Li Wing Cheung v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.752 OF 1972

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Coram: Pickering, J.

Date: 1st February, 1973

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JUDGMENT

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1.  In Criminal Appeal No. 808 of 1972 I gave my reasons for refusing to interfere with the conviction of the appellant in that case, upon charges of using a private car for hire or reward and driving without third party insurance, and for allowing the appeal against sentence to the extent that the disqualification imposed upon the appellant was to be restricted to private motor-cars and its period to twelve months. The present appeal is by a different appellant against conviction by the same magistrate upon two similar charges.

2.  Again, there is a clash of evidence. For the Crown, the now familiar plain-clothes P.C. and W.P.C. said that they saw a private car AK6736 being driven along Nathan Road by the appellant near Shan Tung Street; that the appellant stopped the car in front of them and asked if the two wanted a car to which they replied in the affirmative. The male P.C. testified to the appellant then opening the offside rear door of the car. The two boarded the vehicle and, their destination having been asked, said that they wished to go to the Paris Theatre at San Po Kong to which address the appellant drove them saying, at the end of the journey, “Thanks, $3”. Both P.C.’s testified to the male P.C. handing over $3 to the driver who received it with his left hand and who, after the two had revealed their identities, was then cautioned and taken to Wong Tai Sin Police Station.

3.  The appellant, as was conceded by the prosecution, is the full time manager of a small wig factory and his evidence was that he is employed at $1,200 a month together with an allowance of $200 in respect of the use of his car in connection with the wig factory’s business.

4.  The appellant’s evidence was that he was driving in the inner lane in Nathan Road when he was compelled to stop because traffic in front of him came to a halt; as soon as he stopped his car two men and a woman, being the prosecution witnesses and a fat man whom, he said, was not in court, opened the door of his car and rushed into it; the two prosecution witnesses sat at the rear of the car, the male P.C. being behind the appellant and the fat man sat at the front; the appellant asked what was going on, whereupon the fat man instructed him to drive to the Paris Theatre to which the appellant replied “I don’t know you, please alight from my car”. The reply of the fat man was to the effect that the Paris Theatre was situated in San Po Kong and at that stage the male prosecution witness put his hand on the back of the appellant’s neck, who concluded that he was about to be robbed; he did not call out or drive to a police station because of the hand on his shoulder, but drove the three to the Paris Theatre, outside which he stopped his car. At this point another man approached him and opened the door by the side of the appellant, catching the latter’s right hand and snatching away the ignition key whilst, at the same time, the fat man caught hold of the appellant’s left hand. The appellant’s evidence as that he then asked what was going on and was told that they were police constables and that he was carrying passengers in a private car. The appellant claimed that he had never, at any time, asked for $3 and that no one in the vehicle had ever taken out $3 or put such coins into his left hand; at the police station he was asked to sign on an empty envelope and, upon asking why he should do so, was told that it would be used to hold his car keys and licence book. He signed the envelope and gave it back to the W.P.C. who then put three $1 coins into it replying, to his objection, that if $3 were not enough she would put $5 into the envelope.

5.  The learned magistrate fully accepted the evidence of the police witnesses and characterised the appellant as a liar, adding that he cut a very poor figure indeed in the witness-box.

6.  For the appellant, Miss Kelly submitted that the magistrate had failed to consider the evidence of the appellant, who had told a not unreasonable story and who was not a professional pak pai driver but a man in permanent legitimate employment. The prosecution’s story was unlikely in that it would be unusual for a car to stop without having received any indication from intending passengers identifying them as such. Upon this observation, I would comment that such a method of touting by pak pais is anything but unusual in Hong Kong and indeed, so common that I consider I am entitled to take judicial notice of the practice.

7.  Miss Kelly further submitted that if the prosecution evidence was accepted in full, there was no evidence of any carriage for hire or reward on any previous or subsequent occasion and on the basis of the Albert^([1]) case it had to be shown that there was systematic carriage in the nature of a business; the isolated character of the carriage in this case did not render it carriage for hire or reward and the insurance policy had remained valid.

8.  For the Crown, Mr. Moshinsky submitted that this interpretation of the Albert⁽¹⁾ case was too cut and dried and altogether too simple; the case did not lay down a single instance test and did not say that proof of one single transaction was insufficient to found a prosecution; the only principle in the case was the test of systematic or commercial activity and what the court had in mind in its single instance examples, were occasions of a personal or semi-social nature; where, however, there was even one instance of money being offered by a stranger and accepted by a driver in return for a lift, there could be no clearer proof of a commercial transaction; the police had been strangers to the appellant, who had asked them if they wanted a car and thereupon had driven them to their destination and asked for money; this was a commercial activity and justified the conviction.

9.  I would say no more than that I agree with these submissions made by counsel for the crown. The carriage was a predominantly business arrangement rather than a social one; the appellant was operating an unofficial taxi service and the appeal against conviction must be dismissed.

10.  In this instance there was no appeal against sentence. The learned magistrate, however, disqualified the appellant from holding or obtaining a licence to drive a motor vehicle for a period of fifteen months. It has subsequently been held, by my brother Huggins in Criminal Appeal No. 676 of 1972, that there is no power, under s.4(2)(A) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, to impose such a disqualification for any period longer than twelve months. I agree and it follows that the learned magistrate unwittingly exceeded his jurisdiction. I must, therefore, treat this appeal as being also an appeal against sentence and in that regard the appeal succeeds to the extent that the period of disqualification is reduced from fifteen months to twelve months.

Miss Kelly (David Burgin & Co.) for Appellant.

Moshinsky, C.C. for Respondent.

([1]) 1971 3 W.L.R. 291