HKSAR v. Lui Kim Ying

HCMA 946/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 946 OF 2006

(ON APPEAL FROM ESCC 785/2006)

____________

BETWEEN

____________

Before: Hon Beeson J in Court

Date of Hearing: 27 October 2006

Date of Judgment: 27 October 2006

______________

J U D G M E N T

______________

1.The Appellant was convicted in the Magistracy of four counts: (1) Common assault, (2) Failing to display a taxi driver identity plate, (3) Charging for a taxi hiring a fare exceeding the specified scale and (4) Being a taxi driver not behaving in a civil and orderly manner. 

2.He was ordered to pay a fine of $1,000 on charge 1, and $500 on each of charges 2, 3 and 4, a total of $2,500.  In addition, he was ordered to forfeit $1,000.00 under a previous Binding Over order.  The Appellant appeals against conviction and sentence.

3.No specific grounds of appeal were filed prior to the hearing.  The first ground given at this hearing was that the Magistrate failed to view a CCTV tape, which belonged to the Railway Company and showed the locus in quo.  On enquiry, it transpired that the Magistrate had viewed the tape, but had not found that it of any assistance.  The Appellant then varied this ground of appeal to say that he was afraid the Magistrate did not view the tape carefully.  According to the Appellant, the tape showed that the railway worker, PW4, an independent witness, and the police officers (PW1 and PW3) who passed by, could not have seen the incident as they described.

4.A further ground was that the passenger, the victim of the assault, had not been injured in the assault.  That was shown by the tape, but when he came to court, he claimed he had suffered an abrasion.

5.A further ground of appeal was that the Appellant had not been asked by the police to give any statement from the time of his arrest up to the time he was charged.

6.Another ground of complaint was that the passenger had himself taken away the driver’s identity plate.  According to the Appellant he had seen that occur.

7.It was alleged that it was the passenger who had assaulted the Appellant.  This arose from an attempt by the passenger to take a photograph of him and had caused the Appellant to call the police.

8.In respect of the alleged $5 overcharging, the Appellant claimed he was obeying the console’s order that $5 should be paid, it was not demanded of his own volition.   The most serious ground of appeal was that he alleged the victim and police had concocted a story in an attempt to frame him.  According to the Appellant, the police had had plenty of time to do so.   They had also coached the victim in his evidence at court on the trial day.

9.The prosecution case was a simple one.  There had been a dispute between the Appellant and his passenger over $5 added to the taxi fare.

10.In the course of unloading the luggage the Appellant threw it towards the victim who used his left hand to fend the bag off.  This was witnessed by three men who passed by: two of them were police officers, (PW1 and PW3 at trial) and the other was a railway worker (PW4) who was an independent witness.  All described seeing the Appellant throw the bag at the passenger.

11.The passenger, (PW2) said that the identity plate of the driver had not been displayed; this was supported by PW1.  The Appellant denied that he ever threw the luggage at the passenger.  He told the court that the passenger had agreed to pay $5 as a tip voluntarily.  He had been told that by the console and was only trying to collect the agreed sum.

12.The Appellant was represented at trial and gave evidence.  He denied the prosecution case and claimed that it was the passenger who had behaved aggressively.  The Magistrate recognised that the main issue was credibility, with the exception of the charge relating to charging an excess fare.

13.The Magistrate found the prosecution witnesses credible and reliable.  He treated the railway worker as an independent observer.  He found that the prosecution had proved the charge of assault and on the same facts, the charge of being a taxi driver behaving other than in a civil and orderly manner.  He was satisfied that the taxi driver had not displayed his driver’s identity plate.

14.As for the extra charge of $5, it was the Appellant’s evidence that the console had told him that the passenger would pay $5 voluntarily, as a tip and for that reason he added $5 to the bill.  The Magistrate noted that schedule 5 of the Road Traffic (Public Service Vehicles) Regulations does not permit a taxi driver to charge for a gratuity, or to place the amount on the final bill.  If it is done then it is entering a charge that exceeds the specified scale of fees.  The Magistrate found the offence proved. 

15.Having considered the facts of the case, I am satisfied that the Magistrate’s findings are justified.  He had the chance to view the tape and hear the witnesses.  There is no basis for interfering with the Magistrate’s findings and the appeal against conviction is dismissed.

Miss Lily Wong, SGC of Department of Justice, for the Respondent

Lui Kim Ying Alan, Appellant in person