HKSAR v. Tong Yiu Wah

DCCC 444/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 444 OF 2016

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REASONS FOR VERDICT

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1.The defendant was facing 5 charges, to two of which he has pleaded guilty. They are the 4^th and 5^th Charges: Driving a motor vehicle for the carriage of passengers for hire or reward without a valid hire car permit, contrary to section 52(3) and (10) (a) of the Road Traffic Ordinance, Cap 374 and Using a motor vehicle without third party insurance, contrary to section 4(1) and 2(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272.

2.While he pleaded not guilty to the following 3 charges, which is the subject matter of this verdict:-

1^st Charge: Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2^nd Charge: False imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.

3^rd Charge: Robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

3.It is basically a one against one situation.  The prosecution case entirely hinges on the evidence of the only prosecution witness, Ms Mosha (PW1), who is a medical doctor in Tanzania attending a World

Health Organization conference in Hong Kong at the material time. The defendant also elected to give evidence.

Undisputed facts

4.There is no dispute that the defendant was the owner of the 7 seater private car bearing registration no. TR4192 who met PW1 at the arrival hall at around 9:30 pm and offered to drive for her for a reward.  PW1 agreed and boarded his private car.

5.At some stage during the journey, PW1 was told that she needed to pay $2880 plus $700 bridge fees for the journey.  PW1 had no ＨHong Kong dollars in her possession.  The defendant then drove her to an ATM booth of the standard chartered bank and escorted her to there with an attempt to get some Hong Kong dollars for the fare which did not succeed.  As PW1 had US$500 in her possession, the defendant then drove PW1 to a money exchange counter to change her US dollars to HK dollars  She then changed US$400 only and let the defendant have all the HK dollars in return, which was HK$2800.

6.Before the car arrived at the hotel, the defendant told PW1 that she still owed him HK$780.  The defendant parked the car near the hotel and they argued with the price.  At the end, PW1 gave the remainder of her money, ie US$100 to the defendant.

7.Issues:-

(1) Whether the fare of HK$300 has been agreed before PW1 boarded the defendant’s car as testified by PW1;

(2) Whether PW1 agreed or the defendant mistakenly thought that she had agreed to pay the US$400;

(3) Whether PW1 has been unlawfully detained by the defendant during the journey;

(4) Whether PW1 agreed or the defendant mistakenly thought that she had agreed to pay the remainder US$100?

(5) Whether force or threat of the use of force has been applied to PW1 by the defendant?

Analysis

8.In respect of the agreed fare of HK$300 as said by PW1, there were two versions as to what has been said to each other about the amount of fare before PW1 got onto the defendant’s car.  Undeniably, PW1 wanted the defendant’s driving service and she was new to Hong Kong.  PW1 said she understood from the defendant that the price would be “metered” when they were at the arrival hall.  However, when she saw the private car in the car park, she testified that she had told the defendant that she had no HK dollars at all and offered to pay HK$300 only to which the defendant agreed.

9.The defendant on the other hand said that he did not mention about money at all at the arrival hall and he only planned to tell PW1 the charge until she boarded his car, as it was all along his practice.  He frankly told the court that if he had told the charge before customers boarding his car, which was supposed to be much higher than normal taxi fares, he might lose the business.  He thought that his “limo” service could charge much higher.  That was why he said to PW1 “fig” the price, which he meant the fare would depend on the price list. 

10.The defendant further said that he would never agree with HK$300 as said by PW1 because it was not even enough to cover his cost including the two-way petrol and bridge fees.  Defence also raised the fact that such “agreed fare” of HK$300 as testified by PW1 was not mentioned at all in her first complaint to the HK police via email on the same night of the incident.

11.I must say that although PW1 did impress me as an honest and reliable witness in general, the fact that she did not mention the agreed fare of HK$300, plus the fact that the defendant would agree to such low fare of HK$300 which could only barely cover his cost and that there were no further discussions before boarding on the price and how PW1 could pay after defendant knowing PW1 had no HK dollars at all were strange. 

