HKSAR v. YUONG HO-CHEUNG

HCMA 381-399/2018, HCMA 401-402/2018, HCMA 404-405/2018 &

HCMA 415/2018 (Consolidated)

[2019] HKCFI 2280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 381 OF 2018

(ON APPEAL FROM KCCC NO 3412 OF 2017)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 382 OF 2018

(ON APPEAL FROM KCCC NO 3413 OF 2017)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 383 OF 2018

(ON APPEAL FROM KCCC NO 3414 OF 2017)

_______________________

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 384 OF 2018

(ON APPEAL FROM KCCC NO 3415 OF 2017)

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_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 385 OF 2018

(ON APPEAL FROM KCCC NO 3416 OF 2017)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 386 OF 2018

(ON APPEAL FROM KCCC NO 3417 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 387 OF 2018

(ON APPEAL FROM KCCC NO 3418 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 388 OF 2018

(ON APPEAL FROM KCCC NO 3419 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 389 OF 2018

(ON APPEAL FROM KCCC NO 3420 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 390 OF 2018

(ON APPEAL FROM KCCC NO 3421 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 391 OF 2018

(ON APPEAL FROM KCCC NO 3422 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 392 OF 2018

(ON APPEAL FROM KCCC NO 3423 OF 2017)

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_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 393 OF 2018

(ON APPEAL FROM KCCC NO 3424 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 394 OF 2018

(ON APPEAL FROM KCCC NO 3425 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 395 OF 2018

(ON APPEAL FROM KCCC NO 3426 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 396 OF 2018

(ON APPEAL FROM KCCC NO 3427 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 397 OF 2018

(ON APPEAL FROM KCCC NO 3428 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 398 OF 2018

(ON APPEAL FROM KCCC NO 3429 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 399 OF 2018

(ON APPEAL FROM KCCC NO 3430 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 401 OF 2018

(ON APPEAL FROM KCCC NO 3432 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 402 OF 2018

(ON APPEAL FROM KCCC NO 3496 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 404 OF 2018

(ON APPEAL FROM KCCC NO 3969 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 405 OF 2018

(ON APPEAL FROM KCCC NO 3971 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 415 OF 2018

(ON APPEAL FROM KCCC NO 502 OF 2018)

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J U D G M E N T

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Introduction

1.  These are a series of conviction appeals[1] all of which originated from the consolidated trial before the learned magistrate, Mr Joseph To (“the magistrate”), who on 17 July 2018 convicted the Appellants (who were “Uber” drivers) and imposed on each of them a fine ranging from $3,000 to $4,500.

2.  Originally, there were a total of 27 appeals. After the Direction Hearing, there came two “Notices of Abandonments” (concerning HCMA 400/2018 & HCMA 403/2018[2]) and therefore the related appeals were subsequently marked dismissed[3]. Besides, the Appellant Mr Ching (in HCMA 406/2018) sadly passed away on 19 March 2019[4]. By consent and in accordance with HKSAR v Cheng Chee Tock Theodore[5]; HKSAR v Tang Tik Hung[6]; HKSAR v Choy Wing-lung Geoffiey Donahue[7], I exercised my discretion to terminate and abate his appeal and the related proceedings by reason of his death.  As a result, this judgment only concerns the remaining 24 appeals.

3.  As the appeals concerned involve common grounds of appeal[8], with the consent of the parties, at the Direction Hearing[9] I made an order that the appeals be consolidated and ordered the parties to agree on a set of “Statement of Common Facts”.  This is because the evidence in each of the cases is not in dispute and the grounds of appeal are mainly about legal issues[10].

4.  Besides, in order to facilitate the hearing of the appeal, I directed the parties to file a “Statement of Issues” beforehand for ease of reference. 

5.  The two aforesaid documents, “Statement of Common Facts” and “Statement of Issues”, are attached to this judgment as Annexures 1 and 2 respectively.

The charge

6.  Each of the Appellants was charged with and convicted of a single charge of “driving a motor vehicle for the carriage of passengers for hire or reward without a hire car permit”, contrary to ss 52(3) and 52(10) of the Road Traffic Ordinance, Cap 374 (“RTO”)[11].

The brief facts

7.  As I have said, the basic facts are not in dispute[12]. Mr Derek Chan, SC (and with him, Ms Katrina Lee) encapsulates them admirably in the Appellants’ Written Submissions[13] which I gratefully adopt as follows:

“2.1. There was no dispute at trial that the Appellants each, on a day specified, drove and carried passenger(s) in a motor vehicle. The passengers concerned in the 1st to 22nd cases were undercover police officers, while those in the 23rd to 27th cases were civilians. In each case, the passenger(s) requested a ride from a specified location using the Uber App, after which the Appellant drove a motor vehicle to pick up the passenger(s) and took the passenger(s) to the destination specified in the Uber App.

2.2.   At the end of each trip, the fare was paid for by credit card transfer to an Uber related entity and the passenger was notified through the Uber App of the amount charged.  … There was no direct evidence at trial showing receipt of any rewards by the Appellants in respect of the particular trips that were the subject of the charges.”

The rulings and findings by the magistrate

8.  The magistrate’s “Statement of Findings”[14] can be broadly divided into two parts: the ruling on the law and the findings of fact.  They are concisely and neatly summarized in the Respondent’s Written Submissions[15] of Mr William Tam, SC, DDPP (and with him, Mr Marcus Lee and Ms Cherry Chong) which I respectfully adopt as follows.

9.  As regards the law, the magistrate ruled that:

(a)  ss 52(3) and 52(10) of the Ordinance were unconstitutional by reason of their overreaching effect;

(b)  a remedial interpretation was called for to preserve the validity of the sections;

(c)  as a result, the prosecution must prove, in relation to the requirement of “for the carriage of passengers for hire or reward”, that:

(i)  the driver has undertaken the journey for the sole reason or purpose that a reward will be paid or received and for nothing else; and

(ii)  the passenger has accepted the carriage for no other reasons but a payment of the reward quid pro quo the journey, in that:

(1)  not only has the reward come about as an incident of the specific car journey concerned; and

(2)  but its calculation must also depend on the distance travelled; and

(d)  whilst section 52(3) does not require the reward to be paid specifically by the passenger or received specifically by the driver, the prosecution must prove specific knowledge and intention on the part of the driver that the journey would come or did come with a reward; and where the reward was in fact paid, the full offence is complete and committed.

