THE QUEEN v. LO WAI CHI

M.A. No.1001 of 1992
(Criminal)

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HEADNOTE

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Sale of travel tickets in public place - authorized price of ticket sold proved by evidence relating to identical ticket - not hearsay.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1001 OF 1992

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J U D G M E N T

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1. The appellant was convicted by Mr Li in Western Magistrate’s Court of  ”Ticket Scalping”, contrary to s.6B of the Summary Offences Ordinance, Cap.228 or, more correctly, Profiteering on the sale of travel tickets in a public place.

2. It is an offence to sell such a ticket at a price exceeding the authorized price. That is defined in subsection (3) as 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.

3. On 1st May 1992 Sgt.3500 and PC46173 went to the Far East Jetfoil ticket office on 3/F of Shun Tak Centre. They were in plain clothes and, as they put it, on an “anti ticket scalping operation”. At the counter there was a notice saying that no tickets were available for the 6.30 pm sailing. PC46173, who was masquerading as an intending passenger, was approached by a man, who told him that tickets were available for $250 and directed his attention to three men on the other side of the counter.

4. PC46173 approached these men while Sgt.3500 remained near the counter. The man in the middle offered to sell P046173 a ticket to Macau for $250 and his offer was accepted. The man on the left of the seller handed the seller a ticket. The latter handed this ticket (Ex P2) to PC46173 who gave him $300 in marked notes.

5. After receiving change of $50 PC46173 revealed his identity and arrested the man who had sold him the ticket. As he did so, the third man, who had been standing on the ticket seller’s right, seized the three notes from the arrested man’s hand and ran away. The man on the left, allegedly the appellant, walked quickly away towards the Federal Restaurant.

6. Sgt.3500 then rushed up and, on PC46173’s directions, walked quickly after this man. Sgt.3500 stopped him on 2/F and told him that he was suspected of ticket scalping. He was searched and 25 Far East jetfoil tickets were found in his pocket, All were dated 1st May, 10 were for 6.30 pm and 15 were for 6.45 pm. (Ex P3)

7. When he was asked why he had so many tickets, he said he was going to Macau with friends, but when pressed for their names and where he was meeting them, he said nothing. PC46173 then arrived and identified this man as the man who had handed the ticket to the seller. He was then arrested. Under caution he said he did not know the other arrested man and was not involved in ticket scalping. The appellant was identified in court by both officers.

8. They remained at the scene until 6.35 pm in case the “friends” arrived. When they did not come, Sgt.3500 asked him if they were at the right meeting place but the appellant did not answer.

9. The only other prosecution witness was the Ticketing Supervisor of Far East Jetfoil. He identified the 25 tickets found on the appellant (Ex P3) as tickets issued by his company at a fixed price of $125. He said that no one else was authorized to sell tickets and that the maximum number of tickets that a customer could purchase at one time was six. He was not shown the ticket Ex P2.

10. The appellant did not give evidence or call witnesses.

11. The appellant was represented by Mr Buchanan at trial and also on appeal. His main ground of appeal was that there was no admissible evidence as to the authorized price of Ex P2. He submitted that the maker of the ticket had not been called to prove the truth of the facts stated on the document and that, following DPP v. Myers [1965] A.C. 1001, the court had no discretion to admit inadmissible evidence no matter how cogent.

12. Mr Buchanan relied on R v. Liu Hon Fat & another MA No.276/1991, which was also a ticket scalping case. There was no evidence as to the carrier’s fixed price for the tickets, but the magistrate found that the authorized price was the face value of the tickets. Barnes J. allowing the appeal, said:

“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 fixed 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. That is not the situation in the present appeal. Here there is admissible evidence as to the authorized price of the 25 tickets (Ex P3). Furthermore, whereas in Liu Hon Fat the tickets varied as to date, class, face value and journey, Ex P2 and the 10 6.30 pm tickets are identical in all respects except the serial numbers. In those circumstances the prosecution does not have to lead evidence as to the fixed price of each ticket because they are all the same tickets. It follows that the authorized price of Ex P2 is the same as that of those 10 tickets, that is to say $125.

14. There is no substance in the other grounds of appeal, namely that the identification evidence is unreliable and that the appellant did not get a fair trial.

15. The appeal is dismissed.