KOWLOON CANTON RAILWAY CORPORATION v. NGAI FOOK LAM

HCMA 1089/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1089 OF 2005

(ON APPEAL FROM TMS 4202/2004)

____________

____________

_______________

J U D G M E N T

_______________

1.  The Appellant was convicted, after trial, of a single charge of failing to produce a ticket on demand contrary to by-laws 7(1) and 41 of the North West Railway By-laws made under the Kowloon-Canton Railway Corporation Ordinance, Cap. 372.

2.  Two witnesses were called at trial.  The gist of their evidence was that when they entered a carriage of a light rail vehicle the Appellant hurriedly exited.  He was intercepted on the platform.  He was requested on several occasions to produce a ticket for his carriage.  He failed to do so.  The Appellant was unrepresented at trial but did not challenge any of the evidence of the two prosecution witnesses, declining to cross examine either. 

3.  He gave evidence.  He accepted that he had not purchased a ticket.  He tendered an explanation to the effect that he had no coins with him, the issuing machine could not accept banknotes, there were inadequate facilities provided to the passengers on the platform and there was no telephone or other means of communication for him to seek assistance.  He accepted that, notwithstanding that, he rode on the light rail vehicle.

4.  His explanation for following this course of conduct was that he was in need of consulting a doctor due to ill health.  He produced a certificate from a doctor, which he said he had obtained later that day, which indicated that he had been granted one-day sick leave for the day of the offence which relates to some unspecified gastric problem.

5.  The Magistrate found that the Appellant had not so much as mentioned his alleged illness to the two prosecution witnesses.  The evidence shows he did not tender payment to them.  Instead he said to PW1 that “he would not let him see his ticket” implicit in which is a representation that he was in possession of a ticket – contrary to his own evidence.

6.  The Magistrate consequently rejected the Appellant’s evidence as constituting a defence to the charge on the grounds of duress as suggested by the Appellant, or, more properly, necessity.  He was consequently convicted and rightly so.

7.  The appeal is dismissed and the conviction confirmed.

8.  I am satisfied that the appeal was without merit.  The Appellant is to pay the prosecution costs of appeal pursuant to s. 13 of the Costs in Criminal Cases Ordinance, Cap. 492, limited to $1,000.00.