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Hksar v Jockey Club Kau Sai Chau Public Golf Course Ltd

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date08 October 2012
Subject MatterMagistracy Appeal
Judgement NumberHCMA719/2011
CourtHigh Court (Hong Kong)
HCMA719/2011 HKSAR v. JOCKEY CLUB KAU SAI CHAU PUBLIC GOLF COURSE LTD

HCMA 719/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 719 OF 2011

(ON APPEAL FROM KCS 37343 OF 2009)

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BETWEEN
HKSAR Respondent

and
Jockey Club Kau Sai Chau Public Golf Course Limited Appellant

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Before: Deputy High Court Judge Yau in Court
Date of Hearing: 30 August 2012
Date of Judgment: 8 October 2012

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JUDGMENT

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1. The appellant pleaded not guilty to a re-amended summons of using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. The particulars of the offence are as follows:

“The appellant on 18/5/2009 at 1:15 pm at Unnamed Road near Hole 4 East Course inside Jockey Club Kau Sai Chau Public Golf Course did use a MOTOR VEHICLE on a road when there was not in force in relation to the user of the vehicle by you such a policy of insurance or such a security in respect of third party risks as complied with the requirement of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272.”

2. The appellant was convicted of the summons after trial and was fined $6,000. The appellant appeals against the conviction.

Evidence of Prosecution

3. On 18 May 2009 at about 1:15 pm, Mr Li Man Yam, an employee of the appellant, acting on the instruction of his superior, drove 4 workers on board of a light utility vehicle to work at the unnamed road near Hole 4 East Course inside the Jockey Club Kau Sai Chau Public Golf Course (‘the unnamed road”). The light utility vehicle overturned, killing one of the workers. It is not in dispute that the appellant permitted Mr Li to drive the light utility vehicle which did not have valid third party insurance.

Evidence of the Defence

4. The appellant elected not to call any evidence.

Basis of Conviction

5. The magistrate convicted the appellant on the basis that the unnamed road was a road and the light utility vehicle a motor vehicle within the meaning of the Motor Vehicles Insurance (Third Party Risk) Ordinance, Cap 272 (“MVI(TPR)O”), or alternatively the unnamed road was a private road within the meaning of the Road Traffic Ordinance, Cap 374 (“RTO”).

Grounds of Appeal

6. The grounds of appeal are as follows:

(a) The magistrate erroneously concluded that the light utility vehicle was a motor vehicle;

(b) The magistrate erroneously concluded that the unnamed road was a road within the meaning of MVI(TPR)O;

(c) The magistrate erroneously concluded that the unnamed road was a private road within the meaning of the RTO.

Status of the Unnamed Road

7. For the sake of more systematic argument the court deals with the issue of the status of the unnamed road first.

8. A road is defined in section 2 of the MVI(TPR)O as follows:

“road means any highway and any other road to which the public have access and include any road upon which a member of the public is allowed to drive a vehicle only if in possession of permit issued by the Commissioner of Police or the Commissioner for Transport.”

9. The unnamed road is a road within this definition if the prosecution can prove beyond a reasonable doubt that the public have access to it. The magistrate found that it was so proven and he is criticised by the appellant of failing to properly direct himself on the meaning of “the public”.

10. The magistrate adopted the meaning of “public” in section 3 of the Interpretation and General Clause Ordinance, Cap 1 (“IGCO”) which states that “public includes any class of the public.” The appellant, however, points out that the section does not apply if contrary intention appears from MVI(TPR)O or the context of any other ordinance or instrument, citing section 2(1) of IGCO in support:

“Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance.”

11. The appellant submits that by enacting a specific definition of “road” in MVI(TPR)O, the legislature evinced such a contrary intention and the definition contained in MVI(TPR)O prevails over IGCO. This court has no argument about this so far as the definition of “road” is concerned and this proposition is supported by the authority of AG v Ng Kwan [1987] 1 HKC 183.

