Lo Kwok-yin v. The Queen

CACC000213/1979

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Coram: McMullin J. in Court.

Date of Judgment: 18 April 1979

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JUDGMENT

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1. The appellant was convicted of refusing without reasonable excuse to drive his taxi to a place indicated by a hirer in contravention of the provisions of regulation 27(a) of the relevant Road Traffic Regulations.

2. The case for the Crown was that a police inspector, then off duty, was on lookout for a taxi in Gloucester Road near Minden Plaza. A taxi driven by the appellant with its "for hire" flag raised approached among the on-coming traffic going in the direction in which the police inspector wished to travel. The inspector told the court that he had indicated by stretching out his hand that he desired to hire the taxi. The taxi pulled in to the side of the road and stopped. The driver asked the inspector where he wanted to go. The inspector replied "Cloud View Road" and thereupon the appellant drove off.

3. In the court below the appellant denied this allegation. He said that he was proceeding slowly because of pressure of traffic when the inspector had suddenly come to the side of the taxi and tried the door. The door was of a kind which is controlled from the driver's seat and the appellant did not allow the opening of the door because he was aware that he was at that. time travelling in a portion of the road which had been declared for a period of 24 hours a prohibited area. He said that he did not speak to the inspector or hear the inspector speak to him. The magistrate accepted the inspector's version of the facts and Mr. Faulkner for the appellant does not seek to dispute the magistrate's findings in that respect. He relies upon the decision of the learned Chief Justice in the case of LEUNG Yuk-yin⁽¹⁾.In that case two police officers on plain clothes duty saw a stationary taxi with its flag in the "for hire" position while the taxi was parked at the road side near but not in a taxi stand and close to a public lavatory. The police officers boarded the taxi and asked the appellant who was in the driver's seat to drive them to an address in North Point. The driver refused. Under the regulations as they then stood it was possible to hail and hire a taxi not at a taxi stand only if it were proceeding on its way to such a stand having completed a journey in the course of its trade or when travelling to or from the place where the taxi was normally garaged. Accordingly the learned Chief Justice held that the police officers were themselves acting without lawful cover when they endeavoured to engage the taxi from the position in which they found it. Though, therefore, such a defence had not been put forward by or on behalf of the defendant before the trial magistrate the learned judge found that, such a defence having been clearly available, even though not proffered at the time of trial, it remained an effective answer to the charge even at the time of the appeal.

4. Mr. Martin for the Crown does not dispute the authority of that decision but he seeks to distinguish it upon the facts. One distinction between the cases does at once suggest itself. On the very brief statement of facts contained in the judgment in the case of LEUNG Yuk-yin it would appear that the driver was throughout an entirely passive party to what was instigated by the police officers. Under circumstances which did not entitle them to do so they boarded his taxi and asked to be driven to a certain destination. All that we know is that he simply refused to do so. It would seem that in that case, as in the present case, the driver did not give as his reason for the refusal the reason available to him in the law. Nevertheless he made no move to comply with what was in effect an unlawful direction and there was at the time a good reason for his refusal to do so whether or not he availed himself of it. In the present case, on the version of the facts accepted by the learned magistrate, although a police officer equally without lawful cover, demanded service there was an immediate compliance with that demand. I do not think however that this is a sufficiently material distinction to remove the present case out of the orbit of the decision by the learned Chief Justice. Moreover if one looks more closely the two cases are more nearly identical than at first sight may appear. In LEUNG Yuk-yin the driver was in effect also in the wrong inasmuch as he had held himself out as available for hire by showing his flag at a place where he was not entitled to ply for hire. The basic similarity underlying the two cases is of mere moment. In this case as in the former case a police officer was himself the instigator of an offence which occasioned conduct on the part of the defendant which could not have been criminal had the driver there and then availed himself of the lawful reason for his refusal. There is no doubt that in both cases the nature of the refusal was of a kind which the law forbids always provided that the request has been legitimate. In each case, however, the circumstances were such that an actus reus was wanting although there was evidence of mens rea. In CHAN Tak-fai v. The Queen ⁽²⁾which is relied upon by Mr. Martin the circumstances were materially different inasmuch as the appellant in that case was driving his taxi along the road with its meter flag raised when he was hailed by a prospective passenger whom he then picked up and refused to take to the stated destination. It does not appear to have been alleged by the defence in that case that the taxi driver was forbidden at the time of the incident by any provision in the law from accepting the fare. The defence put forward was of a wholly different character and as the learned judge put it "there can be no suggestion that the fare was in the wrong". Mr. Martin however relies upon a proposition in the judgment which occurs shortly thereafter. The learned judge said:

In other words if, unknown to the prospective fare, the taxi driver was driving to some other destination than the taxi stand, nevertheless, having his flag still in the "for hire" position, his decision to accept a fare or at least to negotiate with a fare supervening as it did upon his original intention could leave him with no legal cover for refusing thereafter to accept the direction given to him by his prospective customer. Not only is there nothing in the facts of Reg. v. CHAN Tak-fai⁽²⁾ (at least as they appear in the report) to support the idea that such were the circumstances in that case but, even if such circumstances had there existed, they are obviously of a very different character from those with which we are confronted in the present case. Though in the present case, as in the case of LEUNG Yuk-yin⁽¹⁾, the appellant did not behave creditably and was at least morally guilty of the offence with which he was charged it would in my view be unjust, equally in the present as in the former case, to sustain the conviction in view of the illegal character of the conduct which was the precipitating factor of the appellant's behaviour. In the course of the argument I was drawn into a consideration of principles applicable mainly in the area of civil law. This was in relation to Mr. Faulkner's additional ground of appeal - first introduced at the hearing - which was to the effect that the appellant should not have been convicted of an offence under regulation 27 since the refusal complained of had to be shown to be a refusal to obey the direction of a hirer and, on counsel's argument, the contract of hire could not be considered complete until the driver had indicated that he was accepting his fare. It was suggested that the very recent amendments to these regulations which supplied for the first time a definition of the word "hirer" as including a person intending to seek hire was an indication that the Legislature had itself perceived a loophole in the regulations and had thus attempted to close it. In view of what I have said already I do not propose to consider this ingenious argument. The amendment will in any case render it ineffective as an answer to such circumstances in the future. I would think in any event that Mr. Martin's answer was probably sufficient when he said that the offer by the prospective passenger indicated by flagging the taxi should be regarded as having been accepted when the taxi responded to that signal and an inquiry was made as to destination. I do not purport to decide that question but since the principles of the civil law have been invoked I should perhaps add in relation to what I have said already on the major issue something further on what I might term the moral aspect. To the stern moralist it may seem wrong that the appellant should escape punishment though being technically in the right while his accuser was quite unwittingly at fault. But the criminal law does not punish a man for his thoughts. The police officer should have observed that he was in a prohibited area and was at least negligent in not doing so. On the level of moral fault it might not be wholly inappropriate to invoke the maxim "in pari delicto potior est conditio defendentis".

5. I should add that neither of the cases to which I was referred was brought to the attention of the learned trial magistrate and had that been done I do not think that he would nevertheless have convicted.

Representation:

R. Faulkner, instructed by (Director of Legal Aid) for the appellant.

E. Martin, for Crown/respondent.

(1) Criminal Appeal No. 381 of 1978

(2) (1978) H.K.L.R. 443.