HKSAR v. Wan Hing Cheung

HCMA499/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.499 OF 2004

(ON APPEAL FROM TWS18521‑18523 OF 2003)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 19 August 2004

Date of Judgment : 14 September 2004

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J U D G M E N T

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1.The appellant was convicted by Deputy Special Magistrate Chan Wai Mun sitting in Tsuen Wan Magistrates’ Court of three summonses.  The first alleged that he, being the driver of a taxi did, without reasonable cause, charge for the hiring of the taxi a fare exceeding the appropriate scale of fares specified in the Road Traffic (Public Service Vehicles) Regulations, Cap.374.  The second summons alleged that he failed to move the taximeter indicator to the recording position as soon as the taxi had been hired.  The third summons alleged that he did without reasonable excuse, refuse to issue on demand a receipt which complied with the requirements of the aforementioned regulations.

2.The prosecution’s evidence was that PW1, a foreign national had arrived in Hong Kong on 26 August 2003 from South Africa.  When he left the airport, an unknown Chinese male spoke to him in English and asked him if he required the services of a taxi.  PW1 indicated that he wanted to hire a blue taxi to go to Cheung Sha, Lantau.  He also gave the Chinese male a piece of paper upon which the address was written in English.  The male took PW1’s luggage and proceeded to walk towards the taxi stand.  They arrived at a red taxi, registration no. KX4924.  Even though PW1 once again said that he wanted to hire a blue taxi, the unknown male paid no heed and at that time the taxi driver namely the appellant, alighted and placed PW1’s luggage in the boot. 

3.During the journey, the unknown male spoke to the appellant in Chinese which PW1 did not understand.  The male sat in the front passenger seat while PW1 sat in the back row.  The taximeter indicator had not been placed in the recording position, so PW1 asked the appellant to put down the meter, but the appellant and the male just ignored him. 

4.When the taxi arrived at Tung Chung, the male requested a fare of $350.  PW1 refused to pay saying that the usual fare was $30 to $32, besides which his destination was Cheung Sha on Lantau Island and not Tung Chung.  The appellant and the male refused to open the boot for PW1’s luggage to be removed and finally PW1 paid $300 and retrieved his luggage from the boot. 

5.PW1 asked the appellant and the male for a receipt.  The male then took out a book from the side of the driver’s seat and wrote out a receipt which was produced as Exh. P4 which he handed to PW1.  PW1 noticed that the date recorded on P4 and the registration number of the taxi were both wrong.  He then had a dispute with the male.  Finally, the appellant and the male drove off.  PW1 later complained to the police.  He also wrote a letter to the police which was produced in evidence as Exh. P5.  Throughout the incident it was only the male who spoke in English to PW1 and the appellant did not have any conversation with PW1.  The prosecution also produced as Exh. P6, the record of an interview with the appellant, which the appellant agreed had been obtained voluntarily.  In the interview, the appellant admitted that he had driven a taxi which carried PW1 and a male to Tung Chung, but he did not know the said male. 

6.The magistrate found that PW1 was an honest witness and his evidence was clear and cogent.  He did not waver under cross‑examination and the magistrate accepted that he was an honest and reliable witness.  

Grounds of appeal

7.Mr Tang for the appellant advanced three grounds of appeal :

(1)     the magistrate should not have accepted in evidence Exh. P4,

(2)     the magistrate should not have accepted in evidence Exh. P5, and

(3)     the magistrate, during the trial, was unfair towards and biased against the appellant.

8.When Exh. P4 was produced, it was not the original which was produced but a copy.  Where the original was was never elicited by the prosecution from PW1.  It is clear that he either had lost the original or had left it in South Africa when he came to Hong Kong to give evidence.  In any case, if the prosecutor at the trial had elicited from him what had happened to the original and if indeed it had been lost, then the copy would have been legally admissible.  In the event, because it was never established that the original had been lost, the copy was not legally admissible in evidence.  I therefore agree with counsel that the magistrate was in error to have admitted in evidence a copy of the receipt issued to PW1 by the unknown male when there was no legal basis for so doing.

9.I need not go into the other ground relied upon by Mr Tang to say that the copy was inadmissible which was that the document had not been issued by the appellant but by the unknown male.  The answer to that is quite clearly that the prosecution’s case was that the unknown male and the appellant were acting together on a joint enterprise.  However the fact that Exh. P4 should not have been admitted in evidence, to my mind, does not detract from the prosecution’s case.  PW1’s evidence was that at his request the unknown male wrote out a document which he gave to PW1. 

10.The issuance of this document manually, whether it be a receipt or not, was still in breach of the regulations governing the issuance of receipts because under the regulations, a receipt which is to be issued to the hirer of a taxi shall be printed by the receipt printing device installed in the taxi, and if a receipt were to be issued other than by means of the receipt printing device, it had to be shown that the said device was not in proper working order.  There was no such evidence at the trial.

