HKSAR v. CHEUNG WING CHI

HCMA282/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 282 OF 2003

(ON APPEAL FROM KCS 14433 OF 2002)

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J U D G M E N T

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1. On 24 February 2003, the appellant pleaded guilty in the Kowloon City Magistrates' Court to an offence of using a vehicle without insurance. He was fined $1,800 and he was disqualified from holding or obtaining a driving licence for a period of 12 months. He appealed against that disqualification order which appeal I heard on 23 May. I allowed the appeal to the extent that the period of disqualification was to be reduced to one of three months (which was the period for which he had effectively been disqualified up to the date of the appeal) and said that I would give my reasons when time allowed.

2. These are my reasons and I should state straightaway that upon a re-reading and re-consideration of section 4(2)(a) which is set out in paragraph 4 of this judgment, I believe that I was wrong to reduce the period of disqualification because it now seems to me that if "special reasons" exist there should be no disqualification at all and there is no power to order such for a period of less than 12 months.

3. The grounds of appeal advanced by Mr Boyton who appeared for the applicant in the Magistrates' Court and who appeared before me on this appeal were as follows :

"GROUND 1

The Special Magistrate's evaluation of the evidence in this case was flawed and rendered the sentence passed upon the Appellant both a material irregularity; and unsafe and unsatisfactory.

GROUND 2

Further and alternative to Ground 1, the Special Magistrate erred in law by failing to direct himself to the fact that the Appellant was a man of clear record - thereby his evaluation of the evidence was flawed and rendered the sentence passed upon the Appellant as both a material irregularity; and unsafe and unsatisfactory."

I shall return to those grounds of appeal later.

4. The statutory provisions relevant to this appeal are these :

(a) Section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272 reads as follows :

" (1) Subject to the provisions of this Ordinance it shall not be lawful for any 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..., such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance.

(2) (a) If a person acts in contravention of this section, he shall be liable to a fine of $10,000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction."

(b) Regulations 42, 43, 44, 45, 46, 47 and 48 of the Road Traffic (Regulation and Licencing of Vehicles) Regulations, Cap.374, the relevant parts of which read as follows :

"42. Application for trade licence

(1) If any person being a manufacturer or repairer of or dealer in vehicles wishes to obtain a trade licence in respect of any vehicle used by him he shall deliver to the Commissioner an application

...

43. Issue of trade licence

(1) The Commissioner, on being satisfied that the applicant

(a) is a bona fide manufacturer or repairer of or dealer in vehicles; and

(b) has an adequate police of insurance in respect of such vehicles, shall issue to the applicant a trade licence in accordance with the application together with a set of 2 trade plates with a weather-proof holder for the trade licence attached to one trade plate...

44. Trade licences and trade plates

(1) Each trade licence shall contain

(a) the name and address of the person to whom the trade licence is issued; ......

45. Display of trade plates and licence

When a vehicle is in use under a trade licence, the holder of the trade licence shall display a trade plate issued to him with the trade licence attached thereto on the front of the vehicle, and the other trade plate issued to him shall be displayed on the back of the vehicle, ...

46. Trade licence not transferable

A trade licence shall not be used by any person other than the holder of the trade licence and the holder of a trade licence shall not allow or suffer the trade licence or the trade plates issued to him to be used by any other person ...

47. Limitations of use of trade licence

(1) A trade licence shall not be used in respect of any vehicle other than a vehicle which is in the possession of the holder of such trade licence in the course of his business as a manufacturer or repairer of or dealer in vehicles.

...

48. Register of journeys under trade licence

(1) Every holder of a trade licence shall maintain a register of all journeys made by vehicles in use under the trade licence.

(2) A register maintained under subregulation (1) shall show the date, time and place of each journey and the registration mark (if any) and all other relevant particulars of the vehicle.

..."

The facts of the offence

5. The facts can be shortly stated. On 30 September 2002, a motorcycle being driven by the appellant passed a police radar speed detector apparently at an excessive speed. The appellant was, for some reason, not stopped by the police at that time but the motorcycle was recorded on film and the matter was investigated.

