HKSAR v. Yuong Ho-cheung
Read the full judgment text of HCMA 381/2018 on BabelCite. This High Court CFI judgment was delivered on 13 September 2019.
1. These are a series of conviction appeals [1] all of which originated from the consolidated trial before the learned magistrate, Mr Joseph To (“the magistrate”), who on 17 July 2018 convicted the Appellants (who were “Uber” drivers) and imposed on each of them a fine ranging from $3,000 to $4,500.
Cited by 3 cases · Cites 29 cases
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HCMA 381-399/2018, HCMA 401-402/2018, HCMA 404-405/2018 & HCMA 415/2018 (Consolidated) [2019] HKCFI 2280 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 381 OF 2018 (ON APPEAL FROM KCCC NO 3412 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 382 OF 2018 (ON APPEAL FROM KCCC NO 3413 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 383 OF 2018 (ON APPEAL FROM KCCC NO 3414 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 384 OF 2018 (ON APPEAL FROM KCCC NO 3415 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 385 OF 2018 (ON APPEAL FROM KCCC NO 3416 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 386 OF 2018 (ON APPEAL FROM KCCC NO 3417 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 387 OF 2018 (ON APPEAL FROM KCCC NO 3418 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 388 OF 2018 (ON APPEAL FROM KCCC NO 3419 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 389 OF 2018 (ON APPEAL FROM KCCC NO 3420 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 390 OF 2018 (ON APPEAL FROM KCCC NO 3421 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 391 OF 2018 (ON APPEAL FROM KCCC NO 3422 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 392 OF 2018 (ON APPEAL FROM KCCC NO 3423 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 393 OF 2018 (ON APPEAL FROM KCCC NO 3424 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 394 OF 2018 (ON APPEAL FROM KCCC NO 3425 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 395 OF 2018 (ON APPEAL FROM KCCC NO 3426 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 396 OF 2018 (ON APPEAL FROM KCCC NO 3427 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 397 OF 2018 (ON APPEAL FROM KCCC NO 3428 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 398 OF 2018 (ON APPEAL FROM KCCC NO 3429 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 399 OF 2018 (ON APPEAL FROM KCCC NO 3430 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 401 OF 2018 (ON APPEAL FROM KCCC NO 3432 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 402 OF 2018 (ON APPEAL FROM KCCC NO 3496 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 404 OF 2018 (ON APPEAL FROM KCCC NO 3969 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 405 OF 2018 (ON APPEAL FROM KCCC NO 3971 OF 2017) _______________________
_______________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 415 OF 2018 (ON APPEAL FROM KCCC NO 502 OF 2018) _______________________
_______________________ Before: Hon Alex Lee J in Court Date of Hearing: 15 and 16 April 2019 Date of Judgment: 13 September 2019 ________________________ J U D G M E N T ________________________ Introduction 1.These are a series of conviction appeals[1] all of which originated from the consolidated trial before the learned magistrate, Mr Joseph To (“the magistrate”), who on 17 July 2018 convicted the Appellants (who were “Uber” drivers) and imposed on each of them a fine ranging from $3,000 to $4,500. 2.Originally, there were a total of 27 appeals. After the Direction Hearing, there came two “Notices of Abandonments” (concerning HCMA 400/2018 & HCMA 403/2018[2]) and therefore the related appeals were subsequently marked dismissed[3]. Besides, the Appellant Mr Ching (in HCMA 406/2018) sadly passed away on 19 March 2019[4]. By consent and in accordance with HKSAR v Cheng Chee Tock Theodore[5]; HKSAR v Tang Tik Hung[6]; HKSAR v Choy Wing-lung Geoffiey Donahue[7], I exercised my discretion to terminate and abate his appeal and the related proceedings by reason of his death. As a result, this judgment only concerns the remaining 24 appeals. 3.As the appeals concerned involve common grounds of appeal[8], with the consent of the parties, at the Direction Hearing[9] I made an order that the appeals be consolidated and ordered the parties to agree on a set of “Statement of Common Facts”. This is because the evidence in each of the cases is not in dispute and the grounds of appeal are mainly about legal issues[10]. 4.Besides, in order to facilitate the hearing of the appeal, I directed the parties to file a “Statement of Issues” beforehand for ease of reference. 5.The two aforesaid documents, “Statement of Common Facts” and “Statement of Issues”, are attached to this judgment as Annexures 1 and 2 respectively. The charge 6.Each of the Appellants was charged with and convicted of a single charge of “driving a motor vehicle for the carriage of passengers for hire or reward without a hire car permit”, contrary to ss 52(3) and 52(10) of the Road Traffic Ordinance, Cap 374 (“RTO”)[11]. The brief facts 7.As I have said, the basic facts are not in dispute[12]. Mr Derek Chan, SC (and with him, Ms Katrina Lee) encapsulates them admirably in the Appellants’ Written Submissions[13] which I gratefully adopt as follows:
The rulings and findings by the magistrate 8.The magistrate’s “Statement of Findings”[14] can be broadly divided into two parts: the ruling on the law and the findings of fact. They are concisely and neatly summarized in the Respondent’s Written Submissions[15] of Mr William Tam, SC, DDPP (and with him, Mr Marcus Lee and Ms Cherry Chong) which I respectfully adopt as follows. 9.As regards the law, the magistrate ruled that:
10.As regards the facts, the magistrate found that:
11.Based on the above, the magistrate convicted each of the Appellants accordingly. The grounds of appeal and the other issues 12.The Appellants’ grounds of appeal boil down to the following complaints:
13.The Respondent seeks to uphold all the convictions but on a basis different from that of the magistrate. Neither the Appellants nor the Respondent support the magistrate’s ruling that the offence pursuant to s 52(3), RTO is unconstitutional by reason of “overbreadth”, nor do any of them seek a remedial interpretation of the provision. 14.Moreover, neither side is happy with the interpretation which the magistrate put on s 52(3), RTO and each of them advocates for a different interpretation of the provision. The Respondent disagrees with the magistrate that the offence under s 52(3), RTO is not a strict liability offence. The Respondent submits that the offence is one of strict liability and that an accused bears the burden to prove on the balance of probabilities that he acted in the honest and reasonable belief that the journey was other than “for the carriage of passengers for hire or reward”. On the other hand, although the Appellants agree with the magistrate that there is a mens rea requirement which entails the prosecution proving the defendant driver’s purpose, they take issue with the magistrate as to what that purpose is about. 15.As to ground (5), the Appellants, consistent with their stance taken before the magistrate, acknowledge that this court is bound by the decision of the Court of Appeal in Leung Sze Ho Albert v Bar council of the Hong Kong Bar Association[22]which is against them. As such, they would reserve this ground for future consideration if necessary[23]. Because of that, no argument has been advanced by either sides on this issue. Therefore, I will not deal with this ground at any length, save and except to say that I agree with the Appellants that this ground is not reasonably arguable before this court in view of Leung Sze Ho Albert’s case. Applicable legal principles about magistracy appeals 16.It is well-established that the appeals under consideration, which are brought under s 113, the Magistrates Ordinance, Cap 227, are to be conducted “by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so”: see Chou Shih Bin v HKSAR[24]. 17.This court, sitting in its the appellate jurisdiction, is to apply the law as it is at the time of rehearing and if the law has changed then the appellate court applies the correct legal principles to the evidence before it. The fact that the law has changed does not automatically mean that the appeal must be allowed. Much depends upon the nature of the legal change and its impact upon the proceedings below. If this court can make allowance for that error and still discharge its function of determining whether on the evidence adduced at trial the prosecution has proven the guilt of the defendant beyond reasonable doubt then it should do so: HKSAR v Ip Chin Kei[25]. 18.Where the facts are concerned, the appellate tribunal would recognise that it did not enjoy the advantage of having received the evidence at first hand, but even so, it would not fail to quash a conviction that it considered unsafe. Whilst this court has to bear in mind that it does not enjoy the advantage of having received the evidence at first hand, it is bound to come to its own conclusion: Chou Shih Bin v HKSAR, ante. Moreover, when the findings of fact are based on documentary evidence or inference drawn from admitted facts, then this court would be in no less advantageous position in making an assessment than the magistrate: Chong Ching Yuen v HKSAR[26]; and Ting Kwok Keung v Tam Dick Yuen & Ors[27]. The offence-creating provisions 19.It would be convenient for me to set out the relevant parts of s 52, RTO, as follows:
20.Various terms used in s 52(3), RTO including “motor vehicle”, “hire car permit”, “light bus”, “public bus”, “public light bus”, “taxi”, “private bus” and “private light bus” have been defined in s 2 of the same ordinance. 21.On the other hand, whilst the current legislative scheme still maintains a distinction between “private” and “public” motor vehicles, their respective definitions contained in the old legislations have been removed so that the two terms are left undefined in RTO. I will come back to this topic in due course. Statutory interpretation 22.Central to this appeal is how the phrase “for the carriage of passengers for hire or reward” should be interpreted in the context of s 52(3), RTO. 23.The principles of statutory interpretation are well-established and not in disputes:
Legislative history & social context 24.Insofar as it may assist one in understanding the legal and social context of the current RTO (Cap 374), its predecessor was the Road Traffic Ordinance (Cap 220) which was first enacted in 1957[39]. Cap 220 had 86 sections in the principal ordinance which carried with it 24 pieces of subsidiary legislations. By regulations 29(2)[40] and 44 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, it was an offence for any person to
25.In 1970s, a problem emerged which was about the use of private cars as unofficial and unlicensed taxis commonly known as “pak pai”. In Leung Tak-kuen v The Queen[41], the Full Court described the situation as follows:
26.Then in 1977, substantial amendments were introduced by the Road Traffic (Amendment) (No 2) Bill 1977. Among other things, that Bill proposed a hire car regime for private vehicles with a view to combat the then prevalent and unregulated operation of “pak pai”. Thus, on 1 June 1977 when the then Secretary for Environment moved for its second reading, he said[43]:
27.The Secretary also had the following to say about the proposed regulatory regime[44]:
28.Shortly after the passing of the Bill[45] into legislation in the same year, new provisions[46] were added to amend the then s 29 of the Road Traffic (Registration and Licensing of Vehicles) Regulations for the implementation of the aforesaid scheme. As a result, s 29(2)(a) (about private cars) was removed and a new s 29(2A) was added which read as follows:
29.The Explanatory Note of the Legal Notice said that:
30.There is not dispute between the parties that the current s 52(3), RTO owes its origin to s 29(2A), Cap 220H. As an aside, I note that the magistrate said the scope of prohibition of s 52(3) is “much wider” that its predecessors in that the old law only prohibited private hire of 5 categories of “registered” motor vehicles[50]. With respect, I beg to differ bearing in mind that in old law, motor vehicles were only divided into the classes which “indicate the purpose for which the vehicle may be lawfully used”[51]: (a) goods vehicles; (b) taxis; (c) public cars; (d) private cars; (e) public omnibuses; (f) private omnibuses; (g) motor cycles; (h) motor tricycles; (i) invalid carriages; (j) public light buses; and (k) private light buses. Putting aside those classes (concerning “public” vehicles, taxis and “goods” vehicles) which are not relevant, I do not think that it can said that s52(3) is for practical purpose any wider than its predecessors. 31.Returning to the legislative history, there was a major revamp of the law on road traffic. When the then Secretary for Transport moved the second reading of the Road Traffic Bill 1982 (which later became the RTO), he said[52]:–
32.It can be seen from the above that one main aim of the aforesaid revision exercise was to move and consolidate various offence creating provisions from different subsidiary legislations to the new principal ordinance. 33.It is also clear, from the brief review of the legislative history above, that the common purpose behind the old s 29(2A), Cap 220H and its successor s 52(3), RTO was to control and restrict through a licensing regime the use of private motor vehicles for hire. 34.In HKSAR v Cheung Wai Kwong[53] Fok PJ, who gives the judgment of the Court of Final Appeal, explains the legislative purpose behind s 52, RTO. Although that case relates to s 52(1), much of what is said in that case is just as pertinent here:
35.The magistrate in his Statement of Findings[54] proposed an attractive theory that the enactment of RTO in 1982 represented a legislative response to the call of English courts in cases like Wyatt v Guildhall Insurance Company Ltd[55] and Connell v Motor Insurers’ Bureau[56]. He said,
36.It should be noted, however, that the line of English cases the magistrate referred to was all about motor insurance rather than road traffic control, so that the context was very different. Also, those English cases were on the interpretation of the phrase “a vehicle in which passengers are carried for hire or reward” used in the English legislation which has not been adopted in our RTO or its predecessors. In this regard, I take heed of what was said by the Full Court (Hogan CJ & Blair-Kerr J) in Attorney General v Lun Chan[57] that,
37.Moreover, a survey of local case authorities does not reveal any “profound state of confusion” then existing in the road traffic law in Hong Kong as it was perceived in UK:
38.Based on the above, with respect, I accept the submissions of Mr Tam that the magistrate’s theory about the enactment of RTO being a response to the “profound state of confusion” in the English law is not borne out by the Hansard, local case authorities or any evidence. In my humble view, the enactment of RTO was rather a response to the situation then existing in and peculiar to Hong Kong. “Public/Private” distinction and “for hire or reward” 39.As mentioned above, RTO, unlike its predecessors, does not contain any definitions for the terms “public” and “private”. However, the distinction between the two is still important for one to properly understand the legislative scheme of RTO and the policy behind it. 40.In my humble view, a strong proposition can be made that, the purpose of the legislative scheme in RTO, “public” motor vehicles are generally those which are used or intended to be used “for hire or reward”[64] and that their service is expected to be accessible by the general public. On the other hand, “private” motor vehicles are generally those which are used or intended to be used “otherwise than for hire or reward” and their service is intended to be accessible by the public. Support for the proposition comes from the following. 41.Firstly, the phrase “for hire or reward” had been used in the previous legislations to mark the “public/private” distinction. Thus, in the successive versions of Cap 220, at s 2(2), “private cars” were said to be “any cars which are not public cars or taxis and are not used to carry passengers for hire or reward.” 42.Secondly, there is the consistent manner in which the phrase “for hire or reward” is used throughout RTO. By a word search of the e-legislation, the phrase “for hire or reward” appears a total of 14 times in RTO: eight of them are in s 2 (the definition section)[65]; one in each of s 7 and s 27; and four in s 52 (the offence-creating section under consideration). 43.In s 2, RTO:
In view of the exclusivity of the target passengers under (b)(i) and (ii), the fact that a “bus” can be “private” “whether or not for hire or reward” does not derogate from the general proposition under consideration. In contrast,
44.There is a similar distinction between “private light bus” and “public light bus”:
Again, the exclusivity of the target passengers is noted when a private light bus is used or intended to be used “for hire or reward”. In contrast,
45.As regards “school private light bus” (學校私家小巴), it is a special category of its own in that it bears a label of “private” whether or not it is “for hire or reward”. However, that can be explained on the basis of its restrictive primary usage and target passengers:
46.Although “taxi”[66] is defined somewhat circularly in RTO as a motor vehicle registered as such, I think that no one would doubt that a taxi is “for hire or reward”. Besides, it is consistent with the proposition under consideration that a taxi is not regarded as a private motor vehicle but is included in the definition of a “public service vehicle” (公共服務車輛):
47.The fact that a private motor vehicle with a hire car permit can also be a “public service vehicle” does not derogate from the proposition. This is because:
I note also that the issuance of hire car permits is restricted to limited and specific categories all of which are hire cars[68] and the number of permits for each category is also limited[69]. 48.For the sake of completeness, as regards the remaining two places in RTO where “for hire or reward” appears:
As such, the way in which the phrase was employed in those two provisions is in harmony with the proposition. 49.Thirdly, it is clear that the purpose of S52(3), RTO is to implement a regime against the driving or using, as the case may be, of any private motor vehicles for the carriage of passengers “for hire or reward”. This regime is also reinforced by the following subsections of s 52, RTO:
50.The aforesaid regime, however, is subject to exceptions:
The common feature of the above exceptions is the requirement of an existing licence or permit in respect of the vehicle concerned. As a consequence, it matters not whether the motor vehicle in fact bears a “public” character or what its normal or habitual usage is: cf Chan Kai-lap v The Queen, ante. It is the presence or otherwise of a licence or permit which is important. 51.Lastly, as pointed out by the magistrate, different from the old legislative scheme where vehicles with a “public” character were referable to either the following concepts, namely (i) standing or plying for hire or available and intended for hire and (ii) carrying goods or passengers for hire or reward[70], the former now assumes a much more restricted role than before. Although RTO still retains a definition for “standing or plying for hire”[71], it is only used once in the body of RTO and that is at s 52(6). Besides, it is not an element of the offence pursuant to s 52(3). Whilst the phrase “standing or plying for hire” also appears in ss 37B and 51, Road Traffic (Public Service Vehicles) Regulations (Cap 374D), on both occasions it is used in relation to taxis or taxi drivers which are not relevant for the present purpose. Judging from the above, it is clear that the Legislature has ceased to employ the concept of “standing or plying for hire” for the purpose of marking the “public/private” distinction. Instead, whether the motor vehicle concerned is “for hire or reward” has become the major, if not the sole, criterion. The elements of offence 52.I now turn to consider the elements of the offence pursuant to by s 52(3), RTO. 53.Mr Chan submits that the magistrate is right that, by the use of the phrase “for the carriage of passengers for hire or reward”, s 52(3) imposes a mens rea requirement in that it requires the proof of a purpose. 54.With respect, I agree that this is the natural and ordinary reading of the provision. I agree with Mr Chan that the connecting word “for” which appears twice in the expression “for the carriage of passengers for hire or reward” can only be referring to the subjective purpose for which the actus reus (“driving” or “using”) was committed. Furthermore, I also agree that, as regards s 52(3)(a), it is the relevant purpose of the person who drove or used (as the case may be) the motor vehicle concerned at the material time. In other words, the offence is proven only if the accused was driving or using the motor vehicle for the purpose of carrying passengers and at the same time that carriage was “for hire or reward”. I can find nothing in the legal and social context of RTO or its legislative intent which points to the otherwise. As such, with respect, the contrary submission of Mr Tam is not accepted. I will come back to this when I deal with the Respondent’s submission on “strict liability”. 55.Therefore, in my judgment a person will be caught by s 52(3)(a) if he:
