HKSAR v. JOCKEY CLUB KAU SAI CHAU PUBLIC GOLF COURSE LTD

HCMA 719/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 719 OF 2011

(ON APPEAL FROM KCS 37343 OF 2009)

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

BETWEEN

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

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

RULING

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

1.  The applicant was convicted, after trial, in the magistracy of a re-amended summons of using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. The particulars of the offence are as follows:

“The applicant on 18/5/2009 at 1:15 pm at Unnamed Road near Hole 4 East Course inside Jockey Club Kau Sai Chau Public Golf Course did use a MOTOR VEHICLE on a road when there was not in force in relation to the user of the vehicle by you such a policy of insurance or such a security in respect of third party risks as complied with the requirement of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272.”

2.  The applicant was fined $6,000.  It appealed against the conviction and was dismissed by this court.

Facts of the Case

3.  The facts of the case which give rise to this application are basically not in dispute.  On 18 May 2009 at about 1:15 pm, Mr Li Man Yam, an employee of the applicant, acting on the instruction of his superior, drove 4 workers on board of a light utility vehicle to work at the unnamed road near Hole 4 East Course inside the Jockey Club Kau Sai Chau Public Golf Course (‘the unnamed road”).  The light utility vehicle overturned, killing one of the workers.  It is not in dispute that the applicant permitted Mr Li to drive the light utility vehicle which did not have valid third party insurance.

Basis of Conviction

4.  The magistrate convicted the applicant on the basis that the unnamed road was a road and the light utility vehicle a motor vehicle within the meaning of the Motor Vehicles Insurance (Third Party Risk) Ordinance, Cap 272 (“MVI(TPR)O”), or alternatively the unnamed road was a private road within the meaning of the Road Traffic Ordinance, Cap 374 (“RTO”).      

Grounds of Appeal

5.  The grounds of appeal are as follows:

(a)  The magistrate erroneously concluded that the light utility vehicle was a motor vehicle;

(b)  The magistrate erroneously concluded that the unnamed road was a road within the meaning of MVI(TPR)O;

(c)  The magistrate erroneously concluded that the unnamed road was a private road within the meaning of the RTO.

Judgment of the Appeal

6.  The appeal was dismissed by this court and the following is the judgment in a nutshell.

7.  Section 2 of MVI(TPR)O defines a road as any highway or other road to which the public have access.  This court was of the view that the magistrate, in construing the meaning of “the public” in the section, correctly adopted section 3 of the Interpretation and General Clause Ordinance, Cap 1 (“IGCO”) which defines the public as including any class of the public.  This court found that the public had access to the unnamed road where the accident occurred, thus affirming the conclusion of the magistrate that it was a road under MVI(TPR)O.

8.  According to section 2 of the MVI(TPR)O a motor vehicle means a vehicle intended or adapted for use on roads, and propelled by any form of mechanical power.  The test of whether a vehicle is “intended” for use on roads is the one formulated in Burns v Currell [1963] QB 433 which is whether a reasonable person, looking at the vehicle, would say that one of its uses would be use on the road.  In this connection the question is not whether there is an isolated use, or a use in an emergency, but whether some general use on the road is contemplated as one of the uses. 

9.  This court was of the view that the magistrate was correct in applying the Burn’s test and in coming to the conclusion that the light utility vehicle was a motor vehicle within the meaning of section 2 of MVI(TPR)O.

10.  Section 3 of MVI(TPR)O provides:

“(1) For the avoidance of doubt, it is hereby declared that the provisions of this Ordinance shall apply to private roads, other than private roads in areas wholly or mainly used for carrying out of construction work or industry, as they apply to roads and, for that purpose, the provisions of any other Ordinance which relate, in any way, to the provisions of this Ordinance shall apply accordingly.

