THE QUEEN v. LIU HON FAT AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 276 OF 1991

_________

BETWEEN

____________

__________

JUDGMENT

__________

1. The appellants were the second and fifth of a number of defendants charged in the same information with Ticket Scalping. The charges were lettered A through to P. The first appellant (D2) faced charges H, J and L, whilst the second Appellant (D5) faced charges D, E, F, G and N. Each pleaded not guilty.  After trial D2 was found guilty on all three charges whilst D5 was found guilty on charges D, E, F and G and not guilty on charge N.

2. Ticket scalping is made an offence by s. 6B of the Summary Offences Ordinance, Cap.228, ("6B") which read as follows:-

'authorized price, in relation to a ticket issued by or on behalf of a carrier, means the price fixed by or on behalf of the carrier as the price at which the ticket is to be issued to an intending passenger;   'carrier' means a person who provides any means of transport for passengers; ........   'ticket' means any document or token issued for the purpose of enabling the holder thereof to travel as a passenger on any vessel ... '"

3. The Particulars of offence in relation to charge D read as follows:-

".... on the 3rd day of February, 1990, at 3rd floor, Shun Tak Centre, 200, Connaught Road Central, a public place, in Hong Kong, you did sell one Far East Hydrofoil Co. Ltd. ticket serial number 3285015 (economy class) of face value $103-HK, Hong Kong to Macau ticket issued by a carrier, Far East Hydrofoil Co. Ltd. at a price of $200-HK cash, which is exceeding (sic) the authorized price."

4. The Particulars of Offence in relation to the other charges were similar except as to the particulars of the date, the serial number of the ticket, the class towhich it related, its face value, the journey it covered and the price at which the particular defendant sold it.

5. No carge specified what the authorized price was in relation to the ticket but the price at which the defendant was alleged to have sold it was in excess of the amount alleged as the "face value" of that ticket.

6. On the hearing of this appeal elaborate submissions were made by Mr. Wong, on behalf of the appellants, to the effect that the learned magistrate should not have accepted evidence that the defendants had sold documents. In the view I take of this case I do not find it necessary to set out those submissions or to say any more about them other than that, if they has been the only grounds of appeal, the appeal could not have succeeded. I think that the learned magistrate's findings regarding the sales are unassailable. The real issue on this appeal is the one argued by Mr. Buchanan, on behalf of the appellants, namely, whether the element of "authorized price" was proved.

7. One admission made pursuant to s.65C of the Criminal Procedure ordinance ("65C") was in the following form:-

"All the tickets produced and marked exhibits .... are genuine tickets issued by a carrier, Far Last Hydrofoil Company Limited."

8. The admission conclusively proved that the document sold was a ticket within the meaning of s.6B and that it was issued by a carrier within the weaning of that section. There was, however, no admission regarding "the price fixed by the carrier as the price at which the ticket [was] to be issued to an intending passenger". There was, therefore, no conclusive evidence as to what that price was.

9. Each ticket bore the printed notation "FARE (+tax)" followed by a dollar sign and figures. It is the amount represented by that set of dollar sign and figures which each charge describes as "the face value" of the ticket. Although no charge specified what the authorized price was the learned magistrate found, at least in respect of some of the charges, that what was alleged as the face value was the authorized price. His reasoning is set out as follows in his statement of Findings:-

"The submissions by the defence do not go so far as to claim that their admission that the tickets were genuine and issued by a carrier does not mean that all or any of the contents of the ticket in their entirety were genuine. Such a retrospective qualification of a formal admission freely entered into could not properly be made and was not, as I understand it, attempted to be made in this case.

 

If the tickets are genuine and each and every entry thereon is genuine that means that among other things the figure for price if there is one is a genuine entry.

 

The point raised by the defence is that albeit a figure for price was properly entered that is not admissible evidence that that was 'the price fixed by or on behalf of the carrier as the price at which the ticket is to be issued to an intending passenger'.

 

The definition of 'genuine' in Webster's Dictionary is 'actually having the reputed qualities or character' and 'actually produced by or proceeding from the a1leged source or author' or 'free from hypocrisy or pretense'. A synonym is given as 'authentic'. Antitheses are 'counterfeit' and 'fraudulent'.   (Webster's New Collegiate - 1975 Copyright).