unless he can avail himself of any of the statutory exceptions provided in s 52(3)(b) as discussed above. 56.As regards the respective meaning of “driving” and “using”, they have been authoritatively explained in HKSAR v Cheung Wai Kwong, ante. I can see no reasons why those words should not bear the same meaning in s 52(3) as in s 52(1). 57.As regards what is a “motor vehicle”, it is defined in s 2, RTO[72] and explained in Attorney General v Ho Kam Mun, which is cited with approval in Jockey Club Kau Sai Chau Public Golf Course Ltd v HKSAR[73]. 58.I will further elaborate further on (iii) when I deal with the Appellants’ first ground of appeal. It suffices for me to say at this point that the offence focuses at the act and purpose of the defendant driver whilst the exceptions focus on whether the motor vehicles concerned have a licence or permit, as the case may be. 59.I now turn to consider the grounds of appeal. Ground 1: agreement for carriage between the driver and the passenger The magistrate’s finding 60.The magistrate held that an agreement for carriage between the driver and the passenger is not necessary for the conviction of an offence pursuant to s 52(3), RTO. He based his ruling by first holding that there was “a sharp contractual demarcation” between “private cars” and “taxis” under the 1957 enactment in that the characterization of a vehicle as one or the other hinged upon, among other things, the existence or otherwise of a carrier contract. On the premise that the enactment of RTO was an attempt of the legislature to remedy the perceived confusion in the regulation of illegal hire cars, the magistrate sought to free himself from appeal cases cited by the Prosecution on the interpretation of “for hire or reward”. Then, the magistrate relied on references to “contract express or implied” having been supposedly removed from the provisions in the current RTO regime to make good his finding that an agreement for carriage between the driver and the passenger as contended by the defence is not required by s 52(3). 61.Both Mr Chan and Mr Tam submit that the magistrate has erred in holding that there had been a “contractual demarcation” in old legislative scheme. 62.To consider the magistrate’s holding on the existence of the so-called “contractual demarcation” relating to the old legislation, it would be convenient for me to set out below the meaning of “public car”, “private cars” and “taxis” in the old Cap 220:
63.By a comparison of the above provisions, I agree with Mr Chan that the use of the phrase “contract expressed or implied” was not to create a “contractual demarcation” as held by the magistrate. This is because:
Thus, as submitted by Mr Chan, the magistrate’s reasoning for holding is, with respect, based on a false premise. Mr Tam also does not support the magistrate’s reasoning either. Therefore, it is necessary for this court to consider and rule on the true interpretation of the provision in order to deal with this ground of appeal. 64.Mr Chan submits that s 52(3) RTO requires proof that the accused was driving for the purpose of hire or reward that “flows from” his carriage of passengers. Following from that, Mr Chan further submits that the offence is proven “only if” the accused was driving for the purpose of fulfilling “a direct agreement for carriage” with the passenger (i.e. for the carriage of passengers) from which he was to be rewarded (i.e. for hire or reward)[74]. However, this part of Mr Chan’s submission on the requirement of a “direct carriage of carriage” has not been entirely consistent. At first, Mr Chan submits that:
Upon being queried by this court whether the “common intention” which the Appellants contended for is a piece of evidence or an element of offence, Mr Chan, in his written note[76], says:
65.With respect, I am unable to accept Mr Chan’s submissions that the offence under consideration is proven “only if” the Appellants were driving for the purpose of fulfilling “a direct agreement for carriage between himself and the passenger”. My reasons are as follows:
66.With respect, Mr Chan’s concession in his “Written Note” is correct that a “common expectation” between the driver and his passenger that the driver would be paid for the former’s service is “evidence” which allows the court to infer that the driving was “for the carriage of passengers for hire or reward”. However, one must not confuse a piece of evidence which tends to prove an element of offence with the element of offence itself. There is a distinction between accepted common law principles of interpretation and “remedial interpretation” which I will come to in due course. In my judgment, as a matter of accepted common law principles of interpretation, there is simply no warrant to read words into s 52(3) requiring the proof of a “direct agreement” or a “common expectation” as contended by Mr Chan or any proof of the state of mind of the passenger concerned. 67.Based on the above, in my judgment an agreement for carriage between the driver and the passenger inter se can be relevant but only as a piece of evidence to the offence pursuant to s 52(3), RTO. However, the absence of such an agreement is not fatal. Ground 2: “overbreadth” & remedial Interpretation The magistrate’s finding 68.The issue of “overbreadth” was not raised by either side at the trial. However, the magistrate, because of his construction of s 52(3) RTO, found that the provision was too wide that it would put a large portion of the driving public, such as employed chauffeurs, within its terms. As such, the magistrate found that the provision was overly broad as to be contrary to Article 28 of the Basic Law[82] and references were made to Lau Cheong & Another v HKSAR[83] and So Wai Lun v HKSAR[84]. Therefore, the magistrate, in an attempt to preserve the validity of the provision, adopted what he said to be a “remedial interpretation” by imposing a requirement on the provision that the “reward” must be based on distance travelled. This requirement, the magistrate so held, was based on the supposed distinction between the use of “hire or reward” and “hire and reward” in the old regime[85]. The magistrate found that:
The Appellants’ stance 69.Mr Chan’s submission is that the magistrate was right that s 52(3), RTO, if based on the magistrate’s construction, would be overly broad. He submits, however, that the magistrate’s construction requires the altering or adding of non-existent words to the statutory language in order to adopt the outdated legislation to a new state of affairs, which does not in any event achieve a desired outcome[87]. Mr Chan submits that the problem of overbroad would be solved if one reads into the provision “a requirement that a driver must be driving to fulfil an agreement of carriage with the passenger”[88]. The Respondent’s stance 70.On the other hand, Mr Tam submits that the issue of “overbreadth” is simply not engaged and in any event he does not agree with the remedial interpretation as formulated by the magistrate. Consideration 71.I derive the following guidance from the judgment of Sir Anthony Mason NPJ in HKSAR v Lam Kwong Wai & Another[89], with whom the other members of the Court of Final Appeal agree, regarding the approach that the court should take when dealing with a constitutional challenge against the validity of a statutory provision:
72.It is noted in Lam Kwong Wai & Another that “remedial interpretation” was more radical than common law interpretation, that it is an interpretation given to preserve a statute’s validity, but the interpretation is not one the statute is capable of bearing as a matter of ordinary common law interpretation. Such interpretation is a departure from the legislative intent and does not depend on the particular form of words used. The interpretation involves the well-known techniques of severance, reading in, reading down and striking out[90]. 73.As to the meaning of “arbitrary” in Article 28 of the Basic Law and the scope of that Article, it is held in Lau Cheong & Anor v HKSAR, ante, applied in So Wai Lun v HKSAR, ante that:
74.Whether or not the concept of “overbreadth” is to be regarded as an aspect of the protection against “arbitrariness” entrenched by Article 28 of the Basic Law or pertaining to a separation protection generally entrenched by Article 39[91], based on what I consider to be the true construction of s 52(3), RTO according to accepted common law principles of interpretation, in my humble view the issues about “arbitrariness” or “overbreadth” are simply not engaged. My reasons are as follow:
75.As to the contention that the “new wine” of Uber cannot be put into the “old wine skin” of s 52(3), RTO, Mr Chan submits:
76.With respect, I am unable to accept the above submissions. The service provides by “Uber” drivers nowadays is not unlike that of “pak pai” drivers in the 1970s. What is new is (a) the insertion of an intermediary (“Uber”) which facilitates and arranges the provision of carriage service by the driver to the passenger; and (b) a new payment method so that the passenger will not be paying the driver directly. However, neither (a) nor (b) bears on any of the elements of offence pursuant to s 52(3). Moreover, I do not think that a “pak pai” driver back in 1970s would have escaped liability simply by using a human go-between helping him to look for and arrange passengers in return for a share in the fare. The terms of the predecessor of s 52(3), RTO could easily cover that situation. There has never been any requirement in the law, before or after the enactment of RTO, as to how the defendant driver should meet his passenger and how the fare is to be paid in order to make out the offence. Although the use of an intermediary might not have been common back in the 1970s, I do not agree that it was a situation not contemplated by the legislature. By the same token, in my view, the wording of s 52(3), RTO is also “speaking to” Uber’s mode of operation and is capable of covering the Appellants’ activities in question. What might not have been contemplated by the legislature is the substitution of an online platform for a human intermediary. However, this change in technology does not affect the policy behind the legislation. 77.In view of my judgment that s 52(3), RTO, properly construed, is Basic Law compliant, it would not be necessary for me to deal with the “remedial interpretation” which the magistrate puts on s 52(3), RTO. If it is argued that there should be a change in the policy behind s 52(3), RTO restricting of the use of private motor vehicles for carriage of passengers for hire or reward, any such change must be left to the Legislature. 78.Without any disrespect to the substantial amount of work devoted by the magistrate in his attempt to achieve a “remedial interpretation”, I hope that I can be forgiven for not dealing with his formulation in any detail. It suffices for me to say, with respect, that the distinction he drew between “hire or reward” and “hire and reward” in respect of the old Cap 220 regime is not justified when put in context:
