Drunk drivers in Hong Kong may be spared secondary charge of not having insurance

Appeal court questions legality of insurance companies having clause that immediately nullified existing policy if driver was found to be over legal limit

PUBLISHED : Monday, 14 August, 2017, 11:37pm
UPDATED : Tuesday, 15 August, 2017, 2:26am

Drunk drivers in Hong Kong may no longer face a secondary charge after an appeal court yesterday ruled against a clause that insurance companies often put into their policies.

In a short yet significant judgment, centred on two criminal appeals, justices at the Court of Appeal ruled that drivers caught drunk driving should still be covered by their third-party insurance.

Some insurance companies often include a clause in their policy, saying they would not be liable for any loss and damage if a driver was found to have alcohol content in their blood exceeding the legal limit – as were the appellants in the present cases, Law Wing-fai and Gilbert Henry Collins.

If their insurance is immediately nulled, drunk drivers often end up facing a second charge of driving without third-party ­insurance.

But the Court of Appeal questioned the legality of inserting such a clause, ruling that it was contrary to a law regulating third-party insurance.

The court yesterday overturned the convictions of Law and Collins, who had both earlier been charged with driving without third-party insurance and who had their appeals heard together.

At issue is a provision of the Motor Vehicles Insurance (Third Party) Ordinance – legislation which regulates third-party insurance policy.

The ordinance stipulates that no restrictions should be placed on a drivers’ age or physical or mental condition when insurance companies formulate their policies cornering compensation.

The appeal contested whether consuming alcohol above the legal limit — but not being “blind drunk” – would amount to an ­effect on the driver’s physical ­condition.

If so – which lawyers from the Department of Justice conceded – the policy of insurance companies to cease service would not take effect and third-party cover would stay.

“A restriction ... based on the proportion of alcohol in a driver’s breath/blood/urine … is clearly a restriction by reference to the driver’s physical condition,” Madam Justice Maria Candace Yuen Ka-ning wrote yesterday. Vice-President of the Court of Appeal Wally Yeung Chun-kuen and Justice of Appeal Poon Shiu-chor agreed.

University of Hong Kong principal law scholar Eric Cheung Tat-ming said it could mean the prosecutors might no longer be able to prosecute drunk drivers for no having a third-party insurance in the same way.

The Department of Justice said it will study the judgement and prosecutors’ report to decide if further action is necessary.

Chan Kin-por, a lawmaker for the insurance sector, said it would have little effect on the insurance sector as companies have long been issuing payouts under such circumstances, before engaging drivers and car owners in civil suits to recover the money in accordance with recovery clauses in the policy.