Wong Kam Tai v. The Queen

CACC000484/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 484 OF 1972

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Coram: Huggins, J.

Date of Judgment: 19th July, 1972.

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JUDGMENT

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1. This is an appeal against convictions and sentences on two charges of driving a private car for hire and reward and for driving without third party insurance. Fines of $50 and $200 were imposed and the Appellant was disqualified for two years.

2. As to the appeal against conviction the Appellant complains that the evidence was not satisfactory. That evidence was that a police officer in plain clothes was standing at the Kwun Tong Ferry Pier : the Appellant drove up in a private car and asked if he wanted a car : he replied "Yes" and climbed in : the Appellant asked where he was going and he gave an address : the Appellant drove him there and then said "Here you are. Thanks for $2.-" : the constable handed over $2 and then arrested him. The address he had given was a place where another police officer had arranged to wait and the evidence as to the arrival of the car was corroborated by the second officer, who also said that two $1 coins were found in the driver's hand.

3. There appears to have been no dispute about the question of insurance. Not only was there no evidence about this but nothing was mentioned about it in the notes of proceedings. That is an unfortunate omission. However, the learned magistrate in his Statement of Findings states that the Appellant's insurance policy did not cover him for the carriage of passengers for hire or reward. The Appellant was professionally represented in the court below and no point has been taken on insurance in this court.

4. The Appellant gave evidence in the court below and said that he was accosted by the man who turned out to be a police officer and that the officer climbed in without any permission to do so, bringing with him two orange boxes and two water-pipes - articles which the Appellant says have since mysteriously disappeared. The suggestion made by the Appellant was that the officer indicated that he was acquainted with a friend of the Appellant who had previously been driving this particular car and that, when he learned that the stranger was a friend of his friend, he agreed to carry him.

5. The learned magistrate considered all the evidence and accepted that of the Prosecution. Indeed, he thought that the story told by the Appellant was scarcely credible and it certainly does sound a very strange story. I see no reason to believe that the learned magistrate came to a wrong conclusion and the appeal against conviction is dismissed.

6. As to the appeal against sentence, the burden of the complaint is that the Appellant is a driver by occupation, who earns $850 a month, and that the period of disqualification leaves him without work. No specific reference is made to the fine.

7. In my view no justifiable complaint can be made of the fines imposed. Again, it is remarkable that there is nothing in the notes of proceedings about any previous convictions. It is clear that before any previous convictions are taken into account they ought to be admitted expressly or proved, and in either event a note ought to be placed on the record. In his Findings the learned magistrate said that the Appellant had a previous conviction for "No insurance" and the Appellant has admitted before me that that is correct. On the basis of that previous conviction the learned magistrate said that he thought the minimum period of disqualification was not appropriate. He was perfectly entitled to that view and I am unable to say that it was wrong. The appeal against sentence must also be dismissed.

19th July, 1972.

Representation: