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Hksar v Cheung Wai Kwong

Judgment Cited authorities 24 Cited in Precedent Map Related
Vincent
Judgment Date22 December 2017
Year2017
Citation(2017) 20 HKCFAR 524
Judgement NumberFACC4/2017
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC4/2017 HKSAR v. CHEUNG WAI KWONG

FACC No. 4 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2017 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 271 OF 2016)

____________________

BETWEEN

HKSAR Appellant
and
CHEUNG WAI KWONG（張惠光） Respondent

____________________
Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Mr Justice Gummow NPJ
Date of Hearing: 28 November 2017
Date of Judgment: 22 December 2017

________________________

JUDGMENT

________________________

Chief Justice Ma:

1. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

3. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

4. This appeal involves the following questions of law, namely:

“In the context of the regulatory regime under the Road Traffic Ordinance Cap.374 and its provisions governing road traffic offences and, in particular, in relation to the offence of using an unlicensed vehicle contrary to section 52(1)(a) and 52(10)(a) of the Road Traffic Ordinance, Cap.374:

(1) What is the meaning of “use”?

(2) Whether the meaning of “use” is in any way qualified by “drive”?

(3) Whether, in relation to a person having the immediate “use” of a vehicle, the meaning of “use” is in any way qualified by the presence in a provision of the alternative of permitting or suffering the vehicle to be used or otherwise by the capacity of such a person?”

A. Introduction

5. The respondent to this appeal, Mr Cheung Wai Kwong (“Cheung”), was prosecuted for the offence of possession of an offensive weapon in a public place[1] and, relevantly for this appeal, for the offence of using an unlicensed vehicle contrary to sections 52(1)(a) and 52(10)(a) of the Road Traffic Ordinance (Cap.374) (“the RTO”) (set out below). It was the prosecution case that, on 18 August 2015, in Ma Tong Road, Yuen Long, Cheung had with him a baseball bat and metal rod in a public place without lawful authority or reasonable excuse and that he used a private car (with the registration mark KG8680) on a road when the car was not registered and licensed in accordance with the RTO.

6. On 25 April 2016, Cheung was convicted of both offences and sentenced to 4 months’ imprisonment on the offensive weapons charge and 2 months’ imprisonment on the charge of using an unlicensed vehicle, both sentences to run consecutively.[2]

7. Cheung initially appealed his conviction and sentence in respect of both offences to the Court of First Instance but, shortly before the hearing of his appeal, he indicated through his counsel that he would only appeal in relation to the offence of using an unlicensed vehicle. By his judgment dated 23 September 2016,[3] the judge allowed Cheung’s appeal (limited to that conviction) and accordingly quashed his conviction and set aside his sentence for that offence. On 19 October 2016, on the application of the prosecution, the judge granted a certificate that the questions of law set out in paragraph [4] above were involved in the appeal and were reasonably arguable. Leave to appeal to this Court was granted by the Appeal Committee on 26 April 2017.[4]

B. The facts relating to the s.52(1) charge

8. The prosecution case was based on the evidence of a police officer who observed a private car bearing registration number KG8680 parked at a bus stop in Ma Tong Road at 3.15am on 18 August 2015. A man (Cheung, whose identity was not in dispute) was seen sitting in the driver’s seat of the car, which had its headlights as well as the reading light inside the vehicle compartment on. No one else was inside the car. Cheung was observed for about five minutes and was seen to be bending down inside the car and looking outside from time to time. At 3.20am, Cheung switched off the headlights, alighted from the car and locked it. He then walked towards the rear of the car. The police suspected him of theft from the car and arrested him. The car key was found on Cheung and, when the car was searched, the baseball bat and metal rod were found in its boot. On investigation, it was discovered that the car was registered to a Mr Chan Lap-lun (“Chan”) but that its vehicle licence had expired as at 18 August 2015.

