ATTORNEY GENERAL v. NG KWAN

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JUDGMENT

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Penlington, J. delivered the judgment of the Court:

1. This is an appeal by way of case stated from a decision of Judge Lim sitting in the Kowloon District Court.

2. The respondent faced three charges arising out of a fatal accident which occurred on the 15th of March 1985 on Hang Hau Road which gives access to the Junk Bay refuse tip near Sai Kung. These three charges were firstly that the respondent drove a vehicle on a road recklessly causing death, contrary to Section 36(1) of the Road Traffic Ordinance, Cap. 374. Secondly that being in charge of a motor vehicle he did cause bodily harm to the deceased, contrary to Section 33 of the Offences Against the Person Ordinance, Cap. 212 and, thirdly, that he used on a road a motor vehicle which was not equipped with an efficient braking system contrary to Regulation 16(1) of the Construction and Use Regulations. In order to establish the first and third charges the prosecution was required to prove that the accident had occurred on "a road" but not for the second charge. At the close of the prosecution case the District Judge ruled that Hang Hau Road was not within the definition in Section 2 of Cap. 374 and accordingly found that the respondent had no case to answer in respect of the first and third charges. However, he convicted him of the second charge and imposed a fine of $400.00.

3. The District Judge has not specifically found any particular facts to be proved but in the Case Stated has recited certain evidence upon which he based his decision. It is not entirely clear as to some aspects of that evidence what the judge did in fact accept. However the following appeared to be matters which were not in dispute.

4. The land on which the road and the refuse tip are situated is Crown Land but it was at the time controlled by Gammon & Co., Ltd. and entry was through a gate erected by that company. The gate was opened between 8 a.m. and 5 p.m. for the disposal of earth waste and from 8 a.m. to 11 p.m. for other refuse. There was a sign at the gate which read as follows:

"        By order of the Public Works Department except staff of thin site and vehicles entering this controlled tip to dump refuse, other people and vehicles are prohibited from entering this site, otherwise one shall be responsible for any accidents and consequences so arising."

5. During the month of March 1985 when the accident occurred, 800 vehicles were using the road per day, although there was no one at the gate checking vehicles, but some 500 metres past the gate was a control point where such vehicles could be weighed and the weight recorded on a ticket. Presumably a charge was made in relation  to the amount of refuse they were bringing in. Except in the case of vehicles carrying refuse of a poisonous or inflammable nature, there was no restriction on entry for vehicles bringing in refuse. In addition to access to the refuse tip, the road also led to other construction sites via branch roads.

6. The judge also found that the general public could not use the road unless authorised. This finding appears to be somewhat contrary to the other finding that there was no restriction on entry for Vehicles bringing in waste and the notice at the gate seems to indicate that while the public could enter the site, they did so at their own risk. However, we have approached the matter on the basis that there was no restriction on any member of the public coming onto the road during the times when it was opened, provided they were doing so in order to dump refuse.

7. The District Judge decided that because the Road Traffic Act 1960 used a definition of road which was similar to that in the Road Traffic Ordinance the legislature must have intended that the English interpretation of the word "road" should be followed in Hong Kong and that this was a matter of practice and procedure. He took into account the English cases of Harrison v. Hill ⁽¹⁾ and R. v. Beaumont ⁽²⁾. He decided that the road was not one to which the public had access, the essential requirement for a conviction on charges one and three, that the accident occurred on a road had not been met and that the charges should, accordingly, be dismissed.

8. Section 2 of the Road Traffic Ordinance provides, inter alia, that: "road" includes every highway, thoroughfare, street, lane, alley, court,square,carpark, passage, path, way and place to which the public have access either continuously or intermittently and either of right or by licence, whether or not the same is the property of the Crown but does not include any place within the Hong Kong Airport designated by the Director of Civil Aviation as a carpark under the Hong Kong Airport (Traffic) Regulations. There is an identical provision apart from the reference to the Airport Carpark in Section 2 of the Motor Vehicles (First Registration Tax )Ordinance, Cap. 330, but in the Motor Vehicles Insurance (Third Party Risks) Ordinance, Section 2 states that "road" means any highway. and any other road to which the public have access and includes any road upon which a member of the public is allowed to drive a vehicle only if in possession of a permit issued by the Commissioner of Police or the Commissioner for Transport. Finally "street" and "road" are stated to mean by Section 2 of the Interpretation and General Clauses Ordinance, Cap. 1:

The same section of that ordinance also provides that "public" includes any class of the public.