As pointed out by Mr Chan, the use of a fixed or agreed rate allowed for situations where the fare could be calculated on the basis of, inter alia, the distance travelled. Therefore, the magistrate, with respect, erred in drawing a distinction between “hire and reward” and “hire or reward” on the basis of whether the fare was calculated according to the distance travelled. As I have noted, the magistrate’s formulation is not one which commends itself to either the Appellants or the Respondent. 79.In my humble judgment, the magistrate also erred in imposing a requirement of interdependence between the reward and the distance travelled, as it is not borne out by the plain wording of the provision. Ground 3: Contractual relationship between Uber and the Appellants 80.Mr Chan submits that the magistrate’s finding that there was no evidence that any of the Appellants was performing a contractual duty owed to Uber or anyone is contrary to the evidence. It is submitted that it is reasonably clear on the evidence that the Appellants were (or might have been) driving for the fulfilment of their independent contractual obligations (employment or otherwise) toward Uber, as opposed to driving for the arrangement between the Appellants and the passengers. In other words, the Appellants were, according to Mr Chan’s construction of s 52(3), not driving “for the carriage of passengers for hire or reward”. It is also submitted that, for the purposes of s 52(3) of the RTO, there is no legal difference between privately employed chauffeurs and Uber drivers on the evidence presented in the present cases. Therefore, if privately employed chauffeurs do fall outside the ambit of s 52(3), so should the Appellants. 81.With respect, I am unable to accept the above submissions. In my judgment, whether or not the Appellants was performing a contractual duty owed to Uber is not determinative of the appeals. 82.As regards Mr Chan’s submission that the Appellants’ position was not different from privately employed chauffeurs, I beg to differ. First of all, there was no evidence before the magistrate that the Appellants were employees of Uber. That was not the stance of the defence at the trial and I do not understand Mr Chan to be arguing the otherwise now. Secondly, I have already rejected Mr Chan’s contention that it is a condition for a conviction of the offence under s 52(3) that the driver and the passenger had a direct agreement for carriage. No issue was taken that the Appellants were driving “for the carriage of passengers” and that they knew at the time that the passengers would be charged for the carriage they were providing. In my view, the only live factual issues are (i) whether the Appellants had a subjective purpose in their mind which was predominately business or commercial in character; and (ii) whether the reward, if any, which they expected to receive was to be derived from that particular carriage. If the answers to the above are to be given in the affirmative, then the Appellants’ activities would clearly fall within the ambit of s 52(3), RTO and are clearly distinguishable from those of privately employed chauffers. That leads me to the next ground of appeal. Ground 4: “Piercing” of “Contractual Veil” 83.The magistrate found that[100]:
84.Mr Chan submits that the magistrate erred in the above holding in that there was no evidence that any arrangements between Uber and the Appellants were created in order to “mask” anything, let alone the existence of any journey-dependent reward. Amongst other matters, the Uber App itself clearly showed that the fares paid by the passengers to Uber related entities were distance-based with a proper receipt issued to the passengers via email. What was not proved by the Prosecution with direct evidence was the nature of the reward (if any) payable by Uber to the Appellants and the nature of the arrangement between Uber and the Appellants. It is also submitted that the Prosecution had failed to adduce any evidence capable of supporting the “piercing” of a contractual veil and the learned Magistrate was incorrect to place the burden on the Appellants to prove a lack of ulterior motive in their contractual relationship with Uber. 85.In view of my judgment that a “remedial interpretation” of s 52(3) is not called for, I do not intend to deal with this part of the magistrate’s holding at length. With respect, as I have said, the absence or presence of a contractual relationship between the Appellants and Uber is not determinative of these appeals if the Appellants’ activities and state of mind otherwise fall within the ambit of the provision. Strict liability 86.The prosecution has argued, both at the trial and in these appeals, that the offence under s 52(3) is one of “strict liability”. The submission was rejected by the magistrate[101]. Having reviewed the relevant case authorities, including Hin Lin Yee v HKSAR[102], the magistrate said[103]:
87.The magistrate concluded by saying that:
88.Mr Tam submits that the above determination by the magistrate is erroneous in that “for the carriage of passengers for hire and reward” merely describes “a state of affair to be assessed objectively but not a mens rea requirement by itself”[105]. Mr Tam submits that once the prosecution proves that a private car has been driven for the carriage of passenger for hire or reward (as an objective state of affair), the driver cannot claim that he can drive a private car as an unlicensed taxi without obtaining approval from the authorities. Mr Tam further submits that it accords with the policy objective of combating illegal hire cars to require the driver to prove that he had driven the car in a mistaken but honest and reasonable belief that the nature of the journey was lawful[106]. 89.Before dealing with the above submissions of Mr Tam, I note first of all that there has not been any appeal by the prosecution against the magistrate’s ruling on “strict liability”. Since the prosecution contends that the magistrate’s determination on “strict liability” is erroneous as a point law, if they desire to have a ruling from the higher courts on this point, the proper way is for them to seek a case stated appeal pursuant to s105 of the Magistrates’ Ordinance, Cap 227[107]. A case stated appeal by the prosecution is not premised on an acquittal. Being a party to the proceedings below, the Respondent could have applied for a case stated as of right but that had to be done within the time limit of 14 days after the magistrate’s determination. The time limit has long expired and no extension has been sought. 90.Since there has not been any appeal from the prosecution, and since I agree with the Appellants to the extent that s 52(3), RTO carries a mens rea requirement but that requirement, in my judgment, have been met to the requisite standard based on the available evidence, I do not think that it is necessary for me to deal with the Respondent’s submission on “strict liability”. However, in deference to both counsel, I would say a few words as to why I agree with the magistrate that the offence in question is not one of strict liability. 91.As mentioned above, I am unable to accept Mr Tam’s submission that an offence under s 52(3) is one of strict liability. 92.First, I agree with Mr Chan’s submission that the principles expounded in Hin Lin Yee and Kulemesin regarding the displacement of the common law presumption of mens rea are only relevant where the provision is silent or ambiguous as to the requirement of the mental element in question. However, this is not the case with s 52(3), RTO. Although I do not agree with the magistrate that an offence under s 52(3) offence “does not have any of the regulatory characteristics”, as discussed above by a plain and ordinary reading of s 52(3), it is clear that the provision expressly requires mens rea by using the connector “for” to link up the act of driving of a motor vehicle with the purpose of “the carriage of passengers for hire or reward”. 93.Secondly, if it is accepted that the phrase “for the carriage of passengers for hire or reward” pertains to the purpose of the driving which is the actus reus of the offence, then that purpose must be the purpose of a specific human being, rather than an objective purpose of the vehicle in general. 94.Thirdly, it is clear and natural reading of the provision that it is the defendant driver’s purpose that the provision is concerned about: Leung Kui Fai v Attorney General[108]. 95.Fourthly, the statute book is rife with examples of offences which have a mental element, notwithstanding that words such as “knowingly” or “with intent” are absent. As Mr Chan points out, obvious examples of those include offences in the Prevention of Bribery Ordinance, Cap 201, in which the phrase “as an inducement to, or reward for, or otherwise on account of” appears in ss 4, 5, 6, 7 and 9 of the POBO and that provides the link between the advantage and the subjective purpose of the offender for which the advantage is solicited, offered or accepted. Ground 5: freedom of choice of occupation 96.As mentioned above, the Appellants acknowledge that this court is bound by the decision of the Court of Appeal in Leung Sze Ho Albert v Bar council of the Hong Kong Bar Association, ante, which is against the Appellants. As such, I am not going to deal with this point which, if need be, will have to be taken in another venue. Factual Findings 97.Turning to the factual findings, the magistrate said[109]:
98.As regards the finding at §191(ii) that there was an interdependence between the reward and distance travelled, although this conclusion may be justified on the evidence before the magistrate, because of my view that a “remedial interpretation” is not called for, in my humble view this finding is not necessary for conviction. 99.As regards the finding at §191(v) above that the contract, if any, between the Appellants and Uber must have been entered into to mask the interdependence between the fares and the journeys cannot be supported. There was no evidence to show that the Appellants intended to “mask” anything. However, in my humble view this is an irrelevant consideration and, as I have said, not determinative of these appeals. 100.As regards the finding at §191(vi)(a), in my humble view, it is not a necessary condition that payment is the “sole” reason or purpose for the carriage in question provided that the defendant driver’s purpose is of a predominantly commercial or business character. 101.Save and except the aforesaid reservations, by way of hearing, based on the evidence before the magistrate[110] and in the absence of any additional evidence filed for the purpose of these appeals, I agree with the rest of the findings made by the magistrate at §191 of the Statement Findings. 102.As regards §192 of the Statement of Finding, I agree to the extent that s 52(3) does not require the reward to be paid specifically by the passenger or received specifically by the driver. However, as discussed above, I do not agree that there has to be actual payment before the full offence can be completed. As I have said, “for hire or reward” pertains to the mental element of the offence rather than the actus reus. 103.As aforesaid, there is no dispute that at the material times the Appellants were driving a motor vehicle “for the carriage of passengers” and that the motor vehicles in question did not have a relevant licence or permit. By way of rehearing, in the absence of evidence to the contrary, I have no doubt that the Appellants were providing the carriage for a purpose which was predominately commercial or business in nature rather than a friendly or social arrangement. Moreover, I find further that the only reasonable inference is that the Appellants were not performing the carriage gratuitously but were expecting a reward in return which was to be derived from the particular carriage in question, albeit not directly from the passengers concerned. Conclusion 104.Based on the reasons given above, the appeals are dismissed. 105.It only remains for me to thank counsel for their valuable assistance.
