Chan Kwai Hung v. The Queen

CACC000374/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 374 OF 1971

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Coram: Huggins, J.

Date of Judgment: 15th July, 1971.

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JUDGMENT

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1. This is an appeal against conviction and sentence. The Appellant was charged under Reg. 38(1) and (3) of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses & Public Cars) Regulations with driving a public car for the carriage of passengers for hire or reward and, secondly, with driving a motor vehicle without Third Party Insurance.

2. The evidence for the prosecution was that a woman police constable stood in the road, in effect offering herself as a passenger for anybody who wished to carry her. The Appellant was driving a public car. He saw her and stopped by her and asked her whether she wanted a car or not. She said: "Yes - to Man Ming lane". She says that the Appellant then opened the door of the car for her to board and thereafter drove her to Man Ming Lane. There the Appellant said: "Thank you: $1". She paid him the $1 and then revealed her identity and the Appellant was arrested. He was asked to produce his driving licence. He could not produce it at the time but he stated that it was a private car licence. A number of questions was put to this witness in cross-examination, suggesting to her that she had ordered this public vehicle and that she was picked up in pursuance of a contract of hire of the vehicle. She denied this. The evidence of the woman police constable was corroborated to some extent by another police constable, who was on plain clothes duty in Man Ming Lane, and by Inspector LEUNG Fung-shuen, who was apparently in charge of this operation to stop this kind of traffic: he had given instructions to the woman police constable and in his own motor car he followed the Appellant car from the place in Nathan Road where the woman police constable was picked up to Man Ming Lane. That was the evidence for the prosecution.

3. The Appellant elected, after receiving legal advice, to remain silent - as he was perfectly entitled to do, although it had to be borne in mind that, on the authority of a decision of the Full Court, the burden of proving that he was insured was upon the Appellant. Although it was not formally proved, the policy of insurance was in fact produced to the learned Magistrate. That policy clearly shows, and it has not been disputed in this Court, that the insured would not be covered if the motor vehicle was used by him for the carriage of passengers for hire or reward. On the evidence it was a reasonable inference that the vehicle was being used by the insured: the dispute was over the question whether it was being used for hire or reward. The solicitor for the Appellant in the court below suggested that the evidence for the prosecution was unreliable and should not be accepted. The woman police constable said that this was her first case of this kind and it is clear that there were slight diserepencies in her evidence and that in relation to the preservation of the coin which was an exhibit in the case the usual police practice was not followed. All this was very much in the mind of the learned Magistrate, but he expressly said that despite these matters he was satisfied she was a witness of integrity and that he believed her evidence was true. He emphasised that the alleged contract of hiring of the vehicle which was suggested to the constable in cross-examination was not supported by any evidence at all.

4. In this Court I have allowed the Appellant to tell me his story in full and he has produced what purports to be a form of Agreement which, he says, his company requires hirers of their public vehicles to sign: and at the same time the company requires them to pay a deposit of $100. Not only was this never mentioned to the Magistrate but the Appellant agrees before me that the blank form of Agreement was never signed by the woman police constable, that she never paid the deposit of $100 and that he carried her despite her alleged refusals. She, of course, never had any opportunity to deny that any such requests for signature and payment had ever been made to her.

5. In my view there clearly was evidence which, if believed (as it was believed), justified the learned Magistrate in finding that this public vehicle was being driven by a person who was not licensed to drive public vehicles for hire or reward and who was in fact carrying a person for hire or reward. In those circumstances the convictions are unassailable.

6. As to the appeal against sentence, the Appellant was fined $125 on the first charge and $175 on the second charge. He was disqualified for twelve months from driving private cars and public cars. It is substantially against this final order that the Appellant appeals and he asks that the order be limited to public cars. The learned Magistrate said:

"...... where as in this case the Defendant is driving a public car under a private car licence disqualification limited to the driving of public cars would be virtually meaningless. The Defendant would then be left free if he chose to carry on his illegal activity by driving private cars."

I agree that it would be wrong to limit the disqualification. The Appellant did not have a licence to drive public cars at all. He says that he does not require a licence to drive public cars and, although this is not material to the present case, I think it right to emphasise that if this is generally thought to be true it is an unfortunate misunderstanding. Regulation 38(2) makes it quite clear that the registered owner of a public car and anybody in the employment of such registered owner may not drive a public car without a public car licence. However, as I say, the Appellant was not charged under that paragraph of the Regulation. The fact remains that he chose to drive a public car in reliance upon a licence to drive a private car. It would seem illogical and out of accord with the intention of the Legislature to disqualify him from driving vehicles of a class which he was not licensed to drive while leaving him free to drive the only class of vehicle which he was licensed to drive. I have come to the conclusion that the learned Magistrate was right in making the order which he did and the appeal must be dismissed.

15th July, 1971.

Representation: