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The Jockey Club Kau Sai Chau Public Golf Course Ltd v Hksar

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date13 December 2013
Year2013
Citation(2013) 16 HKCFAR 908
Judgement NumberFACC2/2013
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC2/2013 THE JOCKEY CLUB KAU SAI CHAU PUBLIC GOLF COURSE LTD v. HKSAR

FACC No. 2 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2013 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 719 OF 2011)

____________________

BETWEEN

THE JOCKEY CLUB KAU SAI CHAU PUBLIC GOLF COURSE LIMITED Appellant
- and -
HKSAR Respondent

____________________
Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Phillips of Worth Matravers NPJ
Date of Hearing: 22 November 2013
Date of Judgment: 13 December 2013

____________________

J U D G M E N T

____________________

Chief Justice Ma:

1. For the reasons contained in the judgment of Mr Justice Fok PJ, I agree that this appeal should be dismissed. The policy behind the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272 is, as Mr Justice Fok has pointed out, to protect the public from the use of motor vehicles intended or adapted for use on roads to which the public has access. Whether or not a vehicle will come under the requirements of the Ordinance is a mixed question of law and fact. In the present case, the relevant vehicle (a light utility vehicle) was subject to the requirements of compulsory third party insurance under the Ordinance.

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:

A. Introduction

4. The appellant was convicted of one charge 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 MVI(TPR)O). The two contested elements of the offence were the status of the place where the use of the vehicle occurred and the status of the vehicle being used and this appeal accordingly raises questions concerning the definitions of “road” and “motor vehicle” in the MVI(TPR)O.

A.1 The facts

5. Kau Sai Chau is an island located off Sai Kung, on which there are three 18-hole public golf courses, namely the North, South and East Courses. The golf courses are operated by the appellant, having been built with funds donated by the Hong Kong Jockey Club. On the island there is a club house, a driving range and the three golf courses in question. The evidence at trial was that any member of the public may visit the club house and use the driving range. Subject to meeting certain qualifying handicap requirements, any member of the public can play on the golf courses. Being an island, access is by ferry from Sai Kung and shuttle buses are available to take visitors from the ferry pier to the club house for access to the golfing facilities.

6. On 18 May 2009, at about 1pm, one of the appellant’s employees was instructed to drive four workers in a vehicle owned by the appellant to the 4th hole of the Kau Sai Chau East Course. The workers were engaged by a contractor of the appellant to carry out electrical engineering work at the golf courses. One of the workers sat in the front passenger seat of the vehicle next to the driver and the other three sat behind them on a toolbox in the cargo bed of the vehicle. At about 1.15pm, whilst travelling downhill on an unnamed road near the 4th hole of the East Course, the vehicle overturned and the driver and its passengers were thrown from it. As a result, all of the vehicle’s occupants were injured and, tragically, one of the passengers, who was in the rear of the vehicle, died from his injuries.

7. Photographs tendered in evidence showed the unnamed road to be part of what the Judge below described as “a very well-constructed road system with clear road markings and signs”, part of which was a “dual carriageway of substantial width”.[1] The evidence at trial established that golf carts could be driven, and golfers could walk, on the unnamed road. The users of the road might be golfers playing the 4th hole of the East Course or golfers using the unnamed road for access to the North or South Courses. There was no physical obstruction preventing access to the unnamed road and there was no sign declaring the road to be private or restricted. The state of the evidence was that any person who went to the island, whether golfers playing on one of the courses or users of the driving range, could go to the unnamed road without any hindrance.

