R. v. TSANG Chu-lun AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MAGISTRACY APPEAL NO. 272 of 1994

_________________

_________________

J U D G M E N T

_________________

1. These are appeals against a conviction in the Shatin Magistrates' Court by Mr. M.C. Jenkins, Principal Magistrate on 26th January 1994 on charges that the applicants without reasonable excuse drove vehicles so loaded that their gross weight exceeded the permitted gross weight assigned to the vehicle under the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap. 374.

2. In the case of Tsang Chu-lun the charge was that on 12th June 1993 at 6:40 p.m. he drove a medium goods vehicle DV 7398 with a gross weight of 20.01 tonnes whereas the permitted gross weight of the vehicle was only 16 tonnes. The charge against Wong Lee-ming was that on 29th June at 4:53 p.m. he drove a medium goods vehicle FC 6829 with a gross weight of 22.2 tonnes whereas again the permitted gross weight was only 16 tonnes.

3. Evidence was given by two police constables who were patrolling on the Tolo Highway on 12th and 29th June respectively. Each gave similar evidence. Constable Mak Cheung-wah said that on 12th June he stopped DV 7398 which was driven by Tsang Chu-lun because he suspected that the vehicle was overweight. He asked Mr. Tsang to drive the vehicle to the Ma Liu Shui weigh station which he did, the vehicle was then weighed and Constable Mak completed the certificate which was produced.

4. Constable Kwan Yat-lai said that he was on patrol at Tolo Highway on 29th June when he saw FC 6829 which he suspected was overloaded. He again told the driver Wong Li-ming to drive to the Ma Liu Shui weigh station which he did. Again after completion of the weigh, Constable Kwan completed the certificate which was also produced. Neither police constable was challenged in his evidence.

5. The weigh station certificate relative to DV 7398 sets out that the weight of the tractor unit was 20,010 kilos being 5,640 kilos for the front axle and 14,370 kilos for the rear axle. The weight of the trailer unit was 10,910 kilos giving a total weight for both tractor and trailer of 30,920 kilos. This meant that the weight of the tractor unit itself exceeded the permitted gross weight by 4,010 kilos but the gross weight of the combined tractor and trailer was within the permitted weight.

6. For FC 6829 the weight of the tractor was 22,200 kilos being 6,510 for the front axle and 15,690 for the rear axle and the weight of the trailer unit was 10,390 kilos giving a combined weight of 32,590 kilos. Again therefore the tractor unit was 6,200 kilos over its permitted weight but the combined units weight of 32,590 kilos was well within the permitted gross combined weight.

7. Expert evidence was given for the Crown by Mr. J.C. Bailey, a Motor Examiner, Class I, with the Hong Kong Government. He is an Associate Member of the Chartered Institute of Transport and a full member of the Institute of Road Transport Engineers. He said that when a trailer is attached to the tractor unit, some of the weight of the trailer will be transferred to the tractor. If the trailer has a high weight at the front of the container which it is carrying some of that weight will be transferred particularly to the rear axle of the tractor. He said that care should be taken in loading the containers to distribute the weight evenly across the whole of the trailer. He went on to say that a driver should not assume that the goods were distributed evenly within the container and the only accurate way to ensure that the tractor unit was not over the limit would be to check the individual axle weights by having the vehicle travel over a weigh platform. In reply to a question from the Magistrate he said that if a vehicle was overloaded to the extent described in the weight certificates produced in these two cases the driver should know.

"The extra weight over rear tractor axle is exceeded by 50%. The brakes, suspension, and tyres would be affected. More braking power needed and suspension would be lowered."

He said that he himself did not know if there were any weigh machines in the container depots.

8. Evidence was given for the applicants by Mr. Lo Chu-to who is the vice chairman of the Hong Kong Container Trailer Owner Association. He said there were 4 terminals and 40 depots in Hong Kong. The drivers have to produce a delivery order in order to collect a container and this would show its gross weight. Each driver knows the weight of the tractor and the trailer and a simple calculation enables him to work out what is the combined weight of the entire unit; tractor, trailer and container. He said the driver would have no knowledge of how the weight was distributed within the container and he had no right to open a container to inspect its contents. He said that in 1993 Hong Kong handled 9.3 million containers and the container ports are very heavily congested. There is no financial benefit to a driver by overloading a vehicle as he is paid purely on the length of the container and the destination that it has to be taken to. He is not paid by weight.

9. The weighbridges which are at the container terminals are under the control of the operator of the terminal and cannot be used without permission. Of all the terminals in Hong Kong only 2 have weighbridges which can show individual axle weights. Mr. Lo said it was simply not physically possible to weigh all the containers which came through Hong Kong each year.

10. Each applicant driver gave evidence. Mr. Tsang said that he knew the weight of his container from the documents and adding up the weight of the tractor, the trailer and the container he knew that the total weight did not exceed 38 tonnes. He said that he was not allowed to open the container to see how the goods were loaded and could not therefore see if the weight was evenly distributed. He relied on the figures in the documents.

11. Mr. Wong Li-ming said much the same. He also relied on the documents and the weights shown therein to ensure that the combined gross weight was not exceeded.

