THE QUEEN v. SIU FAT KUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 328 OF 1993

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

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

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

J U D G M E N T

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

1. The appellant pleaded guilty in Tsuen Wan Magistrate's Court to permitting another person to use a vehicle without 3rd party insurance. He was fined $2,500 and disqualified for 12 months by Mr Wong.

2. The appellant was unrepresented before the magistrate. He admitted the facts and had nothing to say when asked to make a submission why he should not be disqualified. However, after he had been sentenced, the appellant applied to reverse his plea. He told the magistrate -

“I now think I have got evidence to rebut the ownership issue. I agree I was the registered owner of the vehicle but in fact it was not mine.”

He was asked why he had not said so earlier, but could give no explanation.

3. The appellant was represented on appeal by Mr Macrae, who obtained leave to file affidavit evidence, which reveals an unusual state of affairs and partly explains the appellant’s failure to put his case in the court below.

4. The appellant is the proprietor of the Sun Fung Transportation Company which, since 1983, has had an agreement with a Chinese company to operate a joint venture to transport goods to and from China.

5. Since 1990 the PRC has had a policy whereby any such company authorised to travel certain routes between China and Hong Kong must have a percentage of its vehicles owned by the Hong Kong partner. In this case the appellant’s company is required to own at least 70% of the joint venture vehicles.

6. One of these vehicles was owned by one Cheung Kim-kwong. In 1988 the appellant and Mr Cheung entered into an agreement to transport goods between Hong Kong and China. Since Mr Cheung did not have authority to do so, it was necessary for him to operate through the appellant’s company. Furthermore, after the 1990 change of policy by the PRC, it became necessary that the appellant should register Mr Cheung’s vehicle in his own name in order to fulfill the minimum percentage quota.

7. Prior to the transfer of registration, and to protect himself, the appellant insisted on an indemnity by Mr Cheung’s driver in the sum of $300,000 against breach of Hong Kong or PRC traffic regulations.

8. Mr Macrae submits, therefore, that the appellant is not the employer of the driver and has no control over the vehicle concerned, except in so far as he is obliged to register it in his name.

9. The particulars set out above are supported by the appropriate documentation. It is, however, understandable that the appellant was not competent to attempt to explain the situation to the magistrate. He also may not have realised that he was facing 12 months' disqualification.

10. On the facts, as they now appear, there is doubt as to whether the appellant “permitted” Mr Cheung's driver to drive on this occasion. Before the appellant is convicted this doubt must be resolved.

11. For these reasons, with the concurrence of counsel for the respondent, I allowed the appeal, quashed the conviction and sentence, including the order for disqualification, and ordered that the matter be remitted for retrial by a different magistrate.