Tse Wan Yuen And Another v The Queen

Judgment Date12 May 1969
Year1969
Judgement NumberCACC637/1968
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000637/1968 TSE WAN YUEN AND ANOTHER v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 637 OF 1968

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BETWEEN
1. TSE WAN YUEN Appellants
2. TAM TSEUN HO

AND

THE QUEEN Respondent

Coram: Blair-Kerr, J.

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JUDGMENT

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1. The first appellant was convicted of using a dual purpose vehicle on a road without third party insurance contrary to section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 (hereinafter referred to as "Cap. 272"). The second appellant was convicted of aiding and abetting the first appellant in the commission of this offence.

2. The evidence adduced by the prosecution was accepted by the magistrate, and it may be summarised as follows:-

Two police officers in plain clothes were on duty in Castle Peak Road intending to board any dual purpose vehicle which might offer to give them a lift. They were not carrying any goods or other articles. A dual purpose vehicle No. AJ.4660, which was being driven by the first appellant, stopped beside the officers and the second appellant, who was in the rear of the vehicle, shouted to them: "Are you going to Jordan Road?". The police officers boarded the vehicle in which were five other passengers besides the second appellant. The officers did not see any goods in the vehicle. The second appellant shut the door and the vehicle drove off. A few minutes later, one of the officers asked the first appellant to stop; and the vehicle stopped. The officer said: "Two"; and the second appellant said: "One dollar". The officer handed $1 to the second appellant. Both appellants were then arrested. The appellants did not give evidence or call any

witnesses; but their counsel handed up a certificate of insurance from which it appeared that the vehicle was insured generally. The appeals are against conviction; and I shall deal first with the case of the first appellant.

3. Section 4(1) of Cap. 272, so far as it is relevant to this appeal, reads as follows:-

"4 (1) ........ 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 .......... such a policy of insurance ..... in respect of third party risks as complies with the requirements of this Ordinance."

4. The first point taken by counsel for the first appellant concerns the onus of proof in prosecutions under this section. This Court considered this very question in R. v. Leung Wan (No.2)(1), and the decision of the Court is summarised in the following passages appearing at pages 541 and 542:-

(p.541) "In our view, as a matter of strict law, there is no obligation on the prosecution to lead any evidence relating to the nonexistence of the policy of insurance which a defendant is required to effect under section 4 .......... of the Motor Vehicles Insurance (Third Party Risks) Ordinance:"
(p.542) "If the defendant produces no evidence of insurance, in our view the magistrate may properly infer that no third party insurance of any sort exists."

In deciding thus, the Court followed a number of English decisions, including R. v. Turner(2), Willams v. Russell(3), R. v. Oliver(4), John v. Humphreys(5) and Philcox v. Carberry(6).

5. In opening his appeal counsel for the first appellant did not challenge those propositions in so far as they applied to the policy holder (who would ordinarily be the owner of the vehicle). The burden of counsel's argument appeared to be directed towards showing that a different approach is called for when the person charged is an employee/driver. However, in reply, counsel cited A.G. v. Carville(7), a decision of the Suprome Court of Eire which appears to be at variance with the English decisions followed in Leung Wan (No.2)(1). Although counsel did not specifically request the Court to reconsider its decision in Leung Wan (No.2)(1), it is difficult to see what other purpose he had in mind in citing Carville(7)

6. The appellant in Carville(7) was charged with driving a motor vehicle without a driving licence, contrary to s.22(1) of the Road Traffic Act 1933 which provides:-

"22(1) It shall not be lawful for any person to drive a mechanically propelled vehicle on any road unless he holds a driving licence ....... "

The evidence adduced by the prosecution was that the appellant was driving a vehicle on a road; that the police asked him to produce his driving licence (as they were entitled to do in accordance with power conferred upon them by s.39(1) of the Act); and that he failed to do so. The District Justice dismissed the charge, and his decision was upheld by the High Court. On a further appeal to the Supreme Court, the decision was upheld by a majority, Maguire C.J. dissenting.

