HKSAR v. WONG CHAU CHI

HCMA1171/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1171 OF 2007

(ON APPEAL FROM ESS20584–5 OF 2007)

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J U D G M E N T

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1. The appellant faced three charges at the Eastern Magistrates’ Court, namely :

(1) Charge 1 : Speeding, contrary to section 41 of the Road Traffic Ordinance, Cap. 374;

(2) Charge 2 :  Driving a private car while not being the holder of a driving licence in respect of a vehicle of the class of vehicle being driven, contrary to sections 42(1) and 42(4) of the Road Traffic Ordinance, Cap. 374; and

(3) Charge 3 :  Using a private car when there was not in force such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272.

2. On 24 October 2007, he was convicted after a trial before Ms Veronica Heung Shuk Han, Special Magistrate.  The appellant was unrepresented.  He was fined $1,000 for Charge 1, $1,000 for Charge 2, and $2,000 for Charge 3.  In addition he was disqualified from driving for 12 months on the latter charge.

3. This is the appellant’s appeal against conviction in respect of Charge 2 and Charge 3 and the disqualification imposed in respect of Charge 3.

4. The prosecution’s case was that the appellant was detected speeding by a police officer (Charge 1) and as a result was stopped at a road-block.  Notwithstanding the appellant was holding a Hong Kong Permanent Identity Card, he did not hold a Hong Kong issued driving licence but only a driving licence issued by the relevant authority in California in the United States of America (“the Californian licence”).  It was the prosecution case that this was not a driving licence that allowed him to drive lawfully in Hong Kong (Charge 2).  As the appellant did not hold a valid driving licence, the insurance policy in respect of third party risks over the vehicle was invalidated when he was the driver (Charge 3).

5. Leaving aside the speeding charge, it was the defence case that the appellant was at the material time a “visitor” to Hong Kong and  as he was the holder of a driving licence issued in California, he was driving lawfully in Hong Kong.  Since he was driving lawfully in Hong Kong, the insurance company could not deny the validity of the Certificate of Insurance.

6. PW1 was Chan Chung Fai, an underwriting manager of the Motor Car Insurance Section of Zurich Insurance Company.  He said that at the material time, the motor car driven by the appellant was insured by a certificate of insurance issued by that company.  However, according to the terms of the certificate, insurance would be in force only when the person who drove the motor car was a holder of a driving licence which allowed him to drive lawfully in Hong Kong. 

7. A police officer gave evidence that when on 1 February 2007, the appellant was detected speeding and was stopped he was asked to produce his identity card and driving licence.  At that time, the appellant produced his Hong Kong Permanent Identity Card and the Californian licence.  The appellant said that he did not have a Hong Kong driving licence and he was just back to Hong Kong from the United States and could not obtain a Hong Kong driving licence in time. 

8. The appellant in his evidence told the magistrate that he was of the view that he was a “visitor” to Hong Kong.  He said that he was a Chinese citizen and had obtained a Hong Kong identity card in 1982.  He had resided abroad for 10 odd years and therefore he was permitted to drive in Hong Kong lawfully as long as he held a valid overseas driving licence.

9. The appellant said that the private car he drove was used by his wife.  An insurance policy in respect of third party risks was taken out for that car about two to three years previously, and from then onwards the insurance was renewed every year.  Upon renewal, a Certificate of Insurance would be issued.  He produced the then current Certificate of Insurance which was marked Exh. D1.  The appellant interpreted clause 5 of that Certificate of Insurance to mean the insurance would be in force as long as the motor vehicle was driven by any person holding any valid driving licence.  He believed that since at the material time he was holding a valid Californian driving licence and he was also a visitor to Hong Kong, the Certificate of Insurance was in force.  Likewise he said that if the insurance did not cover him if he was using his Californian licence, then he was misled not only by the wording of clause 5 but also by the agent of the insurance company when he negotiated the policy.  He had at that time made enquiry as to whether the insurance covered a person who drove the car on a valid overseas driving licence and the reply was in the affirmative.

10. The magistrate rejected the appellant’s submission that he was entitled to drive in Hong Kong.  She also rejected the appellant’s submission that he was covered by the insurance policy in place at that time.