12.Further, although I am of the view that the defendant was pretentious in court when he was demonstrating his standard of English in court, I do have some reservation as to whether PW1 and the defendant could 100% understand each other during their conversation in English.  These all do cast some doubts as to whether there was actually an agreed fare of HK$300 before PW1’s boarding on defendant’s car.

13.Without much doubt, when PW1 was firstly told about the charge of HK$2,880 when she was on board, it must be a shock to her and she, as everybody does, would be unwilling to pay.

14.However, one is unwilling to pay does not necessarily mean that she does not agree to pay.  One can still agree to pay reluctantly.  Regarding the offence of Theft of HK$2,880, even I took PW1’s case to the highest that she was unwilling to pay, she did tell the court that when the car stopped next to the money exchange counter, she firstly gave US$400 to the defendant for exchange.  However, it was the defendant who insisted PW1 to go to the exchange counter on her own.  In my view, there is a lurking doubt as to whether PW1 did not consent to pay the US$400 to the defendant.

15.I accept that PW1 paid the HK$2,800 to the defendant partly out of fear given her own experience or knowledge about her home country Tanzania.  However what the court needs to consider is mainly what the defendant has done and his intention.  What the defendant did was requesting a fare on a visitor, which was undoubtedly over-charging and unreasonable.

16.PW1 had no HK dollars at all in her possession and in any event she had to go to ATM or money exchange counter before she could

pay the fare to defendant. Having considered all the circumstances, I am of the view there was a chance that the defendant may think that PW1 was agreeing to pay, even though reluctantly.

17.Regarding the false imprisonment charge, what prosecution said was that when PW1 attempted to open the car door after it was parked near the ATM centre, the car door was locked.  However, the very next moment the defendant was opening the door and went to the ATM centre with her.  From the CCTV foortage, it was PW1 who walked in the front and she did not look in any way intimidated.  The defendant did not do anything to restrain her.  At some stage, the defendant was even standing at a distance with PW1 at the centre.  Further, there were actually other customers present in the ATM centre, but PW1 had not even attempted to ask for help at all.

18.The fact that the car door was locked briefly before the defendant went up to PW1 and opened the door for her could be for some other innocent reasons like safety reasons or even without the defendant’s knowledge.  Furthermore, in her evidence, PW1 said that when the defendant was asking her to get off from car to the money exchange counter, she said she had refused to leave the car.  Given the above facts, I have reservation as to whether the defendant has intentionally and unlawfully detained PW1 during the journey.

19.Regarding the Robbery count concerning the US$100.  There was no dispute that before PW1 was let go, the defendant and PW1 were arguing on the amount of fare and the defendant was doing some calculation for PW1.  The defendant was asking for HK$780 more.  PW1

was of course unwilling to pay but she finally acceded to the request, as again she said she was afraid given her thought that she was being hijacked and the defendant had raised his voice and stood in front of her. PW1 just wanted to go to the hotel as soon as possible. She said the defendant had at one stage said: “Give me money, or you will be in trouble”. That sentence no doubts was rude and could be intimidating in PW1’s mind. However, objectively, the phrase of “you will be in trouble” could also be interpreted as civil action other than threat of force. The defendant apart from speaking fiercely did not use other force. PW1 said that they were actually arguing at the time.

20.Prosecution suggested that the court could consider the alternative verdict of theft and blackmail, should I find doubts in the element of force in respect of the Robbery count. Similarly, as said in my finding of the Theft charge concerning the US$400, the court could not be sure if the defendant had taken away the money without the defendant’s consent and if he was dishonest in doing so.  The circumstances were that PW1 did give the money to the defendant, be it reluctantly, with full knowledge of how much and for what purpose.  Again, in the defendant’s mind, he might think that PW1 was agreeing to pay in the end.

21.The defendant’s behavior in the whole course was no doubt suspicious and outrageous.  However, the court cannot be sure if HK$300 was firstly agreed before PW1 boarded the defendant’s car.  Given the high standard of proof in criminal proceedings, I have no alternative but giving the benefit of doubt to the defendant.  I therefore find him not guilty of all three charges to which he has pleaded not guilty.