10.  As regards the facts, the magistrate found that:

(a)  the Appellants responded to the passengers’ requests for transport services via Uber; they turned up at the pick-up points on purpose, by design, rather than as a matter of coincidence;

(b)  the fares were journey-dependent;

(c)  the Appellants and the passengers were strangers to each other and the journeys were intended to be paid;

(d)  the fares were changed to the passengers’ credit card accounts in Hong Kong on the day of the offence, so payments of the fares were made;

(e)  there was no evidence tending to show that any of the Appellants was at the time of the offences performing a contractual duty owed to Uber or anyone.  Even if there had been such a contractual duty, the contract must have been entered into to mask[16] the interdependence between the fares and the journeys; and

(f)  based on (a) to (4) above, the only reasonable inferences to be drawn were that:

(i)  the Appellants had allowed the passengers, who were strangers, to get in their cars solely for the reason and purpose of the car rides that were to be paid; and

(ii)  the Appellants must have known and intended that the journeys were to be paid.

11.  Based on the above, the magistrate convicted each of the Appellants accordingly.

The grounds of appeal and the other issues

12.  The Appellants’ grounds of appeal boil down to the following complaints:

(1)  the magistrate erred in holding that an agreement for carriage between the driver and the passenger inter se is irrelevant to the s 52(3) RTO offence[17];

(2)  in an attempt to render the offence in question Basic Law complaint, the magistrate erred in imposing a requirement of interdependence between the reward and distance travelled[18];

(3)  the magistrate erred in finding that there was no evidence showing that any of the Appellants were (or might have been) performing a contractual duty owed to Uber[19];

(4)  the magistrate erred in finding that the “contractual veil” has been pierced[20]; and

(5)  s 52(3) RTO is unconstitutional by reason if its infringement on the Appellants’ right to freedom of choice of occupation under Article 33 of the Basic Law[21].

13.  The Respondent seeks to uphold all the convictions but on a basis different from that of the magistrate.  Neither the Appellants nor the Respondent support the magistrate’s ruling that the offence pursuant to s 52(3), RTO is unconstitutional by reason of “overbreadth”, nor do any of them seek a remedial interpretation of the provision.    

14.  Moreover, neither side is happy with the interpretation which the magistrate put on s 52(3), RTO and each of them advocates for a different interpretation of the provision.  The Respondent disagrees with the magistrate that the offence under s 52(3), RTO is not a strict liability offence.  The Respondent submits that the offence is one of strict liability and that an accused bears the burden to prove on the balance of probabilities that he acted in the honest and reasonable belief that the journey was other than “for the carriage of passengers for hire or reward”.  On the other hand, although the Appellants agree with the magistrate that there is a mens rea requirement which entails the prosecution proving the defendant driver’s purpose, they take issue with the magistrate as to what that purpose is about. 

15.  As to ground (5), the Appellants, consistent with their stance taken before the magistrate, acknowledge that this court is bound by the decision of the Court of Appeal in Leung Sze Ho Albert v Bar council of the Hong Kong Bar Association[22]which is against them.  As such, they would reserve this ground for future consideration if necessary[23].  Because of that, no argument has been advanced by either sides on this issue.  Therefore, I will not deal with this ground at any length, save and except to say that I agree with the Appellants that this ground is not reasonably arguable before this court in view of Leung Sze Ho Albert’s case.

Applicable legal principles about magistracy appeals

16.  It is well-established that the appeals under consideration, which are brought under s 113, the Magistrates Ordinance, Cap 227, are to be conducted “by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so”: see Chou Shih Bin v HKSAR[24].

17.  This court, sitting in its the appellate jurisdiction, is to apply the law as it is at the time of rehearing and if the law has changed then the appellate court applies the correct legal principles to the evidence before it.  The fact that the law has changed does not automatically mean that the appeal must be allowed.  Much depends upon the nature of the legal change and its impact upon the proceedings below.  If this court can make allowance for that error and still discharge its function of determining whether on the evidence adduced at trial the prosecution has proven the guilt of the defendant beyond reasonable doubt then it should do so: HKSAR v Ip Chin Kei[25].

18.  Where the facts are concerned, the appellate tribunal would recognise that it did not enjoy the advantage of having received the evidence at first hand, but even so, it would not fail to quash a conviction that it considered unsafe.  Whilst this court has to bear in mind that it does not enjoy the advantage of having received the evidence at first hand, it is bound to come to its own conclusion: Chou Shih Bin v HKSAR, ante.  Moreover, when the findings of fact are based on documentary evidence or inference drawn from admitted facts, then this court would be in no less advantageous position in making an assessment than the magistrate: Chong Ching Yuen v HKSAR[26]; and Ting Kwok Keung v Tam Dick Yuen & Ors[27].

The offence-creating provisions

19.  It would be convenient for me to set out the relevant parts of s 52, RTO, as follows:

“52. Restriction on the use of vehicles

…

(3) No person shall—

(a) drive or use a motor vehicle; or

(b) suffer or permit a motor vehicle to be driven or used,

for the carriage of passengers for hire or reward unless -

(i) the vehicle is licensed as a public bus, public light bus or taxi;

(ii)  the vehicle is licensed as a private bus and the passengers are students, teachers or employees of an educational institution, disabled persons, or persons employed to assist disabled persons;

(iia)  the vehicle is licensed as a private light bus and is used—

(A)  as a school private light bus; or

(B)  exclusively for the carriage of persons who are disabled persons and persons assisting them; or

(iii)  a hire car permit is in force in respect of the vehicle.

…

(10)  Any person who contravenes—

(a)  this section, other than subsection (2), commits an offence and is liable in the case of a first conviction for that offence to a fine of $5,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction for that offence to a fine of $10,000 and to imprisonment for 6 months;”

20.  Various terms used in s 52(3), RTO including “motor vehicle”, “hire car permit”, “light bus”, “public bus”, “public light bus”, “taxi”, “private bus” and “private light bus” have been defined in s 2 of the same ordinance.

