HKSAR v. LAW WING FAI

HCMA 476/2016
HCMA 21/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 476 OF 2016

(ON APPEAL FROM KTCC 2192 OF 2016)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 21 OF 2017

(ON APPEAL FROM ESCC 1719 OF 2016)

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J U D G M E N T

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Hon Yeung VP:

1.  I agree with Yuen JA’s Judgment and an order is made in terms of para. 27 hereof.

Hon Yuen JA:

2.  There are before this court two appeals from the magistrates courts which were referred by the Court of First Instance pursuant to s.118(1)(d) of the Magistrates Ordinance Cap. 227.  They involve the same issue of law, viz. whether a person driving a car with alcohol in his breath/blood/urine exceeding the limit prescribed by law¹ should be convicted of driving without third party insurance² if there is a clause in his motor vehicle third party risks insurance policy that

“the [insurance] company will not be liable under this policy in respect of any accident, loss, damage or liability caused, sustained or incurred whilst the motor car is being driven by, or is in the charge of, or is under the control of the insured or insured driver ... when the proportion of alcohol in his/her breath, blood or urine exceeds the prescribed limit as stipulated in Section 2 of the Road Traffic Ordinance (Cap. 374) as may be amended from time to time or any legislation which replaces the same” (“the subject clause”).

HCMA476/2016

3.1.    In HCMA476/2016, Law Wing Fai was charged with:

Charge 1

(1)  driving a motor vehicle with the proportion of alcohol in his breath (28 micrograms of alcohol in 100 millilitres of breath) exceeding the prescribed limit (22 micrograms of alcohol in 100 millilitres of breath), contrary to s.39A of the Road Traffic Ordinance Cap.374 (“RTO”); and

Charge 2

(2)  using a motor vehicle without third party insurance, contrary to s.4(1) and s.4(2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272 (“MVIO”).

3.2.    The owner of the car which Mr Law was driving had a current third party insurance policy but it contained the subject clause.

4.1.    Mr Law, who was then legally represented, pleaded guilty to both charges at the Kwuntong Magistrates Court. 

4.2.   He was sentenced in respect of Charge 1, to a fine of $5,000 and 6 months disqualification; and in respect of Charge 2, to a fine of $5,000 and 12 months disqualification, the sentences to run concurrently.

5.1.   Subsequently Mr Law (represented by different counsel) sought a review of his conviction of Charge 2 on the ground that the subject clause was of no effect and so he was covered by third party insurance.  He sought an order that his plea of guilty be rendered a nullity, originally on the ground that the admitted facts were equivocal as to guilt (“circumstance 2” in HKSAR v Wong Chi Yuk)³, and subsequently on the ground that the facts admitted did not amount to the offence with which he was charged (“circumstance 1” in Wong Chi Yuk).

5.2.   Included in the Brief Facts he admitted was the following paragraph⁴:

“3. Following the investigation, enquiry with the Bank of China Group Insurance Company Limited revealed that the third party insurance bought by [the policy holder] concerning [the motor car] did not cover the liability of Defendant incurred whilst he was driving with alcohol concentration in breath exceeding the prescribed limit ...”.

6.  At the review hearing, after considering the submissions of law made by Mr Law’s counsel on the subject clause and the MVIO, the magistrate⁵ rejected the submissions and held accordingly that the facts admitted did amount to the offence with which he was charged.  Consequently the conviction was maintained.

7.  In view of the circumstances set out above and the discussion that follows in this Judgment, we considered that this was a case within “circumstance 1” of Wong Chi Yuk.  Wetherefore granted Mr Law’s application for an order that his plea of guilty be rendered a nullity and proceeded to hear his appeal. 

8.  Mr Law also appealed against sentence, for which a judge of the Court of First Instance had given leave out of time.  

HCMA21/2017

9.1.    In the other appeal before us, Gilbert Henry Collins was charged with 5 charges, including:

Charge 4

(1)  driving a motor vehicle with the proportion of alcohol in his breath (71 micrograms of alcohol in 100 millilitres of breath) exceeding the prescribed limit (22 micrograms of alcohol in 100 millilitres of breath), contrary to s.39A of the RTO; and

Charge 5

(2)  using a motor vehicle without third party insurance, contrary to s.4(1) and s.4(2)(a) of the MVIO.

9.2.   The owner of the car which Mr Collins was driving had a current third party insurance policy, which also contained the subject clause.

10.  Mr Collins pleaded not guilty to Charges 4 and 5, but was found guilty after trial.  In his statement of findings, the magistrate⁶ held that the subject clause had the effect of making the policy void or cancelled, that the policy ceased to be in force and that therefore “there was no insurance policy covering third party risks”⁷.