11.The appellant’s case, according to the evidence he gave at the trial was that on arrival at Tung Chung it was the unknown male who had requested for a receipt and the appellant was about to issue a receipt by using the receipt printing device, but the unknown male said that would not be necessary because he was in a hurry.  Instead he asked the appellant whether he had a hand‑written receipt and he, the unknown male would fill it out himself.  The appellant then handed to the unknown male, a blank receipt form.  Therefore, the non‑production of Exh. P4 should not in any way have affected the prosecution’s evidence nor the correctness of the convictions on the three summonses. 

12.The second ground of appeal advanced by counsel was that Exh. P5 was similarly inadmissible and should not have been accepted by the magistrate.  The basis of the complaint was that Exh. P5 which was a letter written in PW1’s name to the traffic police had not been written or signed by PW1.  What had happened was PW1, while in South Africa, had dictated a letter to his son in Hong Kong in which PW1 mentioned the registration number of the taxi concerned.  The letter was then signed by PW1’s son on his behalf and sent off to the traffic police.  Exh. P5 was sought by the prosecution to be admitted in evidence because when PW1 gave evidence he was unable to recall the registration number of the taxi concerned.  He said he had written it down on a piece of paper but at the trial that piece of paper could not be found.  Exh. P5 was then sought to be admitted and was so admitted by the magistrate. 

13.Strictly speaking, counsel is correct because all PW1 could say was he dictated a letter to his son and all he could say was what the contents of the letter should have been about.  The final product was written by the son and signed by the son and sent off to the traffic police without PW1 seeing it.  I therefore agree with counsel’s submission that Exh. P5 should not have been admitted.  However, as with the previous Exh. P4, the non‑production of Exh. P5 should not in any way affect the credibility of PW1 as a witness, nor should it affect the correctness of the convictions.  Without Exh. P5, it is true, PW1 would not have been able to remember the registration number of the taxi concerned, but that does not matter because in fact that was not an issue before the magistrate.  

14.The appellant was unrepresented at the trial.  Before the trial was to commence, the magistrate not improperly asked the appellant if he agreed that on the day in question he had driven a taxi KX4924 and the appellant agreed.  After the appellant had finished cross‑examining PW1, because it was not very clear what the appellant’s case was, the magistrate asked the appellant if he agreed that on the day in question he had picked up that male (PW1) and he had also picked up a passenger but it was the passenger who had collected $300 from PW1.  The appellant replied that that was his case as stated by the magistrate.  Therefore, the registration number of the taxi was never an issue and was not a matter which the magistrate should have had to make a finding about.

15.The third ground of appeal advanced was that the magistrate was prejudiced against the appellant.  In support of this ground counsel contends that on two occasions the magistrate had indicated that the appellant stood a chance of having his licence disqualified.  The next matter relied upon was that the magistrate, without careful consideration, had accepted Exhs. P4 and P5 even before she had considered the possibility of PW1 mis‑remembering the number of the taxi.  However, it was conceded by counsel that the appellant agreed that on the day in question, he had driven PW1 and also in the appellant’s cautioned statement, he admitted a part of the prosecution’s case. 

16.However, it was contended that when the magistrate cautioned the appellant about the danger of the disqualification order and before she accepted Exhs. P4 and P5, she had not had the opportunity to read over the appellant’s cautioned statement.  By that stage, it was contended, she had not had the opportunity of determining what role the appellant had played in the whole affair.  It was contended that from all these it can be seen that very early on in the trial the magistrate had already concluded that the appellant had committed the alleged offences and she did not fairly consider the appellant’s case and other possibilities. 

17.I find nothing in this ground of appeal.  There was nothing improper about the magistrate mentioning that the offences in the event of a conviction might carry with it a disqualification order.  The whole basis of the convictions was because the magistrate accepted the evidence of PW1, which was sufficient to enable the magistrate to say that the prosecution had proved its case against the appellant beyond a reasonable doubt.

18.The appeal against conviction is therefore dismissed.

Appeal against sentence

19.On the first summons of charging for the hiring of the taxi a fare exceeding the appropriate scale of fares specified in the regulations, an offence under Regulation 47(2) of the Road Traffic (Public Service Vehicles) Regulations made under the Road Traffic Ordinance, Cap.374, the magistrate fined the appellant $3,000 and disqualified him from holding a driving licence for 12 months.  The appeal against sentence is in respect of the disqualification order.  It was properly conceded by the respondent that that disqualification order should have been limited to the driving of a taxi, as that is the provision of section 69(2) of the Road Traffic Ordinance. 

20.The appeal against sentence is therefore allowed to the extent that the disqualification imposed by the magistrate is limited to the driving of a taxi.  I also take into account the fact that since 14 April 2004, the appellant has not been able to drive any other kinds of vehicles.  He therefore has been unable to work in the capacity of a private car driver which he should have been allowed to do.  And so for about five months the appellant has not been able to work in the capacity of a driver of other vehicles.  Taking that into consideration, I will shorten the period of disqualification of driving a taxi by five months so that the period of disqualification is now one of seven months to commence as from 14 April 2004.  The appeal against sentence is also allowed to that extent.

Ms Peggy Lo, GC of Department of Justice, for HKSAR

Mr Daniel Tang, instructed by Messrs Au Yeung Cheng Ho & Tin (DLA),  for the Appellant