 

I consider that if tickets are genuine that presupposes that they must have been properly issued by a person authorized to issue tickets or by a machine programmed or set by such a person. Even if he does not have the authority to fix the price himself, which would be the end of the defence argument, that person must have authority to tell intending passengers at what price tickets are to be issued. Such a person must be acting on behalf of the carrier unless he goes on a frolic of his own outside the ambit of his authority.

 

There is in my judgment no reasonable possibility that the authorized issuer would act outside his authority and put on the ticket some price other than the price fixed by or on behalf of the carrier. If the price on the ticket did not reflect what passengers were paying they would object. If the price on the ticket did not reflect the authorized prices of seats on a particular sailing those placing passengers in the right seats would face difficulties ....

 

If an admission is mane that a certain banknote is genuine it must mean that the value stated on it is genuine. These tickets were likewise documents that were intended to show that the bearer was entitled to something of value - namely a seat oh a ferry it a particular time in a particular class in accommodation of a certain value. As a matter of common sense I consider it is at the most a fanciful possibility that any price entered on genuine tickets could ever be issued at any price other than the authorized price.''

10. Admissions under s.65C are mace for the Purpose of dispensing with the normal method of proof. The admission that each ticket was a genuine ticket issued by the named carrier meant that the Prosecution did hot heed to call witnesses to prove that the particular document was issued (a) by the named carrier, and (b) "for the purpose of enabling the holder thereof to travel as a passenger oh a vessel". The learned magistrate concluded that an admission that each document was a genuine ticket within the meaning of s.6B involved an admission that the amount stated thereon as the fare plus tax was the authorized price within the meaning of that section. But an admission that a document is a genuine ticket is no more than an admission that it truly possesses all the attributes which together constitute the thing defined as a ticket under s.6B. A ticket can be a genuine ticket and yet create a false impression regarding "the price fixed by or on behalf of the carrier as the price at which [it] is to be issued to an intending passenger", that is, a false impression as to its authorized price. Suppose that a carrier operating a ferry service across the harbour fixes the price for the service at $1. The carrier issues to intending passengers tickets in the form of tokens each with "Fare $1" engraved oh it. Later the carrier increases the authorized to $1.50. Having a huge stock of S1 tokens on hams the carrier continues to issue them in exchange for $1.50.  The carrier can conveniently continue to use them because the turnstiles are operated, hot by what is engraved on the token, out by the shape, size and weight of the token itself. A defendant charged with ticket Scalping in respect of such a token makes a formal admission under s.65C that the token is genuine. It is genuine because it is a "token issued for the purpose of enabling the holder thereof to travel on a vessel". That admission constitutes conclusive proof that the token is a ticket within the, meaning of section 6B. It is not, however, conclusive proof or any proof at all that $1 is the authorized price in relation to that ticket.

11. One would normally expect, as the learned magistrate points out, that any amount printed as the fare oh a ticket issued by a carrier indicates the price fixed by or on behalf of the carrier as the price at which the ticket is to be issued to an intending passenger. But in the case before the learned magistrate, there were other charges covered by the admission quoted earlier. In his Statement of Findings he mentions that in respect of some of those charges he found that he had to acquit because the element of authorized price had not peen prove. Each of the tickets with which those charges were concerned displayed a "face value" similar in form to the tickets which were exhibits in the cases under appeal. There were however other markings on the documents which made the learned magistrate uncertain as to whether, in those cases, "face value" and "authorized price" were synonymous.  So, what was printed on the ticket as the fare. was not necessarily an indication of what the authorized price was within the meaning of s.6B.

12. There was no admission under s.65C regarding "authorized arise". The authorized price in relation to each ticket was a fact which had to be proved as part of the proof of a defendant's guilt. There was no admission under s. 65C which relieved the Prosecution of the obligation to prove that fact. The Prosecution had therefore, to prove it by adducing evidence to show in relation to each ticket, what price had been fixes by, or on behalf of the carrier, as the price at which the ticket was to be issued to an intending passenger. Far from proving what it was the Prosecution never even alleged what it was.

13. I accordingly accept Mr. Buchanan s submission that the element of "authorized price" was never proved. Failure to prove that fact is a failure to prove the commission of an offence under s. 6B.  The appeal must therefore, be allowed and the convictions must be quashed.