HKSAR v. CHAN KWAN MING AND ANOTHER

HCMA170/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO. 170 OF 1998

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J U D G M E N T

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1. The 1st and 2nd Appellants were convicted after trial. As against the 1st Appellant there were two offences of careless driving and using a vehicle without third party insurance. The 2nd Appellant was also convicted of a similar charge of using a motor vehicle without third party insurance.

2. The facts of the case were that the 1st Appellant was driving Private Car No. CX522 on 22nd March 1997 when it collided into a lamppost at Taikoo Shing Road near the junction with Westlands Road. Unfortunately when the car hit the lamppost, the lamppost was bent which then came into collision with a passing pedestrian and killed him. There was evidence from an eye-witness that the 1st Appellant was the driver of that vehicle; the evidence adduced by the prosecution was also to the effect that the 2nd Appellant had been a passenger in the car.

3. The 1st Appellant today applied for leave to abandon his appeal against conviction on the charge of careless driving; that leave was granted and the appeal was abandoned.

4. The 1st Appellant now appeals against the conviction for using a motor vehicle without third party insurance and so does the 2nd Appellant.

5. As against the 2nd Appellant, there was only evidence from a prosecution witness, PW3 (PC50162), that he, the 2nd Appellant, was a passenger on board the said motor vehicle. There was no other evidence against the 2nd Appellant. The cautioned statement that he had given to the police was excluded by the learned Magistrate after a voire dire.

6. Mr Pethes, who appeared for both Appellants, submitted that there was insufficient evidence for the learned Magistrate to rule that the 2nd Appellant had a case to answer. The submission was that the evidence had simply shown that he was a passenger in the car, but there was no evidence whatsoever that the 2nd Appellant had been "using the car in the sense of having any control or management over the driving of the car". There would have been some evidence of an element of control or management if, for example, the 2nd Appellant was the owner of the car and was, at the time of the accident, sitting in the car as a passenger. But the owner of the car was not the 2nd Appellant but a company called Pass Miles Limited which was trading as Luen Fat Motors Company. There was no witness called from Luen Fat to show the circumstances under which this car was being driven.

7. Mr Pethes relies upon the cases of R. v. Yip Chi Yung Cr. App. 532/86 and R. v. Cockley [1984] 79 CAR 181 to make the point that even if there had been no submission of no case to answer, the Court was itself under a duty to determine whether there was a case to answer. The case of Cockley makes the point that evidence given against a particular defendant after a wrong decision not to withdraw the case against him from the jury should not be considered by the Court or the jury. Mr Pethes made the point that at the end of the prosecution's case, the learned Magistrate failed to consider if there was a case to answer against the 2nd Appellant. Had he done so, Mr Pethes contends, the learned Magistrate would have found that there was no evidence against the 2nd Appellant.

8. Mr Patrick Cheung, who appears for the prosecution, concedes that the 2nd Appellant should have had no case to answer. I agree that if consideration had been given, then the ruling should have been that the 2nd Appellant had no case to answer.

9. As against the 1st Appellant, there was, apart from the evidence that he had been the driver of the vehicle, also his cautioned statement which had been admitted by the learned Magistrate after the holding of the voire dire. In the cautioned statement, the 1st Appellant had said, inter alia :

"This vehicle was hired by my friend Tang Cheuk Tong."

He was asked if he knew from which company the car had been hired and when it was hired. The answer was :

"Shortly after 10 a.m. today, my friend, Tang Cheuk Tong hired it from Luen Fat Vehicle Services Limited."

That quite clearly was the basis of the prosecution's case against the 1st Appellant, namely, because the vehicle at the material time had been hired from Luen Fat, the policy of insurance on this vehicle, which was produced before the learned Magistrate, did not cover it being used at the time of the accident.

10. Mr Cheung made the point that this answer by the 1st Appellant, on the face of it, showed that he had personal knowledge of the hire of the vehicle. However, on the general issue, the 1st Appellant gave evidence before the learned Magistrate, and said that he had been told by the 2nd Appellant that the car had been taken from Luen Fat Motor Company. He was asked about his knowledge of the hire, and he said that the 2nd Appellant had gone to his, the 1st Appellant's home sometime after 11 a.m. that morning and he asked the 2nd Appellant from where he had taken the car and the 2nd Appellant said from Luen Fat. He was asked in Court : "Do you know in fact if the car was hired by D2 from Luen Fat?" and he said : "No, I don't." He was asked : "Why were you so sure in your statement that you knew that it was hired from Luen Fat?" His answer was : "At that time I asked him and he said 'taken from Luen Fat'. I thought he rented it, I thought that was the case, I am not sure." He was asked : "When you gave the statement, you believed that it was hired？" and he said : "Yes."