11. At issue in the trial and in this appeal in respect of both Charges 2 and 3 is whether or not the appellant was a “visitor” to Hong Kong entitled to driver here lawfully on the basis of the Californian licence or, as the prosecution alleged, he was not a “visitor” and by driving using that licence was guilty of Charges 2 and 3.

12. Section 42(1) of the Road Trafic Ordinance, Cap. 374 provides that :

“Except as otherwise provided by this Ordinance, no person shall drive a motor vehicle on a road unless he is the holder of a driving licence in respect of a vehicle of the class of vehicle which he is driving.”

Section 2 of the same Ordinance provides that :

“‘Driving Licence’ means a driving licence issued under this Ordinance.”

13. There was no issue in the trial or in the appeal that the appellant had not been issued a driving licence pursuant to the Road Traffic Ordinance, Cap. 374.

14. Regulation 37(1)(b) of the Road Traffic (Driving Licences) Regulations, Cap. 374B provides that :

“a visitor who holds … a valid domestic driving permit or domestic driving licence, issued in a place outside Hong Kong may drive in Hong Kong, during the period of 12 months following the date of his last entry into Hong Kong, a motor vehicle of any class which he is authorized by that permit or licence to drive notwithstanding that he is not a holder of a driving licence issued under these regulations …”

“‘visitor’ (到港人士) has the meaning assigned to it by regulation 2 of the Road Traffic (Registration and Licensing of Vehicles) Regulations.”

Section 2 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap. 374E provides that :

“‘visitor’ (到港人士) means any person who arrives in Hong Kong other than to take up residence for a period exceeding 12 months”

15. It is to be noted at the outset that the offences of driving without a licence (Charge 2) and driving without third party insurance (Charge 3) are offences containing negative averments (see Archbold Hong Kong 2007, paragraph 34 (67-69 and 75-83)).

16. Section 94A of the Criminal Procedure Ordinance, Cap. 221 provides :

“(1)   It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2)    For the avoidance of doubt it is hereby declared that in criminal proceedings-

(a)  it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and (b) the burden of proving the same lies on the person seeking to avail himself thereof.

(3)    This section applies to criminal proceedings in the District Court or a magistrate's court. (4)    The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”

17. As a consequence, given that the appellant did not have a licence issued to him pursuant to section 42(1) of the Road Traffic Ordinance, Cap. 374, the burden of proving that he was legally entitled to drive a motor vehicle on the day of the offences fell upon the appellant to the civil standard.  This is to my mind consistent with the approach of the Court of Final Appeal in HKSAR v. Tong Yiu Wah [2000] 3 HKLRD 565 The consequences of this in the instant case was that it was for the appellant to satisfy to the civil standard the magistrate that he came within the exception provided for in Regulation 37(1)(b) of the Road Traffic (Driving Licences) Regulations.  Thus it was for the appellant to establish that he was a “visitor” to Hong Kong.  If he failed to do that then he was guilty of driving without a licence.  Likewise once it was established that he was the driver of a motor vehicle on a road in Hong Kong, it was incumbent upon the appellant to prove again to the civil standard that he was covered by a valid third party policy of insurance.  As it transpires and as will be seen later in this judgment the appellant could only establish this by coming within the exception provided for us, Regulation 37(1)(b) of the Road Traffic (Driving Licence) Regulation, Cap. 374B.  Thus in the case of each charge it was for the appellant to establish that he was a “visitor”.

Was the appellant a “visitor”?

18. It was the appellant’s evidence that his immediate family members, including his wife and his children, were residing in Hong Kong.  There was no suggestion that he was estranged from them.  That he had held a Hong Kong identity card since 1982 and that now was a Hong Kong Permanent Identity Card.  The private car he drove on 1 February 2007 was usually used by his wife, was registered in her name and driven by the chauffeur.   The appellant said that he was often out of town on business trips to Taiwan and Shanghai (up to 270 days in a year).  His travel records produced by him showed that he left and returned to Hong Kong almost every week.  In addition, the appellant said that he entered Hong Kong using his Hong Kong identity card as his travel document.  Similarly he departed Hong Kong in the same way.

