Background 1. Mr. Cheung Wai Kwong (“Cheung”) was prosecuted for the offence of “using an unlicensed vehicle” contrary to sections 52(1)(a) and 52(10)(a) of the Road Traffic Ordinance, Cap.374 (“RTO”). 2. The prosecution’s case that Cheung was “using” the vehicle in question was based on the following evidence: Cheung was sitting in the driver’s seat of the car with the headlights and reading light on; he bent down inside the car and looked outside from time to time; he switched off the headlights and alighted from and locked the car; and he walked towards the rear of the car (collectively “the relevant evidence”). 3. Based on the relevant evidence, a magistrate held that Cheung was “using” the car and, on that basis, convicted him. 4. On appeal, the Court of First Instance (“CFI”) held that the word “use” in section 52(1) of RTO applied only to (i) the driver of the vehicle or (ii) the driver’s employer where the driver was employed to drive for the employer’s affairs. The CFI held that, since Cheung did not belong to either of those categories of persons, Cheung did not “use” the vehicle and his conviction was quashed. 5. The prosecution appealed to the Court of Final Appeal, with the focus of the appeal being the interpretation of the word “use” in section 52(1) of RTO. The Meaning of “Use” 6. The Court construed the language of section 52(1) of RTO in the light of its purpose and context, and concluded as follows: (1) By using the two words “use” and “drive” in section 52(1) of RTO, the Legislature must have contemplated different meanings to be attached to the two words. To “use” a vehicle includes driving it but also embraces a wider range of activities. (2) To “drive” means to operate and control the course of a motor vehicle. The usual (but not the only) scenario is where a person sits in the driver’s seat and directly operates the vehicle with the engine running. Depending on the reason for stopping, a person may still be driving the vehicle when it is stopped. (3) To “use” a vehicle means to exercise a measure of control, management or operation over the vehicle as a means of transport, including any period of time between journeys. The circumstances in which a person may “use” a vehicle vary infinitely. Ultimately, each case is one of fact and degree. (4) The word “use” must also be understood in light of the concept of being “in charge of”, which is found in other sections of RTO (for example, section 39A of RTO, which makes it an offence for a person to be “in charge of” a vehicle with an alcohol concentration above the prescribed limit). “In charge of” is a broadly defined concept. To “use” a vehicle imports something more active than being “in charge of” it. (5) A person may vicariously use a vehicle through another person. It was well-established in the authorities that “use” in a provision like section 52(1) of RTO (which is qualified by the alternatives of suffering or permitting the use of vehicle) should be construed narrowly so that such vicarious user may occur only where a person employs another person to drive or use a vehicle for the former’s business. This was not the situation in the present case since there was no question of Cheung having used the vehicle vicariously through another person. Disposition of the Present Case 7. Based on the analysis in paragraph 6 above, the Court rejected the approach of the CFI (see paragraph 4 above). By asking whether Cheung was the driver or the employer of the driver, the CFI wrongly focused on Cheung’s identity. The real focus should instead have been on whether the activities of Cheung were sufficient to constitute “use” of the car. 8. The Court concluded that, based on the relevant evidence, Cheung’s activities did not constitute “use” of the car for the purposes of section 52(1) of RTO. 9. Accordingly, the Court affirmed the CFI’s order quashing Cheung’s conviction, and dismissed the prosecution’s appeal.