HKSAR v. WAN SIU KEI

1997, NO. MA 745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrates of three summonses under the Road Traffic (Public Service Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374. He was fined and ordered to pay costs. He appeals against convictions. The particulars of the summonses are as follows:-

IN THE MAGISTRATE'S COURT AT San Po Kong, HONG KONG

INFORMANT:

MRS. YEUNG CHAN WING-HAR, WIP, Central Traffic Prosecutions Bureau

DEFENDANT:

HKIC NO. : E2677656
WAN SIU KEI
FLAT/RM E BLK 08 16/FL
SITE 11, WHAMPOA GDN
HUNG HOM KLN CITY DISTRICT KLN

INFORMATION that the Defendant:

being the driver of a taxi displaying registration mark [A] did in the Period stated below at the Location stated below without reasonable excuse charge for the hiring of the said taxi a fare exceeding the appropriate scale of fares specified in the Fifth Schedule to the Road Traffic (Public Service Vehicles) Regulations, Cap. 374

PERIOD:

on 27 NOVEMBER 1996 at about 7:40 P.M.

LOCATION:

TAXI STAND OUTSIDE THE ARRIVAL HALL OF HONG KONG
INTERNATIONAL AIRPORT
KLN

[A] FG6739

CONTRARY TO:

Regulations 47(2) and 57(4) Road Traffic (Public Service Vehicles) Regs. made under Road Traffic Ordinance, Cap. 374.

DATED:

11 MARCH 1997

IN THE MAGISTRATE'S COURT AT San Po Kong, HONG KONG

INFORMANT:

MRS. YEUNG CHAN WING-HAR, WIP, Central Traffic Prosecutions Bureau

DEFENDANT:

HKIC NO. : E2677656
WAN SIU KEI
FLAT/RM E BLK 08 16/FL
SITE 11, WHAMPOA GDN
HUNG HOM KLN CITY DISTRICT KLN

INFORMATION that the Defendant:

being the driver of a Vehicle [A] displaying registration mark [B] did in the Period stated below at the Location stated below without reasonable excuse behave other than in a civil and orderly manner

PERIOD:

on 27 NOVEMBER 1996 at about 7:40 P.M.

LOCATION:

TAXI STAND OUTSIDE THE ARRIVAL HALL OF HONG KONG
INTERNATIONAL AIRPORT
KLN

[A] TAXI
[B] FG6739

CONTRARY TO:

Regulations 45(1)(a) and 57(1) Road Traffic (Public Service Vehicles) Regs. made under Road Traffic Ordinance, Cap. 374.

IN THE MAGISTRATE'S COURT AT San Po Kong, HONG KONG

INFORMANT:

MRS. YEUNG CHAN WING-HAR, WIP, Central Traffic Prosecutions Bureau

DEFENDANT:

HKIC NO. : E2677656
WAN SIU KEI
FLAT/RM E BLK 08 16/FL
SITE 11, WHAMPOA GDN
HUNG HOM KLN CITY DISTRICT KLN

INFORMATION that the Defendant:

being the driver of a taxi displaying registration mark [A] did in the Period stated below at the Location stated below without reasonable excuse fail at all times when the taxi was hired or was available for hire, as the case may be specified at [B], to carry for the purpose of giving change $90 in notes of denomination of $10 or in coins of a denomination of $2 or more and $10 in coins of a denomination of $1 or less

PERIOD:

on 27 NOVEMBER 1996 at about 7:40 P.M.

LOCATION:

TAXI STAND OUTSIDE THE ARRIVAL HALL OF HONG KONG INTERNATIONAL AIRPORT KLN

[A] FG6739
[B] HIRED TO CARRY

CONTRARY TO:

Regulations 45(2)(b) and 57(3) Road Traffic (Public Service Vehicles) Regs. made under Road Traffic Ordinance, Cap. 374.

DATED:

11 MARCH 1997

10. Mr. McCrae, who appears for the appellant, makes it perfectly plain at the outset of the hearing that the appeal is purely on a technical point and the appellant has not been prejudiced. It is not necessary for me to refer to the facts which are not relied upon to any significant extent in so far as this appeal is concerned. Mr. McCrae complains that the summonses are defective in that they fail to allege certain particulars, as required by the particular regulations. For example, the words "when acting as such" in Charge B and "when in charge of the taxi" in Charge C were missing. In relation to Charge A, the magistrate did not deal with "reasonable excuse". Moreover the location and time stated in all three summonses were inaccurate.

11. The term "reasonable excuse" is a negative averment and the burden was on the appellant to discharge it on a balance of probabilities. There was no evidence before the magistrate regarding this defence and in my view, there is nothing in this submission. The magistrate unequivocally rejected the evidence of the appellant and if he had raised this defence, which he had not, if would have also been rejected.

12. Mr. McCrae refers to the decisions in R. v. Kwok Ka Leung and Others Criminal Appeal No. 198 of 1983; R. v. Tze Ming-li, Magistracy Criminal Appeal No. 315 of 1987 and R. v. Ayres (1984) 1 A.C. 447. The first case was a decision of Barnes J. concerning the omission of the word "kept" in a charge of managing a vice establishment. On the authorities, the "kept" element is a vital element in alleging the offence and therefore failing to allege means failure to allege and offence known to law. In R. v. Ayres, the word "knowingly" which was an essential element of the offence was omitted from the particulars. R. v. Tze Ming-li deals with s. 27 of the Magistrates Ordinance which provides:-

(1) Where it appears to the adjudicating magistrate that there is -

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

he shall, subject to subsection (2) -

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint, information or summons.

(2) The adjudicating magistrate shall amend the complaint, information or summons where-

(a) the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

(3) Following an amendment to a complaint, information or summons, the adjudicating magistrate shall -

(a) read and explain the amended compliant, information or summons to the defendant;

(b) give leave to the parties to call or recall and further examine such witnesses as may be reasonably required by a party having regard to the nature of the amendment;

(c) grant such adjournment as may be reasonably necessary to enable the parties to call or recall witnesses and to prepare their cases;

(d) if he thinks fit, make an order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as may be occasioned by the amendment; and

(e) give judgment upon the substantial merits and facts of the case as proved before him, having regard to the offence charged in the complaint, information or summons as amended:

Provided that, if the amendment is made after the case for the complainant or informant is closed, no further evidence may be called by the complainant or informant other than evidence that would, apart from this section, be admissible in rebuttal.

(4) In this section, 'amend" (修订) includes the substitution of another offence in place of that alleged in the complaint, information or summons.

13. There is no complaint that the summonses were at variance with the evidence adduced at the trial and subsection (1)(b) therefore has no application. The only issue to be considered and decided is whether Summons B and Summons C are defective under subsection (1)(a) in that they allege no offence known to law. R. v. Kwok Ka Leung and Others and R. v. Ayres are different and distinguishable from this case because the word "kept" and the word "knowingly" were vital elements to the offences alleged against the defendants. In Summonses B and C the words "acting as such" and "when in charge of the taxi" are not vital elements to the offences. A reading of these two summonses will convey to any reasonable mind that the offences were committed by the appellant in his capacity as a taxi driver acting as or in his capacity of a taxi driver and they could not have been committed by him in any other capacity. While it is desirable to add these words to the particulars, the absence of them does not vitiate the charges.

14. There is also no substance in the submission with regard to the time and place of the offences specified in the summonses. It would have been sufficient to allege that the offences were committed in Kowloon, Hong Kong on 27 November 1996, see paras. 1-125 - 1-130 Archbold 1997 Edition.

15. In my judgement, there is no variance between the summonses and the evidence adduced in support and they are not defective. The appeal is dismissed.