11.  Mr Collins is appealing only his conviction for Charge 5.

12.  For ease of reference, I shall refer to Mr Law and Mr Collins as “the drivers”. 

Discussion

13.  This court has been referred to a number of cases which we have read.  The cases were decided after various degrees of analysis, and this court has been invited to decide the appeals before us on first principles.  

14.1.  Mr Martin Hui SC, DDPP who argued the case for the Department of Justice with Mr Franco Kuan SPP⁸ submitted that s.4(1) of the MVIO should be construed strictly and literally.  The relevant parts of that section read as follows:

“Subject to the provisions of this Ordinance, it shall not be lawful for any person to use ... a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person ... such a policy of insurance ... in respect of third party risks as complies with the requirements of this Ordinance”.

14.2.  The requirements of a compliant policy are set out in s.6 of the Ordinance, the material parts of which are as follows:

“In order to comply with the requirements of this Ordinance, a policy of insurance must be a policy which –

(a) is issued by an authorized insurer; and

(b) insures such person ... as may be specified in the policy in respect of any liability which may be incurred by him ... in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle on a road and arising out of one event for an amount not less than that as may be prescribed ...”.

14.3.  Mr Hui’s submission was that where a third party insurance policy includes the subject clause, that clause has the effect of rendering the insurance company not liable for any liability when the car is being driven by a driver who is “over the limit”, and consequently the drivers have breached s.4(1).

15.  With respect to Mr Hui, it is well-established that the court should adopt a purposive construction, rather than a strict and literal construction, of legislation. The long title of the Ordinance is as follows:

“To make provision for the protection of third parties against risks arising out of the use of motor vehicles”.

Accordingly, that should be the guiding principle in the court’s consideration of the issue. 

16.  It is also a clear principle of statutory construction that the Ordinance should be examined as a whole.

17.  Section 12 of the Ordinance is significant.  It provides (where material):

“(1) Where a certificate of insurance has been issued under s.6(3) ..., so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any of the following matters –

(a) the age or physical or mental condition of persons driving the vehicle;

...

shall, as respects such liabilities as are required to be covered by a policy under s.6(1)(b), be of no effect:

Provided that nothing in this section shall require an insurer to pay any sum in respect of the liability of any person otherwise than in or towards the discharge of that liability, and any sum paid by an insurer in or towards the discharge of any liability of any person who is covered by the policy by virtue only of this section shall be recoverable by the insurer from that person”. (Emphasis added).

18.  It is important to record at the outset that Mr Hui accepts that if the subject clause is a restriction by reference to the drivers’ physical or mental condition, then s.12(1)(a) applies, with the result that the drivers’ liability would be covered by the insurance company and they would not be guilty of s.4(1).

19.  Mr Hui however submitted that s.12(1)(a) has no application.  He submitted that the content of alcohol in the drivers’ breath/blood/urine is an objective fact which does not relate to their physical or mental condition.  He sought to derive support for his submission by drawing a distinction between s.39 and s.39A of the RTO.  Section 39 makes it an offence for a person to “drive(s) ... on any road while he is under the influence of drink to such an extent as to be incapable of having proper control of the motor vehicle” and Mr Hui submitted that “arguably, s.39 concerns the physical or mental condition of the driver”.  Section 39A makes it an offence for a person to drive when the proportion of alcohol in his breath/blood/urine is over the prescribed limit.  Mr Hui submitted that this section focuses on the objective and provable fact of the content of breath/blood/urine, and that the effect of alcohol on the physical or mental condition of the drivers is not relevant.

20.  The logical result of Mr Hui’s submissions is as follows.  If a clause in the third party insurance policy followed the wording of s.39, then the restriction would be of no effect by reason of s.12(1)(a), and a driver who is even “blind” drunk would be covered and third parties protected.  However if the clause in the policy followed the wording of s.39A (such as the subject clause), then the restriction would be effective and a driver who is only “slightly over the limit” would not be covered, and third parties would not be compensated by the insurance company⁹.  Should the subject clause and the legislation be construed as permitting that absurd result?

21.1.    In my view, s.39 and s.39A of the RTO both target the same mischief, for they make it an offence for drivers to drive after drinking an amount of alcohol, because of the known effects of alcohol on drivers’ reactions and judgment, and the risks which delays in reaction or errors of judgment may pose to public safety.  What s.39A does is to supplement s.39 by providing for a scientific means of detecting and proving the presence of alcohol in drivers’ bodies, and to prescribe the level at which the legislature has deemed the presence of alcohol would adversely affect drivers’ reactions and judgment.