11. It therefore becomes quite clear, after the 1st Appellant gave evidence, that when he said in the cautioned statement that the 2nd Appellant had hired the vehicle from Luen Fat, the 1st Appellant had no personal knowledge of that hire. It is also quite clear that his knowledge of the alleged hire was only derived from what the 2nd Appellant told him that morning.

12. Mr Pethes made the point that if the contents of a cautioned statement are based upon hearsay, then those parts of the cautioned statement should not be regarded as evidence against the defendant. He relied on the Privy Council case of Suruj Paul [1958] 42 CAR 266 for that proposition. That finding of the Privy Council was adopted by the Court of Appeal in Hong Kong in Chiu Ming Cheung & Others v. R. CA 367 of 1984.

13. I agree that that answer in the cautioned statement is quite clearly hearsay and therefore inadmissible as against the 1st Appellant. Once that cautioned statement is taken away from consideration, there is in fact no evidence left of the circumstances in which the 1st Appellant had possession of the vehicle. Mr Pethes then submitted that in the absence of evidence that the vehicle was at the time hired from its owner, then ex-facie the policy of insurance which was produced in Court would apply to it.

14. Mr Cheung, for the prosecution, submits that based on authorities, the evidential burden is always on the defendant to show that his use of the motor vehicle was covered by a valid insurance policy. He relies on Clause 5 of the policy which says that : "One of the classes of persons entitled to drive the motor vehicle is any person who is driving on the policy holder's order or with his permission." He also relies on Clause 6 to say that : "The policy did not cover use for hire or reward." Mr Cheung therefore makes the point that the 1st Appellant had the evidential burden to show that he was covered by this policy of insurance. He relies on two Hong Kong cases : AG v. Chuin Yu Yin Hsu [1963] HKLR 358 and Leung Wan (No.2) v. R. [1964] HKLR 530 to make the point that there was no obligation on the prosecution to lead evidence relating to the non-existence of the insurance policy, and that if the 1st Appellant produced no evidence of insurance, the Magistrate may probably infer that no third party insurance of any sort exists.

15. In those two cases, there had been evidence by police officers that the defendants concerned had used their respective cars for hire or reward by accepting money from the police officers. Therefore, there was prima facie evidence that the normal policy of insurance would not cover this particular user by those defendants. It was in those circumstances that the Court held that if those defendants wanted to rely on the policy of insurance which covered use of the car for hire or reward, the onus was upon them to produce such a policy.

16. Mr Cheung also relies on the English case of Davey v. Towle [1973] RTR 328 which held that when a driver is charged with using a vehicle on a road without third party risk, the onus is on him to prove that his driving was insured. In that case, the defendant had been stopped whilst driving a car and was unable to produce his driving licence, the test certificate for the vehicle or an insurance certificate. He was given a form to produce those documents at a police station, and again, the defendant did not produce any of the documents within the time specified.

17. I do not disagree with what is stated in that case which is that once there is prima facie evidence to show that a defendant is driving a motor vehicle in circumstances when he would not be covered by a policy of insurance, the burden is upon him to show that he was so covered. In the present case, once the hearsay part of the cautioned statement is disregarded, there was no other evidence to show that at the time that the 1st Appellant was driving this car, he was not covered by the policy of insurance which, on the prosecution's case, was existing at the time of the accident. The case which the prosecution presented to the learned Magistrate and the basis upon which the learned Magistrate found the 1st Appellant guilty was that the car had been hired from Luen Fat and because it had been hired, the policy of insurance did not cover it.

18. In my judgment, once the hearsay part of the cautioned statement is disregarded, there was no evidence that this car had been hired. If the prosecution had relied on the fact that the 1st Appellant was driving without the permission of the registered owner, they should have caused the registered owner to give evidence that he never gave permission to the 1st Appellant to drive the motor vehicle. That a defendant has an evidential burden to show that he is covered by insurance at a material time is incontrovertible, but in my judgment, before a defendant has that evidential burden, sufficient prima facie evidence has to be adduced by the prosecution to show that under normal circumstances that defendant is not covered by a normal policy of insurance. That evidence was available in the two Hong Kong cases that Mr Cheung relied upon where there was evidence from police officers that the cars in question had been used for hire or reward.

19. Accordingly, in so far as the 2nd charge is concerned, the appeals by the 1st and 2nd Appellants are allowed.