also give due weight to this consideration when construing the statutory definition of “visitor”.

47. There is no merit in Ground 3.  As a result, the appeal against conviction is dismissed.

Appeal against Sentence

48. The only sentence which is the subject of appeal is the period of disqualification imposed by the Magistrate for Charge 3 on the 1^st appellant and for Charge 5 on the 2^nd appellant.

49. Pursuant to section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272, the court shall upon conviction for a contravention of that section disqualify any person so convicted from holding or obtaining a licence to drive for not less than 12 months unless the court for special reasons thinks fit to order otherwise.

50. In the present case, the Magistrate has referred herself to the case of The Queen v Cheung Chu-bor [1989] 1 HKLR 180. She accepted that if a mistaken belief that a policy of insurance was in place was based on reasonable grounds it might constitute a special reason.  At paragraphs 40 to 41 of her Statement of Findings she said :-

“40. For the present case, I had considered the evidence of D1 and D2 respectively, that they honestly believed that D1 was qualified to drive with his UK driving licence or the international driving licence and therefore would be covered by the insurance. They had such belief by D1 relying on D2’s representation, and by both D1 and D2 browsing and reading information from the government website or the website of the laws of Hong Kong, by their own understanding and interpretation of the rules and legal provisions and by the personal experience from D2. But both D1 and D2 did not make any inquiry with the authorities in HK or to check or confirm with anyone with authority to confirm the accuracy of their understanding of the rules and legal provisions.

41.   Therefore, I ruled that the belief that D1 was entitled to drive in HK and the belief that D1 was covered for the third party insurance was not based on reasonable grounds.  I did not find any special reason in the present case.” 

51. Obviously, the Magistrate accepted that the appellants had made enquiries to determine whether the 1^st appellant was permitted to drive in Hong Kong but was not satisfied that those enquiries were properly made or had gone far enough. 

52. In HKSAR v Lui Kim Ying [2000] 3 HKLRD 622, (at p262) the meaning of “special reason” was explained :-

“The phrase ‘special reason’ is not defined in the Ordinance. As long ago as 1957 in R v. CHANG Kwan-woon (1957) HKLR 25 the Full Court, as it then was, applying principles drawn from analogous English cases, said that a special reasons is one that is special to the facts of the particular case. In other words, a mitigating or an extenuating circumstance not amounting in law to a defence to the charge, but which is directly connected with the commission of the offence and one which the court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a special reason within the exception.”

53. In R v Lee Kam-to [1980] HKLR 43 it was also held that a belief by a defendant that the insurance in respect of third party risks was in force could constitute a special reason as long as it was based on reasonable grounds.

54. As to what constitute reasonable grounds, the following are the observations by Lord Goddard CJ in Knowler v Rennison [1947] 1 KB 488 :-

“If he does not understand his policy, he can seek guidance and instruction, but he neither informs himself of its provisions nor gets advice as to what it covers, we are unable to see that he has any reasonable ground for believing that the policy covers something which it does not. Belief, however honest, cannot in our opinion be regarded as a special reason, unless it is based on reasonable grounds.” (emphasis added)

“It may be that if a man who felt he did not understand his policy took the advice of someone who was apparently in a position to explain it, such as an insurance agent, and received a wrong opinion, this might be considered a special reason.”

“The plain fact is that having got the policy he never troubled to acquaint himself with its terms. He cannot hold that a belief founded on no reasonable ground can constitute a special reason.”

55. In the present case, the evidence of the 1^st appellant was that he had only asked his father before coming back to Hong Kong whether he was allowed to drive in Hong Kong using his UK licence.  The 2^nd appellant replied in the affirmative not based on any legal advice or by the advice of someone who was in a position to give authoritative opinion on the matter.  Instead, the 2^nd appellant was just relying on his own interpretation of the law by conducting his own research in the internet and also his browsing of the relevant government websites without speaking to any official to confirm his own understanding.  In other words, he did not even bother to ask his insurance agent whether the third party risks taken out by him covered the driver originated from Hong Kong who held a UK driving licence.  There was simply no evidence that he had ever made any enquiry from anyone at all about his son’s driving in Hong Kong on a UK driving licence.  The 1^st appellant said he also looked at the information supplied by his father in the relevant websites and took the advice of his father without any query.  The 1^st appellant had spoken of going to the relevant authority in the UK to make enquires but it was clarified in the trial that what he was asking was only about whether he could use his international driving licence to drive in Hong Kong and that was it.  Leaving aside the question was misleading as it did not mention that Hong Kong was his home country, as it turned out, he was also mistakenly issued with an international driving licence for driving motorbikes and motor tricycles only so, in any event, the answer to that enquiry would be assist him and was irrelevant for the purpose of the present appeal.

56. Mr. Harris submitted that in the case of the 1^st appellant, as he was residing in the UK, it would have been difficult and expensive for him to make direct enquiries of the Transport Department in Hong Kong.  However, according to the evidence, the 1^st appellant arrived in 5 July 2015 and the date of the present offence was 17 August 2015.  According to the 1^st appellant, that was the first time he drove his father’s car.  He had therefore more than one month to make direct enquiry with the officials in Hong Kong if he wished but he did not. 

57. With regard the 2^nd appellant, Mr. Harris submitted that as the 2^nd appellant had personally browsed the Laws of Hong Kong on the internet to ascertain the legal position, it is arguably more responsible action than simply relying on the words of a salesman as in the case Cheung Chu-bor (supra).

58. I disagree.  In Cheung Chu-bor, the car salesman in question has been handling motor insurance matters for eight years.  The salesman was in effect also an insurance broker who was reasonably regarded by the appellant as apparently in a position to explain and give advice to him on the insurance matter.  However in the present case, all that the 2^nd appellant has done in response to his son’s enquiry was to browse the government websites and interpreted the relevant provisions by his own understanding of the law and personal experience of driving in UK with his Hong Kong driving licence.  These efforts were all proved to be wholly inadequate and counter-productive.  If the 2^nd appellant was really serious about his legal research, he would have obtained a proper legal advice as he was not legally qualified.  If he insisted on doing his own legal research and he was serious enough, he would have discovered the several past authorities on the same issue on the judiciary website or other legal websites and if he had really spent some time reading the judgments carefully, the thought of any possible prosecution or litigation should be more than enough for him to have a “second thought” on matter.  As to his past experience of driving in the UK on the strength of his Hong Kong passport during his visit there, it was a totally different scenario and should not be compared with the position of his son.  He well knew that he was not a permanent UK resident and in his case, there was no question whatsoever about his status that he was only a visitor when he drove in the UK using his Hong Kong licence. Even both appellants honestly held a belief that the 1^st appellant was a “visitor” and was allowed to drive in Hong Kong using his UK driving licence and the he would be covered by the motor insurance, based on their evidences, their beliefs could not possibly be based on reasonable grounds.

59. In conclusion, I agree with the Magistrate that in the present case, there was no special reason to not impose a period of disqualification in respect of Charge 3 and Charge 5.  In any case, she only disqualified the appellants for 12 months which is already the minimum period for disqualification.

60. The appeal against sentence on Charge 3 and Charge 5 is also dismissed.