19. The magistrate concluded that notwithstanding that the appellant travelled almost weekly, sometimes daily, to Taiwan and Shanghai he was not a “visitor”.  He was, she found, resident in Hong Kong.  The magistrate concluded that since the appellant was a Hong Kong resident and not a visitor, he was permitted to drive lawfully in Hong Kong only when he held a Hong Kong issued driving licence.  In coming to the conclusion she took into account the whole of the evidence before her which included the evidence of the appellant.  At paragraph 23 of the Statement of Findings the magistrate sets out the matters she had taken into account when considering the appellant was not a visitor which included but were not limited to the fact that he held a Hong Kong Permanent Identity Card.  The issue in this appeal is : Was she correct in her conclusion? 

20. On behalf of the appellant it is submitted that the magistrate erred in law in equating the appellant’s immigration status as a permanent resident of Hong Kong with that of his status of a “visitor”.

21. This was clarified in argument to mean that the magistrate relied entirely upon the fact that he held a Hong Kong permanent identity card to determine that he was not a “visitor”.  I do not agree.  The magistrate determined that the appellant was not a visitor by reference to the whole of the evidence not only the fact that he held a Hong Kong Permanent Identity Card. 

22. Likewise in oral argument on behalf of the appellant it was suggested that Regulation 37 of the Road Traffic (Driving Licences) Regulations provides to a person coming to Hong Kong to live a period of 12 months within which they may drive on a valid overseas licence or international driving permit.  This is not correct.  Regulation 37 does not apply to a person who arrives in Hong Kong intending to reside here for more than one year.  The obligation to obtain a driving licence applies immediately upon their arrival in these circumstances.  Likewise it does not apply to Hong Kong residents who frequently travel abroad.

23. The magistrate found that he was resident in Hong Kong and in my opinion was correct to do so.  He had the right of abode in Hong Kong and chose to use his Hong Kong permanent identity card to enter and leave Hong Kong as opposed to any other form of travel document.  This, whilst not conclusive, strongly suggests that the appellant was not a visitor, as does the frequency of his returns to Hong Kong and as does the fact that his wife and children were residing in Hong Kong.  On the evidence before the magistrate the appellant was resident in Hong Kong.

24. It is submitted on the appellant’s behalf that there was no evidence that the appellant :

“…. had on the day of the offence or for more than 12 months before that day arrived in Hong Kong with an intention to take up residence for a period exceeding 12 months.”

This is to my mind the wrong test to be applied.  It was for the appellant to establish to the civil standard that he came within the exception to the requirement to hold a licence issued in Hong Kong.  It was for the appellant to establish that he was a visitor. 

25. The appellant was, like many businessmen in Hong Kong, entering and leaving Hong Kong on a weekly and sometimes daily basis.  He travelled extensively like many people in Hong Kong do.  This does not mean that by reason of that they are exempt from obtaining a driving licence.  The documents placed in evidence by the appellant indicate that he had been employed by a company named Chi Capital whose address was given as the Hong Kong Club Building.  Other documents indicate clearly that the appellant had ties with businesses in the Mainland and in Taipei.  All of which was considered by the magistrate when she concluded that the appellant was not a visitor.

26. Once the appellant was apprehended driving in Hong Kong, driving without a Hong Kong issued driving licence, it was for him to establish that he was permitted to drive here.  He does that by establishing that he is exempted from holding a Hong Kong issued driving licence by reason of Regulation 37 of the Road Traffic (Driving Licences) Regulations, Cap. 374B.  This he failed to do and the magistrate’s reasons for rejecting his submission cannot be faulted.

27. Once the appellant was apprehended driving in Hong Kong, it was incumbent upon him to satisfy the magistrate that there was in place a valid insurance policy of the type contemplated by the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272.  In an attempt to do this the appellant produced to the magistrate a Certificate of Insurance issued by Zurich Insurance Group (Exh. D1).  That certificate covered the motor vehicle driven by the appellant on the date of the alleged offence.

28. Paragraph 5 of that Certificate reads :

“5.   Person or classes of person entitled to drive:

(a)  the policy holder;

(b)  any other person who is driving on the Policyholder’s order or with his permission

provided that the person holds a licence to drive the motor vehicle has or has held and is not disqualified from holding or obtaining such a licence.  The term ‘licence’ means a licence or other permit required by the licensing or other laws or regulations.”

