HKSAR v. LAW KWOK WAI

HCMA445/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 445 OF 1999

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J U D G M E N T

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1. The Appellant by his own plea was convicted by Mr White, a Magistrate, for an offence of overloading which is overloading by 56.5%, contrary to Regulations 7(4) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made pursurant to s.9 of the Road Traffic Ordinance, Cap.374 of the Law of Hong Kong, in that on 24 March 1999 outside the Lok Ma Chau Police Weighstation, San Sham Road, New Territories, he used on the road a medium goods vehicle displaying Registration No. FW 1217, it being a three axled motor vehicle with a three axled trailer, with an inner axle spacing of 6.5 meters, with gross combined weight of 68.89 tonnes, which was in excess of the maximum gross combined weight of 44 tonnes specified in Column 3 of Part IV of the Second Schedule to the Road Traffic (Construction and Maintenance of Vehicles) Regulations in relation to the inner axle spacing specified in Column 2 of that Part by 24.29 tonnes.

2. The Magistrate passed a sentence of $5,000 fine and disqualification from holding a driving licence for all classes for a period of two months. The only issue before this Court is not whether the sentences imposed were manifestly excessive or wrong in principle, but whether the Magistrate had power to order disqualification.

3. What the Magistrate said in his Reasons for Sentence is this :

"As a result of my consideration of the agreed evidence, I was quite satisfied that this vehicle when driven on the road would constitute a substantial danger to the driver as well as other road users with its steering and braking systems being seriously impaired (of which matter I took judicial notice).

This in my view was a very serious offence and one which I felt warranted a fine and disqualification.

The defendant was accordingly sentenced to a fine of $5,000 and disqualification for two months, which penalty I find I can not now support."

4. In fact, the Magistrate then in his Reasons for Sentence referred to s.69(1) of the Road Traffic Ordinance and concluded that he had no power under s.69(1)(g) of the Ordinance to order disqualification.

5. The relevant part of s.69 reads as follows :

"1. Without prejudice to any other provision relating to the penalty that may be, or is required to be, imposed for an offence, a court before which a person is convicted of any of the following offences may order him to be disqualified for such period as the court thinks fit

a) any offence under this Ordinance in connection with the driving of a motor vehicle.

....

g) any offence under any regulation made under section 9 of using or causing or permitting the use on a road of any motor vehicle or trailer in contravention of any provision or requirement of any such regulation as to brakes, tyres or steering gear, except where the convicted person proves that he did not know and had no reasonable cause to suspect that the facts of the case were such that the offence would have been committed ..."

Regulations 7(4) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations are made pursuant to the power given to the Secretary for Transport by s.9 of the Ordinance.

6. Mr Wong, Counsel for HKSAR, did not challenge that the Magistrate had no power under s.69(1)(g) to order disqualification. However, he argues that under s.69(1)(a), the Magistrate has the necessary power. Mr Wong refers me to the case of Yip Wai-kay v R [1969] HKLR 335, where Huggins J (as he then was) delivering the judgment of the Full Court was dealing with a case of an appellant having been convicted of driving a goods vehicle with excessive weight. The relevant section at the time was s.23(1) of the Road Traffic Ordinance which is quite similar to our s.69(1)(a) at the present time and both sections deal with disqualification. After referring to a number of English authorities, the Judge had this to say at pp.340 to 341 :

"... but we think that the intention of the Legislature must have been to allow disqualification only in cases where the offence as created and not merely the offence as committed was an offence connected with the driving of a motor vehicle.

As it seems to us the offence of driving with excess passengers is an offence which can only be committed if a motor car is being driven. It is immaterial that there is a further offence created by reg. 96(2) of using or causing, suffering or permitting a vehicle to be used with excess passengers an offence, which it is just possible could be committed without the vehicle's being driven at all. With respect to Mr Justice Macfee we think he applied the dictum of Lord Alverstone in a way which was not justified by the context in which it was first used. In the ordinary sense of the words there was clearly a connection between the carrying of the passengers and the driving of the vehicle : the former could not be done without the latter."