Mr William Tam, SC, DDPP leading Mr Marcus Lee, SPP(Ag) and Ms Cherry Chong, PP of Department of Justice, for the Respondent Mr Derek Chan, SC leading Ms Katrina Lee, instructed by Messrs Haldanes, for the Appellants
STATEMENT OF COMMON FACTS The 1st to 22nd and 24th to 27th cases (KCCC 3412-3432, 3496, 3969, 3971 & 3974/2017 and 502/2018) (HCMA 381-402, 404-406 & 415/2018) (a total of 26 cases) 1. The decoy officers and two civilian witnesses (“PWs”, collectively) registered accounts for using the “UBER” mobile applications (the “Rider Apps”) by providing their account identifiers, email addresses, mobile phone numbers and credit card numbers. 2. On the dates of the offences, all PWs logged in the Rider Apps on their mobile phones and requested for “uberX”[111], “UberBLACK”[112] or seven-seater[113] carriage services by setting their locations as the pick-up locations and certain locations as the destinations. Most of the Rider Apps subsequently displayed maps showing PWs’ respective locations[114] and that there were small cars in the vicinity[115]. The Appellants’ nicknames[116], photographs depicting the Appellants[117], vehicle registration marks of the cars and descriptions of the car models were also displayed on the Rider Apps. Some PWs received telephone calls on their mobile phones and had telephone conversations with the callers (see Annex I). 3. A while later, the Appellants drove private cars to the pick-up locations. PWs boarded the cars from the rear doors. Some Appellants confirmed the destinations with some PWs when they boarded the cars (see Annex II). Afterwards, the Appellants drove the cars off with PWs on board. Throughout the journeys, the Rider Apps on some of PWs’ mobile phones displayed small cars which showed the real-time locations of the relevant cars on the maps and the estimated arrival time.[118] During the journeys, some PWs had conversations with some Appellants (see Annex II).[119] 4. The journeys were completed in most of the cases. However some of the Appellants were arrested before they arrived at the destinations.[120] Whether or not the journeys were completed, all PWs received electronic bills/ receipts/ emails confirming the fares of the journeys. The Rider Apps on some of PWs’ mobile phones also displayed a page where PWs could give a rating on a scale of five stars.[121] Bank records of PWs confirmed that payments were made in favour of UBER, UBER HK, UBER BV, UBER TRIP or UBER ADJ from PWs’ registered credit cards. 5. Upon subsequent police enquiries and under caution, 17 Appellants[122] confessed to have worked as Uber drivers. Amongst the 17 Appellants who confessed, 16 of them[123] stated that Uber remitted their shares of the fares of the journeys to their bank accounts. Out of the 16 Appellants who acknowledged the remissions from Uber, 11 of them[124] stated that Uber transferred to them around 75% of the fares of the journeys, whilst 4 of them[125] had no idea or could not recall how their shares were arrived at, and the remaining one[126] made no admission in respect of the details of the share arrangement (see Annex III). 6. Some of the Appellants’ mobile phones were seized from the Appellants.[127] Some of them contained the “Uber Driver” or “Uber Partner” mobile applications (the “Driver Apps”, collectively) in which there were records including the details, charging rates and fare records of the subject journeys, accounts registered under the Appellants’ names, details of the cars and some income records (see Annex IV). Some of them also contained telephone records between the Appellants and PWs. 7. As at the dates of the offences, there was not any hire car permit within the meaning of section 2 of the Road Traffic Ordinance, Cap. 374 (the “Ordinance”) in force in respect of the cars driven by the Appellants. The 23rd case (KCCC 3629/2017) (HCMA 403/2018) 8. Prior to the subject journey on 17 May 2017, Mr. Gino BONIFACIO, a businessman from the Philippines, registered for the Rider App by providing his personal details and details of his own credit card for payment. 9. On 17 May 2017, Mr. BONIFACIO logged in the Rider App to request for carriage services. Similar to PWs in the aforesaid cases, Mr. BONIFACIO set his location as the pick-up location and entered the destination. The Rider App then displayed the vehicle registration mark of a car (which was not Appellant’s car) and the driver’s nickname (which was not Appellant’s nickname). A while later, the Appellant drove a private car to the pick-up location, where Mr. BONIFACIO and Mr. Benjamin De Leon boarded the car and began their journey. 10. Inside the Western Harbour Crossing, while the car was on the way to the destination, a traffic accident occurred. Mr. BONIFACIO sustained injuries in the accident and was sent to a hospital for medical treatment. Mr. BONIFACIO later informed Uber of the accident and was subsequently offered a full refund of the fare of the journey. 11. As at 17 May 2017, there was not any hire car permit within the meaning of section 2 of the Ordinance in force in respect of the said car in the instant case. Dated this 29th day of January, 2019. Annex I: Telephone conversations 1. Some PWs received telephone calls on their mobile phones. Some callers stated that they were the Uber drivers[128] and confirmed the pick-up locations with PWs[129]. 2. In KCCC 3412/2017 (HCMA 381/2018), PW received on her mobile phone a telephone call from a male who told PW that he was the Uber driver and had parked his car at a particular location to pick up PW. 3. In KCCC 3413/2017 (HCMA 382/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver and would arrive in a few minutes. 4. In KCCC 3414/2017 (HCMA 383/2018), PW received on her mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he was on the way. 5. In KCCC 3415/2017 (HCMA 384/2018), PW received on his mobile phone two telephone calls from a male who told PW that he was the Uber driver, confirmed the pickup location and stated that he needed some time to arrive at the pick-up location. 6. In KCCC 3416/2017 (HCMA 385/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed the pick-up location and stated that he needed more time to arrive at the pick-up location. 7. In KCCC 3421/2017 (HCMA 390/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he had almost arrived. 8. In KCCC 3422/2017 (HCMA 391/2018), PW received on his mobile phone a telephone call from a male who asked if PW had requested for Uber and confirmed the pick-up location. 9. In KCCC 3423/2017 (HCMA 392/2018), PW called the number shown on the Rider App and a male, who answered the call, confirmed that he was the driver of the car shown on PW’s Rider App. The male told PW that he would arrive in a few minutes and would call PW upon his arrival. Later, PW again received on his mobile phone a telephone call from the male who stated that he had arrived outside a specific location to pick up PW. 10. In KCCC 3425/2017 (HCMA 394/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he needed about 15 minutes to arrive. Later, PW again received another telephone call from the male, confirming PW’s exact location and informing PW that he was on the way. 11. In KCCC 3426/2017 (HCMA 395/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he would arrive in about 2 minutes. 12. In KCCC 3427/2017 (HCMA 396/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he was on his way. 13. In KCCC 3429/2017 (HCMA 398/2018), PW received on her mobile phone a telephone call from a male who told PW that he was the Uber driver and would arrive in around 5 minutes. Later, PW again received another telephone call from the male who informed PW that he had arrived at the pick-up location. 