HKSAR v. Alexander Ubl

HCMA 249/2018

[2019] HKCFI 753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 249 OF 2018

(ON APPEAL FROM ESCC NO 153 OF 2018)

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J U D G M E N T

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1.The appellant was charged with 1 offence of “Dishonestly endeavour to avoid payment of a legal fare lawfully due[1]” (Charge 1) and 1 offence of “Assault occasioning actual bodily harm” (Charge 2). He was convicted of both charges by Magistrate Kathie Cheung (“the magistrate”) after trial. He was fined $700 and $6,000 for Charges 1 and 2 respectively.

2.The appellant appeals against his conviction of both charges.  He was represented by a private solicitor in the court below.

The prosecution case

3.The magistrate summarized the prosecution case as follows[2] :-

“ 2. The prosecution only called one witness to give evidence. The witness Mr Wong is a taxi driver. At the material time, the defendant got onto Mr Wong’s taxi in Central and asked to be driven to Yau Ma Tei. When the taxi stopped before a traffic light in Wan Chai, the defendant, who was sitting at the rear passenger seat, leaned forward attempting to adjust the volume of the radio of the taxi but was stopped by Mr Wong. The defendant then got out of the taxi without paying. When Mr Wong asked the defendant to pay the fare, the defendant said he was not going to pay. Mr Wong thus followed the defendant in order to get the payment from him. Before the defendant was finally stopped inside Wan Chai MTR station, the defendant had pushed Mr Wong on several occasions causing him to sustain injuries.”

The defence case

4.The appellant elected to give evidence but did not call any defence witness.  The magistrate summarized the defence case as follows[3] :-

“ 4. The defence case is that the defendant was disturbed by the volume of the radio on the taxi. He requested Mr Wong to lower the volume of the radio but was ignored. When he leaned forward and tried to adjust the volume of the radio by himself, his arm was hit by Mr Wong. As a result, he felt not being treated like a passenger and he therefore left the taxi without payment. Mr Wong followed him for payment. On the way, he pushed Mr Wong on 3 occasions. He admitted he grabbed Mr Wong’s mobile phone while inside the MTR station in order to distract Mr Wong so that he would get time to walk away from Mr Wong. He alleged he only pushed Mr Wong for self defence or when Mr Wong was about to intrude his personal space.”

The magistrate’s findings

5.The magistrate has properly reminded herself of the burden and standard of proof[4]. She has also directed herself on the appellant’s good character[5]. In her Statement of Findings, the magistrate gave her reasons as follows[6]  :-

“ 9. Since there are two charges, I have to consider the evidence for each charge separately.

10. The prosecution only called Mr Wong to give evidence. His evidence was clear and straightforward. He was not shaken under cross-examination.

11. Defence criticized Mr Wong for being evasive and not admitting the dispute relating to the radio was the cause of the incident. While it is quite clear that there was dispute relating to the radio, it may not be clear to Mr Wong that the defendant decided to leave and not to pay as a result of Mr Wong’s brushing of the defendant’s arm. The defendant confirmed that he did not explain what he meant by “not accepting this” when he said this to Mr Wong while leaving the taxi. When Mr Wong asked him for payment, the defendant only replied he was not going to pay. Without any explanation, Mr Wong would not be in a position to know the reason for non-payment. While it may be unusual for taxi driver to touch the arm or any part of body of a passenger, it is an undisputed fact that the defendant leaned forward to fiddle with the radio and thus Mr Wong’s touching of the arm is not considered as unusual in such circumstances. Therefore, it may not be apparent to Mr Wong that this touching of the arm is the triggering event for the defendant’s leaving the taxi and non-payment of the taxi fare. In such circumstances, I do not consider Mr Wong was evasive in this aspect.

12. Defence pointed out that Mr Wong is not of clear record. He was involved in another court case involving fighting with passenger in relation to taxi fare. Nevertheless, no further details of the case or the circumstances of the fight was mentioned. In any event, the fact that Mr Wong was involved in another case does not necessarily mean that he is a dishonest person. I do not consider this to have any effect on his credibility in the absence of further details.

