HKSAR v. SO NAI CHUNG PILOT

HCMA571/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.571 OF 2004

(ON APPEAL FROM TWCC 1390 OF 2004)

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J U D G M E N T

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1. The appellant So Nai Chung pleaded guilty to one charge of offering services without the permission of the Airport Authority, contrary to sections 26(1) and 62 of the Airport Authority Bylaw, made under section 35(11) of the Airport Authority Ordinance, Cap.483. He was fined $2,500. He is now appealing against sentence.

The facts

2. On 17 April 2004 the appellant drove his taxi into Carpark 2 of the Hong Kong International Airport. He later drove up to and touted an undercover police officer posing as a tourist in the loading area of Carpark 2. The deal was struck to take her to Yuen Long for $200.

3. In mitigation, the appellant submitted that there was no sign at the airport that he could not pick up a passenger in that area. The Magistrate rejected his claim of lack of knowledge as the appellant was a taxi driver for 20 years. The Magistrate found that the appellant knew very well that he could not tout in a carpark in the airport.

Grounds of appeal

4. The appellant complained that the Magistrate ought not have rejected his submission that he had no knowledge that Carpark 2 was a prohibited area. At the appeal, he put in evidence of photographs used submitted that they did not show any sign specifying that the carpark was an area where he could not pick up a passenger. As to the negotiating of the fare, he said he knew that taxi driver should not tout for passenger but it was the disguised passenger who asked for a reduced fee and in the circumstances of the economy, he went by her proposal.

Consideration upon appeal

5. Section 26 of the Airport Authority Bylaw reads as follows :

6. The venue in question was a Bylaw area and no person is permitted to make an offer of transport to any other person without the permission of the Airport Authority. This fact was admitted by the appellant upon entering the plea of guilty. As to the fact there was no sign, this matter did not take it any further because it was admitted that this was a Bylaw area and the Magistrate had found that an experienced taxi driver would know this fact. I do not find that I should disturb this finding as the basis of sentence by the Magistrate. Further, the case also involved the touting of passengers by agreeing to a reduced fee or a fixed fee. The maximum sentence for the offence was a level 3 fine ($10,000) and one month imprisonment. The Magistrate took into account the prevalence of this offence in the airport and touting was unfair to other taxi drivers and he imposed a fine of $2,500.

7. In all the circumstances, I do not find this fine excessive. Hence the appeal is dismissed.