REGINA v. DAVID WU

M. A. No. 383 of 1989

Headnote

Permitting a person to drive without third party risk insurance - Section 4(1) motor Vehicle insurance (Third Party Risks) Ordinance Cap. 272.

Reasonable grounds for belief chat driver held a valid driver's licence - test of reasonableness.

M. A. No. 383 of 1989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

CRIMINAL JURISDICTION

(On Appeal from San Po Kong Magistracy No. 1984 of 1988)

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J U D G M E N T

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1. The appellant was convicted after trial in the Magistrates Court of two charges: one of permitting a person to drive without a valid driving licence contrary to Section 42 (1) of the Road Traffic Ordinance, and the other of permitting a vehicle to be used without third party risk insurance contrary to Section 4 (1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance.

2. On the first charge he was fined $250, and on the second he was fined $1,000 and disqualified from holding or obtaining a driving licence for 12 months. The appellant originally appealed against conviction and sentence in respect, of the second charge but before me abandoned the appeal against conviction and proceeded only with the appeal against sentence, limited to the period of disqualification.

3. The brief facts were that on the 30th November, 1988 a police party carrying out spot check vehicles in Carpenter Road, Kowloon. At about 1.18 am, they stopped a private car CR 228 which was being driven by Miss YU Fung-yee, with the appellant the owner of the vehicle, in the front passenger's seat. Subsequent enquires revealed that Miss Yu was not the holder of a driver's licence . At the police station, a police, officer recorded Miss Yu as saying that the appellant had felt dizzy while driving, the car she had suggested that she take over the driving to which he had agreed.  She was recorded as having said that the appellant was not clear whether she had a driver's licience.

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

"If a person acts in contravention of this section, he shall be liable to a fine of ten thousand dollars and to imprisonment for twelve months, and a person convicted of an offence under this section shall (unless the court for special reasons 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 twelve months nor more than three years from the date of conviction."

5. The appellant gave evidence at the trial and stated that while driving the car he had felt unwell and that Miss Yu had suggested that she take over the driving, to which he had agreed. The Magistrate accepted, this evidence as true. He went on to consider the evidence of the defendant with regard to his knowledge of Miss Yu's status as a driver where he stated: -

"He said that he always believed that D1 (Miss Yu) had a, driving licence but in Rennison v. Knowler [1947] Aller 302, it was said that the defendant in those circumstances 'must show that he had in some way been misled. An honest but groundless, belief that the policy covered a particular use cannot amount to a special reason'"

6. In fact what Lord Goddard CJ said in Rennison v Knowler was, at p. 304: -

"Belief however honest cannot in our opinion be regarded as a special reason unless it is based on reasonable grounds."

7. The Magistrate went on to find that the appellant had not been misled and that any belief he had in Miss Yu's status to was groundless. He seem have reached this conclusion based on the appellant's failure to ask Miss Yu if she held a licence, his failurer to advise the police of his illness and the magistrates belief that there would have been alternative transport available. With respect he does not seem to have addressed, the fundamental point of the appellant's reasonable belief. Having found as a fact that the appellant had been feeling ill, that Miss yu had suggested that she take over the driving and that the appellant had agreed to her suggestion, it was necessary for the magistrate to decide whether in these circumstances that were reasonable, grounds for the appellants belief that Miss Yu held a licence The fact that he did not ask does not in my view preclude a finding that it was reasonable for him to have such a belief. It is possible for a person, to be misled by the words and actions of another into drawing a inference that a state of affairs exist which is not in fact the true position. When applying the test of reasonableness to the circumstances of this case, I am satisfied that the words and actions of Miss Yu were such as to give to the appellant reasonable grounds for the belief that she held a licence.

8. It is necessary to consider whether such honest belief based on reasonable grounds comes within the ambit of "special reasons" The authors of Wilkinson's Road Traffic Offences 13th Edition at Pg. 1/826 summarize the position as follows:

"In R v. Wikens (1958) 42 Cr. App. R 236 four minimum 'criteria' were laid down: to amount to a 'special reason' a matter must:

(a)be a mitigating or extenuating circumstance;

(b)not account in law to a defence to the charge;

(c)be directly connected with the commission of the offence; and

(d)be one which the court ought properly to take into consideration when imposing sentence."

9. The appellants belief, based on reasonable grounds, that Miss Yu held a driver's licence complies with the minimum criteria required to amount to a special reason. I am satisfied that the period of disqualification ought to be reduced because of this.

10. The appeal is allowed to the extent that the period of disqualification is reduced to 6 months.