7. The Eire statutes are not available in Hongkong; but it would appear from the judgments in Carville(7) that the provisions of the Road Traffic Act 1933 in force in Eire are generally similar to corresponding legislation in force in England and Hong Kong. However, the provisions relating to third party insurance are included in the Road Traffic Act and not in a separate enactment as is the case in Hong Kong; and, unlike the English and Hong Kong legislation, the Eire Act contains a provision (s.56(4)) to the effect that proof of a driver's failure to produce a certificate of insurance when the same is lawfully demanded of him, shall be prima facie evidence that the vehicle he was driving at the time of such demand was being driven in contravention of s.56(1) which makes it an offence for any person to drive a vehicle in a public place unless insured or otherwise indemnified against liability for injury to third parties.

8. The District Justice appears to have been influenced considerably by the fact that the legislature had chosen to enact s.56(4). In his reasons for his decision, he said:-

"........ as s.56(4) of the Road Traffic Act in my opinion implies that in a prosecution of a charge of driving a ........ vehicle ........ uninsured the onus is on the complainant to prove that the defendant was uninsured by analogy the legislature must have intended to place a similar onus on the complainant in a prosecution for driving a ....... vehicle ......... without holding a licence so to do, although it neglected to provide for any particular method of so proving such non-holding."

9. On appeal the argument of counsel for the prosecution was two-fold. Firstly, he submitted that s.78 of the County Officers and Courts Act, 1877 (which is similar to s.39(2) of the English Summary Jurisdiction Act, 1879 and s.33(b) of the Magistrates Ordinance, Cap.227) relieved the prosecution of the necessity of proving that the defendant had no licence; secondly, he submitted that if s.78 did not apply, at common law there was no onus resting on the prosecution to prove that the defendant had no licence because if the defendant had a licence that was a matter of fact which was peculiarly within his knowledge and the onus was on him to establish this fact.

10. In support of this first submission, counsel cited Sheahan v. Cork JJ.(8). In that case the defendant was charged under a section which provided that "it shall not be lawful in any fresh water river or lake, to use, for the purpose of taking fish, any gaff (except when used solely as auxiliary to angling with rod and line .......)." Neither the summons nor the convection negatived that Sheahan's use of the gaff was for the purpose excepted by this section. Sheahan's conviction was upheld by the King's Bench Divisional Court; but, in discussing the applicability of s.78 of the County Officers and Courts Act 1877, Gibson J. said:-

"The section does not authorise the omission of anything which is made an essential constituent part of the offence created and described. The point does not depend on the mere use of the words 'except etc.'. A prohibition against selling bread except by weight would not authouise a complaint for selling bread simpliciter. A summons in that form would show no offence. The test or dividing line appears to be this:- Does the statute make the act described an offence subject to particular exceptions, qualifications etc., which, where applicable, make the prima facie offence an innocent act? or does the statute make an act prima facie innocent, an offence when done under certain conditions? In the former case the exception need not be negatived; in the latter words of exception may constitute the gist of the offence."

11. The High Court came to the conclusion that s.78 of the 1877 Act did not apply to a prosecution under s.22(1) of the Road Traffic Act. In his judgment Davitt P. said:-

"The gist of the offence in this case is, notwithstanding the use of the word 'unless' in s.22(1) of the Road Traffic Act, not the driving of the vehicle on the public road but driving it without a licence. The offence as described in the section seems to me to be exactly analogous to a contravention of the prohibition against selling bread except by weight instanced by Gibson J. It is very hard to envisage anyone having the temerity to charge a person with the offence simpliciter of driving a motor car upon the public road, ....... prima facie the act of driving a ............... vehicle is a perfectly lawful act. What makes it an offence is driving it on a public road without having a valid driving licence."

In regard to counsel's second submission Davitt P. said:-

"The principle that in a criminal case the prosecution must prove its case, including every essential element of the offence charged, is, however, one that, in my opinion, should have as few exceptions as possible. There...

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