29. The policy holder is the appellant’s wife.  He came within paragraph 5(b).  The definition of licence where reference is made to licensing or other laws or regulations must of necessity refer to the relevant Hong Kong legislation.  The plain and obvious meaning of the proviso to clause 5 of the Certificate of Insurance is that the driver must hold a licence or permit issued by the relevant Hong Kong authority or be permitted to drive in Hong Kong by reason of an exemption to that requirement.  The appellant sought to argue before the magistrate and before me that the wording of paragraph 5 and in particular the proviso would permit him to drive on his Californian licence in Hong Kong.  The magistrate did not agree and neither do I.  The intent of clause 5 and the proviso to it is obvious and unambiguous.  

30. The insurance policy only covered the appellant if he satisfied the magistrate that he was a visitor pursuant to Regulation 37(1)(b).  If he did not he was not insured.  This was also the evidence of PW1.

31. Whilst it may be that the appellant believed that he was covered by the insurance policy the fact was that he was not.

32. It is said by the appellant’s counsel that the magistrate should have given a ruling whether or not one or both offences contained a negative averment.  I disagree.  On the face of it, both offences clearly do and section 94A, Cap. 221 applies.  In her oral reasons delivered in court on 24 October 2007 the magistrate said :

“The defendant has failed to convince the Court on the balance of probabilities that at that time he had a valid driving licence, nor could he convince the Court up to the same standard that at that time an insurance in respect of third party risks was in force.  The Court found that6 the prosecution had proved the three charges successfully beyond all reasonable doubts.”

Nothing could be clearer.

33. The magistrate concluded that the appellant had not established that he was a visitor taking into account the whole of the evidence which included the fact that the appellant held a Hong Kong Permanent Identity Card and used it to enter and leave Hong Kong on his frequent business trips.  This is apparent from a reading of the transcript of the Reasons for Verdict delivered on the day of the trial and the written Reasons for Verdict prepared subsequently.

34. The appeal against conviction is dismissed.

Sentence

35. The only sentence which is the subject of appeal is the period of disqualification imposed by the magistrate for Charge 3.

36. Pursuant to section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 a sentencer shall upon conviction for a contravention of that section disqualify any person so convicted from holding or obtaining a licence to drive for not less than 12 months unless the court for special reasons thinks fit to order otherwise.

37. In the instant case the magistrate accepted that if a mistaken belief that a policy of insurance was in place was based on reasonable grounds it might constitute a special reason.  At paragraphs 26 and 27 of the translation of her Statement of Findings she said that she accepted that the appellant had made enquiries to determine whether he was permitted to drive in Hong Kong but was not satisfied that these enquiries had gone far enough.  She was satisfied that the appellant’s belief that he could drive whilst mistaken was nevertheless an honestly held belief but in the circumstances it was unreasonable and therefore this did not amount to special reasons.

38. Similarly she did not accept that the appellant’s misunderstanding of the terms of the insurance cover was a special reason.  The appellant, it seems, had spoken to the insurance agent in terms insufficiently precise to determine whether or not he, driving on an overseas licence, would be covered by the policy.

39. In HKSAR v. Lui Kim Ying [2000] 3 HKLRD 622, at 262 Lugar-Mawson J said :

“The phrase ‘special reason’ is not defined in the Ordinance.  As long ago as 1957 in R v. CHANG Kwan-woon (1957) HKLR 25 the Full Court, as it then was, applying principles drawn from analogous English cases, said that a special reasons is one that is special to the facts of the particular case.  In other words, a mitigating or an extenuating circumstance not amounting in law to a defence to the charge, but which is directly connected with the commission of the offence and one which the court ought properly to take into consideration when imposing punishment.  A circumstance peculiar to the offender as distinguished from the offence is not a special reason within the exception.”

40. The magistrate considered a number of authorities, including R. v. Lee Kam-to [1980] HKLR 43 where it was held that a belief by a defendant that the insurance in respect of third party risks was in force could constitute a special reason as long as it was based on reasonable grounds.

41. In the present case, the evidence of the appellant was that he had only asked the insurance agent generally whether the insurance in respect of third party risks taken out by him “covered the driver who held an overseas driving licence”, and the reply was that he or she would be covered.  There was no evidence that he had made enquiry about his driving in Hong Kong on the overseas driving licence held by him. 

42. The observations by Lord Goddard CJ in Knowler v. Rennison [1947] 1 KB 488 are here relevant :

“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.”

“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.”

“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,”

43. The magistrate found that in the present case there was no special reason to not impose a period of disqualification.  I agree. 

44. The appeal against sentence is dismissed.