21.2.  This view is supported by statements¹⁰ made by the Secretary for Transport when he moved the bill enacting s.39A:

“There is now clear evidence ... that drunken driving is a real problem in Hong Kong. Indeed, drunken driving is already an offence under the Road Traffic Ordinance¹¹ but enforcement and prosecution have proven to be very difficult because the present legislation does not specify a blood alcohol limit, nor are suspected offenders required by law to provide samples of their breath, blood or urine. Drunken driving results in traffic accidents causing death and injuries, often to innocent third parties, and Hong Kong is one of the few places that does not have effective legislation to tackle the problem. Action is needed.

The main purpose of the legislation now before Honourable Members is to provide the necessary legislative teeth by stipulating a prescribed limit for the permitted alcohol concentration in a driver’s blood, urine and breath, and in imposing a legal obligation on drivers to provide samples of blood, urine or breath for testing in certain specified circumstances”.

21.3.  Section 39A is therefore no more and no less a provision as s.39 in targeting drunk driving, but with the addition of scientific means of detection and proof, and “legislative teeth” for enforcement.  Hence, whilst Mr Hui may be right when he said that the effect of alcohol on a person’s physical or mental condition may vary with the individual, I do not agree with his submission that the effect of alcohol on a driver’s physical or mental condition is not relevant to s.39A. On the contrary, it is the very rationale for this piece of legislation.  

22.1.  It follows in my view that a restriction in a third party risks insurance policy based on the proportion of alcohol in a driver’s breath/blood/urine (such as the subject clause) is clearly a restriction by reference to the driver’s physical condition¹². As was put in a Singapore case referred to us by Mr Law¹³,

“First, on a literal interpretation, I could not see how a clause in an insurance policy which referred to the driver of a vehicle having ‘more than the legal limit of any alcohol in his blood or breath’ did not relate to the ‘physical or mental condition’ of the person driving the vehicle. A contamination of a person’s bloodstream by a foreign substance (such as alcohol) seemed to me to be eminently a matter of that person’s ‘physical ... condition’”.

22.2.  I agree with the literal interpretation referred to above, and for the reasons set out in the discussion on the purpose of s.39A above, I take the view that the same result arises also on a purposive interpretation of the RTO and the MVIO.

23.1.  Mr Hui further submitted that the subject clause must be read in context and he referred to the clauses appearing in the same paragraph.  They are as follows:

“the [insurance] company will not be liable under this policy in respect of any accident, loss, damage or liability caused, sustained or incurred whilst the motor car is being driven by, or is in the charge of, or is under the control of the insured or insured driver

(a) who is convicted of an offence of being under the influence of drink or drugs to such an extent as to be incapable of having proper control of the motor car;

(b) when the proportion of alcohol in his/her breath, blood or urine exceeds the prescribed limit as stipulated in Section 2 of the Road Traffic Ordinance (Cap. 374) as may be amended from time to time or any legislation which replaces the same [the subject clause]; or

(c) who is convicted of an offence of failing, without reasonable excuse, to provide a specimen of breath, blood or urine for testing or analysis as required by law”.

23.2.  Mr Hui submitted that para (c) could not have anything to do with the drivers’ physical or mental condition, and that since the subject clause is found just above (c), it should also not be construed as being relevant to the drivers’ physical or mental condition. 

24.  In my view, the purpose of the MVIO (liability under which statute is acknowledged in the policy) must take precedence over the place where the subject clause is found in a policy, and whatever may be the intention for including para (c), that cannot justify reading the subject clause as one which is not related to the drivers’ physical or mental condition in light of the discussion above. 

25.  Although it is not necessary for the purpose of this Judgment, I would venture to suggest that the intention for including para (c) is to target drivers who seek to avoid liability to recompense the insurance company by failing to provide specimens of breath, blood or urine following an accident.  The most likely reason for drivers failing, without reasonable excuse, to provide such specimens after an accident is to avoid detection of alcohol which is present in the body.  It seems to me that the intention for including paragraph (c) in the policy is to enable the insurance company (which would be liable under s.12(1)(a) to pay compensation to third parties for injury caused by drunk drivers) to recover such compensation from the drivers under the proviso to s.12(1), which provides that “any sum paid by an insurer in or towards the discharge of any liability of any person who is covered by the policy by virtue only of this section shall be recoverable by the insurer from that person”.

26.  It follows from the above discussion that in my view, a restriction in a third party risks insurance policy based on the proportion of alcohol in a driver’s breath/blood/urine (such as the subject clause) is clearly a restriction by reference to the driver’s physical condition, and thus falls within s.12(1)(a).  Mr Hui having accepted that if s.12(1)(a) applies, the drivers’ liability would be covered by the insurance company and thus they would not be guilty of s.4(1), the appeals against conviction must be allowed.

27.  I would allow the appeals and set aside the appellants’ convictions in both appeals.  It follows that in Mr Law’s case, it is not necessary to deal with his appeal against sentence. 

Hon Poon JA:

28.  I agree with the Judgment of Yuen JA.