14. In KCCC 3430/2017 (HCMA 399/2018), PW received on her mobile phone a telephone call from a male who confirmed that he was the driver of the car shown on PW’s Rider App and told PW that he had stopped the car at a particular location due to parking restrictions and asked PW to go there. As PW arrived at the caller’s stated location, the Appellant waved at her and told her that he was the Uber driver. 15. In KCCC 3431/2017 (HCMA 400/2018), PW received on his mobile phone a telephone call from a female who told PW that she was the Uber driver, confirmed PW’s exact location and stated that she would arrive in a few minutes. 16. In KCCC 3496/2017 (HCMA 402/2018), PW received on his mobile phone a telephone call from a male who asked if PW had requested for Uber, confirmed the pickup location with PW and asked PW to wait for a while. 17. In KCCC 3969/2017 (HCMA 404/2018), PW had a missed telephone call from a specific number and he thus called the number back. A male answered the call and confirmed the pick-up location with PW. Shortly afterwards, PW received a call from the said number again and the male told PW that he would soon arrive to pick up PW. 18. In KCCC 3971/2017 (HCMA 405/2018), PW pressed the “call” button on the Rider App and made a call to the telephone number shown thereon. A male answered the call and told PW that he was on his way and asked PW to wait for a while. 19. In KCCC 502/2018 (HCMA 415/2018), PW received on his mobile phone two telephone calls from a male. In the first call, the male confirmed the destination with PW and informed PW about the vehicle registration mark of his car. He also confirmed with PW the pick-up location and stated that he would arrive soon. In the second call, the male told PW that he had arrived at the pick-up location but could not find PW. PW then told him that he was waiting at a specific location. Annex II: Events after arrival of the cars 1. Upon boarding the cars, some PWs had a conversation with some of the Appellants. 2. In KCCC 3412/2017 (HCMA 381/2018), the Appellant first confirmed the destination and the route with PW after she boarded the car. During the journey, the Appellant told PW that the income as an Uber driver was not bad. 3. In KCCC 3413/2017 (HCMA 382/2018), the Appellant first confirmed the destination with PW after he boarded the car. During the journey, the Appellant stated that he was a full-time Uber driver and that the income as an Uber driver could barely make ends meet. Later, the Appellant’s car was briefly intercepted by a police officer. Before the car came to a stop, the Appellant asked PW for his surname and said that PW was his friend. 4. In KCCC 3414/2017 (HCMA 383/2018), after PW boarded the car, she confirmed the destination with the Appellant. During the journey, the Appellant asked if PW needed to work on that day (as it was a holiday) which PW answered in the affirmative. PW commented that working as an Uber driver was quite nice as the Appellant would have more freedom. The Appellant then stated that his business fluctuated and it was usually relatively quiet in the afternoon. 5. In KCCC 3415/2017 (HCMA 384/2018), during the journey, the Appellant told PW that he purchased the car 4-5 months ago and presently worked as a full-time Uber driver. The Appellant also stated that he drove 8 to 10 hours per day and earned around $10,000 per month. Later, the Appellant’s car was intercepted briefly by a police officer. Before the car came to a stop, the Appellant told PW that they were friends. 6. In KCCC 3416/2017 (HCMA 385/2018), during the journey, the Appellant told PW that he had been an Uber driver for 3 years and presently worked as a full-time Uber driver with monthly income of around $30,000. 7. In KCCC 3419/2017 (HCMA 388/2018), during the journey, the Appellant told PWs that he worked as a part-time Uber driver with monthly income of around $8,000 to $9,000. The Appellant stated that he usually picked up passengers during rush hours (mornings and evenings) on weekdays. He also stated that he worked on weekends as well since some families preferred to request seven-seater carriage services to go to the countryside on weekends and such longer journeys would generate higher fares. 8. In KCCC 3420/2017 (HCMA 389/2018), after PWs boarded the car, the Appellant first asked if PWs were police officers, and if so, whether or not they could let him go because he had earned only some $200 for picking up customers in the morning. In response, PWs denied that they were police officers and continued with their journey. 9. In KCCC 3423/2017 (HCMA 392/2018), the Appellant confirmed the destination with PWs after they boarded the car. 10. In KCCC 3425/2017 (HCMA 394/2018), the Appellant confirmed the destination with PWs after they boarded the car. During the journey, the Appellant told one of PWs how to better set the pick-up location. 11. In KCCC 3426/2017 (HCMA 395/2018), after PWs boarded the car, one of PWs confirmed the destination with the Appellant. During the journey, the Appellant told PWs that they were his first clients of the day and he was a part-time Uber driver who mainly drove UberBLACK carriage services. The Appellant then explained that the income from UberBLACK, but not uberX, could cover the costs of driving the car. 12. In KCCC 3427/2017 (HCMA 396/2018), the Appellant confirmed the destination with PWs after they boarded the car. 13. In KCCC 3428/2017 (HCMA 397/2018), the Appellant alighted from the car and asked if PW had requested for Uber carriage service which PW answered in the affirmative. When PW boarded the car, the Appellant confirmed the destination with PW. At the end of the journey, PW asked the Appellant how he could pay the fare and the Appellant responded that PW did not need to pay the Appellant and Uber would issue a salary to the Appellant. 14. In KCCC 3429/2017 (HCMA 398/2018), the Appellant confirmed the destination with PW after she boarded the car. During the journey, the Appellant explained to PW about the calculation of fares for using uberX, UberBLACK and seven-seater carriage services. 15. In KCCC 3430/2017 (HCMA 399/2018), before PW boarded the car, the Appellant waved at PW and told PW that he was the Uber driver. 16. In KCCC 3431/2017 (HCMA 400/2018), before PW boarded the car, the Appellant told PW that she was the Uber driver and assisted PW to put his luggage into the baggage compartment of the car. The Appellant also confirmed the destination with PW after he boarded the car. 17. In KCCC 3432/2017 (HCMA 401/2018), during the journey, the Appellant had a lengthy discussion with PW and told PW about his experience and his income as an Uber driver. He also stated that Uber drivers earned around 75% to 80% of the fares of the journeys from Uber. 18. In KCCC 3496/2017 (HCMA 402/2018), after PWs boarded the car, the Appellant told PWs that they should have called him earlier if their pick-up location had changed. In response, one of PWs apologised to the Appellant. During the journey, the Appellant told PWs that cars registered under UberBlack could also take orders of uberX but passengers would only need to pay the fare of uberX. 19. In KCCC 3969/2017 (HCMA 404/2018), after PW boarded the car, the Appellant apologised for arriving late to pick PW up and then confirmed the destination with PW. 20. In KCCC 3971/2017 (HCMA 405/2018), the Appellant confirmed the destination with PW after he boarded the car. 21. In KCCC 3974/2017 (HCMA 406/2018), the Appellant confirmed the destination with PW after he boarded the car.
Annex III: Arrest and caution 1. Some of the Appellants made admissions at the scene upon their arrests and during their cautioned interviews. 2. In KCCC 3413/2017 (HCMA 382/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in March 2017 and had the Driver App on his mobile phone. He admitted that he would receive the fares of the journeys from Uber through a bank account. He also admitted that he had provided carriage services for around 50 times. 3. In KCCC 3414/2017 (HCMA 383/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in October 2016 and had the Driver App on his mobile phone. He admitted that he would receive around 75% of the fares of the journeys from Uber through a bank account. 4. In KCCC 3415/2017 (HCMA 384/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in July 2016 and had the Driver App on his mobile phone. He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account. He also admitted that he had provided carriage services for around 100 times per month and earned a monthly income of around HK$15,000. 5. In KCCC 3416/2017 (HCMA 385/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about two years and had the Driver App on his mobile phone. He admitted that he would receive the fares of the journeys from Uber through a bank account. 6. In KCCC 3417/2017 (HCMA 386/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about half a year and had the Driver App on his mobile phone. He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account. 7. In KCCC 3418/2017 (HCMA 387/2018), upon arrest, the Appellant’s car was searched and a white card at the storage compartment at the driver’s door of the car which stated “Uber invitation code: Sq8V8PHMVE” was found. Under caution upon arrest, the Appellant admitted that he drove with Uber but denied ever received any payment from passengers. During the cautioned interview, the Appellant stated that he had registered with Uber as a driver in around November 2016 and had the Driver App on his mobile phone. He admitted that he would receive the fares of the journeys from Uber through a bank account. 8. In KCCC 3421/2017 (HCMA 390/2018), under caution upon arrest, the Appellant admitted that he drove with Uber to earn some money and asked for a chance. During the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about eight months and had the Driver App on his mobile phone. He admitted that he would receive 75% of the fares of the journeys from Uber. 9. In KCCC 3422/2017 (HCMA 391/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about one year and had the Driver App on his mobile phone. He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account. 10. In KCCC 3423/2017 (HCMA 392/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in November 2016 and had the Driver App on his mobile phone. He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account. He also admitted that he usually got more passengers during rush hours in the mornings and evenings. 11. In KCCC 3424/2017 (HCMA 393/2018), under caution upon arrest, the Appellant admitted that he worked as a part-time Uber driver to earn some money to pay his school fees. During the cautioned interview, the Appellant stated that he had registered with Uber as a driver in March to April 2017 and had the Driver App on his mobile phone. He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account. 12. In KCCC 3425/2017 (HCMA 394/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in September 2016 and had the Driver App on his mobile phone. He admitted that he had been informed of how to receive remuneration. He also admitted that he drove the car as an Uber driver when he had time, sometimes once or twice per week and sometimes took the whole week off if he was busy. 13. In KCCC 3426/2017 (HCMA 395/2018), under caution upon arrest, the Appellant admitted that he drove with Uber because he just got married and needed extra money to pay his expenses. During the cautioned interview, the Appellant stated that he had registered with Uber as a driver in March 2017 and had the Driver App on his mobile phone. He admitted that he would receive 75% of the fares of the journeys by bank transfers. He also admitted that he had provided carriage services whenever he was available and usually had around 8 orders of carriage services per day. 14. In KCCC 3427/2017 (HCMA 396/2018), under caution upon arrest, the Appellant admitted that he drove with Uber to see if he could make a living as he was in debt. During the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about a week and had the Driver App on his mobile phone. He admitted that he would receive around 75% to 80% of the fares of the journeys by bank transfers from Uber. He also admitted that he had provided carriage services for around 40 times and earned around HK$3,000 to HK$4,000. 15. In KCCC 3428/2017 (HCMA 397/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver for a few weeks and had the Driver App on his mobile phone. He stated that the relationship between Uber and him was an employer-employee relationship. He admitted that he would be paid by Uber by bank transfers. He also admitted that he had provided carriage services for around 5 times. 16. In KCCC 3430/2017 (HCMA 399/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in November 2016 and had the Driver App on his mobile phone. He admitted that he would receive a share of the fares of the journeys from Uber by bank transfers and he understood that Uber would deduct certain amount of fees from the fares of the journeys. 17. In KCCC 3431/2017 (HCMA 400/2018), under caution upon arrest, the Appellant admitted that she drove with Uber occasionally to supplement her living expenses. During the cautioned interview, the Appellant stated she that she had registered with Uber as a driver in August to September 2016 and had the Driver App on her mobile phone. She admitted that she would receive 75% of the fares of the journeys by bank transfers. 18. In KCCC 3432/2017 (HCMA 401/2018), under caution upon arrest, the Appellant admitted that he was a part-time Uber driver to earn some money and asked for a chance. During the cautioned interview, the Appellant had registered with Uber as a driver for about half a year and had the Driver App on his mobile phone. He admitted that he received around 77% of the fare of the subject journey with PW by bank transfers from Uber. He also admitted that he usually worked for around 3 hours (which consisted of around 4 orders) every day. 19. In KCCC 3496/2017 (HCMA 402/2018), during the cautioned interview, he only confirmed his telephone number. Pursuant to the witness statement of PW, PW received a telephone call from the said telephone number from a male who asked if PW had requested for Uber and confirmed the pickup location with PW. Annex IV: Appellants’ mobile phones 1. In KCCC 3412/2017 (HCMA 381/2018), the Appellant’s mobile phone contained the Driver App, in which there were records of an account registered under the Appellant’s name. 2. In KCCC 3413/2017 (HCMA 382/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW and some income records. 3. In KCCC 3414/2017 (HCMA 383/2018), the Appellant’s mobile phone contained the Driver App. 4. In KCCC 3415/2017 (HCMA 384/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW, an account registered under the Appellant’s name and some income records. 5. In KCCC 3416/2017 (HCMA 385/2018), the Appellant’s mobile phone contained the telephone record between the Appellant and PW, as well as the Driver App. 6. In KCCC 3417/2017 (HCMA 386/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW, an account registered under the Appellant’s name and some income records. 7. In KCCC 3418/2017 (HCMA 387/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including an account registered under the Appellant’s name and the details of the car. 8. In KCCC 3419/2017 (HCMA 388/2018), the Appellant’s mobile phone contained the Driver App. 9. In KCCC 3421/2017 (HCMA 390/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PWs. 10. In KCCC 3422/2017 (HCMA 391/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PWs. 11. In KCCC 3423/2017 (HCMA 392/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PWs. 12. In KCCC 3424/2017 (HCMA 393/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PWs. 13. In KCCC 3425/2017 (HCMA 394/2018), the Appellant’s mobile phone contained the telephone record between the Appellant and one of PWs, as well as the Driver App, in which there were records including the fare record of the subject journey taken by PWs, an account registered under the Appellant’s name, the details of the car and some income records. 14. In KCCC 3426/2017 (HCMA 395/2018), the Appellant’s mobile phone contained the telephone record between the Appellant and one of PWs, as well as the Driver App. 15. In KCCC 3427/2017 (HCMA 396/2018), one the Appellant’s mobile phones contained the telephone record between the Appellant and one of PWs, as well as the Driver App, in which there were records including the fare record of the subject journey taken by PWs, an account registered under the Appellant’s name, the details of the car and some income records. 16. In KCCC 3428/2017 (HCMA 397/2018), the Appellant’s mobile phone contained the Driver App, in which there were records of an account registered under the Appellant’s name. The records including the said account, the details of the car and some income records could also be accessed through a web browser on the phone. 17. In KCCC 3430/2017 (HCMA 399/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PW. 18. In KCCC 3431/2017 (HCMA 400/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW, an account registered under the Appellant’s name, the details of the car and some income records. 19. In KCCC 3432/2017 (HCMA 401/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW, an account registered under the Appellant’s name and the details of the car. 20. In KCCC 3496/2017 (HCMA 402/2018), the Appellant’s mobile phone contained the telephone record between the Appellant and one of PWs, as well as the Driver App. STATEMENT OF ISSUES