6. That investigation revealed that the appellant was driving (or riding) the motorcycle with a single trade plate on its front; that such plate had not been issued to him; that the vehicle licence had expired in June 2001 and that there was no valid third party insurance policy.

7. When the case first came before the magistrate, the appellant pleaded not guilty apparently upon the footing that he did not think that he had done anything wrong : that it was perfectly acceptable to borrow trade plates from somebody to whom they had been properly issued and that if that were so, he must have been covered by insurance.

8. The magistrate apparently made it plain to the appellant that if that was his belief, he would do well to take some legal advice. Heeding the magistrate's words, the appellant then returned to the court in due time in the company of Mr Boyton and his instructing solicitors and he pleaded guilty.

9. By reason of his employment in the motor trade the appellant did not wish to suffer a disqualification from driving, and he gave evidence before the magistrate putting forward reasons as to why he should not be disqualified. He called as a witness on that issue his friend (also in the motor trade) who was married to the holder of the trade plates in question and who had loaned him those plates on 30 September.

10 In essence, the appellant told the magistrate that he had borrowed the plates so that he could deliver the motorcycle to a potential purchaser; that he had borrowed the plates on three previous occasions; that he believed that he was perfectly entitled to do that and that his friend (his witness) had specifically told him that when using the borrowed plates he would be insured. His witness confirmed that that is what he told the appellant; that he himself did not see anything wrong in the arrangement; that he himself believed that a vehicle bearing the plates would be insured (presumably on the policy of the person to whom the plates had been properly issued) and that it was a common practice in Hong Kong to use trade plates in that way.

11. The magistrate rejected the evidence of the appellant and his witness and in his written reasons he sets out much of that evidence in detail before concluding as follows :

" Having heard the Appellant's evidence and that of his friend DW2, I was not satisfied, on balance of probability, that there was any special reason why he should not be disqualified.

...

I didn't accept the Appellant's evidence that the Appellant hadn't known that the trade licence and the trade plates could not be transferred for use, having engaged in the business for 12 years. I didn't accept DW2's evidence that DW2 had not known that the trade licence and the trade plates could not be transferred for use, having engaged in the business for 10-odd years, especially when DW2 only knew of the Regulation 48, ie governing the keeping of record of the journey by vehicle(s) under trade licence, but not of other regulations."

12. It is perhaps of some significance that the magistrate did not refer in his reasons to what the appellant and DW2 said in cross-examination as follows :

[The appellant]

"Q. Did you then know that that T-plate must belong to your company?

A. I didn't know that.

Q. So, how did you know that you need a T-plate to drive a non-licensed vehicle in the first place?

A. Because it's normal practice. Well, we all understand that all the people engaged in our business understand that if we were going to give the vehicles for the customers to try them, we must hang a T-plate. Well, but I didn't know that the T-plate must belong to our company. But, instead, I shouldn't borrow any T-plate from the others.

Q. And as an owner of a vehicle company, you understand that, to drive a vehicle on the road, it must have a valid third party insurance policy?

A. Yes, I know that.

Q. Did you enquire with the authority whether that T-plate you borrowed from your friend cover that insurance policy?

A. No, I didn't. Well, normally, when T-plates are issued, they are already covered by insurance.

Q. How did you know that if you had never enquired on the matter?

A. I don't know how to answer you.

Q. Did you ask your friend when you borrowed his T-plate whether it was covered? The third party insurance was covered?

A. Yes.

Q. And how did he answer you?

A. He said, 'No problem. You can use it.'

Q. Had you -- had he actually told you that when you were using that T-plate that the vehicle you were driving was covered -- the insurance, the third party insurance policy was covered under that T-plate?

A. Yes, he did.

Q. Mr Cheung, being in the business for 12 years, you must have known that T-plate was not transferable.

A. I didn't pay attention to that. I didn't know.

and [DW2]

Q. On 30 September last year, when Mr Cheung Wing-chi asked to borrow your T-plate, did he specifically ask about the third party insurance?