13. Apart from the above, there is no other serious challenge or criticizm of Mr Wong’s evidence. I find Mr Wong honest and credible. I accept his evidence and attach full weight to his evidence.

14. As far as the defence evidence is concerned, I have the following observations:

(1) There is no dispute that the defendant tried to adjust the volume of the radio. When he was about to do so, he was stopped. Mr Wong said he lightly brushed away the defendant’s arm while the defendant alleged his arm was strongly hit. The defendant alleged that in such circumstances, he was entitled to terminate the service and not required to pay the fare. Given that Mr Wong was driving his taxi, although it was stopping in front of a traffic light, he was still in the mode of driving and if the defendant’s hand suddenly appeared, it would be natural for Mr Wong to brush it away as oppose to strongly hit it. In any event, even if Mr Wong had strongly hit the defendant’s arm, I do not consider this to be so serious and fundamental to justify termination of the contract for the service. Thus, I do not accept this to be a valid reason for leaving the taxi without payment.

(2) Regarding the pushing of Mr Wong on several occasions, the defendant testified that the only reason for such push was that Mr Wong was within the personal space of the defendant. The defendant alleged that he believed he had the right to push Mr Wong to keep him from a distance. By personal space, the defendant meant arm’s length. On the other hand, when he leaned forward in the taxi attempting to adjust the volume of the radio, the distance between the defendant and Mr Wong was certainly less than arm’s length. Nevertheless, the defendant considered Mr Wong not entitled to brush away his arm. I consider the defendant was adopting different standard in order to justify his own acts.

(3) According to the defendant, after he was slapped on the arm by Mr Wong, he felt upset but not angry. But at the same time, he chose to leave immediately by saying “Sorry, I am not accepting this”. Before he left the taxi, he did not explain to Mr Wong what he meant by “not accepting this”. I consider that in such circumstances, it is very likely that Mr Wong did not know the reason why the defendant suddenly left the taxi without payment. I therefore do not accept the defendant’s evidence that it was all clear to Mr Wong at that time.

(4) All along, the defendant alleged that he was acting reasonably and trying to avoid Mr Wong. Nevertheless, it is clear from the evidence that instead of avoiding Mr Wong, he pushed him away several times. Further, while Mr Wong was chasing him, he even admitted snatching Mr Wong’s mobile and slipping it along the escalator in order to get time to run away. If the defendant truly believed he was entitled to terminate the contract for service and leave without payment, he should have explained that to Mr Wong instead of pushing him and walking away from him. I consider his reaction unreasonable.

15. In view of the above, I consider the defendant not credible. I reject his evidence.

16. On the issue of dishonesty, the leading authority is R v Ghosh [1982] QB 1053. There are two aspects to dishonesty. The court must first consider whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realized that what he was doing was by those standards dishonest.

17. As I remarked earlier, even if Mr Wong did hit the defendant’s arm, it is not so serious and fundamental to justify non-payment of taxi fare. If the defendant was not satisfied with the service and wanted to terminate it, he should tell Mr Wong but nevertheless is required to pay the taxi fare up to that point of time. Whether he would lodge a complaint about Mr Wong’s hitting of his arm or even sue him for compensation is a separate matter from the payment of taxi fare. However, the defendant did not explain to Mr Wong and left without payment. Mr Wong in such circumstances is entitled to chase after the defendant for the payment of the taxi fare. When Mr Wong chased after him, the defendant knew very well that Mr Wong was chasing for the taxi fare. However, he still did not explain but kept on walking away. The only irresistible inference is that the defendant walked away for the purpose of avoiding payment of the taxi fare. I am sure according to the ordinary standards of reasonable and honest people what was done by the defendant was dishonest. Further I find that the defendant, who is a well-educated person, must have realized that what he was doing was by those standards dishonest. I therefore find the defendant dishonest in avoiding payment of the taxi fare.