21.  On the other hand, whilst the current legislative scheme still maintains a distinction between “private” and “public” motor vehicles, their respective definitions contained in the old legislations have been removed so that the two terms are left undefined in RTO.  I will come back to this topic in due course.

Statutory interpretation

22.  Central to this appeal is how the phrase “for the carriage of passengers for hire or reward” should be interpreted in the context of s 52(3), RTO. 

23.  The principles of statutory interpretation are well-established and not in disputes:

(i)  in construing a legislative provision, the court adopts a purposive approach by considering the wording of the provision in question, having regard to its context and purpose.  Words are to be given their ordinary and natural meaning unless their context or purpose pointed to a different meaning.  Context is to be considered in the first instance, not only when ambiguity was thought to arise: s 19 of the Interpretation and General clauses Ordinance, Cap 1[28] and HKSAR v Cheung Kwun Yin[29];

(ii)  it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by the legislature to be existing, at the time.  It is a fair presumption that legislature’s policy or intention is directed to that state of affairs.  When a new state of affairs, or a fresh set of facts bearing on policy, come into existence, the courts have to consider whether they fall within that intention.  In the words of Lord Wilberforce, the courts cannot fill gaps by asking “What would Parliament have done in this current case not being one in contemplation – if the facts had been before it” attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself: Royal College of Nursing of the United Kingdom v Department of Health and Social Security[30];

(iii)  on the other hand, the courts will construe statutory provisions to take into account changes, in particular technological changes, that have taken place subsequent to the passing of the statute.  In other words, a statute is taken to be “always speaking”: Bennion on Statutory Interpretation: a Code, at [14.1]; approved in HKSAR v Wong Yuk Man[31];

(iv)  there is no inconsistency between the rule that the language of the statute retains the meaning it had when enacted and the rule that a statute is “always speaking”.  It is not an extension of a penal law to apply its principle to circumstances unforeseen at the time of its enactment, so long as the case is fairly brought within its language: R (Quintavalle) v Secretary of State for Health[32]; Joyce v Director of Public Prosecutions[33], both of which applied in B v Commissioner of Independent Commission Against Corruption[34];

(v)  whenever the legislature enacts or amends an Ordinance, its purpose is to remedy a perceived mischief or defect in the pre-existing legislation.  It is to be presumed that it did not intend the statute to go wider in its operation than is necessary to remedy the mischief or defect in question.  If it has inadvertently employed general words which, if given their fullest effect, are wider than necessary, the court not only may but must restrict them by construing them in a narrower sense which, while still falling within the ordinary meaning of the words, gives effect to the legislative intent but does not go beyond it, still less frustrate it: Ho Choi Wan v Hong Kong Housing Authority[35]; and

(vi)  legislation, whether primary or subordinate, is not to be interpreted or applied to impose criminal liability unless it is clear that it is so to be interpreted and applied: Secretary for Justice v Hong Dau Construction Co Ltd[36].  If a provision is capable of different reasonable interpretations, the court should adopt the interpretation which is more favourable to the defendant: Tuck & Sons v Priester[37]and HKSAR v Tse Yee Ping[38].

Legislative history & social context

24.  Insofar as it may assist one in understanding the legal and social context of the current RTO (Cap 374), its predecessor was the Road Traffic Ordinance (Cap 220) which was first enacted in 1957[39].  Cap 220 had 86 sections in the principal ordinance which carried with it 24 pieces of subsidiary legislations.  By regulations 29(2)[40] and 44 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, it was an offence for any person to

“drive, use or suffer or permit to be driven or used, any motor vehicle which is registered as –

(a) a private car;

(b) a private omnibus;

(c) a goods vehicle;

(d) a motor tricycle; or

(e) a motor cycle,

for the carriage of passengers for hire or reward.”

25.  In 1970s, a problem emerged which was about the use of private cars as unofficial and unlicensed taxis commonly known as “pak pai”.  In Leung Tak-kuen v The Queen[41], the Full Court described the situation as follows: 

“ Side by side with the three forms of transport^[42] I have mentioned, there exist a high density of private motor-cars, a large number of taxis, which latter ply for hire in the streets, and a system of public vehicles, similar in passenger capacity to taxis, which are available from the premises in which they are normally accommodated.

That this is doubtfully so, however, is evidenced by the persistent presence on our roads of private cars for hire or "pak pais". These vehicles, being unlicensed for the carriage of passengers, their operation for that purpose is unlawful and indeed specifically made so by regs.29(2) and 44 of the Registration and Licensing of Vehicle Regulation.

 However that may be such vehicles continue to operate in not inconsiderable numbers and, despite the efforts of the police and the Transport Department to drive them from the streets, their continued existence suggests that, despite their contribution to the arterial strangulation which is increasingly a feature of our road system, they may perform a social service; though no doubt many of those using them are unaware of the risk to which they are exposing themselves and other members of the public by virtue of the fact that invariably the insurance policy of such vehicles does not cover use for carriage for hire.”

26.  Then in 1977, substantial amendments were introduced by the Road Traffic (Amendment) (No 2) Bill 1977.  Among other things, that Bill proposed a hire car regime for private vehicles with a view to combat the then prevalent and unregulated operation of “pak pai”.  Thus, on 1 June 1977 when the then Secretary for Environment moved for its second reading, he said[43]:

“Sir, this bill has four main purposes. First, it seeks to abolish the present a category of public hire car and to provide for these cars to be converted to taxis on payment of a premium if their owners so wish. Secondly, it will provide for the issue of contract hire permits to owners of private cars who wish to operate hire services on a strictly controlled basis …

I turn now, Sir, to a further type of illegal operation which it is intended, by this bill, to bring under control.  I refer here to the so called ‘pak pai’ or private car offering itself for hire.  While many pak pais perform a useful social function by providing personalized transport on a regular basis between homes, offices and schools, often operating from a particular building or block of flats, others function almost wholly as private taxis by plying for hire on the streets.  None of them are effectively under any form of control as regards their mode of operation, the mechanical state of their vehicle or the insurance they carry for the protection of their passengers…” 

27.  The Secretary also had the following to say about the proposed regulatory regime[44]:

“Clause 3 of the bill seeks to regularize this situation by providing for the issue by the Commissioner for Transport of contract hire car permits. … The conditions of the permit will be that the vehicle should only be operated from a designated address, that it should have no distinctive markings and that its permit should be displayed but not be visible from outside the vehicle. The object of these last two conditions will be to discourage the driver from plying for hire and the public from hailing the car on the street. Public hire car operators who do not opt to convert to taxis will also be eligible to apply for contract hire car permits. I should add that, in certain cases, for instance cars run by hotels to provide a service for their guests, the Commissioner for Transport will be empowered to permit distinctive markings to be used, as these would not mislead the general public into trying to hail the car.”

