HKSAR v. NAWAZ AKMAL

HCMA 407/2021

[2024] HKCFI 692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 407 OF 2021

(ON APPEAL FROM ESCC 1503/2020)

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J U D G M E N T

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1.  The appellant (the 2^nd defendant in the trial) was convicted after trial of Charges 3 and 4, permitting a vehicle to be driven by a person without a driving licence, contrary to sections 42 (3) and 42 (4) of the Road Traffic Ordinance, Cap 374; and permitting another to use a motor vehicle without third party insurance, contrary to section 4 (1) and 4 (2) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272, respectively.

2.  The 1^st defendant pleaded guilty to Charges 1 and 2, driving without a driving licence and using a vehicle without third party insurance respectively. All four charges relate to a motorcycle displaying a registration mark UC6103. The appellant now appeals against his convictions only.

The Prosecution Case

3.  The prosecution’s case is that the motorbike was sold to the appellant on 26 April 2020. On that day, he paid the previous owner, a Mr Wong, $26,000 and took possession of the vehicle. The appellant arranged for the vehicle to be insured from 29 April 2020. However, registration of the transfer had not yet been completed at the Transport Department before the appellant lent the vehicle to the 1^st defendant to drive on 15 May 2020. The 1^st defendant did not have a driving licence.

4.  The appellant did not deny having possession of the motorbike, which he agreed he lent to his childhood friend, the 1^st defendant to drive to the mosque. He did not know his friend had no driving licence when he agreed to let him drive it. The prosecution did not call any witnesses. They relied on extensive admitted facts.

The Defence Case

5.  The defence case is that ownership had not been effectively transferred to the appellant on the material date therefore, the appellant could not have lent it to another person. In short, he was not the legal owner registered with the Transport Department so he could not have permitted that vehicle to be driven by a person without a driving licence nor driving it without third party insurance. The appellant elected not to give evidence.

Chronology of Events

6.  This trial was previously adjourned before a different magistrate when the prosecution applied for an adjournment. The prosecution submitted a need to call the previous owner of the motor cycle to prove the appellant’s ownership, which necessitated an adjournment. During this trial, the defence argued that the prosecution was bound by that application to adjourn on the previous occasion and must call the previous owner as well as prove the appellant was the legal owner. The defence argued it was irregular for the prosecution to then proceed on the basis that they did not need to prove the appellant was the legal owner on record according to the Transport Department.

7.  The magistrate of this trial had the transcript of that first hearing. He took the view that the prosecution’s reasons for an application for adjournment was not an opening of the prosecution case and nothing said was binding on the prosecution. At most, the adjournment could have had cost implications. The magistrate made short shrift of the defence challenge; an accusation the prosecution was conducting the case irregularly. I agree with the magistrate.

Issue at Trial and the Magistrate’s Findings

8.  The magistrate identified the issue succinctly. The appellant agreed he bought the vehicle, took possession of the vehicle, insured it and lent it to a friend to drive before he had completed the transfer of ownership procedure at the Transport Department. The issue was whether the prosecution had to prove registered ownership in order to make good their case on both charges against the appellant.

9.  In deciding the issue, the magistrate considered the wording of both charges. He referred to section 2 of both Ordinances and the interpretation of the word “owner”.

10.  Under section 2 of Cap 374, an “ owner”, in relation to a vehicle, is defined as:

“includes the person in whose name the vehicle is registered or a village vehicle permit is issued, and the person by whom a vehicle is kept and used and, in relation to a vehicle which is the subject of a hiring agreement or hire purchase agreement, means the person in possession of the vehicle under the agreement”.

11.  Under section 2 of Cap 272, an “owner”, in relation to a vehicle, is defined as:

“in relation to a vehicle which is the subject of a hiring agreement or hire purchase agreement, means the person in possession of the vehicle under that agreement”.

12.  There is no reference to an owner being defined as the registered owner according to the Transport Department or Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap 374E. Under both sections in both Ordinances, for example, a person can be in possession of a vehicle and defined as an owner but subject to a hire agreement or hire purchase agreement.

