OVERVIEW
Driving without insurance is governed principally by Section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272).
If you are involved in a road traffic matter with the Police, the Police will often ask to see your policy of insurance. If the Police require you to produce the insurance policy, it is an offence not to show it to them.
It is not lawful to drive a vehicle, or to permit any other person to drive a vehicle, if there is no third-party risks policy covering the driver. If convicted of this offence, the court will disqualify you from driving for between 1 and 3 years unless there are special reasons not to.
STATUTORY PROVISIONS
Section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272)
The relevant part of the current statutory provision states:
“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 such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance.”
ELEMENTS OF THE OFFENCE
The Section 4(1) Prohibition
Under section 4(1), it is unlawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is a valid third-party risks insurance policy in force covering that specific user.
Using a Vehicle
The word use is interpreted broadly. A person does not necessarily have to be actively steering or driving the vehicle. Depending on the circumstances, keeping or parking a vehicle on a public road, or sitting in the driver's seat with the engine running, may constitute use of that vehicle.
Cause or Permit
This part of the offence can apply to vehicle owners, employers, parents or others who cause or give permission for another person to use the vehicle. A person who allows another driver to use the vehicle without ensuring that the driver is covered by a valid insurance policy may also commit an offence under section 4(1).
Strict Liability
The prosecution does not need to prove that the defendant intended to drive uninsured or knew that the policy had lapsed. Once the prosecution proves that the defendant used, caused or permitted the use of the vehicle on a road, the burden shifts to the defendant to produce evidence of a valid policy of insurance covering that use. Forgetting to renew a premium or mistakenly assuming that insurance remained in force does not by itself establish a defence.
SECTION 4(2)
Special Reasons
Under section 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272), the court must ordinarily disqualify a person convicted of driving without insurance for between 12 months and 3 years. The court may reduce that disqualification only if special reasons are established.
Section 4(2)(a) provides: "If a person acts in contravention of this section, he shall be liable to a fine at level 3 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified ..."
Case law sets a high threshold. A special reason must be a mitigating or extenuating circumstance directly connected with the commission of the offence, rather than a circumstance personal to the offender.
Special reasons do not provide a defence to conviction. They only permit the court to reduce the otherwise mandatory disqualification.
- What may constitute a special reason: Examples may include a driver being expressly and credibly misled by an employer into believing that a corporate policy covered the driving, or a genuine and verified administrative error attributable to the insurer. Whether a circumstance qualifies depends on the evidence and the facts of the case.
- In HKSAR v Lam Sing Kong, HCMA 999/2007, the vehicle owner had paid the insurance-renewal premium to an insurance agent. However, through the agent's own default, she failed to pass the premium to the insurer, leaving the vehicle uninsured without the owner's knowledge. The owner produced evidence from both himself and the agent, and the court accepted that these circumstances constituted special reasons.
- What is not ordinarily a special reason: Hardship caused by losing a driving licence, dependence on driving for a livelihood, a clean driving record, or the fact that the journey was brief will not by themselves normally amount to special reasons.
Maximum Penalty
Maximum Penalty
- Under section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272), the maximum penalty is a fine of HK$10,000 and imprisonment for 12 months.
- Disqualification: Unless the court finds a special reason, conviction carries disqualification for not less than 12 months and not more than 3 years.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.