Chan Kam v. The Queen

CACC000304/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 304 OF 1973

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Coram: Trainor J. in Court

Date of Judgment: 10 May 1973

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JUDGMENT

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1. The appellant was convicted in the Magistrate's Court of soliciting persons to make use of a public car of which he was the driver on the 29th of January 1973 at the junction of Peking Road near Hankow Road, Kowloon contrary to Sub-regulation 2 of Regulation 34 and Sub-regulation 1 of Regulation 44 of the Road Traffic (Taxis, Public Ominbuses, Public Light Buses and Public Cars) Regulations. He now appeals against this conviction.

2. The facts of the case are as follows: At about 5.10 p.m. on the 29th of January 1973 four police officers were on anti-pak pai duty at the corner of Peking Road. The car, public car No. AX 1298 which was driven by the appellant stopped in front of them. Three of the police officers heard the driver ask "Do you want the car?" and on being told "yes" he opened the rear door of the car. The four officers entered the car and the driver asked them to where they wanted to go. When they said to Jordan Road Ferry Pier the driver said "$2.00" and the car started off. On arrival there, one of the police officers handed $2.00 to the driver who looked at them a moment and then said "forget it". On this, one of the police officers, a woman police officer from the Traffic Branch, revealed her identity and showed her police warrant card. She said to the driver "I arrest you for that you have solicited for passengers" and then cautioned him. The driver was then taken to Yaumati Police Station.

3. The evidence of the four police officers on this was practically identical, with the exception of the fourth police officer, a sergeant, who said he did not hear the conversation between the driver and the other three police officers when the vehicle stopped beside them by reason of the fact that he was not in a position to hear it.

4. The appellant gave evidence and told a completely different story. He said that on the day in question he received a radio message from his headquarters directing him to go to the junction of Hankow Road and Peking Road and there pick up a passenger, a Mr. Lee. He said he drove there and at the place indicated in the radio message he saw this group of people. He stopped and one of the persons said to him "Are you No. 98?" To which he replied "Yes, are you Mr. Lee?" or words to that effect. It might be mentioned here that the vehicle which the appellant was driving is in fact No. 98 and has that number on the front and back of the car. He said the party got on board his car and he drove them to Jordan Road Ferry Pier. There, he said, he was asked how much and he said $1.50 but no money was offered to him.

5. A witness called on behalf of the appellant told the court that as a result of telephone call from a Mr. Lee she transmitted a radio call to all the taxis on her circuit. She said that the driver of car No. 98 replied that he was available and on being informed of where Mr. Lee was said that he would arrive there in five minutes.

6. In his statement of findings which he incorporated in his decision the learned magistrate said that he could see no reason to think that it was any of the police party telephoned the public car company which had radioed to the appellant and ordered the car with a view to laying a false charge against the driver for breach of the Traffic Regulation. Of the prosecution evidence, he expressed the opinion that the witnesses for the prosecution were thoroughly tested in cross-examination and that they emerged with their credit unshaken. At the conclusion of his decision, the learned magistrate said :

7. In the notice of appeal the general grounds are set out as :

Further and better particulars of the general grounds of appeal were filed and are as follows :

Mr. Tracy was heard for the appellant.

8. I had some difficulty in understanding what is meant in the first point raised in the further and better particulars that the learned magistrate did not determine that the sub-regulation applied to the driver of a public car. I would have thought that his finding the accused guilty of the offence established his conclusion that the sub-regulation did apply. However, Mr. Tracy explained that the point which was being made was that the sub-regulation was not intended to cover or to include in its ambit the driver of a vehicle, but only persons who on the street might tout for passengers for a public vehicle.

9. I do not consider that there is any substance whatsoever in this point. The sub-regulation states categorically that no person shall solicit; and no person must be intended to include the driver.

10. 1(b) and 2(c) of the particulars amounted to the same thing, namely an absence of mens rea. Mr. Tracy maintained that the learned magistrate failed to consider this in that he said in his decision merely that he was satisfied as to the manner of the appellant's action but, according to Mr. Tracy, he failed properly to consider the appellant's intention. He argued that the evidence was open to the conclusion that anything the appellant said to the prosecution witnesses could reasonably have been uttered in the honest belief that the persons to whom he spoke were the ones who had made a prior arrangement by telephone. He contended that it was quite possible to conclude from what he is alleged to have said the appellant to have had an honest belief that he was picking up the passenger he was intended to pick up. He did concede that it might be held by implication that the magistrate held against this, but that this is not clear on the judgment and it is a conclusion that should have been clearly expressed. He contended that because the magistrate preferred one version over and above another did not mean that he had decided that the evidence that he did not accept was a fabrication. On this point Mr. Tracy concluded that case proof of guilty intent is essential and such proof was not forthcoming.

11. I do not intend to dwell at any length on the necessity for the proof of mens rea in this case. I think it suffices to say that it is an essential ingredient.

12. There is no doubt about it that in this case there was perjury. Either a member of the police party said to the appellant when he arrived in his car "Are you 98?" and the appellant said "Yes, are you Mr. Lee?" and one of the police party said "yes" or that never happened. If it did happen then one of the police party must have telephoned to the radio operator and asked for a car and on being told that car 98 was coming that same member of the police party must have said that his name was Mr. Lee. It has been suggested by Mr. Tracy that the member of the police party who spoke to the driver might have seen the number on the body of the car and asked the question but the tenor of the question suggests that the speaker anticipated the arrival of car No. 98 and it is unlikely that he would or she would have asked that question in that way unless he or she was trying to indicate that she had had a prior phone call with the radio operator. It could not have been the lady member of the party. If they denied one of them said he was Mr. Lee as alleged by the appellant even if this were not correct the prosecution witnesses must have lied. These are matters that were clearly considered by the learned magistrate as indicated by his conclusion on the evidence of the prosecution witnesses. He said that he could see no reason to think that any of the police party telephoned and ordered the car and he further held that the prosecution witnesses had been thoroughly tested in cross-examination and emerged with their credit unshaken. That indicates that the magistrate concluded that whatever impression the appellant had as to the person or persons he was taking in his car they were not based on anything that the prosecution witnesses had said. If the appellant had not given evidence as to the conversation between himself and the police party he might well have argued in the court below that acting on the telephone call he had taken these people in the belief that one of them was Mr. Lee; but he did not rely on that. He maintained two things (a) that he received the radio message and was told to pick up a Mr. Lee and (b) that he confirmed he was picking up Mr. Lee as a result of his question. It is quite clear that the learned magistrate considered that he was lying with regard to the conversation. If he was lying on this what was his reason for it. There is only one logical conclusion: he had a guilty mind and picked up the party knowing that he was not picking up the person who had radioed for a car. It is clear from the magistrate's findings that he gave full consideration to the evidence of the lady who was called for the defence. He said "It may well be that defendant had instructions to pick up a Mr. Lee at the junction of Hankow Road and Peking Road" and went on to say "But I am satisfied on the evidence of the prosecution witnesses that when the defendant reached the place he acted in the manner described by the prosecution witnesses". This indicates that the magistrate concluded that even putting the most favourable interpretation on the evidence of the witness called by the appellant nevertheless when he reached the Hankow Road -Peking Road junction things had changed, and to the knowledge of the appellant he solicited the prosecution witnesses to take his car knowing that he was not dealing with Mr. Lee.

13. I have already dismissed this appeal; I now give my reasons.

Representation: