THE QUEEN v. TAM WAI LUN

Headnote

Special reasons for not disqualifying owner of vehicle, who has permitted driver to drive and was misled as to whether driver possessed valid driving licence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1001 OF 1985

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BETWEEN

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JUDGMENT

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1. The appellant pleaded guilty to permitting the use of an uninsured vehicle, contrary to section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap.272. He was fined $250 and disqualified for 12 months.

2. The appellant had bought the vehicle in May from Mr. CHAN Tin-chu. The offence took place in the early hours of 2nd July. The appellant and Mr. Chan had finished a late snack and the appellant felt tired. Mr. Chan suggested that he should drive and the appellant agreed. When they were stopped by the police, Mr. Chan was asked for his driving licence, but he could only produce an International Driving Licence, which had expired in 1983.

3. At the time of his conviction, the appellant, who was then unrepresented, told the magistrate that, because the car had originally belonged to Mr. Chan, he had assumed that he was still insured.

4. An application for a review of the disqualification order was made on behalf of the appellant, by Mr. Martin Downey. He submitted, unsuccessfully, that there were special reasons for not disqualifying the appellant, on the grounds that he had been misled by Mr. Chan.

5. The appellant gave evidence and said that, on the day he bought the car, Mr. Chan had told him he had a valid driving licence and third party insurance. He had also said so on 2nd July.  He had specifically asked Mr. Chan about the insurance on each occasion.

6. The magistrate seems to have accepted this evidence, but took the view that the appellant should have taken steps to verify that Mr. Chan was insured. He decided that failure so to do meant that there were no special reasons for not disqualifying the appellant.

7. The magistrate referred to Wilkinson's Road Traffic Offences 11th Ed. at page 665, on the question of knowledge and belief. He did not cite any particular case, but I can find no authority for the proposition that there can be no special reasons where a car owner fails to take steps to find out whether the driver is insured. On the contrary, several cases are cited in which special reasons were found where the defendant had been misled.

8. Each case must be decided on its own facts. In my judgment this is a case where it is reasonable to take the view that the appellant was misled. The circumstances were such that he had grounds for believing, and did honestly believe, that Mr. Chan had a licence.

9. Accordingly I find that there are special reasons for not disqualifying the appellant. The appeal is allowed in part and the order of disqualification quashed.