R V Tam Shun Wa

HCMA000108/1994

IN THE HIGH COURT

1994, No. 108

Magistracy Appeal

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Coram: Hon Litton, J.A. (sitting as an additional judge of the High Court)

Date of hearing: 7 April 1994

Date of judgment: 7 April 1994

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal by Mr. TAM Shun-wa against his conviction at the San Po Kong Magistracy by Mr. Michael P.K. Chan on 12 January 1994 on one charge, namely that on the 24 June 1993, at about 2.45 p.m., he being the driver of a taxi did drive to Whampoa Garden from the Airport Regent Hotel other than by the most direct practical route and he did so without reasonable excuse, contrary to Reg. 37(d) and 57(1) of the Road Traffic (Public Service Vehicles) Regulations. Upon conviction he was fined $200.

2. The facts were straight-forward.

3. The passenger boarded the taxi at the Airport Regent Hotel and told the appellant to drive her to Whompoa Garden. He did so and took a route which was in fact 5 km long. It was established at the trial that the shortest route or the most direct route was 4 km long. That was the sole basis for his conviction.

Appellant's evidence

4. At the trial the appellant gave evidence. He said he knew the route well. He was aware that in the vicinity there were road works: at the junction of Ma Tau Wai Road and Sung Wong Toi Road and the traffic there often got jammed. Further he said that Ma Tau Wai Road had many traffic lights. If he had taken the shorter route, he would have encountered about 12 to 13 traffic lights. Taking the slightly longer route there were five to six traffic lights. He said that it actually took him about 10 minutes to go to Whompoa Garden; if he had taken the shorter route, it would have taken some 20 minutes. He also said that he chose that route because most passengers preferred that route. The magistrate accepted the appellant's testimony. Indeed, there was virtually no cross-examination and no challenge to what he said. There was nothing inherently improbable in what he said.

The most practicable route

5. In my judgment the effect of the evidence was this: Whilst the 4 km route was unquestionably the most direct route it was not the most practicable route. The effect of the appellant's evidence (which was the only oral evidence in the case) was that the route he chose was, having regard to the traffic conditions, the most practicable one. Upon these facts it is difficult to see how the Crown's primary case was made out.

Reasonable excuse

6. But, on the evidence, the point goes further. The driver can only be convicted of this offence if he acted without reasonable excuse. It seems to me beyond doubt that what the driver did amounted to reasonable excuse. He acted according to the light of his own judgment, in good faith, in the interests of his passenger. He said that if he had taken the more congested route, the taxi might have had to wait and for every minute of waiting 90 cents would have been added to the meter. The passenger might have ended up paying more. Upon these facts I cannot see how the conviction based on his having no reasonable excuse can be sustained.

Conclusion

7. The appeal must be allowed and the conviction quashed. If the fine has been paid it must be repaid to the appellant.

Costs

8. As to the costs, I have power under section 120 of the Magistrates Ordinance to make an order for costs both in relation to the court below and in relation to the appeal. Mr. Pang on behalf of the appellant only seeks an order for the costs of the appeal in the sum of $20,000 which on its face would seem reasonable. This application is not being resisted by Miss Lai for the Crown. In these circumstances I make an order that the costs of the appeal in the sum of $20,000 be paid by the Crown, the respondent, to the appellant.

Representation:

Mr. C.P. Pang (M/S Michael N. Hwang & Co.) for Appellant

Miss Anna Y.K. Lai (Crown Prosecutor) for Crown/Respondent