28.  Shortly after the passing of the Bill[45] into legislation in the same year, new provisions[46] were added to amend the then s 29 of the Road Traffic (Registration and Licensing of Vehicles) Regulations for the implementation of the aforesaid scheme.  As a result, s 29(2)(a) (about private cars) was removed and a new s 29(2A) was added which read as follows:

“No person shall drive or use, or suffer or permit to be driven or used, any motor vehicle which is registered as a private car for the carriage of passengers for hire or rewards unless there is in force in respect of that vehicle a hire car permit issued under regulations 29C^[47], 29E^[48] or 29F^[49].”

29.  The Explanatory Note of the Legal Notice said that:

“These regulations amend the principal regulations to provide that a motor vehicle registered as a private car may be used for the carriage of passengers for hire or reward if a hire car permit is in force in respect of that vehicle (regulation 2).”

30.  There is not dispute between the parties that the current s 52(3), RTO owes its origin to s 29(2A), Cap 220H.  As an aside, I note that the magistrate said the scope of prohibition of s 52(3) is “much wider” that its predecessors in that the old law only prohibited private hire of 5 categories of “registered” motor vehicles[50].   With respect, I beg to differ bearing in mind that in old law, motor vehicles were only divided into the classes which “indicate the purpose for which the vehicle may be lawfully used”[51]: (a) goods vehicles; (b) taxis; (c) public cars; (d) private cars; (e) public omnibuses; (f) private omnibuses; (g) motor cycles; (h) motor tricycles; (i) invalid carriages; (j) public light buses; and (k) private light buses. Putting aside those classes (concerning “public” vehicles, taxis and “goods” vehicles) which are not relevant, I do not think that it can said that s52(3) is for practical purpose any wider than its predecessors.

31.  Returning to the legislative history, there was a major revamp of the law on road traffic.  When the then Secretary for Transport moved the second reading of the Road Traffic Bill 1982 (which later became the RTO), he said[52]:–

“The present Road Traffic Ordinance (Cap. 220) was enacted in 1957 and a series of subsidiary regulations were made between 1957 and 1964. This legislation was largely based on practice in the United Kingdom, but since 1957 there have been many changes in ways of dealing with motoring offences, in methods of traffic control, safety measures and in the design and construction of motor vehicles. The structure of the legislation has become increasingly ill-adapted to present road traffic conditions, and over the years it has become increasingly difficult to respond to changing conditions by a process of fragmentary amendments to the Ordinance and regulations. The legislation has, frankly, become unnecessarily complicated, confusing and cumbersome.

A general revision of the Road Traffic Ordinance and its subsidiary regulations was therefore carried out by a Working Party.  Opinion and advice was sought from the several Government departments concerned and from organizations with an interest in transport matters. Road traffic legislation in other countries, including various international conventions, was carefully examined.  A major defect of the present legislation was that related subjects were spread across thirteen sets of regulations.  The Working Party recommended a logical grouping and sequence of the subjects in a new Road Traffic Ordinance, that is, the Bill which I am now moving, with seven sets of regulations covering the registration and licensing of vehicles, the construction and maintenance of vehicles, safety equipment, driving licences, traffic control, parking and public service vehicles.  The drafting of these regulations is now complete…”

32.  It can be seen from the above that one main aim of the aforesaid revision exercise was to move and consolidate various offence creating provisions from different subsidiary legislations to the new principal ordinance.

33.  It is also clear, from the brief review of the legislative history above, that the common purpose behind the old s 29(2A), Cap 220H and its successor s 52(3), RTO was to control and restrict through a licensing regime the use of private motor vehicles for hire. 

34.  In HKSAR v Cheung Wai Kwong[53] Fok PJ, who gives the judgment of the Court of Final Appeal, explains the legislative purpose behind s 52, RTO.  Although that case relates to s 52(1), much of what is said in that case is just as pertinent here:

“D.2 The purpose of s.52 and its context within the scheme of the RTO

19. The Long Title to the RTO states its purpose as being “To provide for the regulation of road traffic and the use of vehicles and roads (including private roads) and for other purposes connected therewith”. Within the RTO, section 52 is the first section in Part 6 of that ordinance which is headed “Use, Sale and Hire of Vehicles”. Section 52 itself is headed “Restriction on the use of vehicles”.

20. The aim of section 52(1) is broad and, in requiring every vehicle driven or used on a road to be registered and licensed under the statutory registration and licensing systems, includes at least three different purposes: (1) taxation and revenue generation (by the requirement to have paid registration and licence fees before a vehicle can be used on a road); (2) administrative regulation (by the registration and licensing systems which enable vehicles and their owners to be traced and identified); and also (3) road safety and protection of the public (by the registration and licensing systems that respectively ensure mechanical soundness and the requirement that all registered vehicles be covered by third party insurance).

21.  Section 52(1) must also be construed in the context of the other provisions of the RTO itself and cognate ordinances and regulations which include the offences relating to driving a motor vehicle under the influence of alcohol or drugs (RTO s.39A et seq.), the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap.272), and the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E).”

