HKSAR v. MO KAM TONG, STANLEY

1997, NO. MA 453

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 453 OF 1997

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J U D G M E N T

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1. The appellant was convicted before a magistrate of soliciting passengers. The summons alleged that the appellant, being the driver of a taxi, outside Chung King Mansion attracted or endeavoured to attract a person in order to induce such person to make use of the taxi. He now appeals against conviction.

2. The evidence against him was that of a police inspector. The inspector told the magistrate that on the day in question, he saw the appellant's taxi outside Chung King Mansion. He was carrying a backpack and hand luggage. He approached the taxi. The driver was the appellant. The appellant then beckoned him and asked him where he wanted to go and he replied "To the airport". The appellant said "Okay". The appellant then got off from the taxi and helped him to load the backpack into the boot of the taxi.

3. The appellant on the other hand gave a different version. He said the inspector was by the passenger side and looked through the window. The inspector was looking for a cab. He then asked the inspector "Airport?" and the inspector nodded his head. He then helped him to put his luggage into the boot. He denied having beckoned the inspector.

4. The magistrate accepted the version of the inspector. He disbelieved the appellant's evidence. It should be noted there is not much difference between the evidence of the appellant and that of the inspector except as to whether the appellant had beckoned the inspector and asked where he wanted to go.

5. The magistrate in his statement of findings in relation to the inspector's evidence that the appellant had beckoned him said this :

"...... He saw a stationary taxi with the Appellant behind the driver's seat. As he approached it he saw the Appellant looking at him and beckoned him with his left hand in the usual 'Come on' fashion by bending the fingers of his left hand towards the palm several times."

6. In his conclusion, the magistrate said :

"....I found that the Prosecution had proved beyond reasonable doubt that the Appellant had beckoned to PW1 followed by asking him where he wanted to go. In my view such conduct amounted to 'soliciting' and accordingly I found the Appellant guilty of the first charge."

7. The magistrate had relied on the evidence that the appellant had beckoned the inspector and asked him where he wanted to go to convict the appellant.

8. It should be noted that the inspector had never explained what he meant by the appellant beckoned him and there is nothing on record that the inspector had in any way demonstrated the way the appellant beckoned him was "in the usual 'come on' fashion of bending the fingers towards the palm several times" as the magistrate described in his findings. Miss Wong for the prosecution concedes that the magistrate's finding in this respect is incorrect. Thus, the magistrate had relied on evidence which was not given by the inspector in coming to his conclusion that the appellant beckoned the inspector to come on board the taxi.

9. It should also be noted that the magistrate had not considered that, on the evidence he accepted, it was the inspector who approached the taxi first. Prior to that, the appellant had done nothing to attract the attention of the inspector to his taxi. It would be reasonable for a taxi driver to assume that the inspector who approached carrying luggage in his hands wanted to hire his taxi. To ask the inspector where he wanted to go in such circumstances without more could hardly be regarded as having attracted the inspector to induce him to hire the taxi.

10. In the final analysis, the conviction is unsafe. The appeal is allowed. The conviction is quashed and the fine set aside.