News and Events

Introduction

The popularity of electric unicycles, electric bicycles and segways is on the rise.  These personal mobility devices can provide convenience and fun for us all but there are several things to watch out.

Having recently prosecuted as counsel on fiat in KCCC 646/2021 and KCCC 346/2023, I would like to take this opportunity to share my experience with you.

Legal Principles

Essentially, both cases involved the same Defendant.  On both occasions, he was accused of riding an electric unicycle on a public road.  In both cases, the charges were more or less the same.  He was charged with:

1. Careless Driving;
2. Driving without a license; and
3. Driving without a third-party insurance.

The Defendant challenged that an electric unicycle is not a ‘motor vehicle’.

Motor Vehicles Insurance (Third Party Risks) Ordinance Cap 272 (‘MVI(TPR)O’)

Section 2 defined the following:

• ‘motor vehicle (汽車) means a vehicle intended or adapted for use on roads, and propelled by any form of mechanical power, and includes a motor bicycle with or without a side-car or trailer, a motor tricycle and a bicycle or tricycle assisted by a motor, and a village vehicle within the meaning of section 2 of the Road Traffic Ordinance (Cap. 374), but not a vehicle drawn by any other motor vehicle, nor any conveyance for use solely on railways or tramways.’
• ‘road (道路) means any highway and any other road to which the public have access and includes any road upon which a member of the public is allowed to drive a vehicle only if in possession of a permit issued by the Commissioner of Police or the Commissioner for Transport.’

Section 3 stipulated that MVI(TPR)O shall apply to private roads as well.

Section 4 stipulated the obligation of motor vehicle users to have motor vehicles on the road insured against third party risks.

Road Traffic Ordinance Cap 374 (‘RTO’)

Section 2 defined the following:

• ‘motor vehicle (汽車) means any mechanically propelled vehicle.’
• ‘road (路、道路) includes every highway, thoroughfare, street, lane, alley, court, square, car park, passage, path, way and place to which the public have access either continuously or intermittently, whether or not the same is the property of the Government, and includes the carriageway of the North-west Railway, but does not include any private road, or any part of the carriageway of the North-west Railway designated by the Commissioner for the purposes of this definition by notice in the Gazette.’

Section 38 defined ‘Careless Driving’ as ‘driving without due care and attention’.

Section 42 stipulated that a person may only drive a vehicle on the road with the relevant driving license.

Precedents

In Jockey Club Kau Sai Chau Public Golf Course Ltd. v HKSAR (2013) 16 HKCFAR 908 (‘the Jockey Club case’), the Court of Final Appeal had to decide whether a golf cart lookalike was a ‘motor vehicle’ or not:

‘66. ...  Even disregarding the statutory dimensions, by reason of its design and obvious intended purpose as a work vehicle, the light utility vehicle could not properly be described as a golf cart and it was not suggested in argument that it was a golf cart.’

The Court of Final Appeal confirmed the Burns Test in the Jockey Club case:

‘69. The correct test to be applied is the objective test propounded by Lord Parker CJ in Burns v Currell, 440, namely whether a reasonable person looking at the vehicle would say that one of its users would be a road user. This does not mean what the user or manufacturer intended and also does not mean user by someone “losing his senses” or isolated user or user in an emergency. The tribunal of fact will have to ask whether it has been proved beyond reasonable doubt that any reasonable person looking at the vehicle would say that one of its users would be a use on the road. 

…

72. In Hong Kong, the test has been consistently applied in order to determine whether a vehicle is within the definition of “motor vehicle” in s.2 of the MVI(TPR)O and s.2 of the RTO.

73. In applying the Burns test there will be cases in which it will not be necessary to have any evidence other than photographs and a description of the vehicle…

Thus, to take an obvious example, a standard motor car would readily be held to satisfy the Burns test…

74. There will, however, be other cases in which the answer to the question posed is not so obvious. In those cases, it may be necessary, if the tribunal of fact is to be satisfied that it has been proved to the requisite criminal standard of proof that any reasonable person looking at the vehicle would say that one of its users would be a use on the road, for there to be other evidence beyond just photographs and a description of the vehicle. An obvious example of such a vehicle which would not, without more, be so regarded, is a motorised lawnmower. Another example might be a recreational vehicle patently designed to be used off-road, such as a dune buggy or a Go-Kart.’ (Emphasis added)

Apart from the definitions in the MVI(TPR)O and RTO, the Court of Final Appeal also listed some factors in paragraphs 75 – 77 in the Jockey Club case as each case turns on its own facts:

1. Whether the vehicle was registered and licensed for use on roads and what vehicle was it licensed as;
2. The vehicle’s capability to get through traffic and its speed;
3. Whether the vehicle was in good condition and roadworthy;
4. The actual use by the defendant, which might demonstrate his intention that the vehicle be so used and support an inference that the defendant continue to so use the personal mobility devices on roads; 
5. The number of vehicles of similar design in circulation and the number of users of the same type of vehicle.

The Burns Test must only be used on vehicles on public roads.  In paragraph 83 of the Jockey Club case, Fok PJ stated that:

’83. … The Burns test must be posed by reference to road user on a highway or any other road to which the public have access.’

In Wun Chi Kit 尹志傑 HCMA 305/2022, an electric bicycle was held by the Court to be a ‘motor vehicle’.   The Appellant did not challenge the definition of ‘motor vehicle’.  He simply challenged that he was not riding the electric bicycle at the material time.

Analysis

The definitions of ‘motor vehicle’ are different in MVI(TPR)O and RTO.  One thing is similar though: mechanically propelled.  Therefore, the crux is whether the electric unicycle is mechanically propelled or not.

In the present case, Motor Vehicle Examiners from the Transport Department were called to give evidence in both trials that the electric unicycle had an electric motor in it.  Such electric motor was able to propel the unicycle.  The Motor Vehicle Examiners also wrote reports to conclude that the electric unicycle was a ‘motor vehicle’. The electric unicycles in both cases were mechanically propelled.

Furthermore, the Motor Vehicle Examiners testified that at the time of both trials, it is the general policy of the Transport Department not to license these personal mobility devices nor classify them into any categories (see the back of your driving license).  

An electric unicycle may not have the characteristics of a car, e.g. no indicators, mirrors or doors, etc.  This is not the deciding factor.  It was decided in the Jockey Club case that:

‘91. The fact that the absence of doors, rear view mirrors, seatbelts, indicator lights, a speedometer and licence plates meant that the light utility vehicle might not have been roadworthy in the sense of being able to be used safely on roads, or for the purposes of the legislation relating to motor vehicles, is not decisive. Nor is the stated intention in the owner’s manual that the vehicle was intended for off-road use and not for operation on public streets. It is not necessary, to be a motor vehicle, that it be capable of being driven in traffic in the way that another vehicle might, and it may be one even if its being driven might require the adoption of an ungainly posture. It does not have to be capable of being driven at a particularly fast speed.’ (Emphasis added)

Having considered the legal principles and the evidence of the Motor Vehicle Examiners, both Magistrates found that an electric unicycle to be a ‘motor vehicle’.   With other CCTV evidence showing that the Defendant rode an electric unicycle at the material times and causing other road users to swerve or brake, the Defendant was ultimately convicted of all charges in both trials.

Conclusion

At the time of this article, there are several things:

Based on the above, make sure your personal mobility devices stay away from public roads.

In the meantime, be responsible and stay safe.

written by: Michael Lam