35.  The magistrate in his Statement of Findings[54] proposed an attractive theory that the enactment of RTO in 1982 represented a legislative response to the call of English courts in cases like Wyatt v Guildhall Insurance Company Ltd[55] and Connell v Motor Insurers’ Bureau[56].  He said,

“34. In the 1960s and 1970s, the English law on road traffic control was in a profound state of confusion, so much so that Karminski LJ lamented: “As things stand, it is or may be difficult for a passenger in a car to ascertain whether or not the owner or driver is covered by a policy of insurance if they meet with an accident,”so much so that Lord Diplock complained: ‘[A]s to the meaning of eleven simple words: “a vehicle in which passengers are carried for hire or reward”, … [t]hree divergent views are held by your Lordships… Only one of these commands the support of even two of your Lordships,’ and so much so that Lord Denning pleaded: “I hope that Parliament will soon remedy the position.”

35.  Hong Kong responded to Lord Denning’s call for legislative intervention.  A major revision of our road traffic regime was undertaken in 1982, which led to the enactment, that year, of our current Road Traffic Ordinance, Cap. 374.”   

36.  It should be noted, however, that the line of English cases the magistrate referred to was all about motor insurance rather than road traffic control, so that the context was very different.  Also, those English cases were on the interpretation of the phrase “a vehicle in which passengers are carried for hire or reward” used in the English legislation which has not been adopted in our RTO or its predecessors.  In this regard, I take heed of what was said by the Full Court (Hogan CJ & Blair-Kerr J) in Attorney General v Lun Chan[57] that,

“ Although much of the Hong Kong traffic legislation reproduces provisions contained in British statutes, there are significant differences both in form and content. There are marked differences in the definitions of the various categories of vehicles and, although the prohibitions against using vehicles without the appropriate licences may amount to much the same thing, there is, so far as we can see, nothing in the British legislation precisely corresponding to sub-regulation (2) of Regulation 26 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, 1956, which bluntly prohibits the use of a private car for hire or reward. The prohibition in this form is of long standing in Hong Kong. The present regulation was preceded by a similar regulation, No. 88. made in 1935 under the old Vehicles and Traffic Regulation Ordinance 1912. …”

37.  Moreover, a survey of local case authorities does not reveal any “profound state of confusion” then existing in the road traffic law in Hong Kong as it was perceived in UK:

●  Kwong Pak-yam v The Queen[58] was about an appeal against the conviction of “driving a private car for hire” and of “driving without third party insurance”.  Huggins J, followed Attorney General v Lun Chan, ante, and held that the form of local legislation may make it necessary to adapt the language of Upjohn LJ in Coward v The Motor Insurers Bureau[59]. In dismissing the appeal, his lordship rejected the argument there could be no carriage for hire or reward unless there was a legally binding contract by which the fare could be legally recovered by the carrier. 

●  Chan Kai-lap v The Queen[60] was an appeal against conviction of “using a private car for the carriage of passengers for hire and reward”, contrary to r 29(2) of the Road Traffic (Registration and Licensing of Vehicle) Regulations and “using the car without third party insurance”, contrary to s 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance.  The Full Court[61] held that there was no warrant nor justification whatever for putting a qualified construction on the word “use” as it appeared in both the Regulations and the Ordinance so as to the proof of a habitual user.

●  In R v Li Wing-cheung[62], which was also a case on “using a private car for hire and reward” and “driving without third party insurance”, Pickering J had no difficulty in upholding the convictions arising from a single incident of carriage on the basis that “[t]he carriage was a predominantly business arrangement rather than a social one; the appellant was operating an unofficial taxi service”. 

●  Mr Tam has also drawn my attention to a number of magistracy appeals where convictions of a similar nature were upheld, even though a “systematic carriage”, which was apparently required by the English case law, had not been shown[63].

38.  Based on the above, with respect, I accept the submissions of Mr Tam that the magistrate’s theory about the enactment of RTO being a response to the “profound state of confusion” in the English law is not borne out by the Hansard, local case authorities or any evidence.  In my humble view, the enactment of RTO was rather a response to the situation then existing in and peculiar to Hong Kong.

“Public/Private” distinction and “for hire or reward”

39.  As mentioned above, RTO, unlike its predecessors, does not contain any definitions for the terms “public” and “private”. However, the distinction between the two is still important for one to properly understand the legislative scheme of RTO and the policy behind it.

40.  In my humble view, a strong proposition can be made that, the purpose of the legislative scheme in RTO, “public” motor vehicles are generally those which are used or intended to be used “for hire or reward”[64] and that their service is expected to be accessible by the general public.  On the other hand, “private” motor vehicles are generally those which are used or intended to be used “otherwise than for hire or reward” and their service is intended to be accessible by the public.  Support for the proposition comes from the following. 

41.  Firstly, the phrase “for hire or reward” had been used in the previous legislations to mark the “public/private” distinction. Thus, in the successive versions of Cap 220, at s 2(2), “private cars” were said to be “any cars which are not public cars or taxis and are not used to carry passengers for hire or reward.” 

42.  Secondly, there is the consistent manner in which the phrase “for hire or reward” is used throughout RTO.  By a word search of the e-legislation, the phrase “for hire or reward” appears a total of 14 times in RTO: eight of them are in s 2 (the definition section)[65]; one in each of s 7 and s 27; and four in s 52 (the offence-creating section under consideration).  

43.  In s 2, RTO:

“private bus (私家巴士) means a bus used or intended for use—

(a) otherwise than for hire or reward; or

(b) for the carriage of passengers who are exclusively—

(i) the students, teachers and employees of an educational institution; or

(ii) disabled persons and persons assisting them,

whether or not for hire or reward;” (Emphasis supplied)

In view of the exclusivity of the target passengers under (b)(i) and (ii), the fact that a “bus” can be “private” “whether or not for hire or reward” does not derogate from the general proposition under consideration.  In contrast,

“public bus (公共巴士) means a bus, other than any private bus, which is used or intended for use for hire or reward”

   (Emphasis supplied)

44.  There is a similar distinction between “private light bus” and “public light bus”:

“private light bus (私家小巴) means—

(a) a school private light bus; or

(b) a light bus (other than a school private light bus) used or intended for use—

(i) otherwise than for hire or reward; or

(ii) exclusively for the carriage of persons who are disabled persons and persons assisting them,

whether or not for hire or reward;” (Emphasis supplied)