9. There are, therefore, four separate provisions relating to the meaning of the word "road" and it is the case for the appellant that construing the meaning of the word "road" in the context of the Road Traffic Ordinance and Regulations made thereunder, it should be given its ordinary and natural meaning. Mr. Hodge submits that by the use of the word "includes" rather than "means", the legislature did not intend to limit application of the Ordinance only to roads to which the public have access. That requirement is only for the various categories of roads listed in the definition in the Ordinance and does not apply to the ordinary meaning of the word "road". In Dilworth v. Commissioner of Stamps ⁽³⁾ where Lord Watson said, in relation to the construction   of a definition in Section 2 of the Deceased Persons Estates Act 1881 (New Zealand):

"        Section 2,is beyond all question an interpretation clause and must have been intended by the legislature to be taken into account in construing the expression charitable devise or bequest' as it occurs in Section 3. It is not said in terms that 'charitable bequest' shall mean one or other of the things which are enumerated but that it shall 'include' them. The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute. When it is so used, these words or phrases must be construed as comprehending not only such things as they signify according to their natural import but also those things which the Interpretation Clause declares that they shall include. But the word 'include' is susceptible of another construction which may become imperative if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include' and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to those words or expressions."

10. It is also the case for the Crown that even if it was to be held that the word "includes" in Section 2 of the Road Traffic Ordinance should be read as "means and includes" the definition of "public" in the Interpretation Ordinance means that even if the general public did not have access to this particular road, clearly a class of the public, i.e. those wishing to deposit refuse, did have such access. This is a matter of substantive law and not a matter of practice arid procedure and the trial judge was wrong in following the English decisions. He should have held that this was a road within the meaning of the Ordinance.

11. The case on which the respondent relies primarily is Harrison v. Hill ⁽¹⁾. This case has also been referred to in subsequent decisions with approval. In Knaggs v. Elson⁽⁴⁾, Lord Parker, C.J. said:

"        This was yet another case concerning the question whether a road was a road for the purposes of a statute. It had long been held deriving from Harrison v. Hill ⁽¹⁾ that the public might have access to a road whether or not they had the right of access, if their presence was tolerated by the owners, but not if they entered by overcoming an obstruction or in defiance of a prohibition expressed or implied."

That is taken from the dicta of Lord Sands in Harrison v. Hill⁽¹⁾. However, in that case Lord Justice General Clyde also said-

"        I think that when the statute speaks of 'public' in this connection, what is meant is the public generally and not the special class of members of the public who have occasion for business or social purposes to go to the farm house or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways."

In that case the road was one giving access from a highway to a farm. It led only to the farm house where it terminated and there were no other houses upon it and it was maintained by the farm tenant. There was no gate at the entrance to it and no intimation that it was not open to the public except at those times when the farmer placed a pole across it to prevent cattle straying. The road was used by the public for access to the farm and members of the public not having business there, also frequently walked on it. It was held that the road was one to which the public had access. The decision is clearly based on the fact that at the entrance to the road there was no physical barrier or any expressed or implied prohibition of entry.

12. In R. v. Beaumont⁽²⁾, the court applied the same dicta but, although the road again went to a farm and also to some 200 caravans and was used by anglers and picnickers, there was at the entrance a sign which read "trespassers will be prosecuted". While it would seem that that sign was not in fact enforced, it was taken to be an express prohibition of entry by members of the general  public. It was therefore held that the road there did not come within the meaning of the Road Traffic Act.

13. It is submitted for the respondent that the legislature did intend that the judicial interpretation attached to the words "to which the public have access" by the English Courts be also followed in Hong Kong and it is now well established by a long line of authorities that "the public" does not mean any class of the public but the public generally. In addition to R. v. Beaumont,⁽²⁾  he relies on Buchanan v. Motor Insurance Bureau ⁽⁵⁾ where it was held that a road within the area of the London Docks was not a road within the meaning of the Ordinance, because although in fact the public could enter there virtually without restriction, they were not entitled to do so as of right.