9. Cheung’s case was that he ran a car repair business and that he had bought the car from the registered owner, Chan. Chan gave Cheung a key to the car but it was arranged that delivery of the car would take place after the vehicle licence had expired. Cheung said that, on the evening of 17 August 2015, Chan called to tell Cheung that he had left the car in Ma Tong Road for him to collect but reminded him that it had some minor problems. After work that day, Cheung went to the car’s location in Ma Tong Road with the intention of collecting the vehicle registration book and then arranging for it to be towed to his garage for repairs to be carried out.

C. The decisions below and the parties’ contentions on this appeal

10. The magistrate did not believe Cheung’s version of events. She believed instead that he drove the car to Ma Tong Road. However, she acknowledged that this was not the charge he faced under sections 52(1) and 52(10) of the RTO. Proceeding on the premise that a parked car could be in use on a road, she considered that the evidence relied upon by the prosecution (summarised in paragraph [8] above) was sufficient to prove that Cheung had used the car and that it was unlicensed. On this basis, she convicted Cheung of the offence.

11. On intermediate appeal, the judge rightly focused on the meaning of the word “use” in section 52(1) of the RTO. Applying a line of authorities considering that word in other road traffic legislation in England and which had been followed in Hong Kong (which I shall address below), he held that the word “use” in section 52(1) applied only to the driver of the vehicle or his employer where the driver was employed to drive for the employer’s affairs. On this basis, he held that, although the prosecution evidence showed that Cheung did use the car, it was insufficient to support the charge since the prosecution did not allege he drove the car to Ma Tong Road nor was there sufficient evidence to prove that fact. Accordingly, he allowed Cheung’s appeal.

12. On this appeal, Ms Vinci Lam SADPP, for the prosecution,[5] contended that the judge’s construction of the word “use” in section 52(1) of the RTO was too narrow and that a wider construction should be adopted on the basis of which this Court should conclude that Cheung did use the vehicle within the meaning of the section. At the beginning of her submissions, Ms Lam indicated that, in the event of the appeal being allowed, the Secretary for Justice did not seek the reinstatement of the conviction for using an unlicensed vehicle and that the appeal was pursued to provide guidance for future prosecutions for the offence.

13. For the respondent, Mr Hectar Pun SC,[6] contended that, adopting a purposive construction, the word “use” in section 52(1) means the use of a vehicle as a means of transport or locomotion and that, on the facts of this case, there was no use of a kind within the mischief to which section 52(1) was directed. Accordingly, he sought to uphold the judge’s construction of the word “use” in section 52(1) of the RTO.

D. The construction of s.52(1)

14. The parties’ respective contentions raise the questions involved in this appeal and the answers to those questions depend on the proper construction of section 52(1) of the RTO. Applying the well-settled approach to statutory construction, this requires the Court to construe the relevant language used in the light of its context and purpose.[7]

15. Before embarking on this construction exercise, it should be noted, by way of caveat, that the particular language used in section 52(1) of the RTO differs, to a greater or lesser extent, from that under consideration in a number of the authorities cited in this appeal and considered below. For this reason, caution must be exercised in seeking to apply some of those cases directly to the present appeal.

D.1 The statutory language and structure of section 52(1)

16. Section 52 consists of a series of prohibitory statements relating to different types of vehicle (sub-sections (1) to (9) inclusive) and then a provision creating offences setting out the maximum penalties (sub-section (10)). Sections 52(1) and 52(10) of the RTO provide as follows:

“(1) Subject to this Ordinance, no person shall –

(a) drive or use a vehicle of a class specified in Schedule 1, other than a rickshaw; or

(b) suffer or permit such a vehicle to be driven or used,

on a road unless the vehicle is registered and licensed in accordance with this Ordinance.

…

(10) Any person who contravenes –

(a) this section, other than subsection (2), commits an offence and is liable in the case of a first conviction for that offence to a fine of $5,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction for that offence to a fine of $10,000 and to imprisonment for 6 months;

(b) subsection (2) commits an offence and is liable in the case of a first conviction for that offence to a fine of $1,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction for that offence to a fine of $2,000 and to imprisonment for 6 months.”[8]

17. As a matter of language, section 52(1) is drafted to impose a prohibition on any person from carrying out certain activities, namely (a) driving or using, or (b) suffering or permitting the driving or using, of a relevant vehicle on a...

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