12. This court, however, cannot agree with the contention of the appellant that the magistrate erred in construing the word “public” by applying IGCO. In MVI(TPR)O there is no definition of the word “public”. There is nothing in IGCO or MVI(TPR)O to the effect that the meaning of “public” in the former should not apply. If the intention of the legislature was to have a different meaning for the word in MVI(TPR)O it would surely enact a new definition or expressly say so in it. Such an omission must show that the intention of the legislature was that the meaning of “public” set out in IGCO applied to MVI(TPR)O.

13. AG v Ng Kwan concerned a road giving access to a refuse tip through a gate which was opened from 8 am to 5 pm. The general public could not use the road unless authorised but there was no restriction on any member of the public coming to the road during the time when it was opened, provided they were doing so in order to dump refuse. The Court of Appeal, while ruling that the definition of “road” in RTO prevails over that in IGCO, did not specifically decide whether the word “public” in the definition of “road” in RTO has the same definition as that in IGCO:

“The question is then whether or not the public had access to it. We are satisfied that any member of the public, if he so choose, could enter into the road for the purpose of disposal of refuse…..Here the class of persons who could use the road were such members of the public who elected at any time to take refuse to the tip. Any member of the public could at any time, then bring himself within that class. We are therefore satisfied that even without calling in the aid the definition of ‘public’ in the Interpretation Ordinance, the public did have access to this road and that it was therefore a road within the meaning of the Road Traffic Ordinance. When one also considers the definition of public in the Interpretation Ordinance, it is then clear beyond any doubt.”

14. Judging from the last sentence in this quotation the Court of Appeal seemed to be of the view that the meaning of “public” in IGCO applied to RTO.

15. The appellant called in aid of the English case of Clark v Kato [1998] 4 All E R 417 in which the House of Lords considered the meaning of road which was defined in section 192(1) of the Road Traffic Act 1988 as “any highway and any other road to which the public has access”. It was said that the element of public access had to be tested by reference to facts as well as rights and the question was whether the public actually and legally had access and that the public meant the general public.

16. It must be pointed out that this was only obiter dicta mentioned in passing by Lord Clyde who delivered the judgment of the House of Lords. The case in fact did not concern the meaning of public access because the place in question was a car park and the House of Lords held that it was not a road. Lord Clyde said (at page 420):

“In the present case we are not concerned with the matter of public access, but two observations on that phrase may be made….”

He then mentioned the obiter dicta above.

17. Another more important factor to be considered is that there is no equivalent enactment of section 3 of IGCO in England. As such English authorities are of limited use. There is also a further reason why the English authorities are of limited use and that is the lack of equivalent in the English legislation of the provision in MVI(TPR)O that the ordinance applies to a private road. This court will deal with the issue of private road later.

18. The magistrate considered the evidence of the 1st, 3rd, 5th and 6th prosecution witnesses (“PW1, 2, 3, 5 and 6”) before he came to the conclusion that the public had access to the unnamed road.

19. PW1 was one of the 4 workers on board of the light utility vehicle at the time of the accident. PW1 said that he had worked at the East Course many times. According to what he saw pedestrians were not allowed to walk along the unnamed road when someone was playing golf there, but vehicles for playing golf were allowed to use the road and golfers were allowed to walk along the road.

20. PW3 was the Workshop Manager of the Turf Maintenance Department of the appellant. He gave evidence that he had seen vehicles other than light utility vehicle using the road. According to his experience golfers playing at hole number 4 would use their golf carts along the unnamed road which could lead to South Course and the North Course. As far as he could remember there was no sign of “private road” erected there.

21. PW5 is the human resources manageress of the appellant. Her evidence was that on the island of Kau Sai Chau there were a Club House, 1 driving range and 3 18-hole golf courses named the East, South and North Courses. People going there could take a ferry and on reaching the island they could take a shuttle bus or walk to the club house. The appellant did not have a membership system and any member of the public could on advance booking and payment of fee use the driving range of the golf...

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