YEUNG PAK KAU v. THE QUEEN

bjbj IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 248 OF 1973 BETWEEN YEUNG PAK KAU and THE QUEEN Coram: Huggins, J. JUDGMENT The Appellant was charged before the magistrate with a breach of reg.34(2) of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations. That paragraph reads: No person shall in a public place by speaking, making any noise, sounding any instrument or otherwise solicit any other person to make use of a public omnibus or public car . It was not disputed that the Appellant was the driver of a public car operated by a company which provides a radio hire service or that the company received a request from a Mr. Cheung for a public car to be sent to the junction of Nathan Road and Hillwood Road. The Appellant arrived at that junction shortly afterwards and he said that he went there in accordance with directions from the radio control. Although he made no clear finding one way or the other the learned magistrate said It may very well be that Appellant had instructions to pick up a Mr. Cheung at Nathan Road near Hillwood Road . At that place two police officers were on duty on the lookout for drivers committing offences in relation to the unlawful carrying of passengers in motor vehicles. The Appellant stopped in front of them: they boarded his car: he asked where they wanted to go and they directed him to drive to the Star Ferry: he drove them there and was then arrested. The Appellant said that when he picked up these two persons he believed that they were the persons who had ordered the car, but the learned judge did not say expressly whether he thought that might be true nor did he expressly advert to the element of mens rea in soliciting. He did, however, disbelieve the Appellant when he said that when the vehicle reached the Star Ferry he requested payment of the fare and was refused: the evidence of the police officers as to that, which was believed, was that on arrival at the Star Ferry the fare was tendered but that the Appellant refused to accept it and said Forget it . The learned magistrate also appears to have believed that when the Appellant drove up to the two police officers he asked them if they wanted a car and, as I understand the Statement of Findings, it was that evidence which led him to find that the Appellant solicited them verbally to travel in it as passengers . The conviction has been attacked on two main grounds. First, the learned magistrate said: In Kowloon there is no dearth of private cars plying for hire or of public cars whose drivers operate them as if they were taxis. There is no lack of opportunity for a watchful policeman and it is contended that this was not a matter of which the magistrate could properly take judicial notice and that he failed to appreciate that this was not just any public car but a public car forming part of a radio hire service. Thus, it is said, the magistrate showed bias against the Appellant. I cannot accept this argument. No magistrate who has sat in the courts of Kowloon can be ignorant of the large number of cases coming before those courts in which drivers of private cars and public cars have been convicted of operating their vehicles in breach of the regulations against plying for hire. Nor do I think it was in the least material to the point which the learned magistrate was making that some public cars operate under a radio hire service: he was merely pointing out, in relation to a suggestion that the police had deliberately ordered this car in the name of Mr. Cheung in order to trap one of the company s drivers, that there was no need to fabricate offences in this way because there were so many actual offences being committed. Then it is submitted that the finding that the Appellant solicited the two police officers cannot be supported. It appears to be conceded that, having disbelieved the evidence of the Appellant that he requested payment of the fare and that the officers refused to pay, the magistrate must be taken to have believed the story of the officers that in fact the Appellant declined to accept what was tendered. What happened at the Star Ferry is not, however, relevant to the issue whether the Appellant solicited the officers at the junction of Nathan Road and Hillwood Road, unless, as counsel for the Respondent has argued, the Appellant s refusal of the fare indicates the prior existence of a guilty mind. The learned magistrate was correct in thinking that the mere fact that the car had been ordered to proceed to that place to pick up a Mr. Cheung did not preclude the possibility that upon arrival there the Appellant might, whether because Mr. Cheung was not there or for some more obscure reason, nevertheless have solicited the police officers to make use of the car in his stead. Equally I think the learned magistrate was justified in attaching no weight to the fact that one of the police officers was a Miss Cheung . Was it proved beyond all reasonable doubt that the Appellant did solicit these two officers? It is submitted on behalf of the Respondent that the Appellant was under a duty to make stringent enquiry to ensure that one of the persons apparently waiting for a vehicle to pick them up at the place to which he had been told to go was in fact the person who had ordered his car and that failure to make such enquiry was sufficient proof of a guilty mind. It is said that he must have been aware of the need to confirm that he had the right passenger, because the company had installed in each of its cars a brass plate advising passengers what they should do if they found they had inadvertently boarded the car in mistake for a taxi. It seems to me that this contention goes too far and in my view the subsequent refusal of the fare was not of such significance that guilt was established beyond all reasonable doubt. I appreciate that it is all too easy for a driver of a radio hire car to assert that he believed a passenger he has solicited is someone who has ordered his car, but in the present case his story was supported by the unshaken evidence of the radio operator that someone did place an order for this car to go to the place where the police officers happened to be waiting. In the face of that evidence and bearing in mind that the words alleged to have been used by the Appellant were equivocal I think that at the very least this conviction is unsafe. The appeal is allowed, the conviction quashed and the fine must be repaid. 26th April 1973. 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