The Full Court there held that there was power to order disqualification in regard to a defendant driving a goods vehicle which was overloaded.

7. Mr Wong further submits that it is the legislative intention that the word "use" in Regulation 121 is sufficient to include driving, in particular as the use has to be "on the road". If the word "use" includes driving, and driving must be the primary and predominant use of a vehicle on a road, then Regulation 121(2) of the Regulations is an offence in connection with driving even though it may be committed by a means other than driving.

8. Regulation 121 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations provides as follows :

"(1) Subject to the provisions of these Regulations, any person who uses or causes or permits to be used on any road any vehicle which does not comply in all respects with the provisions of these Regulations commits an offence and is liable to a fine of $10,000 and to imprisonment for six months.

(2) Any person who contravenes or fails to comply with any requirement under these Regulations commits an offence and is liable to a fine of $10,000 and to imprisonment for six months."

Apparently, the two sub-sections create different offences.

9. According to Mr Wong, the Full Court in Yip Wai-kay distinguished an offence that can be committed in connection with driving and one that was committed in the course of driving, such as the driver while driving assaulted a passenger.

10. Mr Sadiq on behalf of the Appellant refers me to the case of Chan Tsz-kei v R, Crim App 378 of 1982 (21 May 1982, unreported). While Yip Wai-kay dealt with a driver driving a vehicle with excessive weight, Chan Tsz-kei was a case of the Appellant driving a vehicle with excessive passengers. As far as the power of the Court to disqualify such a driver is concerned, it seems to me that there is no distinction between the two cases. However, Penlington J (as he then was) held inChan Tsz-kei that the Legislature did not intend to cover the case before him with disqualification and set aside the disqualification imposed by the trial magistrate. After citing the passages that I cited earlier from Yip Wai-kay and s.8 of the then Road Traffic Ordinance, which is quite similar to our present Regulation 121 of the said Regulations, Penlington J said :

"From that [i.e. s.8] it is clear that the offence as created can be committed by a 'user' of the vehicle and it has been held on numerous occasions that a 'user' is not necessarily the driver. (Cheung So and Another v. R. [1967] HKLR 704)

R v. Yip Wai-kay was decided in 1969 and was clear notice that if disqualification was to be a possible consequence of offences other than that ones which can only be committed by driving a vehicle, the legislation must be altered. That has not been done and I must assume such alteration was not considered necessary. Perhaps the time has come to look at it again."

11. Mr Sadiq argues that Penlington J must have meant that s.8, compared to our s.69(1)(g), did not cover a situation and was not intended by the legislator to cover a situation of an offence created in connection with driving. Therefore s.8, similar to our s.69(1)(g), excludes the application of s.23 of the old Road Traffic Ordinance which is similar to our present s.69(1)(a). Mr Sadiq asks a rhetorical question : why does one need s.69(1)(g) if s.69(1)(a) covers all offences under the Regulations made under s.9. If one reads s.69(1)(g) closely, it only relates to :

"An offence under any regulation made under s.9 of using or causing or permitting the use on a road of any motor vehicle or trailer in contravention of any provision or requirement of any such regulation as to brakes, tyres or steering gear ..." (emphasis added)

It does not cover situations in relation to other parts of the vehicle than the brakes, tyres or steering gear, and those situations, in so far as they are offences under the ambit of s.69(1)(a), i.e. in connection with the driving of a motor vehicle, are covered by s.69(1)(a) and not s.69(1)(g).

12. In the present case, the Appellant admitted driving a vehicle with an excessive weight. I am in no doubt that he committed an offence in connection with driving covered by s.69(1)(a). This interpretation of s.69(1)(a) is, in my view, covered by the decision of Yip Wai-kay. I must say that I do not quite understand the judgment or the reasoning of the judgment of Penlington J, but I am bound by Yip Wai-kay to hold that the offence of which the Appellant was convicted is one within the ambit of s.69(1)(a) and that the Magistrate, therefore, had power to disqualify pursuant to that paragraph of s.69(1).

13. In the result, I dismiss the appeal.