18. Based on the evidence I accepted (sic), I find the defendant knew that he had to make payment but he walked away without making any payment. His act was dishonest. Further, I do not consider his reason for not paying to be a reasonable excuse. When he was chased by Mr Wong for the taxi fare, he pushed Mr Wong away several times, not because Mr Wong was close to his personal space, but to avoid payment of the fare. In other words, I find he was not acting in self defence and his use of force is disproportional to any force exerted by Mr Wong. I find the defendant had assaulted Mr Wong causing him to sustain injuries.

19. In the circumstances, I find the prosecution has proved beyond reasonable doubt that the defendant had committed the two offences as charged.  I therefore find the defendant guilty of the two charges.”

Grounds of appeal

6.The appellant is represented by Mr David Boyton in this appeal.  Mr Boyton raised the following grounds of appeal:

(1)   In relation to both charges, the magistrate had erred on the facts by failing to consider all the surrounding circumstances and material points in the evidence and/or show that she had considered the said evidence, which may have supported the appellant’s (1) reasons for refusing to pay the taxi fare, and (2) the defence of self-defence.

(2)   The magistrate erred in law and/or the facts by finding the appellant’s evidence not credible and rejected his evidence, by applying a civil standard of proof to the prosecution witness’ testimony.

(3)   In relation to charge 1, whether the magistrate was wrong to find that an assault by a public service provider, on a passenger was not a fundamental breach of services.

My considerations

7.I will deal with Ground 3 first.

8.Irrespective of any culture, it must be common sense that the dashboard (including all knobs, switches, levers and buttons) is within a driver’s exclusive domain.  It is basic passenger etiquette (commercial or otherwise) not to touch anything on the dashboard without the driver’s permission.  This non‑written “rule” or understanding often applies even when someone as close as an immediate family member is driving.

9.Regulation 46 of Cap 374D reads :-

“ (1) A passenger or intending passenger on a public bus, public light bus or taxi shall not—

(a) use obscene or offensive language or conduct himself in a disorderly manner;

(b) wilfully obstruct, impede or distract the driver of the vehicle or an authorized person;

(c) wilfully do or cause to be done with respect to any part of the vehicle or its equipment, or any accessory thereto, anything which is calculated—

(i) to obstruct or interfere with the working of the vehicle or to cause damage; or

(ii) to cause injury, discomfort, annoyance or inconvenience to any other person;

……”

10.As a taxi passenger, the appellant, if unhappy with the volume of the radio, could certainly ask the driver, Mr Wong, to do something about it.  The appellant claimed that he had requested Mr Wong to lower the volume but was ignored.  Mr Wong, on the other hand, denied the fact that the appellant had made such a request when it was put to him by defence solicitor[7].

11.In my view, even if Mr Wong did ignore the appellant’s request (knowingly or unknowingly due to the language barrier), the appellant’s behaviour was clearly out of line by leaning forward from the rear passenger seat to adjust the radio volume by himself.  The appellant’s act would no doubt distract Mr Wong’s driving and/or cause annoyance to him, thereby breaching regulation 46(1)(b) and/or (c)(ii) of Cap 374D.

12.By leaning forward to adjust the radio, the appellant’s abrupt and unexpected act would certainly alarm Mr Wong.  Upon seeing an uninvited hand trying to reach the dashboard, a reasonable response of any driver would be to brush it off (for safety reasons or otherwise).

13.The appellant said Mr Wong “hit” his hand with force; whereas Mr Wong said it was a light brushing off[8].  In my view, irrespective of the strength applied by Mr Wong, it was not an “assault” on the appellant.  As I have explained above, I consider Mr Wong’s act an instinctive response (almost to the extent of a reflex action such as brushing off a flying bug).  As a juror, I am sure Mr Wong’s intention was not to “assault” the appellant, but simply to prevent an uninvited hand from intruding his dashboard.  In other words, I do not find Mr Wong having the requisite intent of committing an “assault” on the appellant.  In any event, he had a valid reason (or lawful excuse) for getting rid of the appellant’s hand.  Hence, no unlawful “assault” was committed.