(2) For the purpose of this section

…

“private road” means a private road within the meaning of the Road Traffic Ordinance (Cap 374)”

11.  In section 2 of the Road Traffic Ordinance, Cap 374, the meaning of private road is as follows:

“private road means every thoroughfare, street, lane, alley, court, square, car park, passage, path, way and place to which access by the public may be restricted under common law, irrespective of whether such access is so restricted, but does not include-

(a)(Repealed)

(b) Any part of carriageway of the North-west Railway designated by the Commissioner for the purpose of “road” in this section by notice in Gazette.”

12.  The magistrate was of the view that even if the unnamed road did not constitute a “road” within the meaning of MVI(TPR)O it still fell under the meaning of “private roads”.  This court affirmed the decision of the magistrate.

The Motion

13.  Pursuant to section 32(2) of the Hong Kong Court of Final Ordinance, Cap 484, the applicant filed a Notice of Motion inviting this court to certify 5 questions as points of law of great and general importance:

(1)  Whether the inclusion of “public”, under section 3 of the IGCO, in the word “road”, under section 2 of the MVI(TPR)O, should be displaced by any contrary intention appearing either from the IGCO or from the context of MVI(TPR)O?

(2)  What constitute a special class of the public under common law or a “class of the public” in section 3 IGCO?

(3)  Whether the proof of certain offences which apply to “private roads” as they apply to “roads” in section 119 of the RTO creates a presumption of fact entitling the court to convict without finding a road was a “road” or “private road”?

(4)  Whether the application of MVI(TPR)O to “private roads” in section 3 of MVI(TPR)O expanded the Burn’s test of whether a reasonable person looking at the vehicle would say that one of its users was use on a “road” as defined in section 2 MVI(TPR)O?

(5)  Whether the Legislature intended a vehicle “constructed or intended for use for the carriage of passengers on gulf course” (cf Interpretation of “golf cart” in section 2 RTO) to be a “motor vehicle” in section 2 MVI(TPR)O?

14.  The applicant points out, and in the view of this court correctly, that no general criteria have been laid down for dealing with applications for grant of leave on both limbs of point of law of great and general importance and substantial and grave injustice (Zeng Liang Xin v HKSAR (1997-98) 1 HKCFAR 12) and that the role of the Court of Final Appeal in administration of justice was to resolve real controversy on points of law of great and general importance (So Yiu Fung v HKSAR (1999) 2 HKCFAR 539).

15.  In support of this application the applicant relies on a large part of its arguments in the appeal hearing.  These arguments are set out in detail in the judgment of the appeal of this court, suffice to say that the applicant submits that the questions raised are reasonably arguable and are points of law of great and general importance.

16.  The respondent contends that the questions raised are not qualified as reasonably arguable points of law of great and general importance.  It also points out that Question 3 is misconceived and section 119 of the RTO does not create any presumption of fact.

17.  Questions 1, 2, 4 and 5 concern the meaning of a road for the purpose of MVI(TPR)O and the meaning of a motor vehicle when private roads or special purpose vehicles are involved.  This court tends to agree, in the circumstances, that they are points of law of great and general importance and are reasonably arguable.

18.  This court, however, has much reservation about Question 3.  As rightly pointed out by the respondent section 119 of RTO does not create a presumption of fact.  It provides:

“Where any provision of this or any other Ordinance creates an offence an element of which is that the offence occurs on or in relation to a place which is a road or private road, then, without prejudice to the proof of any other elements of that offence, it shall be sufficient in any proceedings alleging the commission of that offence for the prosecution to show that the place where that offence was committed was either a road or private road, without showing that the place was one or another, and a charge alleging the commission of that offence may be framed accordingly.”

19.  The judgment of this court in the appeal was that because of this provision, no matter the unnamed road was a “road” or “private road” it did not affect the proof of the summons.  In the present case it was clearly found by the magistrate and affirmed by this court that the unnamed road was a road within the meaning of MVI(TPR)O.  The question as it is now framed does not meet the criteria of section 32.

Conclusion

20.  This court therefore certifies Questions 1, 2, 4 and 5 raised by the applicant as points of law of great and general importance for the consideration of the Court of Final Appeal, but not Question 3.