Wong Kwai-luk v. The Queen
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CACC000707/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 707 OF 1973 -----------------
----------------- Coram: Li, J. in Court Date of Judgment: 21st September, 1973 at 4.20 p.m. ----------------- JUDGMENT ----------------- 1. This appeal is number 707 of 1973. The appellant, in this case, was convicted of the offence of offering services without permission from the Director of Civil Aviation contrary to sub-paragraph E of paragraph 2 of Regulation 4 of the Hong Kong Airport Regulations, Chapter 292. The particulars of offence is that he on the 14th June, 1973 at the arrival hall of Kai Tak Airport, did make an offer of services within the Airport without the permission of the Director of Civil Aviation. 2. The facts of the case is that on the material, date the appellant was observed to have approached three different groups of tourists arriving at the arrival hall of the Kai Tak Airport. The Prosecution witness who observed him did not hear what he said to the first two groups of the tourists. However, the appellant was heard to say to the 3rd group of tourists in these words: "Which hotel are you going to? Do you require a car?" The tourists said "No". Then the appellant said: "Do you require a hotel?" And the tourists ignored the appellant. At that moment the Prosecution witness approached the appellant and asked him what he was doing. The appellant's reply was that he was with a friend and had instructions to pick up customers. When the appellant was asked whether he, the appellant, had permission, the appellant could only answer that his friend had. On this, the appellant was arrested and subsequently charged. 3. The evidence of the appellant was that he was employed by the Hong Kong Car Hire Company Limited as a driver and that he had authority to go to the Airport to pick up tourists for and on behalf of his employer. On that occasion at the material time the appellant said he merely approached his colleague to ask whether there was any work for him to do or whether there was any passengers for him to pick up. He did not speak to any tourists. He called the director of his company who confirmed that he had authority to go to the Airport to pick up passengers but that his authority was limited to approaching the agent of hotels who would refer passengers or tourists to him. It was not the business of the appellant to speak directly to the tourists or passengers. In addition, the appellant should have been in uniform. Perhaps I should add that at the time that the appellant was arrested, he was not in uniform. 4. Such was the conflicting evidence before the Learned Magistrate. He made his statement of findings, he appreciated in that statement that there had been a conflict of evidence. None-theless, he chose to believe the Prosecution witness and disbelieve the appellant. He has had the advantage of seeing the witnesses which I have not. 5. On appeal, Mr. Chan for the appellant, urged that although the appellant did not cross-examine the Prosecution witness, yet the appellant is an ignorant person of legal procedure and an inexperienced person. However, his first ground of appeal is that of the credibility of the witnesses. He contends that the Prosecution witness is not to be believed. His criticism of his evidence is that it would be the duty of an experienced prosecution witness immediately upon such an occasion to ask for the name and the address of the appellant's colleagues and friends. 6. His second ground of appeal is that the hotel or, rather, the Hire Car Company had authority to go to the Airport through its employees to pick up passengers and therefore, the appellant was there merely acting in authority. Whatever the appellant might have said to the passengers might have been due to ignorance or lack of education. Thirdly, what was said by the appellant as found by the Learned Magistrate, did not amount to touting. 7. Apropos the first ground I find that although I do not hold anything against the appellant for failing to cross-examine the Prosecution witness, yet I feel that the name and address of the colleague to whom the appellant talked should be singularly within the knowledge of the appellant himself. Indeed, it was his evidence that he talked to such colleagues. However inexperienced or uneducated he might be, the appellant could adduce evidence from this third person. It was not for the Inspector to do so. I would even stop at that and hold that it is a mere conflict of evidence bearing mind that the Prosecution witness said that he spoke to passengers and tourists whereas the appellant said he merely spoke to his colleagues. But the appellant failed to call any of his colleagues to support his evidence. 8. As to the second point, the Hire Car Company might well have authority to go to the Airport. But that evidence (I agree entirely with the Learned Magistrate) is neutral. The fact that the Hire Car Company has authority to go to the Airport through its employees does not entitle the employee to go through the passenger list at random. The authority as far as the employee is concerned is limited to taking passengers referred to him by the hotel agents. 9. As to the third point of the appeal although the appellant was authorized to go to talk to the agent or his colleagues as to which passenger was referred to him, he had no business to talk to passengers at random and ask them whether they required a hotel or required car services. 10. Thus, the whole matter boils down to the conflict of evidence. The Learned Magistrate believed the Prosecution witness. He has given his reason and I see no way how I can differ from his findings of fact as such. I must confess that despite all the efforts to attack his finding of facts I fail to see anything wrong with his findings. Accordingly, the appeal against conviction must be dismissed. 11. At short notice, in fact, at the beginning of the proceedings, the appellant, through his counsel, also asked for leave to appeal against sentence which is not objected to by the Crown. The sentence is a fine of $250 but I am told that once a fine is imposed, a conviction is recorded, the appellant would be barred in the future from attending Kai Tak Airport. First of all, I have a great doubt whether I can take into consideration that the Court can take notice that the Director will also bar the appellant from attending the Airport which might affect his future career. However, even if I were allowed to consider this factor I cannot help feeling and agreeing with learned Counsel for the Crown that the defendant was given a position of privilege, if not of trust. He had abused that privilege. Whatever the Director of Civil Aviation chooses to do with his future attendance at the Airport, is very reasonable. A fine of $250 is not manifestly excessive and I cannot say it is so. Accordingly, the appeal against sentence is also dismissed.
Representation: Present: Peter Chan, (Henry C.K. Tung) for appellant M.J. Stapp, Counsel for the Crown. |