Hong Kong Case Law: Decisions & Judgments

Topic

Mens rea vs strict liability

Legal area

Court

13 Sept 2019

HKSAR v. YUONG HO-CHEUNG

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA381/2018

Section 52(3) of the Road Traffic Ordinance requires proof of a subjective purpose by the driver that the driving was for the carriage of passengers 'for hire or reward' (a predominantly commercial purpose); there is no requirement of a direct carriage agreement between driver and passenger as an element of the offence (such an agreement is evidential only); s52(3) is not overbroad or unconstitutional on that construction; the magistrate's remedial reading and requirement that reward depend on distance were unnecessary; on the facts the Appellants were acting for commercial reward and convict…
13 Sept 2019

HKSAR v. LEE HING-LUNG GARY

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA390/2018

Section 52(3) RTO must be read to require proof of the defendant driver's subjective purpose to drive 'for the carriage of passengers for hire or reward' (mens rea); a direct contractual agreement between driver and passenger is not a legal requirement though it is relevant evidence; the provision is not overbroad or unconstitutional as properly construed; the magistrate's remedial interpretation imposing a distance-dependent reward requirement was rejected; on the facts the Appellants' convictions and fines were upheld and the appeals dismissed.
13 Sept 2019

HKSAR v. LAU KIN-FUNG BOSCO

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA391/2018

Section 52(3) RTO requires proof of a subjective purpose: the driver must have driven 'for the carriage of passengers for hire or reward' (a predominately commercial purpose) but conviction does not require a direct contractual agreement between driver and passenger or actual payment by the passenger; s52(3) as so construed is not overbroad or unconstitutional and is not necessary to subject it to a remedial reading; the magistrate's convictions were sustainable on the evidence (drivers responded to ride requests via Uber, fares were journey-dependent and drivers expected to receive reward),…
13 Sept 2019

HKSAR v. TONG PO-HIN

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA393/2018

Section 52(3) RTO requires proof of a subjective purpose: the driver must be driving for the carriage of passengers 'for hire or reward' (a predominately commercial purpose); an agreement between driver and passenger is not a legal prerequisite though it may be evidence; the provision is not overbroad or unconstitutional as properly construed; the offence is not strict liability; on the facts the Appellants acted with the requisite commercial purpose and convictions are therefore upheld.
13 Sept 2019

HKSAR v. LEE KWOK-LEUNG

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA396/2018

Section 52(3) RTO requires proof of the defendant driver's subjective purpose — the driving must be for the carriage of passengers with a predominantly commercial/business purpose such that the ride is 'for hire or reward'; a direct contractual agreement between driver and passenger is not a legal precondition (it is evidential only); the provision is not overbroad or unconstitutional as so construed; on the facts the appellants satisfied the mens rea and convictions were upheld.
13 Sept 2019

HKSAR v. WONG TAK-MING

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA401/2018

s52(3) RTO is properly construed as requiring mens rea: the driver must have the subjective purpose of carrying passengers for hire or reward (a commercial/predominantly business purpose); a direct agreement between driver and passenger is not a legal prerequisite though it may be evidential; the provision is not overbroad or unconstitutional when so construed; on rehearing the prosecution proved beyond reasonable doubt that the appellants acted with the requisite commercial purpose and expectation of reward, so convictions were affirmed.
13 Sept 2019

HKSAR v. CHICK WAI-HO

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA415/2018

Section 52(3) RTO requires proof of the defendant driver's subjective purpose to drive 'for the carriage of passengers for hire or reward' (a mens rea element); an express or implied agreement between driver and passenger is evidence but not an essential element; the provision is not overbroad or unconstitutional as properly construed and is capable of applying to platform-mediated services such as Uber; on the facts the prosecution proved beyond reasonable doubt that the appellants acted with a predominantly commercial purpose and expected a reward derived from the carriage, so convictions a…
13 Sept 2019

HKSAR v. FAN WING-YAU

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA404/2018

Section 52(3) of the Road Traffic Ordinance requires proof of the defendant driver's subjective purpose to drive 'for the carriage of passengers for hire or reward' (a mens rea element); a direct agreement between driver and passenger is not a necessary element though it is relevant evidence; the magistrate's remedial interpretation requiring distance-dependent reward was rejected; properly construed s52(3) is not overbroad under the Basic Law; on the facts the Appellants acted for a predominantly commercial purpose and convictions were sustained.
13 Sept 2019

HKSAR v. CHEUNG YUK-FUNG ADRAIN

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA398/2018

s52(3) Road Traffic Ordinance, properly construed, requires proof of the defendant driver's subjective purpose to drive 'for the carriage of passengers for hire or reward' (a mens rea element); no legal requirement of a direct contractual agreement between driver and passenger for conviction; the provision is not overbroad or unconstitutional as construed; appellate court affirmed convictions on available evidence.
13 Sept 2019

HKSAR v. TSANG KWOK-MING

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA388/2018

Section 52(3) RTO requires proof of a subjective purpose: the driver must have driven the vehicle with a predominantly commercial purpose to carry passengers 'for hire or reward'; proof of a direct carriage contract between driver and passenger is not a legal prerequisite (it is evidential only); the offence is not strict liability on the facts; remedial reinterpretation was unnecessary and overbreadth/Basic Law arbitrariness was not engaged; evidence supported convictions, so consolidated appeals dismissed.