Chan Man Hung v. R.

HCMA001364/1996

1996, NO. MA 1364

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon Patrick Chan, J. in Chambers

Date of hearing: 19 March 1997

Date of judgment: 19 March 1997

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J U D G M E N T

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1. The appellant pleaded guilty to two offences under the Road Traffic (Public Service Vehicles) Regulations, namely, having, without reason or excuse, wilfully refused to accept a hire and failing to display a taximeter indicator. He was fined $4,000 and $2,000 respectively. He now appeals against sentence.

2. It appears, according to the prosecution evidence, that the appellant parked his taxi near the Macau Ferry Terminal. He put up a notice of "Out of Service". Two undercover police officers boarded the taxi and asked to be driven to Baguio Villa. He refused saying that he came from Kowloon. He was then prosecuted for the offences.

3. Before me, he said that he had just finished his lunch and was not feeling very comfortable. He was taking a rest. However, the two officers boarded the taxi and wanted to go to a certain place. He told them that he was not going anywhere because his was a Kowloon taxi and that his taxi was "Out of Service". However, the two persons insisted on remaining on board. That was how he came to be arrested. He did not argued with them.

4. I made enquiries of the appellant as to whether he now intended to appeal against conviction. He said that he was content to appeal against sentence only.

5. Mr Veltro for the Crown very fairly indicated to me that there is no usual tariff for this type of offences. However, he accepted that in respect of at least the second offence, the learned magistrate seemed to have accepted the maximum fine as the starting point. I have taken into consideration the circumstances of this case and the allegations made by the appellant, I agree with the learned magistrate that this type of offences are very common, particularly in the location in question and that a heavy fine is called for. The maximum fine for the first offence is $10,000 and the second offence $3,000. This is not a case which calls for imprisonment. Nor do I think that the maximum is justified in this case. The starting point adopted by the learned magistrate does seem to be on the high side.

6. Bearing in mind the facts of this case, and the fact that this is the first time the appellant contravened this type of offences, I would allow the appeal and reduce the fine. In respect of the first offence, I would reduce it from $4,000 to $3,000, and in respect of the second offence, from $2,000 to $1,000. The appellant is therefore fined a total sum of $4,000. Lastly, I would add that any taxi driver who contravenes this type of offences would not normally deserve any sympathy from the sentencing court.

Representation:

Mr Frank Veltro, S.C.C., for Crown

Appellant in person