HKSAR v. Wan Siu Kei
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HCMA000745/1997 1997, NO. MA 745 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MAGISTRACY APPEAL ________________
________________ Coram: The Hon. Wong, J. in Court Dates of hearing: 4 December 1997 Date of handing down of judgment: 22 December 1997 _______________ J U D G M E N T _______________ 1. The appellant was convicted after trial before a magistrates of three summonses under the Road Traffic (Public Service Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374. He was fined and ordered to pay costs. He appeals against convictions. The particulars of the summonses are as follows:- IN THE MAGISTRATE'S COURT AT San Po Kong, HONG KONG INFORMANT: MRS. YEUNG CHAN WING-HAR, WIP, Central Traffic Prosecutions Bureau DEFENDANT:
INFORMATION that the Defendant: being the driver of a taxi displaying registration mark [A] did in the Period stated below at the Location stated below without reasonable excuse charge for the hiring of the said taxi a fare exceeding the appropriate scale of fares specified in the Fifth Schedule to the Road Traffic (Public Service Vehicles) Regulations, Cap. 374 PERIOD: on 27 NOVEMBER 1996 at about 7:40 P.M. LOCATION:
CONTRARY TO: Regulations 47(2) and 57(4) Road Traffic (Public Service Vehicles) Regs. made under Road Traffic Ordinance, Cap. 374. DATED: 11 MARCH 1997 IN THE MAGISTRATE'S COURT AT San Po Kong, HONG KONG INFORMANT: MRS. YEUNG CHAN WING-HAR, WIP, Central Traffic Prosecutions Bureau DEFENDANT:
INFORMATION that the Defendant: being the driver of a Vehicle [A] displaying registration mark [B] did in the Period stated below at the Location stated below without reasonable excuse behave other than in a civil and orderly manner PERIOD: on 27 NOVEMBER 1996 at about 7:40 P.M. LOCATION:
CONTRARY TO: Regulations 45(1)(a) and 57(1) Road Traffic (Public Service Vehicles) Regs. made under Road Traffic Ordinance, Cap. 374. IN THE MAGISTRATE'S COURT AT San Po Kong, HONG KONG INFORMANT: MRS. YEUNG CHAN WING-HAR, WIP, Central Traffic Prosecutions Bureau DEFENDANT:
INFORMATION that the Defendant: being the driver of a taxi displaying registration mark [A] did in the Period stated below at the Location stated below without reasonable excuse fail at all times when the taxi was hired or was available for hire, as the case may be specified at [B], to carry for the purpose of giving change $90 in notes of denomination of $10 or in coins of a denomination of $2 or more and $10 in coins of a denomination of $1 or less PERIOD: on 27 NOVEMBER 1996 at about 7:40 P.M. LOCATION:
CONTRARY TO: Regulations 45(2)(b) and 57(3) Road Traffic (Public Service Vehicles) Regs. made under Road Traffic Ordinance, Cap. 374. DATED: 11 MARCH 1997 10. Mr. McCrae, who appears for the appellant, makes it perfectly plain at the outset of the hearing that the appeal is purely on a technical point and the appellant has not been prejudiced. It is not necessary for me to refer to the facts which are not relied upon to any significant extent in so far as this appeal is concerned. Mr. McCrae complains that the summonses are defective in that they fail to allege certain particulars, as required by the particular regulations. For example, the words "when acting as such" in Charge B and "when in charge of the taxi" in Charge C were missing. In relation to Charge A, the magistrate did not deal with "reasonable excuse". Moreover the location and time stated in all three summonses were inaccurate. 11. The term "reasonable excuse" is a negative averment and the burden was on the appellant to discharge it on a balance of probabilities. There was no evidence before the magistrate regarding this defence and in my view, there is nothing in this submission. The magistrate unequivocally rejected the evidence of the appellant and if he had raised this defence, which he had not, if would have also been rejected. 12. Mr. McCrae refers to the decisions in R. v. Kwok Ka Leung and Others Criminal Appeal No. 198 of 1983; R. v. Tze Ming-li, Magistracy Criminal Appeal No. 315 of 1987 and R. v. Ayres (1984) 1 A.C. 447. The first case was a decision of Barnes J. concerning the omission of the word "kept" in a charge of managing a vice establishment. On the authorities, the "kept" element is a vital element in alleging the offence and therefore failing to allege means failure to allege and offence known to law. In R. v. Ayres, the word "knowingly" which was an essential element of the offence was omitted from the particulars. R. v. Tze Ming-li deals with s. 27 of the Magistrates Ordinance which provides:-
13. There is no complaint that the summonses were at variance with the evidence adduced at the trial and subsection (1)(b) therefore has no application. The only issue to be considered and decided is whether Summons B and Summons C are defective under subsection (1)(a) in that they allege no offence known to law. R. v. Kwok Ka Leung and Others and R. v. Ayres are different and distinguishable from this case because the word "kept" and the word "knowingly" were vital elements to the offences alleged against the defendants. In Summonses B and C the words "acting as such" and "when in charge of the taxi" are not vital elements to the offences. A reading of these two summonses will convey to any reasonable mind that the offences were committed by the appellant in his capacity as a taxi driver acting as or in his capacity of a taxi driver and they could not have been committed by him in any other capacity. While it is desirable to add these words to the particulars, the absence of them does not vitiate the charges. 14. There is also no substance in the submission with regard to the time and place of the offences specified in the summonses. It would have been sufficient to allege that the offences were committed in Kowloon, Hong Kong on 27 November 1996, see paras. 1-125 - 1-130 Archbold 1997 Edition. 15. In my judgement, there is no variance between the summonses and the evidence adduced in support and they are not defective. The appeal is dismissed.
Representation: Mr. Eddie Sean, S.G.C and Mr. Jonathan T. H. Man G.C., for D.P.P. Mr. Andrew McCrae and Ms. Lydia Sun, instructed by Messrs. Ip and Willis, for the appellant |