8. The vehicle, described below as a light utility vehicle, was purchased new in about 2005 and used exclusively on the golf courses at Kau Sai Chau. It was a left-hand drive four-wheeled vehicle with a petrol engine and its maximum speed was 24 km/h. It was 2.8 m long and 1.25 m wide and had two seats in the front for the driver and a passenger and a cargo bed at the rear which tilted manually. The owner’s manual for the vehicle described it as a “light duty utility vehicle” which was “designed and manufactured for off-road use” and “for use on improved roads (but not on public highways)”. It had a flat plastic roof mounted on a metal frame over the driver’s and front passenger’s seats and a windscreen but it did not have doors. Nor did it have rear view mirrors, seatbelts, left/right indicator lights at the front or rear, a speedometer or plates for the vehicle’s registration number or licence. On the other hand, it did have brake lights, rear lights, an engine hour meter and a low oil pressure light as additional equipment.

A.2 The charge

9. The appellant faced a sole charge of using a motor vehicle without third party insurance contrary to sections 4(1) and 4(2) of the MVI(TPR)O.

10. Section 4(1) of the MVI(TPR)O provides:

“Subject to the provisions of this Ordinance it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance.”

And section 4(2) of the MVI(TPR)O specifies the penalties to which a person convicted under section 4(1) is liable.

11. As will be apparent, there are four constituent elements of the offence, namely: (i) the use, (ii) of a motor vehicle, (iii) on a road, and (iv) without a complying policy of insurance covering third party risks.

A.3 The proceedings below

12. The case was tried in the Kowloon City Magistrates’ Court in September 2011. The appellant did not dispute the use of the vehicle (element (i)) or that there was no third party risks insurance policy in effect in respect of that user (element (iv)) and the Magistrate[2] was satisfied these two elements of the offence were established.

13. The Magistrate was also satisfied that the other two elements of the offence, which the appellant did contest, were also established beyond reasonable doubt.

14. He found, applying the definition of “public” in section 3 of the Interpretation and General Clauses Ordinance, Cap.1 (the IGCO),[3] that a class of the public, namely golfers playing the East Course, could have access to the section of the road where the incident occurred and so held that the unnamed road near the 4th hole of the East Course was a “road” within section 2 of the MVI(TPR)O (see below) (element (iii)). Alternatively, he held that it was a “private road”[4] so that this element of the offence was made out by reason of section 3 of the MVI(TPR)O (see below).

15. Applying the test laid down in Burns v Currell [1963] QB 433, the Magistrate also held that the light utility vehicle was a “motor vehicle” within section 2 of the MVI(TPR)O (see below) (element (ii)).

16. The consequence of the Magistrate’s conclusion in the alternative regarding the road (element (iii)) is that, by reason of the provisions of section 119 of the RTO[5] and assuming the light utility vehicle was correctly held to be a motor vehicle, it rendered moot the question of whether the road was in fact public or private.

17. Upon conviction, the appellant was fined $6,000.

18. The appellant’s appeal against its conviction for the offence was heard in the Court of First Instance on 30 August 2012. By his judgment dated 8 October 2012, the Judge[6] dismissed the appeal affirming the Magistrate’s conclusions on the two contested elements of the offence.

19. As to the status of the unnamed road, the Judge held that the public had access to the unnamed road and thus affirmed the Magistrate’s conclusion that it was a “road” within section 2 of the MVI(TPR)O. The Judge held that the Magistrate had been correct in adopting section 3 of the IGCO in construing the meaning of “public” in the definition of “road” in section 2 of the MVI(TPR)O. He found that the golfers playing on the Kau Sai Chau courses were a “class of the public” within the IGCO and that they were using or had access to the unnamed road. Alternatively, he found that the users of the driving range were members of the general public and that they were using or had access to the unnamed road. In any event, the Judge agreed with the Magistrate that, even if the road was not a public road, it was a private road within section 2 of the RTO and therefore this element of the offence was made out by reason of section 3 of the MVI(TPR)O.

20. The Judge held that the applicable test for whether a vehicle is “intended” for use on roads was that in Burns v Currell and that the Magistrate had correctly applied this test in concluding that the light utility vehicle was a motor vehicle within section 2 of the MVI(TPR)O.

A.4 The certified questions

21. On 4 December 2012, on the appellant’s application, the Judge certified four questions as points of law of great and general...

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