HKSAR v. HO CHAK WAI, ALFRED

HCMA966/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.966 OF 1998

--------------------

--------------------

----------------------

J U D G M E N T

----------------------

1. On 10 September 1998, the Appellant Alfred Ho Chak-wai pleaded guilty before a Special Magistrate in the Western Magistracy to one count each of Permitting a Vehicle to be Driven by a Person who does not hold a Valid Driving Licence, contrary to s.42(3) and 42(4) of the Road Traffic Ordinance; Causing or Permitting Another Person to use a Motor Vehicle Without Third Party Insurance, contrary to s.4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance. On the 1st charge, the Appellant was fined $500. On the 2nd charge, he was fined $500 and disqualified from holding or obtaining a driving licence for all types of vehicles for a period of 12 months.

2. The Appellant now appeals against his conviction in respect of both charges and against the sentence in respect of the 2nd charge.

3. In the Court below, the prosecution did not call any witness. The Brief Facts were read to the Appellant and on his agreement of those facts, the learned Magistrate convicted him on both charges.

4. The accident giving rise to the present charges took place at about 4:45 a.m. on 8th March 1998. A private car bearing registration CD6 was involved in a traffic accident in Central. At the material time, the lady driver of the car did not hold a Hong Kong driving licence. The registered owner of CD6 was one Hugo Smart Development Limited, of which the Appellant was the person-in-charge. The driver of CD6 was, at the time of the accident, driving with the Appellant's authorization. It was also agreed that the insurance representative of Eagle Star Insurance Ltd., was of the opinion that the company's insurance policy would not have covered the driver of CD6 at the material time because the said driver did not hold any valid Hong Kong driving licence.

5. Regulation 37 of the Road Traffic (Driving Licenses) Regulations provides :

"(1) ... a visitor who holds :

...

(b) a valid domestic driving permit or domestic driving licence, issued in a place outside Hong Kong may drive in Hong Kong ... notwithstanding that he is not a holder of a driving licence issued under these regulations, but as long as he has attained the age specified in regulation 7 for the issue of such driving licence in respect of the class of motor vehicle."

The term "visitor" is defined under Regulation 2 of the Road Traffic (Registration and Licensing of Vehicles) Regulations :

"In these regulations, unless the context otherwise requires ... 'visitor' means any person who arrives in Hong Kong other than to take up residence for a period exceeding 12 months."

It would be useful to note here that in paragraph 2 of the Brief Facts of the Case which states that :

"In the statement (given to the investigation officer), the driver of CD6 at the time of the accident claimed that she only hold a California Driving Licence at the time of the accident." (author's emphasis)

6. The only ground of appeal against his conviction in this case turns on the construction of the word "visitor". If the driver of the vehicle was a "visitor" in law at the time of the accident and if she held a valid California driving licence, then pursuant to the above statutory provisions the Appellant could not have been guilty of the 1st charge. It follows from that his conviction on the 2nd charge could no longer stand.

7. The Appellant was not legally represented in the Court below. He is represented by Counsel, Mr Wong, at this hearing. It is contended on behalf of the Appellant that the learned Special Magistrate should have made enquiries as to the residential status of the driver at the time of the incident. It was further submitted had she done so, she would have found that the driver was a "visitor" within the meaning of the Road Traffic Regulations. Her failure to make enquiries, it was said, had rendered the conviction unsafe and unsatisfactory. The driver of the vehicle was not called as a witness either by the prosecution or by the defence. The only evidence which suggests that the driver could have been a "visitor" was from paragraph 2 of the Brief Facts in which there was a claim that she held a California driving licence. The word used there was "claim" and there is no reference as to whether she had in fact produced the driving licence to the police officer or if so, whether the driving licence was a valid one.

8. At the commencement of this appeal, Counsel for the Appellant applied to the Court for leave to refer to an affirmation filed by the Appellant dated 26 March 1999. In the affirmation, the Appellant deposed that at the time immediately prior to the accident, he knew that the driver had a California driving licence. On no less than five occasions he had produced to the police his overseas driving licence when he was stopped at a traffic road block by the police and he was never queried about his driving qualifications. He believed that the lady driver was entitled to drive in Hong Kong.

9. I have taken care to go through the transcript of proceedings in the Court below and also I have taken note of the contents of the affirmation of the Appellant in support of this appeal. Surprisingly, I find there is no evidence whatsoever contained in the Brief Facts of the Case as well as in the exchange between the Special Magistrate and the Appellant upon which she could consider the issue of "visitor".

10. Before the learned Magistrate, there was only a claim by the driver that she held a California driving licence. As opposed to that, however, there is contained in para.3 of the Brief Facts that the driver is the holder of a Hong Kong Identity Card and that a check with the Transport Department revealed that she did not hold any Hong Kong driving licence. The contents of the affirmation does not assist this Court to determine the issue of whether the driver was a visitor at the time even if I were to find that it is a live issue before this Court. Further, there is no evidence before the Magistrate on the driver's intention whether to remain in Hong Kong or to return to the United States. It is hardly surprising that the learned Magistrate took the view, and I think rightly so, that she was not required to deal with the "visitor" issue.

11. Despite the very persuasive argument put up by Mr Wong for the Appellant, I am of the view that there was no evidence even to begin the arguments on the issue of whether the driver was a "visitor" within the meaning of the Ordinance. The exchanges between the learned Magistrate and the Appellant in the Court below were mere assertions on the part of the Appellant. Nobody other than the driver herself can testify as to her own intention as to whether she was prepared to remain in Hong Kong or to return to the United States. The California driving licence which has featured so prominently in Mr Wong's argument was, nevertheless, not produced as an exhibit in the affirmation of the Appellant nor in the Court below. I find this to be surprising.

12. For the reasons given above, I am of the view that the learned Special Magistrate had not erred in her approach of the Brief Facts of the Case and in her convicting the Appellant of both charges.

Appeals against sentence

13. The Appellant contends that there are special reasons in the circumstances of the case which have not been fully presented to the learned Magistrate by the Appellant who was not legally represented at the hearing. Those circumstances are : the Appellant knew that the driver had a valid California driving licence; the Appellant had been told by friends that they had driven in Hong Kong with their United States driving licence and that it was not in contravention of the Laws of Hong Kong to do so and that the Appellant was fully aware that there was in force at the time a full coverage insurance policy whose terms would cover driving by an authorised driver, that is the lady driver. In addition, the Appellant relied on his own experience that he had driven in Hong Kong in reliance of his United States driving licence. In so far as he was told by his friends that a person is entitled to drive in Hong Kong on the strength of a valid United States driving licence, this cannot constitute a special reason. Likewise, the Appellant's own experience could not have assisted his case. There is a singular lack of evidence as to the intention of the lady driver at the time as to whether she wishes to stay in Hong Kong or to return to the United States. If she decided to remain in Hong Kong, then she would not be covered by the provisions in the Ordinance as she did not hold a valid Hong Kong driving licence. There was no evidence that it was her intention to return to the United States. Based on what transpired in the Court below and in the contents of the Appellant's affirmation, I am of the view that a case of special reasons has not been made out. The sentence imposed on the 2nd charge is neither manifestly excessive nor wrong in principle.

14. The appeals against both conviction and sentence are dismissed.