Hong Kong Case Law: Decisions & Judgments

Topic

Overbreadth

Legal area

Court

20 Mar 2020

HKSAR v. YUONG HO CHEUNG AND OTHERS

Citation

[2020] HKCFA 10
Court

Court of Final Appeal
Case number

FAMC58/2019

The Appeal Committee granted leave only on the narrow legal question of the proper construction of s.52(3)(a) Road Traffic Ordinance — specifically what constitutes 'for the carriage of passengers for hire or reward' — and refused leave on the constitutional challenges under Basic Law Articles 28 and 33 because they were not reasonably arguable on the constructions advanced; issues of alleged substantial and grave injustice are to be considered in relation to the statutory construction question.
29 Nov 2019

HKSAR v. WONG TAK-MING

Citation

[2019] HKCFI 2899
Court

Court of First Instance
Case number

HCMA401/2018

The court held that s52(3)(a) RTO focuses on the driver's subjective purpose to drive for carriage of passengers for hire or reward; it does not require an express direct agreement with the passenger or actual payment; the provision targets predominantly commercial carriage arrangements; the applicants' proposed direct‑agreement requirement and constitutional challenges were not reasonably arguable and certification was refused.
29 Nov 2019

HKSAR v. YIP WAI-MING

Citation

[2019] HKCFI 2899
Court

Court of First Instance
Case number

HCMA382/2018

The court held that s52(3)(a) RTO requires proof of the defendant's subjective purpose to drive 'for the carriage of passengers for hire or reward', but it does not require a direct contractual agreement or direct payment from the passenger; the phrase is to be read as a whole and targets predominantly commercial carriage (pak pai) and the constitutional challenges under Articles 28 and 33 are not reasonably arguable in the circumstances; application for a certificate was dismissed.
29 Nov 2019

HKSAR v. LEE HING-LUNG GARY

Citation

[2019] HKCFI 2899
Court

Court of First Instance
Case number

HCMA390/2018

The phrase 'for the carriage of passengers for hire or reward' in s52(3)(a) is a requirement of the defendant's subjective purpose: the prosecution must prove the driver intended the carriage to be for hire or reward; no direct contractual agreement between driver and passenger is required; the provision targets carriage of a predominantly commercial character and is supported by legislative history and local authorities; the application for certification was dismissed because the contested alternative constructions and constitutional challenges were not reasonably arguable.
29 Nov 2019

HKSAR v. WONG SIU-PONG

Citation

[2019] HKCFI 2899
Court

Court of First Instance
Case number

HCMA399/2018

The court held that s52(3)(a) criminalises driving where the driver subjectively intends to carry passengers 'for hire or reward'; proof does not require actual payment nor a direct contractual agreement between driver and passenger; the carriage must be predominantly commercial in character; on the facts the applicants' constitutional challenges under Basic Law Articles 28 and 33 were not reasonably arguable and the certificate application is dismissed.
29 Nov 2019

HKSAR v. CHAN PAK-KAY ANDREW

Citation

[2019] HKCFI 2899
Court

Court of First Instance
Case number

HCMA385/2018

The offence under s52(3)(a) is proved by establishing the driver's subjective purpose to provide carriage of passengers from which he expected reward derived from the carriage; no requirement for an actual payment or a direct contractual agreement between driver and passenger; the provision is directed at predominantly commercial carriage (pak pai); the constitutional challenges were not reasonably arguable and the application for a certificate was dismissed.
29 Nov 2019

HKSAR v. YUONG HO-CHEUNG

Citation

[2019] HKCFI 2899
Court

Court of First Instance
Case number

HCMA381/2018

The court held that s52(3)(a) focuses on the driver's subjective purpose (mens rea) to carry passengers for hire or reward, does not require an actual payment or a direct contractual agreement between driver and passenger, and targets predominantly commercial carriage; the applicants' narrower 'direct agreement' construction and constitutional challenges on overbreadth and freedom of occupation were not reasonably arguable and certification was refused.
29 Nov 2019

HKSAR v. WONG WAI-KEUNG

Citation

[2019] HKCFI 2899
Court

Court of First Instance
Case number

HCMA387/2018

Application for a certificate dismissed because the central statutory interpretation question (meaning of 'for the carriage of passengers for hire or reward') is not reasonably arguable: s52(3)(a) focuses on the driver's subjective purpose to obtain reward from carriage (expectation of payment) but does not require direct agreement or actual payment; the carriage targeted is predominantly commercial; challenges based on overbreadth under BL28 and freedom of occupation under BL33 were not reasonably arguable in these consolidated appeals.
29 Nov 2019

HKSAR v. LI SUI-LEUNG

Citation

[2019] HKCFI 2899
Court

Court of First Instance
Case number

HCMA395/2018

The court held that s52(3)(a) focuses on the driver's subjective purpose to provide carriage from which the driver expects reward; no direct agreement or actual payment is necessary, and the provision targets predominantly commercial carriage; the applicants' proposed requirement of a direct agreement was not supported by authorities and the constitutional challenges (overbreadth and Basic Law Articles 28 and 33) were not reasonably arguable, therefore the application for a s32 certificate was dismissed.
13 Sept 2019

HKSAR v. YIP KA-SHING

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA383/2018

Section 52(3) RTO is properly construed to require proof of the defendant driver's subjective purpose to drive 'for the carriage of passengers for hire or reward' (a predominantly commercial purpose); no legal requirement of a direct contractual agreement between driver and passenger nor a distance-based remedial gloss; s52(3) is not overbroad or unconstitutional as properly construed; on the facts the drivers acted with the prohibited purpose and convictions are safe and upheld.