THE QUEEN v. FAN KIN

IN THE SUPRFME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1009 OF 1986

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BETWEEN

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REASONS

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1. The Appellant pleaded guilty to two charges - one of permitting a person who was not the holder of a Driving Licence to drive a vehicle and the other of permitting the driving of that vehicle without Third Party Insurance.

2. This appeal is concerned only with the latter charge.

3. On the 26th of February 1986, police officers intercepted the driver of a goods vehicle owned by the Appellant and found that the driver had no driver's licence. The Appellant, when he was contacted by the police, admitted that he had lent the goods vehicle to the driver.

4. The learned Magistrate drew the Appellant's attention to the mandatory disqualification provisions in respect of the charge of permitting driving without Third Party Insurance and gave him the opportunity to give evidence.

5. The Appellant accepted the invitation and gave evidence to the effect that he had seen the driver driving a vehicle before and 'genuinely did not know that he did not have a licence'.

6. On that charge, the Magistrate fined him $1,250, found that there were no special reasons and imposed the mandatory disqualification and ordered that at the end of the disqualification the Appellant take a re-test before qualifying for a licence.

7. The Appellant subsequently applied to the learned Magistrate to review his decision. The learned Magistrate, on the review, confirmed the orders which he made.

8. The first ground of the Appellant's appeal is that the learned Magistrate failed to give sufficient consideration to the following matters:- (a) that the Appellant had seen the driver driving before; (b) that he was therefore led to believe that the driver had a Driving Licence; and (c) that there were therefore reasonable grounds for the Appellant's belief.

9. In his statement of findings, the learned Magistrate said:-

"The Appellant had not made any enquiries to verify the borrower's driving status before allowing him to use the vehicle. There appeared no reason why the Appellant should not have made the elementary and easy enquiries expected from the normal, prudent and sensible vehicle owner before he entrusts his vehicle into the hands of another person to use on the public roads.  At best the Appellant was negligent and at worst reckless in failing to enquire. There was no suggestion the vehicle had to be driven by the borrower on some life saving emergency, but simply a casual lending. To have found 'special reasons' would have been to protect the Appellant from the consequences of his lack of care. To accept such lack of care as a 'special reason' would very quickly undermine the purpose and intent of section 4(1) of Cap. 272 and ..."

10. I think the learned Magistrate's reasoning was sound and I see no substance in the attack upon his finding that there were no special reasons in the circumstances of this case.

11. The second ground of appeal was that the learned Magistrate was wrong in deciding not to exercise his discretion to limit the disqualification to the type of vehicle which was used by the driver who drove without a driver's licence.

12. In support of this ground the Appellant relied on the matters to which he referred in support of his submissions on the first ground. But, in addition, it was submitted that since the commission of the offence by the Appellant 'was unintentional' it was unlikely that the Appellant himself would present a danger to other road users in the future.

13. There is now, of course, no such discretion available but at the time when the learned Magistrate made his decision, the 1986 amendment to section 69 of the Road Traffic Ordinance had not been enacted.

14. The learned Magistrate both at the time when he made the order and at the time when he confirmed it on review considered the matters which the Appellant suggests he should have considered. This is made clear by the Magistrate's elaborate statement of findings which cover more than 5 typed foolscap pages.

15. In that statement he discloses that he had in mind the authorities which are applicable on the question of whether or not a discretion to limit the disqualification should be exercised and he indicates that he gave consideration to all relevant material.

16. I can see nothing in the learned Magistrate's reasoning to indicate that he did not exercise his discretion judicially.

17. I therefore see no reason to interfere with his decision.

18. As regards the re-test order, the Appellant complains that the effect it is that he is punished more severely than the unlicenced driver in respect of whom no such order was made.

19. The admitted facts were that that driver was not the holder of any licence entitling him to drive any type of motor vehicle. It would be pointless to make an order that he should be tested before a licence is issued to him when the law already provides that he cannot obtain a licence until he does pass the competency test.

20. On the other hand, the learned Magistrate's statement of findings makes it clear that he made the order for re-test only because he thought that it was mandatory for him to do so. At that time, sub-section 1 of section 70 of the Road Traffic Ordinance had not been repealed.

21. The mandatory disqualification which follows a conviction for an offence contrary to section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272) is "deemed" to be a disqualification "by virtue of a conviction under the provisions of the [Road Traffic] Ordinance" (vide section 4(2)(b) of Cap. 272).

22. A disqualification by virtue of a conviction under the provisions of the Road Traffic Ordinance (Cap. 374) may be related to an offence "in connexion with the driving of a motor vehicle" (vide section 69(1)(a)), or an offence "deemed to be an offence in connexion with the driving of a motor vehicle" (vide section 69(3)), or an offence which is neither an actual nor a deemed offence in connexion with the driving of a motor vehicle (vide section 63(7)).

23. In respect of the first two of the three categories of offences just mentioned, it is easy to see the efficacy of a provision that a person disqualified for a period of 6 months or more following upon such a conviction must be ordered to undergo a test of competence to drive before becoming qualified to drive at the end of the disqualification period. In respect of the third category, however, the usefulness of such a provision is so difficult to discern that one is led to question whether the Legislature really intended the provision to apply to that category.

24. The now repealed provision read as follows:-

"Where a person is disqualified for a period of not less than 6 months the Court shall, whether or not such person has previously passed the test of competence to drive prescribed under this Ordinance, order him to be disqualified until he has, after the date of the order, passed that test."

25. Literally construed that provision applied to all three categories of offences. It made sense when applied to the third category only if it reflected a view of the Legislature that absence from the driver's seat for six months or more was so likely to have an adverse effect on a person's competence to drive that prudence required that he should demonstrate that he still retained his driving skill at the end of the disqualification period.

26. The effect of the repeal of the provision is that there is now no mandatory re-test order in respect of any obligatory or discretionary disqualification no matter how long the disqualification period may be. The repeal suggests that the Legislature did not hold the view which could have provided a sensible basis for applying the repealed provision to the third category of offences.

27. Accordingly, I would hold that the repealed provision made sense and reflected the intention of the Legislature only if "disqualified" were read modified by some such phrase as "in respect of an offence in connexion with or deemed to be an offence in connexion with the driving of a motor vehicle". So construed, the provision did not embrace an offence contrary to section 4(1) of Cape 272.

28. Consequently, I would hold that the learned Magistrate was not obliged to order a re-tests. Since he would not have made the order had he found that he was not obliged to make it, I allow the appeal to the extent that the re-test order is quashed.