Dated this 29th day of January, 2019. [1] There were 28 cases in the series, but there was no appeal from the 28th case (KCCC 503/2018). [2] Dated respectively 26 March 2019 (HCMA 400/2018) and 4 February 2019 (HCMA 403/2018). [3] HCMA 400/2018 was dismissed on 27 March 2019. HCMA 403/2018 was dismissed on 8 February 2019. [4] A death certificate was tendered and its authenticity is not disputed. [5] (2015) 18 HKCFAR 292 [6] [2018] 5 HKLRD 389 [7] HCMA 111/2018 (unreported), [2018] HKCFI 972, dated 8 May 2018 [8] There is one “Perfected Grounds of Appeal Against Conviction”, dated 15 October 2018, with identical grounds covering all the appeals. [9] On 6 December 2018. [10] In fact, the prosecution evidence was adduced by way of admitted facts and none of the appellants gave or called evidence at the trial. [11] Although it had not been spelt out clearly in the Statement of Offence whether the allegation was based on sub-paragraph (a) or (b) of s52(3), the Particulars of Offence cleared any doubt about it by referring only to “driving”. No point has been taken by the Respondent about this. [12] However, the Appellants challenge certain inferences which the magistrate drew from the admitted facts. [13] Dated 5 November 2018. [14] Consists of 87 pages, not including the separate “Summary of Evidence” which runs another 44 pages. [15] Dated 29 January 2019. [16] Referred to as the “contractual veil” by the magistrate: see §167, Statement of Findings. [17] §§52-53, 64-68 & 90, Statement of Findings. [18] §§166-167, Statement of Findings [19] §191(v), Statement of Findings [20] Ibid [21] “Hong Kong residents shall have freedom of choice of occupation.” [22] [2016] 5 HKLRD 542 [23] See §8, the Appellants’ Written Submissions dated 5 November 2018. [24] (2005) 8 HKCFAR 70 [25] [2012] 4 HKLRD 383, as per McWalters J (as he then was) [26] (2004) 7 HKCFAR 126, 146B [27] (2002) 5 HKCFAR 336 [28] “An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.” [29] (2009) 12 HKCFAR 568 [30] [1981] C 800, 822B [31] (2012) 15 HKCFAR 712, at §27 [32] [2003] 2 AC 687, 695E–G [33] [1946] AC 347, 366 [34] (2010) 13 HKCFAR [35] (2005) 8 HKCFAR 628, at §109 [36] [2019] 3 HKLRD 360 [37] (1887) LR 19 QBD 629, 638. [38] (2016) 19 HKCFAR 427 [39] Ord 39 of 1957 which came into force on 1 February 1958. [40] See LN 99/69, Clause 11, which came into force on 1 September 1969 (see LN 123/69). [41] [1972] HKLR 493 [42] Namely, buses, trams and then newly legalized public light bus. [43] The Official Report of Proceedings of the Hong Kong Legislative Council, 1 June 1977, at p 966-967. [44] Ibid, at pp 967-968. [45] On 17 June 1977, as Ord 45 of 1977. [46] On 12 July 1977, by LN 161/77, which came into force on 1 November 1977 (see LN 240/77) [47] Provided for the issue by the Commissioner of hire car permits to the registered owner of a private car on payment of the specified fee. [48] Provided that failure to comply with any of the conditions specified in the New Seventh Schedule was made an offence. [49] Set out the circumstances in which a hire car permit shall or may be cancelled by the Commissioner. [50] §§129 & 130, Statement of Findings. [51] See s2(2) Cap 220 (Ord 32 of 1969) [52] The Official Report of Proceedings of the Hong Kong Legislative Council, 28 July 1982, at p1107. [53] (2017) 20 HKCFAR 524 [54] §§34-35, Statement of Findings [55] [1937] 1 KB 633 [56] [1969] 2 QB 494, at 504C-D. [57] [1964] HKLR 763 [58] [1965] HKLR 931 [59] (1962) 1 All ER 531 [60] [1969] HKLR 463 [61] Consisted of Rigby SPJ, Briggs & McMullin JJ. [62] [1973] HKLR 98 [63] See, eg, Cheng For Kar v The Queen (unreported, CACC 316/1972), Lee Hing Cheong v The Queen (CACC 866/1973) and HKSAR v Lam Shing Yin (HCMA 559/2007) [64] It has been held that “reward” was wider than “hire” and apt to cover a case where there was no obligation to pay: see Aitken v Hamilton [1964] JC 28, followed in Attorney General v Lun Chan, ante. [65] See the definitions of “hire car permit”, “private bus” (2), “private light bus” (2), “public bus”, “public light bus” and “school private light bus”. [66] By s2, “taxi (的士) as a taxi under this Ordinance”. [67] s 2, RTO. [68] Namely, hotel hire cars, tour hire cars, airport hire cars, school hire cars and private hire cars. See ss 13-15, the Road Traffic (Public Service Vehicles) Regulations, Cap 374D. [69] By s 2 of Cap 374L, the total number of hire car permits which may be issued for private hire car service is 1,500; for hotel hire car service, 400; for airport hire car service, 60; for school hire car service, 1 500; and for tour hire car service, 400. [70] In s 2(1), Cap 220 (Ordinance 33 of 1964): “public” in relation to any vehicle means standing or plying for hire or available and intended for hire and carrying goods or passengers for hire or reward”. See also s 2(2)(c): “public cars, that is to say any cars, not being taxis, which either-
[71] “standing or plying for hire (停車候客) means, in respect of any vehicle, being on any road, whether in motion or stationary, and exhibiting any sign or signal, or having a person who is exhibiting any sign or signal or who in any other way indicates, that the vehicle or any portion of it is available for hire whether on a predetermined route or otherwise;” [72] “motor vehicle (汽車) means any mechanically propelled vehicle”. [73] (2013) 16 HKCFAR [74] At §5.2, “Written submissions for the Appellants” (dated 5.11.2018) [75] Ibid, at §5.4 [76] Dated 16.4.2019, at §11. [77] §119(v), Statement of Findings. [78] Ante, where Huggins J agreed with the finding of the lower court that the car trip in question as “something more than a friendly arrangement”. [79] Ante, where Huggins J said, “what is essential is that the parties shall intend to enter into an agreement that the work should not be performed gratuitously” and agreed with the finding below that “the appellant was all along intended to be paid”. (Emphasis supplied) As to whether it is necessary to have a “direct agreement” between the defendant driver and his passenger, see the discussion below. [80] Ante, where Pickering J agreed with the submission that “The carriage was a predominantly business arrangement rather than a social one; the appellant was operating an unofficial taxi service and the appeal against conviction must be dismissed.” [81] (1948-49) 82 Ll L Rep 1. [82] “The freedom of the person of Hong Kong residents shall be inviolable.
[83] (2002) 5 HKCFAR 415 [84] (2006) 9 HKCFAR 530 [85] §§46-47, 49, 131-138, 166-168, Statement of Findings. [86] Ibid, §166. [87] §6.10, “Written submissions for the Appellants”. [88] Ibid, §§5.3, 6.12-6.14. [89] (2006) 9 HKCFAR 574 [90] Ibid, at §§65 & 71. [91] It appears that in Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, counsel submissions on “overbreadth” were dealt with mainly as an aspect of the requirement of “legal certainty” under Article 39 of the Basic Law, although there was also a passing reference to Article 28 in the judgment of the Court of Final Appeal. What the Court of Final Appeal said about the case of Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385 (at §79) was that:
[92] [1972] RTR 230, as per Viscount Dilhorne (at 328F-G) and Lord Pearson (at 332G-333B) [93] (2016) 19 HKCFAR 640 [94] [1950] 1 KB 544 [95] [1990] 2 AC 333 [96] Written Submissions for the Appellants, at §§4.6 & 4.7. [97] In the 1957 version of Cap 220, at s2(2), it was provided that:
[98] See Ord 23 of 1964, at §2(2)(c)(ii). [99] ibid, at §2(2)(e)(ii). [100] §167, Statement of Findings [101] §§172-185, Statement of Findings [102] (2010) 13 HKCFAR 142 [103] §§182-184, Statement of Findings [104] Presumably referring to the 5 alternatives mentioned at §96 of the judgment of Hin Lin Yee v HKSAR as summarized in Kulemesin v HKSAR (2013) 16 HKCFAR 195, at §41. [105] At §71, Skeleton Submissions for the Respondent. [106] Ibid, §76 [107] “s105. Application to state case on point of law Within 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way, either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case setting forth the facts and the grounds on which the conviction, order or determination was granted and the grounds on which the proceeding is questioned, for the opinion of a judge. …” [108] [1962] HKLR 474 [109] §§191 & 192, Statement of Findings [110] See the “Summary of Evidence” annexed to the Statement of Findings. The Appellants had all elected not to give evidence: see §28, Statement of Findings. [111] KCCC 3412, 3414-3416, 3418-3421, 3424, 3427, 3428, 3430-3432, 3496, 3969, 3971 & 3974/2017 (HCMA 381, 383-385, 387-390, 393, 396, 397, 399-401, 402 & 404-406/2018) [112] KCCC 3413, 3417, 3425, 3426 & 3429/2017 & 502/2018 (HCMA 382, 386, 394, 395, 398 & 415/2018) [113] KCCC 3422/2017 (HCMA 391/2018) [114] All 26 cases except KCCC 3969/2017 (HCMA 404/2018) [115] All 26 cases except KCCC 3432 & 3969/2017 (HCMA 401 & 404/2018) [116] All 26 cases except KCCC 3413/2017 (HCMA 382/2018) [117] All 26 cases except KCCC 3413/2017 (HCMA 382/2018) [118] KCCC 3412-3429, 3430-3432 & 3496/2017 (HCMA 381-398, 399-401 & 402/2018) [119] KCCC 3412-3416, 3419, 3420, 3425, 3426, 3429, 3432 & 3496/2017 (HCMA 381-385, 388, 389, 394, 395, 398, 401 & 402/2018) [120] KCCC 3421-3424/2017 (HCMA 390-393/2018) [121] KCCC 3412-3415, 3417-3420, 3422-3427, 3431, 3496 & 3971/2017 (HCMA 381-384, 386-389, 391-396, 400, 402 & 405/2018) [122] KCCC 3413-3418, 3421-3428 & 3430-3432/2017 (HCMA 382-387, 390-397 & 399-401/2018) [123] KCCC 3413-3418, 3421-3424, 3426-3428 & 3430-3432/2017 (HCMA 382-387, 390-393, 395-397 & 399-401/2018) [124] KCCC 3414-3415, 3417, 3421-3424, 3426, 3427, 3431 & 3432/2017 (HCMA 383-384, 386, 390-393, 395, 396, 400 & 401/2018) [125] KCCC 3413, 3418, 3428 & 3430/2017 (HCMA 382, 387, 397 & 399/2018) [126] KCCC 3416/2017 (HCMA 385/2018) [127] All 26 cases except KCCC 3969, 3971 & 3974/2017 & 502/2018 (HCMA 404-406 & 415/2018) [128] KCCC 3412-3416, 3421, 3425-3427, 3429 & 3431/2017 (HCMA 381-385, 390, 394-396, 398 & 400/2018) [129] KCCC 3412, 3414-3416, 3421-3423, 3425-3427, 3430, 3431, 3496 & 3969/2017 & 502/2018 (HCMA 381, 383-385, 390-392, 394-396, 399, 400, 402, 404 & 415/2018) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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Further hearings and rulings under HCMA 381/2018