12. In convicting the applicants the trial Magistrate said that he was satisfied that, while normally the tractor would have a trailer attached to it on which would be a container and if the total weight exceeded 38 tonnes that would be an offence, the tractors were separate road vehicles and it was an offence to overload the tractor unit itself. The applicants were charged not with exceeding the gross combined weight of 38 tonnes but with exceeding the permitted gross vehicle weight for the tractor which in each case was 16 tonnes. It was argued here that the Magistrate was wrong in law in holding that the tractor when coupled with a trailer was still a separate entity. Miss Teresa Cheng for the appellants in her attractively presented argument said that once the vehicles were linked up then it was the combined total gross weight which was the relevant one to be considered. She relies on regulation 7 (7A) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations which provides that the permitted gross vehicle weight of any vehicle, other than a goods vehicle or a special purpose vehicle, shall be its maximum gross weight or maximum gross combined weight as the case may be determined under the Regulation.

13. I do not consider that the Regulation to be of assistance to the applicant there. They were charged not in relation to the combined weight of the articulated vehicles that they were driving but in relation to the weight of the tractor unit. That was an option available to the prosecuting authorities which they have chosen to adopt. In my view they were entitled to do so.

14. Turning now to the somewhat more difficult question of whether or not the applicants had shown a "reasonable excuse". It was the case for the applicants that relying on their own evidence and that of Mr. Lo there is no reasonable opportunity for them to be able to ascertain whether any particular container is unevenly loaded and that an extra unusual weight has been placed on the rear axle of their tractor unit causing it to exceed the permitted gross weight. It was not challenged that it is impossible for a driver to open a container to inspect it before taking to the road with the container on the trailer. The number of containers going through the terminals of Hong Kong roughly 17 every minute was such that they could not weigh each tractor, trailer and container unit.

15. The Magistrate found that the defendants did not have a reasonable excuse for overloading. He placed a reliance for that on what was said in Cambridgeshire Justices v. Rust [1972] 2 Q.B. 426. That decision concerned a hawker who had pitched a stall on the highway without "lawful excuse". There was no doubt that he did not have proper legal authority to do so but the question was whether he thought he had such authority and therefore had lawful excuse.

Lord Widgery C.J. said:

"The Justices, as I say, have found that he honestly believed that he had the right to be there, and they say that he did what seemed to them to be reasonable in order to ascertain his position. But in the end one comes back to the fact, as Lord Parker C.J. came back to the fact in Redbridge London Borough Council v. Jacques [1970] 1 W.L.R. 1604, that however you imagine these facts, or whatever steps you take in favour of the defendant assuming the state of mind on his part, there just was not anybody in law who could grant him a licence to do what he did, and in the absence of some authority competent to do that, there could be no lawful excuse whatever the facts are assumed to be either in the mind of the defendant or elsewhere. I therefore feel compelled to say that so far as the matters argued before us are concerned, the Justices were not entitled to reach the conclusion that they did and that if the matter rested there the case should go back to them with a direction to convict."

16. Miss Cheng submitted that there was a difference between a "lawful excuse" which was considered in Cambridgeshire Justices v. Rust and a "reasonable excuse". She relied on a series of cases involving the question of giving breath samples under the Road Traffic Legislation in the United Kingdom which uses the words "without reasonable excuse". In R. v. Lennard [1973] RTR 252, it was held that a reasonable excuse must arise out of a physical or mental inability to provide a specimen or a substantial risk in its provision. In Dawes v. Taylor [1986] RTR 81 the defendant had found the device difficult to operate and it was held that even where a defendant "did his best" to supply a specimen that does not amount to a reasonable excuse if he fails to do so.

17. It was also held in Rowland v. Thorpe [1973] AER 195 that once the defence of reasonable excuse is advanced it is for the prosecution to disprove it. It is a question of fact as to whether a defendant has a reasonable excuse but a matter of law if certain facts put forward are capable of amounting to a reasonable excuse. (R. v. Knightley [1971] 2 AER 1041).

18. I am satisfied that "lawful excuse" is not exactly the same as "reasonable excuse". Clearly Cambridgeshire Justices v. Rust establishes that it is not a lawful excuse if a person is ignorant of the law and thinks, albeit on reasonable grounds, that he has a legal right to do what in fact he does not. Clearly here there are severe difficulties facing container lorry drivers because it is by no means easy to ascertain whether or not their vehicle is in fact overloaded due to the shortage of weighbridges. However Mr. Bailey said that a driver should be aware that his vehicle is overloaded due to uneven distribution of weight in the container and quite clearly the two constables who stopped the applicants' vehicles on Tolo Highway were able to detect that they were overweight. I do not consider the fact that it is difficult to test whether a vehicle is overweight is a reasonable excuse though it may well be highly relevant in considering sentence. Here the applicants said that by looking at the relevant documents and adding up the combined weights they had done all they could to comply with the regulation but it seems to me that is exactly the same in Dawes v. Taylor - they had "done their best". That was not enough to afford reasonable excuse. It is true that the decision in Dawes v. Taylor was in the context of the social danger of drunken drivers and as Kennedy J said at 86 the legislation makes "some inroads into individual freedom in order to prevent those who have taken too much alcohol driving on the roads". Overloading of vehicles may not be such a danger to the public as drunken drivers but as Mr. Bailey said the braking power of the vehicle would be affected. These tractor/trailer units can be weighed so as to detect overweight of either and I do not consider that the difficulty of doing so legally affords a "reasonable excuse". If this poses a major problem to the container industry which is of course vital to Hong Kong's economy, by causing unacceptable delays, the remedy must be an amendment to the legislation which Mr. Lo's association would seek. This does not mean that every container would have to be weighed so as to see whether there was uneven distribution of weight but it should be done in cases where the appearance of the tractor after it has the container attached to it gives rise to suspicion.

19. The arguments for the applicants have been presented most attractively by Miss Cheng and naturally the court has considerable sympathy for these drivers and their employees, who probably pay the fines, but I am satisfied that these applications for leave to appeal must be refused.