Chan Tak-fai v. The Queen
Read the full judgment text of CACC 553/1978 on BabelCite. This Court of Appeal judgment.
1. The appellant is a taxi driver. He was convicted of refusing without reasonable excuse to drive his taxi to the place indicated by the hirer contrary to Reg. 27(a) of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations. He appeals against that conviction on two grounds.
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CACC000553/1978
----------------- Coram: Cons, J. Date of Judgment: 31st August 1978. ----------------- JUDGMENT ----------------- 1. The appellant is a taxi driver. He was convicted of refusing without reasonable excuse to drive his taxi to the place indicated by the hirer contrary to Reg. 27(a) of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations. He appeals against that conviction on two grounds. 2. The first is legal and rests upon the submission that before a court may convict of that particular offence the prosecution must lead evidence that the taxi was either
A driver commits an offence against Reg. 25 if he ply or stand for hire on the road except in one of these three circumstances. 3. The need for this particular evidence is said to be implicit in the decision of the learned Chief Justice earlier this year in Leung Yuk-yin v. Reg.(1). That was a prosecution under Reg. 27(b) for refusing to carry a passenger, who incidentally was the actual hirer. I take the facts from the judgment:
The reason for the decision follows:
4. With every respect to counsel and to the learned magistrate who subsequently seems to have taken the same view, I do not think that that proposition of law is implicit in that judgment. I cannot find in the words used even the slightest suggestion that the prosecution had failed to lay a sufficient foundation for its case. I do not think the decision turned upon that point in any way. The ratio of the decision was that the driver had a reasonable excuse: the police officers were in the wrong; if the driver had condoned their conduct he too would have been in the wrong; and that was good reason to refuse the hire. I do not think the case goes any further than that. 5. The present circumstances are not the same. The appellant was driving his taxi along Hollywood Road when he was hailed. His meter flag was raised. He pulled his taxi over and stopped. The fare boarded the taxi and asked to be taken to Repulse Bay Road. The appellant refused. There can be no suggestion that the fare was in the wrong. It is an accepted practice to hail a moving taxi. So far as I am aware it is a lawful practice. If by remote chance the driver is not proceeding in compliance with the second or third condition mentioned in Reg. 25 he is not bound to respond to the hail. He should, of course, in those circumstances, not have his flag visible: Reg. 22. But if he does, as the law stands at the moment, he is still not bound to respond. It seems to me that if nevertheless he should choose to do so, then he thereby accepts the hire and he is bound to comply with Reg. 27. His conduct would have been in breach of Reg. 25. But I cannot see how that could provide a reasonable excuse for a further breach of Reg. 27. Nor do I see why the Crown should need to prove that the driver was acting lawfully at the time with regard to Reg. 25 any more than it needs to prove that with regard to any other regulation which imposes restrictions on standing or plying for hire. The contract of hire is not void merely because one of the parties to it acts unlawfully. In my view this ground of appeal is misconceived. 6. Crown counsel made a separate point that even if the law were as suggested for the appellant the need for the evidence was satisfied by a presumption drawn from common sense applied to the circumstances. I am not sure that I would have gone that far. It is a tempting argument. One may expect that most people will behave lawfully rather than unlawfully. But the mere fact that a prosecution has been brought at all shows that the particular defendant may be an exception. 7. As the second ground of appeal it is argued that on the totality of evidence before him the learned magistrate could not have been satisfied that the appellant understood to what place he was expected to drive. This is said to be because there was evidence both that the hirer spoke English and that the appellant does not know English. It is suggested that the learned magistrate failed to evaluate these pieces of evidence properly. What the magistrate said is this:
Whether the appellant comprehended the request to go to Repulse Bay Road is a pure question of fact. It relates to his state of mind. This may be indicated by his words, actions or both. These can only be made known to the court through the evidence of a witness. And then the court will draw its conclusions from that evidence, taking into account the impression it forms of that particular witness and the other evidence in the case. That is what the magistrate did in the present instance. Failure to understand what destination was requested was not the direct line of defence taken during the trial. But the words of the learned magistrate show that the possibility of such a misunderstanding was present to his mind. He discounted it. I see no reason to think that he was wrong. 8. For these reasons the appeal against conviction is dismissed. 9. There is also an appeal against sentence, a fine of $500. That is the maximum fine allowed. At the time of the offence the appellant had only one minor offence on his record. In the circumstances it was wrong in principle to impose the maximum. The fine is reduced to $300. But I should add that the offence was committed in December last year when the offence was by no means so prevalent as it has recently become. Even first time offenders should now expect fines of or near the maximum and a period of suspension. Representation: Mr. A.H. Sakhrani (Director of Legal Aid) for appellant. Mr. P. Duncan, Crown Counsel, for respondent. (1) Cr. App. 1978 No. 381 |