Again, the exclusivity of the target passengers is noted when a private light bus is used or intended to be used “for hire or reward”.  In contrast,

“public light bus (公共小巴) means a light bus, other than any private light bus, which is used or intended for use for hire or reward;” (Emphasis supplied)

45.  As regards “school private light bus” (學校私家小巴), it is a special category of its own in that it bears a label of “private” whether or not it is “for hire or reward”.  However, that can be explained on the basis of its restrictive primary usage and target passengers:

“a light bus used or intended for use primarily for the carriage of persons who are the students of an educational institution, persons accompanying or in charge of such students, teachers or employees of the institution, to or from the institution, whether or not for hire or reward”. (Emphasis supplied)

46.  Although “taxi”[66] is defined somewhat circularly in RTO as a motor vehicle registered as such, I think that no one would doubt that a taxi is “for hire or reward”.  Besides, it is consistent with the proposition under consideration that a taxi is not regarded as a private motor vehicle but is included in the definition of a “public service vehicle” (公共服務車輛):

“any motor vehicle registered as a public bus, public light bus or taxi, or as a private car in respect of which a hire car permit is in force”.

47.  The fact that a private motor vehicle with a hire car permit can also be a “public service vehicle” does not derogate from the proposition.  This is because:

“hire car permit (出租汽車許可證) means a permit issued in accordance with this Ordinance authorizing the use of a private car for the carriage of passengers for hire or reward”^[67]

  (Emphasis supplied)

I note also that the issuance of hire car permits is restricted to limited and specific categories  all of which are hire cars[68] and the number of permits for each category is also limited[69].

48.  For the sake of completeness, as regards the remaining two places in RTO where “for hire or reward” appears:

●  s 7 is about “Regulation of public service vehicles”; and

●  s 27 is about the Commissioner’s power to issue a passenger service licence in respect of “public buses, public light buses, private buses or school private light buses”. 

As such, the way in which the phrase was employed in those two provisions is in harmony with the proposition. 

49.  Thirdly, it is clear that the purpose of S52(3), RTO is to implement a regime against the driving or using, as the case may be, of any private motor vehicles for the carriage of passengers “for hire or reward”. This regime is also reinforced by the following subsections of s 52, RTO:

“(4) No person shall—

(a) drive or use a public light bus, a private bus, a school private light bus or a public bus other than one operated under a franchise granted under the Public Bus Services Ordinance (Cap. 230); or

(b) suffer or permit such a vehicle to be driven or used,

for the carriage of passengers unless a passenger service licence is in force in respect of the vehicle.

(5) No person shall solicit or attempt to solicit any person for hire or reward to travel in any vehicle which is licensed as—

(a) a private car;

(b) a private light bus;

(c) a private bus;

(d) a light goods vehicle;

(e) a medium goods vehicle; or

(f) a heavy goods vehicle.

(6)  No person shall permit or suffer a motor vehicle which is licensed as a private car, private light bus or private bus to stand or ply for hire or reward.”

50.  The aforesaid regime, however, is subject to exceptions: 

(1)  a vehicle which is licensed as a public bus, public light bus or taxi: s 52(3)(b)(i);

(2)  a vehicle which is licensed as a private bus and the passengers are students, teachers or employees of an educational institution, disabled persons, or persons employed to assist disabled persons: s 52(3)(b)(ii);

(3)  a vehicle which is licensed as a private light bus and is used as a school private light bus: s 52(3)(b)(iia)(A);

(4)  a vehicle which is licensed as a private light bus and is used exclusively for the carriage of disabled persons and person assisting them: s 52(3)(b)(iia)(B); and

(5)  a vehicle in respect of which a hire car permit is in force: s 52(3)(b)(iii).

The common feature of the above exceptions is the requirement of an existing licence or permit in respect of the vehicle concerned.  As a consequence, it matters not whether the motor vehicle in fact bears a “public” character or what its normal or habitual usage is: cf Chan Kai-lap v The Queen, ante.  It is the presence or otherwise of a licence or permit which is important.

51.  Lastly, as pointed out by the magistrate, different from the old legislative scheme where vehicles with a “public” character  were referable to either the following concepts, namely (i) standing or plying for hire or available and intended for hire and (ii) carrying goods or passengers for hire or reward[70], the former now assumes a much more restricted role than before. Although RTO still retains a definition for “standing or plying for hire”[71], it is only used once in the body of RTO and that is at s 52(6).  Besides, it is not an element of the offence pursuant to s 52(3).  Whilst the phrase “standing or plying for hire” also appears in ss 37B and 51, Road Traffic (Public Service Vehicles) Regulations (Cap 374D), on both occasions it is used in relation to taxis or taxi drivers which are not relevant for the present purpose.  Judging from the above, it is clear that the Legislature has ceased to employ the concept of “standing or plying for hire” for the purpose of marking the “public/private” distinction.  Instead, whether the motor vehicle concerned is “for hire or reward” has become the major, if not the sole, criterion.

The elements of offence

52.  I now turn to consider the elements of the offence pursuant to by s 52(3), RTO. 

53.  Mr Chan submits that the magistrate is right that, by the use of the phrase “for the carriage of passengers for hire or reward”, s 52(3) imposes a mens rea requirement in that it requires the proof of a purpose. 

54.  With respect, I agree that this is the natural and ordinary reading of the provision.  I agree with Mr Chan that the connecting word “for” which appears twice in the expression “for the carriage of passengers for hire or reward” can only be referring to the subjective purpose for which the actus reus (“driving” or “using”) was committed. Furthermore, I also agree that, as regards s 52(3)(a), it is the relevant purpose of the person who drove or used (as the case may be) the motor vehicle concerned at the material time.  In other words, the offence is proven only if the accused was driving or using the motor vehicle for the purpose of carrying passengers and at the same time that carriage was “for hire or reward”.  I can find nothing in the legal and social context of RTO or its legislative intent which points to the otherwise.  As such, with respect, the contrary submission of Mr Tam is not accepted.  I will come back to this when I deal with the Respondent’s submission on “strict liability”.

55.  Therefore, in my judgment a person will be caught by s 52(3)(a) if he:

(i)  drives or uses;

(ii)  a motor vehicle; and

(iii)  he does so with the prohibited purpose, that is to say “for the carriage of passengers for hire and reward”,

unless he can avail himself of any of the statutory exceptions provided in s 52(3)(b) as discussed above. 

56.  As regards the respective meaning of “driving” and “using”, they have been authoritatively explained in HKSAR v Cheung Wai Kwong, ante.  I can see no reasons why those words should not bear the same meaning in s 52(3) as in s 52(1). 

57.  As regards what is a “motor vehicle”, it is defined in s 2, RTO[72] and explained in Attorney General v Ho Kam Mun, which is cited with approval in Jockey Club Kau Sai Chau Public Golf Course Ltd v HKSAR[73].

58.  I will further elaborate further on (iii) when I deal with the Appellants’ first ground of appeal.  It suffices for me to say at this point that the offence focuses at the act and purpose of the defendant driver whilst the exceptions focus on whether the motor vehicles concerned have a licence or permit, as the case may be. 

59.  I now turn to consider the grounds of appeal.

Ground 1: agreement for carriage between the driver and the passenger

The magistrate’s finding

60.  The magistrate held that an agreement for carriage between the driver and the passenger is not necessary for the conviction of an offence pursuant to s 52(3), RTO.  He based his ruling by first holding that there was “a sharp contractual demarcation” between “private cars” and “taxis” under the 1957 enactment in that the characterization of a vehicle as one or the other hinged upon, among other things, the existence or otherwise of a carrier contract.  On the premise that the enactment of RTO was an attempt of the legislature to remedy the perceived confusion in the regulation of illegal hire cars, the magistrate sought to free himself from appeal cases cited by the Prosecution on the interpretation of “for hire or reward”.  Then, the magistrate relied on references to “contract express or implied” having been supposedly removed from the provisions in the current RTO regime to make good his finding that an agreement for carriage between the driver and the passenger as contended by the defence is not required by s 52(3).

61.  Both Mr Chan and Mr Tam submit that the magistrate has erred in holding that there had been a “contractual demarcation” in old legislative scheme. 

62.  To consider the magistrate’s holding on the existence of the so-called “contractual demarcation” relating to the old legislation, it would be convenient for me to set out below the meaning of “public car”, “private cars” and “taxis” in the old Cap 220:

●  at s 2(2)(b), “taxis” were said to be “any cars which stand or ply for hire and in which the passengers are carried for hire or reward under a contract expressed or implied for the use of the vehicles as a whole at a rate indicated by the taximeters”;

●  at s 2(2)(c), “public cars” were said to be “any cars, not being taxis, which:

(i)  stand or ply for hire and are used to carry passengers at separate and distinct fares within the Colony on a recognized and predetermined route or for a recognized or predetermined purpose, in accordance with a right or licence granted by or under any enactment;

(ii)  are hired or intended to be hired for the carriage of passengers under a contract expressed or implied, other than a hire purchase agreement, or the use of the vehicles as a whole at or for a fixed or agreed rate or sum, whether or not such contract makes provision for the driving of the vehicles by the hirers”; and

●  at s 2(2)(c), “private cars” were said to be “any cars which are not public cars or taxis and are not used to carry passengers for hire or reward”.

63.  By a comparison of the above provisions, I agree with Mr Chan that the use of the phrase “contract expressed or implied” was not to create a “contractual demarcation” as held by the magistrate.  This is because:

(i)  the phrase was used in the definitions of taxis and public cars to distinguish between (i) a vehicle standing or plying for hire; and (ii) a vehicle being hired out as a whole under a contract “at or for a fixed agreed rate or sum”, in that a vehicle could be used for hire or reward under a contract in circumstances where the vehicle was not standing or plying for hire; and

(ii)  the phrase was used to cover instances of the hiring of a vehicle as a whole, as distinguished from those where different passengers may be carried at the same time but at separate and distinct fares (in which the phrase was not used) – a situation where a series of independent contracts for carriages may exist within the same journey.  In other words, the phrase was used to differentiate the various ways in which a vehicle could be hired.

Thus, as submitted by Mr Chan, the magistrate’s reasoning for holding is, with respect, based on a false premise.  Mr Tam also does not support the magistrate’s reasoning either.  Therefore, it is necessary for this court to consider and rule on the true interpretation of the provision in order to deal with this ground of appeal. 

64.  Mr Chan submits that s 52(3) RTO requires proof that the accused was driving for the purpose of hire or reward that “flows from” his carriage of passengers.  Following from that, Mr Chan further submits that the offence is proven “only if” the accused was driving for the purpose of fulfilling “a direct agreement for carriage” with the passenger (i.e. for the carriage of passengers) from which he was to be rewarded (i.e. for hire or reward)[74]. However, this part of Mr Chan’s submission on the requirement of a “direct carriage of carriage” has not been entirely consistent.  At first, Mr Chan submits that:

“It would be illogical to incorporate a “contract” requirement in a statutory offence which prohibited the driving of motor vehicles for hire or reward, which itself would render any such contract unenforceable for being contrary to “public policy” …

What the authorities required was an “express or implied agreement of carriage”, or in other words, a “common expectation of the two persons concerned that a payment of money would be made therefore (sic)”^[75].

Upon being queried by this court whether the “common intention” which the Appellants contended for is a piece of evidence or an element of offence, Mr Chan, in his written note[76], says:

“a common intention (or a carriage agreement between the driver and passenger) is not required as a matter of law, but would be conclusive of the purpose of the driver’s driving.”

65.  With respect, I am unable to accept Mr Chan’s submissions that the offence under consideration is proven “only if” the Appellants were driving for the purpose of fulfilling “a direct agreement for carriage between himself and the passenger”.  My reasons are as follows:

(i)  To start with, on Mr Chan’s construction, to convict on a charge pursuant to s 52(3), RTO, the prosecution would be required to prove of the state of mind of the passenger concerned.  However, the provision says nothing on that topic.  Therefore, Mr Chan’s submission involves reading into the provision words that are not there.

