HKSAR v. WAI LUNG SHING

HCMA 725/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 725 OF 2004

(ON APPEAL FROM TWS 17827/2003)

____________

____________

______________

J U D G M E N T

______________

1.  This is an appeal against conviction.  The Appellant was summonsed for an offence of permitting the use of a motor vehicle on a road without third party insurance and he was convicted of the charge after a trial. 

Evidence

2.  The prosecution called one witness whose evidence was not disputed.  Mr Yeung had bought his vehicle by hire-purchase in August 2000 and in April 2002.  Due to financial hardship, Mr Yeung transferred ownership of the vehicle to the Appellant, who is Mr Yeung’s brother-in-law, in May 2002.  Mr Yeung was allowed to continue to use the vehicle whilst the Appellant paid the installments due on the hire-purchase of the vehicle.

3.  In August 2002, the Appellant paid the annual licence fee for the vehicle and when the issue of insurance came up, Mr Yeung promised the Appellant that he would purchase the insurance.  However, at the time, Mr Yeung was only able to afford a temporary insurance, up to the 13^th of September 2002.  The Appellant had telephoned Mr Yeung on one occasion to ask if he had already properly dealt with the insurance and Mr Yeung answered in the affirmative.  Mr Yeung said he never told the Appellant about the lack of insurance after 13 September 2002.

4.  On 9 June 2003, the vehicle was involved in an accident and that was when this offence came to light.

5.  At the trial, the Appellant did not dispute that the vehicle was not insured at the material time.  Nor was it in disputed that the Appellant had permitted Mr Yeung to use the vehicle on the road at the material time.

Magistrate’s findings

6.  The learned Magistrate after hearing submissions from counsel concluded that the offence of “permitting the vehicle to be used without insurance” is an absolute offence so it did not matter whether the Appellant knew or did not know that the vehicle was uninsured.  An honest and genuine belief that the vehicle was properly insured was no defence.  And the learned Magistrate relied on the case of Baugh v Crago [1975] RTR 453 and therefore convicted the Appellant.

Grounds of the appeal

7.  Mr Richmond on behalf of the Appellant submitted several grounds of appeal but I consider that his main ground is that the learned Magistrate had erred in finding that this is an absolute liability offence and therefore the case of Attorney General v Fong Chin Yue & Others [1995] 1 HKC 21 could not assist the Appellant and that the defence of honest and genuine belief could not be relied upon by the Appellant.

Conclusion

8.  I agreed with the learned Magistrate that this offence is an absolute liability offence as clearly stated at page 721 paragraph 10.51 of Wilkinson’s Road Traffic Offences (21^st ed, 2003) Vol. 1:

“… that section 143 imposes an absolute prohibition on using an uninsured vehicle or causing or permitting it to be used on a road.  A conviction must follow if it be shown that a defendant used it or caused or permitted its use, irrespective of whether he knew or not that the vehicle was uninsured.”

9.  Section 143 of the English Act is equivalent to section 4 of the Motor Vehicle Insurance (Third Party Risk) Ordinance, Cap 272 in Hong Kong.  I considered that the real issue in this case is whether the Appellant had permitted Mr Yeung to drive the vehicle.

10.  Mr MacKenna J in Newbury v Davis [1974] Road Traffic Report 367 at page 370 had this to say:

“In my judgment the defendant did not permit Mr Jarvis to use the car.  The defendant gave no permission to use it unless Mr Jarvis had policy of insurance to cover its use, and he had none.  Having no policy of insurance, he took the vehicle without the defendant’s permission.  In other words, permission given subject to a condition which is unfulfilled is no permission at all. 

It may be that the difference is a small one between a case where the owner gives unconditional permission in the mistaken belief that the use is covered by insurance, or in the disappointed hope that it will be covered, and the case where the permission is given subject to a condition and that condition is not fulfilled.  But to my mind there is difference and it is one of legal substance.  On this view of the case the defendant committed no offence.”

11.  Their lordships in coming to this conclusion had also considered the cases of Lyons v May [1948] 2 All ER 1062, Tapsell v Maslen [1967] CLR 53 and Sheldon Deliveries Limited v Willis [1972] Road Traffic Report 217.  The facts in Newbury’s case was that the Defendant had previously given a Mr Jarvis’ permission to use a motor vehicle subject to his insuring himself for the use of it.  Mr Jarvis had done that and had satisfied the Defendant of it by producing to him an insurance certificate.  Sometime later, Mr Jarvis again asked to borrow a vehicle for a few days and the Defendant had informed him that he could do so subject to his insuring the vehicle.  Mr Jarvis indicated that he would insure the car properly and while the Defendant was away, Mr Jarvis then took the car, the Defendant’s evidence was that he believed that Mr Jarvis would insure the car and would not let him down.

12.  The case of Baugh v Crago [1975] Road Traffic Report 453 followed the case of Newbury v Davis [1974] Road Traffic Report 367.  It is of interest to note that Lord Widgery CJ had presided over both courts.  In that case, the justices had found that the Defendant had allowed William Crago to drive the vehicle in the bona fide belief that he was the holder of a driving licence.  Lord Widgery said:

“The question raised before us is: is that sufficient to constitute guilt on the part of the owner of the vehicle who granted the permission?  The issue is whether the right view is that that the prosecution need only prove the granting of permission to drive and do not have to prove that the person granting permission to drive was aware of the deficiency of insurance cover.  The other view is that no offence of permitting is established simply by proving a permission to drive, unless it is shown that the person granting the permission has actual or some constructive knowledge of the fact that the driving will be uninsured and therefore amount to an offence.

It may be that the Courts have not been as consistent in the past in dealing with this point as they might have been, but I think that we must now follow a decision of this Court in Newbury v Davis [1974] Road Traffic Report 367 which suffices for present purposes. 

…. on the Justices’ finding I feel driven to conclude that they did not find that he imposed a condition on the use of the vehicle.  They find that he permitted the van to be used in the honest and mistaken belief that all would be well. …”

13.  On that basis, their lordships allowed the appeal and sent the case back with the direction to convict. 

14.  In the present case before me, when the Appellant agreed to help his brother-in-law by taking over the ownership of the vehicle in August 2002, PW1 had promised the Appellant that he would purchase the insurance for the vehicle, however, unbeknownst to the Appellant, PW1 was only able to pay for a temporary insurance cover up to 30 September 2002.  When the Appellant telephoned PW1 subsequently to confirm if PW1 had properly dealt with the documentation including the insurance of the vehicle, PW1 had answered in the affirmative and had never mentioned to the Appellant about the lack of insurance after September 2002.

15.  On those facts, it is clear that the Appellant was only permitting his brother-in-law to use the vehicle after it had been insured when the Appellant asked his brother-in-law about the insurance.  It was not a mistaken belief that the vehicle was insured because in fact the vehicle at that time was properly insured but his brother-in-law had failed to reveal that the insurance was only a temporary one.  So, in those circumstances, the permission given by the Appellant was conditional upon the insurance being purchased and therefore his case must follow that of Newbury v Davis, in that he gave permission subject to a condition of insurance which was unfulfilled and therefore it was no permission at all.

16.  I find that the learned Magistrate was wrong to find that the Appellant did not impose the condition that PW1 could only use the vehicle if it was insured.  So the appeal is accordingly allowed, the conviction of the Appellant is quashed.  If the Appellant had already paid his fine, the money is to be returned to him.