A. Yes.

Q. And what was your answer to this?

A. Well, I said it was covered by licence fee and also third party insurance."

13. I now turn to the particular grounds of appeal and, for convenience, I do that in "reverse order".

14. It seems to me, with the greatest respect, that to suggest in circumstances such as these (when a defendant gives evidence in support of "special reasons") that a magistrate (having been told of the fact that a defendant has no previous conviction) is required to state in his written reasons that he has given himself a 'good character' direction cannot be right; and that such a suggestion finds a basis in unreality.

15. Whilst I, of course, accept that 'good character' is relevant to credibility and that it is a matter which will be weighed in the balance by an appellate court which is asked to consider whether or not a tribunal might have fallen into error in assessing the credibility of a witness, a busy magistrate has more important and pressing matters to deal with than to state the obvious.

16. The first ground of appeal (accepting the relevance to which I refer in paragraph 15) has substance and it is that ground that has persuaded me that the magistrate may have fallen into error.

17. The crucial part of the appellant's evidence in the magistrates' court was that he was not aware that trade plates could not be transferred and the magistrate says that he did not accept that evidence because the appellant had been "engaged in the business for 12 years". Similarly, the magistrate did not accept DW2's evidence that neither did he know that trade plates could not be transferred because he had been "engaged in the business for 10 odd years".

18. As to the appellant being "engaged in the business for 12 years", the evidence was that whilst he had been in the business of repairing and trading in vehicles for that period he had, until recently, done that from shop premises in Shau Kei Wan which meant that there was no need for him to own, use or have experience of trade plates. His use of such was restricted to three recent occasions when his business was suffering and he had to change his method of operation.

19. Mr Boyton criticises the magistrate's findings as not being solely related to credibility but also as being based upon questionable inferences applying an objective, as opposed to a subjective, test and there is, in my view, some force in that argument which, if accepted, entitles me to review those findings. [See the judgment of Lord Bridge in Whitehouse v. Jordan [1981] 1 All ER 267.]

20. I confess to having found it somewhat difficult to see how the magistrate could come to the view that he did come to (about the evidence to which I have referred to in paragraph 17 above) in the light of the fact that there was positive evidence to suggest that the appellant was not, in fact, well acquainted with the law relating to the use of trade plates, and the fact that DW2's evidence (and what he had told the police) was decidedly against his own interests and might have resulted in he himself being charged with an associated offence. To that second matter (which, so it seems to me, gave credibility both to the appellant's evidence and to that of DW2) the magistrate made no reference.

21. Of course both the appellant and DW2 should have taken positive steps to ascertain what the law is concerning the use of trade plates and they were both negligent in failing to do so but, in the case of the appellant, his evidence was that he relied upon what he was told by DW2 who regularly used such plates and who might reasonably be expected to have known what the law is regarding their use and whether or not a user of them is insured or not.

22. All of that said the question for me was whether or not the magistrate was entitled on the evidence before him to conclude that there were no special reasons why the appellant should not be disqualified from driving for the minimum period of 12 months. Given what I have said in paragraph 20, I have real doubts that he would necessarily have rejected the evidence of the appellant and DW2, had he applied his mind to those matters which had been specifically drawn to his attention.

23. I am bound to say that, had he concluded on the evidence that the appellant did believe that he was entitled to use the trade plates; that such belief was reasonable, and that it was reasonable because DW2 told him specifically that it was lawful and that he would be insured that even in those circumstances I was doubtful at the commencement of the hearing of this appeal (and I expressed those doubts to counsel) that such could amount to 'special reasons'.

24. I was persuaded however (with no little reluctance) by reference to the judgments in R. v. Cheung Chu Bor [1989] 1 HKLR 180; R. v. Chan Kwok Cheung [1989] 1 HKC 303; and Lee Kam To v. R. [1980] HKLR 431 that they could, and accordingly and by reason of what I have said in paragraphs 18, 19 and 20, I allowed this appeal to the extent to which I have referred in paragraph 1. However, in the light of what I have said in paragraph 2, the disqualification will be wholly set aside.