14. In the New Zealand case of Police v. Smith⁽⁶⁾ Wilson, J. said:

"It is not enough that premises or a place may be physically open for the public to wander in on. It must be that they are so open and so well known to be open that in fact the public do, either continually, or from time to time, without asking anybody's permission, enter upon them."

15. It is also submitted for the respondent that the word "public" in Section 2 of the Road Traffic Ordinance is clear and unambiguous and therefore no resort should be had to the Interpretation and General Clauses Ordinance to discover its meaning. It was further suggested that because there is a clear contrary intention appearing from the Road Traffic Ordinance, the definition in the Interpretation Ordinance should not be applied. Counsel for the respondent relies for that on Section 2(1) of the Interpretation Ordinance which provides that the provisions of that Ordinance shall apply unless the contrary intention appears from the context of the other Ordinance being considered. He submits that clearly there is a contrary intention expressed in the Road Traffic Ordinance. Finally he also argues that even if that definition is used, the persons who were able to enter the road leading to the refuse tip did not amount to a class of the public but were mere licensees or invitees of the Gammon Co.

16. In Griffin v. Souires⁽⁷⁾, it was held that whether a particular area is a road, is primarily a question of fact to be determined in accordance with the evidence in each case. There the Court held that a carpark, to which clearly the public had access, was not a road, because it did not come within the normal meaning of that word. It was, however, a decision obviously reached with some reluctance.

17. In the instant case we are satisfied that the road in this case, was a road within the ordinary meaning of that word. It was stated in Oxford v. Austin ⁽⁸⁾ that "a road is a definable way between two points over which vehicles could pass". Quite clearly it comes squarely within that definition.

18. If the definition which we set out earlier from Section 2 of the Interpretation and General Clauses Ordinance applies the matter rests there, for that part of the definition which includes "road" has no qualification with regard to access by the public. However the definitions contained in that section apply only "save where the contrary intention appears either from this ordinance or from the context of any other ordinance or instrument".

19. We take the view that by enacting a specific definition in an ordinance designed to deal only with one topic, that is road traffic, the legislature has evinced such a contrary intention and that the definition contained in the Road Traffic Ordinance prevails in the present instance.

20. Although the word "include" is often used in interpretation clauses to enlarge the meaning of the word in question, the extreme detail of the definition in the Road Traffic Ordinance and the fact that many of the ways included therein would in any event be comprehended within the natural meaning of "road", oblige us to conclude, despite the submission of Mr. Hodge, that this is one of those instances referred to by Lord Watson in Dilworth v. Commissioner of Stamps⁽³⁾ where it is equivalent to "means and includes".

21. The question is then whether or not the public had access to it. We are satisfied that any member of the public, if he so choose, could enter into the road for the purpose of disposal of refuse. The trial judge held that the general public could not use the road unless authorised, but he also held that there was no restriction on entry for vehicles bringing in refuse. We are satisfied that this does not mean that only a special class of persons had access to the road within the meaning of that expression as used in R. v. Beaumont⁽²⁾. Here the class of persons who could use the road were such members of the public who elected at any time to take refuse to the tip. Any member of the public could at any time, then bring himself within that class. We are therefore satisfied that even without calling in aid the definition of "public" in the Interpretation Ordinance, that the public did have access to this road and that it was therefore a road within the meaning of the Road Traffic Ordinance. When one also considers the definition of public in the Interpretation Ordinance, it is then clear beyond any doubt.

22. The question asked by the trial judge was whether he vas correct in law, in ruling that Hang Hau Road was not a road as defined in Section 2 of the Road Traffic Ordinance, Cap. 374. The answer to that question is "no".

23. We will hear counsel as to what order we should now make.

(1)    (1932) S.C. (J) 13

(2)    (1964) C.L.R. 665

(3)    (1899) A.C. 99 at p.105

(4)    (1965) July 23, The Solicitors Journal

(5)    (1955) 1 W.L.R. 488

(6)    (1976) 2 N.Z.L.R. 412

(7)    (1958) 3 A.E.R. 468

(8)    (1981) R.T.R. 416