THE QUEEN v. CHEUNG CHU-BOR

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H E A D N O T E

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Driving without third party insurance - special reasons for not disqualifying - fresh evidence heard - honest belief held by appellant, based on reasonable grounds, that he was permitted to drive on Canadian driving licence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 655 OF 1988

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J U D G M E N T

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1. The appellant pleaded guilty in Western Magistrates Court before Mr O'Keeffe to speeding, driving without a valid driving licence and to driving without third party insurance. He was fined $400 on each charge and on the third charge was disqualified from holding or obtaining a driving licence for 12 months. It is only against the latter order that he now appeals.

2. The appellant was unrepresented in the magistrates court. He admitted the facts and had nothing to say. He had a clear record. In these circumstances the magistrate's reasons for sentence are unsurprisingly brief, there being nothing apparently to distinguish this case from others of its kind.

3. The appellant is now represented by a solicitor, Mr Ricky Ma, who submitted that there were special reasons why the appellant should not be disqualified. He has filed affirmations by the appellant and by an insurance broker and applied to call that evidence under section 83V of the Criminal Procedure Ordinance, Cap. 221. The court may, under that section, receive the evidence if it thinks it "necessary or expedient in the interests of justice" and, "unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if :-

a. it appears to it that the evidence is likely to be credible and could have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

b. it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it."

4. Mr Davies, for the respondent, submitted that the evidence should not be received, on the grounds that ignorance of the law was no excuse and that in any event even if the affirmations were true their contents did not amount to special reasons.

5. The appellant is now 28. In 1980 he left Hong Kong for Canada where he received a university education, returning to Hong Kong in 1986. During his stay in Canada he passed his driving test and obtained a Canadian driving licence in 1981. Before returning to Hong Kong he renewed this licence in October, 1986, and it is valid for three years. He also obtained an International Driving Permit.

6. In April, 1988, the appellant bought a car from Mr Lau Kam Wah, a car salesman and the aforesaid insurance broker, who told him that, as holder of those licences, he was qualified to drive in Hong Kong. He accepted this and took no steps to obtain a Hong Kong driving licence, although he had no intention of returning in the near future to Canada and was therefore once more a resident of Hong Kong. He was stopped by the police some three weeks later, He was entitled to a Hong Kong driving licence and in fact, on the 4th July, obtained one without difficulty.

7. There is no doubt that, had he been a visitor to Hong Kong, he would have been entitled to drive on his Canadian licence. It is equally clear that, as a resident, he is only permitted to drive if he is in possession of a valid Hong Kong licence.

8. In Knowler v. Rennison⁽¹⁾ Lord Goddard C.J. giving the judgment of the court, said at p, 490 :-

"The respondent knew that his friend had sold his motor cycle, but understood that he had the intention to purchase another, and believed that he had kept his policy of insurance in force for that reason. The respondent held a policy of insurance which covered him when driving his own: motor-cycle, but did not cover third-party risks when the motor-cycle was being driven by any person other than respondent, notwithstanding that such other person might be driving on the respondent's order or with his. permission."

Further on page 494, he said :-

"If he does not understand his policy, he can seek guidance and instruction, but he neither informs himself of its provisions nor gets advice as to what it covers, we are unable to see that he has any reasonable ground for believing that the policy covers something which it does not. Belief, however honest, cannot in our opinion be regarded as a special reason, unless it is based on reasonable grounds."

Later on the same page he said:-

"It may be that if a man who felt he did not understand his policy took the advice of someone who was apparently in a position to explain it, such as an insurance agent, and received a wrong opinion, this might be considered a special reason.''

He concluded at page 495 that :-

"The plain fact is that having got the policy he never troubled to acquaint himself with its terms. He cannot hold that a belief founded on no reasonable ground can constitute a special reason,"

9. In Labrum v, Wilkinson⁽²⁾, a garage proprietor received from an insurance company a cover note, which told him in substance that he would get a policy in accordance with the cover note, or that the company would inform him that they did not accept the proposal in accordance with his terms, and the company then issued to him a policy which was not in accordance with the cover note. It was held that there were special reasons for not disqualifying him, Lord Goddard C.J. said at p. 819 :-

"In the present case the recorder has found that the respndent was misled into believing that he was covered.  I should be sorry if it was thought that Knowler v. Rennison had laid down that in no case where a man was misled by the contents of his policy, or, perhaps, had received wrong advice as to the legal effect of the policy, could that be treated as a special circumstance."

Later on the same page, he said:-

"If an ignorant man who has a motor bicycle gets a policy and is puzzled by its terms and he goes to some person who it would be reasonable to suppose would be able to give him proper information about the effect of the policy and that person gives him advice which turns out to be wrong, nothing that I said in Knowler v. Rennison was intended to cover that sort of case. That might be an excuse.''

10. In Hong Kong Roberts C.J. held in Lee Kam-to v. The Queen⁽³⁾ that, on the assumption that the magistrate accepted the defendant's evidence that the car had belonged to him for only a week and that, when it was transferred to him, a friend of the previous owner had told him that it was covered by insurance, such a belief amounted to special reasons for not imposing disqualification if it was based on reasonable grounds.

11. I was satisfied from the appellant's affirmation that his explanation for not telling the magistrate the story that he had told in his affirmation that he was expecting only a fine-was a reasonable one. I was also satisfied that if the affirmations were true, they were capable of amounting to special reasons not to order disqualification. I therefore gave leave to call the evidence.

12. The appellant was cross-examined on his affirmation. He said that, while he was in Canada, he was told by those with whom he had been at school in Hong Kong that they were permitted to drive in Hong Kong on Canadian licences. Of course they would have done so as visitors to Hong Kong and they were therefore telling the truth. He had also learned that an American licence was not valid in Hong Kong and attributed this to the fact that Canada was a Commonwealth country. When, therefore, he was told by the car salesman that he could drive in Hong Kong on a Canadian licence, he accepted this advice in good faith and made no further enquiries, partly, he admits, because he was busy at the time, I have no reason not to accept that the appellant is telling the truth.

13. The car salesman, Mr Lau Kam-wah, has been handling motor insurance matters for eight years. He is well aware that only a visitor from Canada may drive in Hong Kong on a Canadian driving licence. He said the appellant told him that he had a Canadian driving licence and assumed that he was here as a visitor. He admitted that he was anxious to make a sale and he thought it was no part of his job to ask questions about the appellant's licence. He said that, if the appellant was not a visitor, he thought that he should know how to apply for a local licence. Although such an attitude was not very helpful, so far as the appellant was concerned, I cannot say that Mr Lau is not telling the truth.

14. In these circumstances I find that the appellant held an honest belief, based on reasonable grounds, that as a Hong Kong resident he was permitted to drive on a Canadian driving licence. This is capable on the authorities of amounting to special reasons for not disqualifying and I consider it right that the order of disqualification be removed. The appeal is allowed.

(1) [1947] 1 K.B. 488

(2) [1947] 1 K.B. 816

(3) (1980) H.K.L.R. 431