14.In his closing submissions at trial, defence solicitor used the analogy of a customer being slapped [on the wrist, I assume for the purpose of discussion] by a waitress after receiving his plate of food. He submitted that in such circumstances, there is no room for discussion over what sum would be due.  And it would be reasonable for the customer to just get up and leave[9]. With due respect, defence solicitor has failed to examine the reason why the customer was slapped by the waitress.  What if the customer, having waited too long for his order, decided to snatch from the waitress a plate of food which was for another table and the waitress slapped him on his wrist in the process of defending that plate of food?  Did the waitress commit an “assault” on the customer?  I think not.  And what if the customer contaminated that plate of food during the struggle?  Is he liable to pay for it?  Of course, he is.

15.Based on the above analysis, I do not consider Mr Wong’s physical contact with the appellant’s hand constituting a “fundamental breach” of their driver/passenger relationship as suggested by Mr Boyton.  I agree with the magistrate that Mr Wong’s act of getting rid of the appellant’s hand did not justify his non‑payment of taxi fare.

16.Ground 3 fails.

17.In respect of Charge 1, since the appellant was liable to pay the taxi fare (at least up to the point when he left Mr Wong’s taxi), he could not unilaterally walk away by saying “Sorry, I am not accepting this” without paying Mr Wong.

18.Regulation 48 of Cap 374D reads :-

“ (1) No person shall—

……

(c)   having failed or refused to pay the fare demanded by the driver of a taxi, either refuse to give to the driver of the taxi his name and an address at which he can be found or give, with intent to deceive, a false name or address.

……”

19.Even if the appellant intended to challenge his obligation to pay his taxi fare, he was required to provide his name and address to Mr Wong under regulation 48(1)(c) of Cap 374D.  This is only fair to a taxi driver so that he could have the option to pursue the outstanding taxi fare by way of civil proceedings.

20.In short, subjectively thinking that Mr Wong’s service was substandard and thus not liable to pay him is not a reasonable excuse[10] for the appellant to simply walk away.  I do not see any other reasonable excuses available to the appellant for not paying Mr Wong either.  According to paragraph 13 of the Admitted Facts[11], the taxi fare lawfully due was $35.  The appellant was liable to pay that sum to Mr Wong.

21.The appellant displayed nothing but an arrogant attitude by just walking away from Mr Wong.  He did not bother to settle the situation amicably and tried to put all the blame on Mr Wong.  He did not even see the need to call the Police. 

22.I agree with the magistrate that when being chased by Mr Wong, the appellant must have known that he was pursued for one reason and one reason only ― taxi fare.  Yet, despite being chased by Mr Wong, the appellant used various means to avoid him (such as pushing Mr Wong away 3 times; and grabbing Mr Wong’s mobile phone in order to distract him). The irresistible inference must be that the appellant tried to avoid paying Mr Wong, which is dishonest under both limbs of the Ghosh test[12].

23.Since Ground 3 failed and I have dealt with the appeal against the conviction of Charge 1 by taking the appellant’s evidence to the highest, I need not deal with Grounds 1 and 2.  The conviction of Charge 1 is safe and satisfactory.

24.Based on the reasons stated above, I dismiss the appeal against the conviction of Charge 1.

25.Regarding Charge 2, I have some doubts about the evidence.  The magistrate did not elaborate on the how Mr Wong sustained his injuries.  In his closing submissions, defence solicitor made the same observations.  He commented that not even Mr Wong was able to say at which stage and where he was injured.  Furthermore, Mr Wong did not mention being punched or kicked; he only said he was pushed[13].  I am more concerned with how Mr Wong sustained his injuries rather than his credibility.  Did the appellant push him which caused him to fall?  The evidence is unclear.

26.There is no medical evidence of the appellant’s injuries, if any.  But I am aware that the left sleeve of his shirt was ripped and the left knee area of his pants was scuffed[14].  At present, there is insufficient evidence for me to discern what happened between the appellant and Mr Wong during the “pursuit”.

27.Since I cannot be sure whether Mr Wong’s injuries were caused by the appellant (and if so, how), I need not deal with the self‑defence issue raised by Mr Boyton.

28.I allow the appeal against the conviction of Charge 2 with conviction quashed and sentence set aside.

Ms Mickey Fung, SPP of the Department of Justice, for the respondent

Mr David Boyton, instructed by Littlewoods, for the appellant