JUDGMENT

Whitton J:

The appellant was convicted under s 48(1) of the Road Traffic Ordinance and fined $100 or 20 days and was disqualified from holding a driving licence for one year.

It was not disputed that about 1.40 am on 13 April 1954, car SF 9492 was stopped by a Traffic Branch police officer, and at that time a European lady was in the driver's seat holding the steering-wheel while the appellant sat beside her. This lady was not the holder of a driving licence. The police officer stated that when he saw the car it was not being driven smoothly, but was rocking. The only conflict of fact was as to whether the appellant also had a hand on the steering-wheel as he claimed but the police officer denied. In this connection it seems to me the learned Magistrate took an unjustifiably unfavourable view of the appellant's veracity when he says in his grounds of decision "from the facts of the case I found it difficult to believe the story of Accused 2." This is the type of observation one might expect when the defence story was in effect a substantial denial of the Prosecution evidence, but in this case the only point on which the appellant questioned the accuracy of the police officer was on the latter's statement that the appellant did not have a hand on the steering-wheel. It seems to me when one considers all the circumstances this is a point on which the police officer might well have been honestly mistaken. As I feel the learned Magistrate did not form an altogether fair view of the appellant's credibility - he does not comment on his demeanour which, of course, might have put a different complexion on the matter as far as an Appellate Court was concerned - I proceed to deal with this appeal on the basis the appellant should be given the benefit of the doubt on this point, and accordingly on the basis that he had a hand on the steering-wheel.

At the hearing of the appeal Counsel for the appellant strongly relied on Langman v. Valentine & Anor [1952] 2 All ER 803; [1952] WN 475. In that case it was decided that a qualified driver, who had a policy of insurance in the usual terms, whilst sitting in the passenger sat beside an unlicensed driver in the driver's seat but exercising sufficient control of the car to be also held to be a driver had not committed the offence of unlawfully permitting the use of the car whilst not covered by third party insurance, on the grounds that in those circumstances a person injured by the car through bad driving could have recovered under the policy in question and the holder of the policy, would have been entitled to claim indemnity. Now if it is conceded on the authority of Langman v. Valentine [1952] 2 All ER 803; [1952] WN 475 that there can be two drivers of a car it must also, I think, be conceded that there can be two users. In this connection it seems to me that if the appellant's lady friend through her lack of skill had caused injury to some other user of the road at the time in question - it will be recalled the police officer's attention was apparently drawn to the car because it was rocking - the insurers of the appellant might well under the policy (which was put in as an exhibit at the time) successfully resist liability on the basis that, whether there was user by the appellant or not, it was the user by the unlicensed driver which was the cause of the accident, and such user was not covered by insurance. Moreover under the policy the Company is not liable "in respect of being driven with the general consent of the insured or of his representative by any person who to the knowledge of the insured or of such representative does not hold a licence to drive such motor car etc." This Court will naturally give careful consideration to a decision of the weight of Langman v. Valentine [1952] 2 All ER 803; [1952] WN 475, but it must reach its decision on the evidence before it and I am of the opinion the correct view to take of the evidence in this case is that the prosecution prima facie