R. v. HO KUEN CHO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 9 of 1997

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J U D G M E N T

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1. The appellant was convicted on 21st November 1996 of being a taxi-driver refusing to accept a hire and behaving other than in a civil and orderly manner by swearing at his passengers.

2. The Special Magistrate fined him the sum of $3,000 in respect of the refusing hire and disqualified him from driving a taxi for three months. In addition he imposed an order for payment of costs by the appellant in the sum of $5,000. In respect of the 2nd count of behaving other than in a civil and orderly manner, the fine was a sum of $1,000.

3. I have heard the appellant in respect of the conviction. The facts alleged by the prosecution were that the first prosecution witness on 1st December 1995 boarded a taxi driven by the appellant together with his parents. He said the appellant refused to take him to Tai Wai Sun Chuen in Shatin and when pressed to do so, swore him. The party ended up at the Police Station. The appellant gave evidence and said that he had agreed to take the hire but did not know where to go and that unreasonably the first prosecution witness ordered him to go to the Police Station and telephoned the Police. After the appellant gave evidence, he requested that the two parents of PW1 be called, and they were called and gave evidence which in the main supported that of PW1. The Police Sergeant from Wanchai Police Station was also called who added little.

4. There were discrepancies between the evidence of PW1 and his parents as to where the swearing occurred, the point when the telephone call was made to the Police and where the vehicle stopped on Gloucester Road. These were discrepancies which were squarely before the Magistrate and he was not of a view that they took the matter any further.

5. I am satisfied the Magistrate approached the question of conviction properly and that the conviction should stand. The appeal against conviction is dismissed.

6. There is also before me an appeal against sentence. The Special Magistrate said this in his reasons:

"The appellant was convicted after trial. I had considered his previous clear record to his advantage. But the aged parents of PW1 at the late hours of the day delay from going home and ended up in the Police Station was a factor I had taken into account to fine the appellant $3,000 and disqualify him from driving a taxi for three months. As for the behaving other than civil and orderly manner charge, the appellant was fined $1,000. The appellant was ordered to pay $5,000 costs to prosecution because I found his defence frivolous. His calling of PW1's parents was vindictive. He simply wished to inconvenience PW1 and his parents. The court was faced with a dilemma whether to allow the appellant to call the witnesses. If he was not allowed to call the witnesses he would feel aggrieved and think the court was encroaching his rights. The appellant was warned repeatedly and he still chose the course he had taken. He abused the judicial process and wasted the court's time. I do not feel the sentence excessive, it was only a stern punishment."

7. Firstly, in respect of the fine of $3,000 and disqualification from driving a taxi for three months, the taking into account the late hour when the offence occurred as it impinged upon the delay of the aged parents of PW1 returning home and the fact that they were forced to go to a Police Station are not matters which in my view ought to have been taken into consideration by the Special Magistrate when assessing the penalty to be imposed on an offence of this nature. The normal fine as the Special Magistrate concedes for a guilty plea for refusing hire is a fine of $2,000. The appellant had a clear record. It appears to me, in such circumstances, the imposition of a disqualification from driving a taxi is inappropriate. Further, the fine has been increased by an unknown amount to punish for the inconvenience to the parents of PW1. In respect of the first offence, I allow the appeal against sentence to the extent that a fine of $2,500 is substituted in lieu of that of $3,000. The appellant is not disqualified from driving a taxi. In respect of the second charge before the Magistrate, that of behaving other than in a civil and orderly manner, I cannot be sure that the disapproval of the Special Magistrate in respect of the conduct of the appellant towards the parents of PW1 was not a factor in his mind when he imposed the sentence. The appeal against sentence in respect of the second charge is allowed to the extent that a fine of $500 is imposed in lieu of that of $1,000.

8. In respect of the order of costs, it appears from the findings of the Special Magistrate that he imposed the costs because of the manner in which the appellant conduced his defence. The appellant was entitled to test the case for the prosecution. He was entitled to call such relevant witnesses who could speak to the events of the night in question in his case. He did not abuse the judicial process by conducting his case as he did. He did not waste the time of the court in calling witnesses who were relevant and who gave cogent evidence concerning the events. I am satisfied that the imposition of costs was an additional penalty levied by the Magistrate in respect of the manner of the conduct of the appellant of his case. The appeal is allowed further to the extent that the order for costs is struck out. There will be no order as to costs.