Yau Ting Kan v. The Queen
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CACC000600/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 600 OF 1979 -----------------
----------------- Coram: Silke, J. in Court Date of Judgment: 2 August 1979
----------------- JUDGMENT ----------------- 1. The appellant, a taxi driver, was convicted on the 31st May 1979 at San Po Kong Magistracy of two offences one under the Road Traffic (Public Service Vehicles) Regulations the other under the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations - thought as the incidents were alleged to have occasioned in September 1978 prior to the amendment of the title of those Regulations it might have been preferable to have retained the old title in both offences rather than in one. Nothing however turns on this. 2. The first information alleged the failure of the appellant to "without reasonable excuse, drive to such destination other than by the most direct practicable route". 3. The main point taken on appeal is that there was no evidence of what was the most direct practicable route. 4. The evidence of the passenger, the only prosecution witness, was that he and a sick friend stopped the taxi at the junction of Argyle Street and Portland Street. Their destination was 300, Prince Edward Road. The driver turned into Nathan Road crossed that road and turned into Argyle Street and then Tung Choi Street. The passenger protested and said he had instructed the driver to go straight along Mongkok Road to Sai Yee Street and then to Prince Edward Road. 5. He was clearly of the impression that the route taken was not the shortest route. But what is the shortest route may not, in view of the state of traffic and of the road diversions in Kowloon - which are so notorious that they permit of judicial notice being taken - necessarily be the most direct practical route. 6. The passenger admitted in cross-examination that he did not travel this route very often. 7. The defence was basically a denial of any complaint about the route and a suggestion that all the trouble was caused by a faulty airconditioner of which the appellant said there was a complaint. 8. In his Statement of Findings the Learned Magistrate accepted the passenger as a witness of truth. He then referred himself to the "Official Guide for Kowloon and the Territories Volume 2 First Edition". Mr Kotewall, for the appellant, takes the point that this guide should not be the subject of judicial notice and further that the appellant did not have the opportunity to argue on its contents before the Learned Trial Magistrate. 9. For myself I agree that such a publication is not a fit subject for judicial notice to be taken - indeed in the circumstances of Kowloon as it is now it could be positively misleading. 10. The Crown having conceded, rightly in my view, that the Prosecution was obliged to call evidence of that which was the most direct and practicable route on the 11th September 1978 - the date in the information - and that it did not - I would quash the conviction and sentence on the first information. The fine if paid to be refunded. 11. The second information arose out of the same incident and alleged that the taxi driver behaved "other than in a civil and orderly manner". 12. That there was a dispute about the route and that the taxi driver "muttered" and "murmured" and turned off his airconditioner, asking the passengers to get out before their destination, was evidence which the Learned Trial Magistrate accepted and I have no doubt he was right to do so. 13. Mr Kotewall argued that conduct sufficient to ground a conviction must be clearly uncivil and disorderly and further that the Learned Magistrate in his Statement of Findings referred to the appellant's behaviour as uncivil and "unreasonable" - not disorderly. 14. I do not think, in the light of the wording of the regulation - "other than in a civil and orderly manner" that the Crown has to go so far. Behaviour in such case is a matter of fact. The Learned Magistrate here was entitled to come to the conclusion that he did and to find the offence proved. 15. I would dismiss the appeal.
Representation: R. Kotewall Esq. (D.I.A.) for Appellant B. M. Ryan Esq., Crown Counsel, for Respondent |