13.  The magistrate then considered the wording of the offences themselves. Section 42 (3) of Cap 374 reads as follows:

“Except as otherwise provided by this Ordinance, no person shall suffer or permit a motor vehicle to be driven by a person who was not the holder of a driving licence of the class to which such vehicle belongs…”

14.  Section 4 (1) of Cap 272 reads as follows:

“Subject to the provisions of this Ordinance, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance.”

15.  The word owner does not appear in either section; both refer to a potential offender as “person”. There is no mention of being in possession or control of a motor vehicle. There is no reference to a potential offender being an owner and only an owner can commit these offences. The magistrate also considered the common law in relation to property and noted ownership is a concept distinct from possession or control.

16.  The magistrate interpreted the offending sections and took a literal meaning of the legislation and that is neither section limit the type of capacity capable when committing these offences to an owner. He found it clear that any effective form of possession or control of a motor vehicle will be enough to satisfy the actus reus of these two offences.

17.  Therefore, the magistrate found against the defence and rejected the argument that the appellant had raised an effective defence on the basis that the transfer of ownership of the motor vehicle had not yet been registered before the offence date. The fact that the motor vehicle was not yet in the appellant’s name on that date is not a defence.

18.  The magistrate concluded it was not necessary for the prosecution to prove ownership or registered ownership in order to prove both charges to the required standard.

19.  Since there was no dispute between the parties that the appellant had effective possession of the motor vehicle and lent it to the 1^st defendant to drive, the magistrate found the charge proved beyond reasonable doubt. The magistrate accepted that the appellant did not know that the 1^st defendant had no valid licence to drive the motor vehicle having assumed he did, however, that is no defence to either of these offences.

Grounds of Appeal

20.  The appellant did not file any perfected grounds of appeal or submissions with his notice of appeal against conviction dated 20 August 2021. He was not legally represented at that time. Perfected grounds of appeal were filed on 28 February 2023 after submissions from the respondent had been filed therefore; the respondent filed supplementary submissions to answer those grounds dated 14 December 2023. Mr William Allen represented the respondent in the appeal as he did in the court below. No written submission was filed by Mr William Allen by the date of 13 December 2023.

21.  In Ground 1, it is alleged that the magistrate erred in law in convicting the appellant of both charges by finding the lack of registration of the transfer of ownership of the motor vehicle in the circumstances of this case to be unsustainable as an effective defence.

22.  In Ground 2, it is alleged the magistrate erred in law in convicting the appellant of both charges in finding that there was no need for the prosecution to prove ownership or registered ownership of the vehicle. He further erred in law in finding that any effective form of possession or control of a vehicle would be enough to satisfy the actus reus of the offences.

23.  In Ground 3, it is alleged the magistrate erred in law and fact when he failed or omitted to consider properly that there was no evidence from the prosecution to prove that the registered legal owner of the vehicle had given up actual possession or effective control of it.

24.  In Ground 4, it is alleged the magistrate erred in law and fact when he accepted the appellant’s admissions in the admitted facts by failing to consider the mens rea of the appellant who was not the registered legal owner at the material time.

25.  In Ground 5, it is alleged that the magistrate failed to give himself any direction as to the appellant’s clear record.

26.  In Ground 6, it is alleged the convictions were unsafe and unsatisfactory.

Considerations

27.  The first three grounds essentially address the same issue. The complaint is that the magistrate failed to take into account that the appellant had not yet completed the transfer of ownership at the Transport Department as required by legislation therefore he was not yet the registered legal owner of the motor vehicle. Despite having custody, control and possession of the vehicle, this did not make him the owner. Therefore, the magistrate was wrong to find that sufficient to prove the actus reus and was wrong to reject the defence put forward.

28.  As far as Ground 3 is concerned, the appellant admitted in his statements made under caution including the admitted facts that he had taken custody and control of the motorcycle but the prosecution did not call the previous owner who sold it to the appellant to prove the truth of that matter.

29.  I do not agree that that was necessary or fatal. I do not agree that ownership in the form of a transfer of motor vehicle ownership with the Transport Department was an essential element to prove the appellant was a person as defined or intended by both offences.

30.  It cannot be the case that the legislative intent was to limit the definition of ownership to a formal transfer of motor vehicle ownership on paper. That is in effect what the appellant is suggesting and that cannot be right. The magistrate’s findings, analysis and conclusion cannot be faulted and he was entitled to reach his decision from a reading of the offences themselves as well as a consideration of the appellant’s admissions.

31.  Those admissions by the appellant include the details from his statements made under caution covered by the admitted facts. The appellant admits the 1^st defendant, a long-time friend asked him if he could drive the motorcycle to the mosque to pray on 14 May 2020. The appellant admitted he believed his friend had a Pakistan driving licence and thought he also had a valid Hong Kong licence. However, he did not confirm this with his friend before giving him the key to the vehicle.

32.  He admitted that he had paid the previous owner of the motor vehicle $26,000 on 26 April 2020 and on 29 April 2020 bought insurance for that same vehicle. Moreover, he had taken possession of the vehicle and had the keys. He readily admitted that he would not have lent the vehicle to the 1^st defendant if he had known his friend did not have a valid driving licence. He knew that the 1^st defendant would not have been covered by his insurance if he did not have a valid licence. The magistrate was right and entitled to consider all that evidence admitted by the appellant to prove the commission of the offences. The previous owner was not required to give evidence in light of the admissions made. There is no merit in the first three grounds of appeal.

33.  Ground 4 has no merit because the offence of permitting another to drive without third party insurance is an absolute offence. The defence do not argue otherwise. Similarly, for Charge 3, section 42 (3) of Cap 374 explicitly says that it shall be no defence to prove that the person charged, the appellant here, did not know that the driver was not the holder of a driving licence when he permitted him to drive the motor vehicle in question.

34.  The magistrate believed the appellant did not know his friend did not have a valid driving licence but that is irrelevant in light of the nature of these offences. Ground 4 fails.

35.  After the magistrate convicted the appellant, he was reminded that the appellant had a clear record and that he did not direct himself on this factor. This is the complaint behind Ground 5. The magistrate immediately reviewed himself by invoking Section 104 of the Magistrates Ordinance, Cap 227 and invited submissions. The defence, Mr Allen objected to the magistrate reviewing himself. The magistrate proceeded to review the verdict and affirmed the convictions.

36.  The magistrate found it proper to review himself, admitting he had omitted to consider the appellant’s clear record. However, the magistrate had accepted everything that the appellant put forward in the admitted facts and the statements made under caution covered by the admitted facts relied upon by the appellant. There was no issue of credibility.

37.  As the magistrate pointed out, “since the defendant’s evidence was accepted in full, the defence case cannot be put any higher, even without the omission of the direction and consideration of the defendants clear record. The crux of the case is that the defence advanced by the defence counsel is legally unsustainable, the defence being the point of needing the prosecution to prove registered ownership being an element of the offence. On that basis, the conviction is sustained.” Paragraph 23 of the Reasons of Verdict and Review, page 19 of the appeal bundle. There is no merit in this fifth ground and I am surprised there was an objection to the magistrate’s decision to review himself.

38.  Ground 6 obviously fails in light of my conclusions and considerations above. There is more than enough evidence from the appellant himself to prove beyond reasonable doubt the commission of both offences.

39.  The magistrate has properly evaluated and analysed the evidence, the elements of the offence including the vocabulary used in both sections as well as the legislative intent behind identifying any potential offender.

Conclusion

40.  I have reminded myself of the principles on “rehearing” in magistracy appeals. I find no flaws in the magistrates reasoning or findings. He gave cogent reasons for the findings he made and I see no reason to disturb them. I am satisfied that the appellant’s convictions are neither unsafe nor unsatisfactory; his appeal against those convictions is dismissed.