(ii)  I agree with Mr Chan that the phrase “for the purpose of carriage of passengers for hire or reward” clearly refers to the state of mind of the offender, ie, the driver or user of the motor vehicle in question, as the case may be, so that it is an aspect of the mens rea of the offence for which the prosecution bears the burden of proof.  The prosecution must prove that the accused bore the prohibited subjective purposes at the time of the offence.  By “prohibited subjective purposes”, I mean that the driving or using, as the case may be, must be “for the carriage of passengers for hire or reward”.  On the other hand, I accept with Mr Tam that, by a plain and ordinary reading of s 52(3), the phrase under consideration does not pertain to the actus reus, so that actual payment is not an essential ingredient of the offence.  Therefore, I respectfully disagree with the magistrate that “there must be a reward paid or received for the carriage of the passenger”[77].

(iii)  In my humble view, the first part of the prohibited purpose (“for carriage of passengers”) must take colour from its second part (“for hire or reward”).  On that basis, I agree with Mr Tam’s submission to the extent that the first use of the word “for” in the phrase describes the purpose of driving the car and the second use of the word “for” denotes a causal link between the “carriage of passengers” and the “hire or reward” in question, so that the reward expected by or actually paid to the defendant driver has to be derived from the “carriage of passengers”, albeit not necessarily directly from the passengers concerned.  Moreover, in view of the legislative history and context that s 52(3) and its predecessor were enacted to combat the problem of “pak pai” (an unofficial taxi service), in my humble judgment the kind of “carriage of passengers” which s 52(3) targets at is one which has a predominately business or commercial rather than a friendly or social arrangement.  This interpretation is also consistent with the local authorities on the old legislation including Kwong Pak-yam v The Queen[78], Ngai Kam-chung v The Queen[79] and Li Wing Cheung v The Queen[80].

(iv)  I agree with Mr Chan that an actual payment to the defendant driver is capable of being a clear proof of a commercial transaction.  However, it does not follow that s 52(3) can bite “only if” the driver has a “direct agreement for carriage” with his passenger.  With respect, there is a leap in Mr Chan’s reasoning that just because it has to be proved that the Appellants were driving or the purpose of hire or reward that “flows from” (whatever that means) his carriage of passengers, it must follow that that the offence is proven “only if” the Appellants were driving for the purpose of fulfilling a direct agreement for carriage between himself and the passenger from which he was to be rewarded. In my humble view, the wording of s 52(3) wide enough to cover situations where (i) there is no direct agreement between the driver and the passenger or (ii) the payment is expected from people other than the passenger: see eg, Orr v Trafalgar Insurance Company Ltd[81].

(v)  as a matter of policy, if I were correct that the legislative intent is to restrict the commercial use of private vehicle for carriage of passengers, then I fail to why a defendant driver should escape the apparently wide net cast by s52(3), RTO simply because he did not have a “direct agreement” with the passenger on the fare to be charged for his service, if both his act and his state of mind were fell within the plain wording of the provision. 

(vi)  as a matter of legal principle, I am also unable to see why it is necessary to show, as a pre-condition for conviction, a “common expectation” between the driver and the passenger.  The charge is not one of conspiracy but a substantive charge aiming at the activities and purpose of the driver or user, as the case may be, of the motor vehicle in question.  One may ask, rhetorically, why should the court bother also with the passenger’s state of mind? and why should the liability of a defendant driver depend on the mind of someone else (who is not a victim) over which he has no control?

(vii)  as a matter of case law, the cases referred to by Mr Chan, properly understood, do not in fact support his construction:

(1)  In Kwong Pak-yam v The Queen, ante, what Huggins J said was that a common expectation of the appellant driver and the passenger (a woman police constable in decoy) about payment was “evidence” that there was something more than a friendly arrangement and that evidence was sufficient to justify the finding that the vehicle was being used for hire or reward.  

(2)  In Ngai Kam-chung v The Queen, ante, payment was only discussed between the passengers (police officers in decoy) and the defendant driver after, but not before, the journey had completed.  Dealing with the ground of appeal that the offence was no made out because of the absence of any prior agreement on payment, Huggins J said that:

“It is well-established that where two parties enter into a contract for work to be done by one of them and no remuneration is fixed there is an implied term that a reasonable sum will be paid. What is essential is that the parties shall have intended to enter into an agreement that the work should not be performed gratuitously.”

Reading the above in context, his lordship was saying that the fact that payment was only discussed after the carriage had completed did not mean that the use of the car was not “for hire or reward”.   His lordship referred to his own judgment in Kwong Pak-yam and said that on the facts found by the magistrate, it was inevitable that the magistrate should come to the conclusion that the appellant was all along expecting to be paid.

66.  With respect, Mr Chan’s concession in his “Written Note” is correct that a “common expectation” between the driver and his passenger that the driver would be paid for the former’s service is “evidence” which allows the court to infer that the driving was “for the carriage of passengers for hire or reward”.  However, one must not confuse a piece of evidence which tends to prove an element of offence with the element of offence itself.  There is a distinction between accepted common law principles of interpretation and “remedial interpretation” which I will come to in due course.  In my judgment, as a matter of accepted common law principles of interpretation, there is simply no warrant to read words into s 52(3) requiring the proof of a “direct agreement” or a “common expectation” as contended by Mr Chan or any proof of the state of mind of the passenger concerned.

67.  Based on the above, in my judgment an agreement for carriage between the driver and the passenger inter se can be relevant but only as a piece of evidence to the offence pursuant to s 52(3), RTO.  However, the absence of such an agreement is not fatal. 

Ground 2: “overbreadth” & remedial Interpretation

The magistrate’s finding

68.  The issue of “overbreadth” was not raised by either side at the trial.  However, the magistrate, because of his construction of s 52(3) RTO, found that the provision was too wide that it would put a large portion of the driving public, such as employed chauffeurs, within its terms.  As such, the magistrate found that the provision was overly broad as to be contrary to Article 28 of the Basic Law[82] and references were made to Lau Cheong & Another v HKSAR[83] and So Wai Lun v HKSAR[84].  Therefore, the magistrate, in an attempt to preserve the validity of the provision, adopted what he said to be a “remedial interpretation” by imposing a requirement on the provision that the “reward” must be based on distance travelled.  This requirement, the magistrate so held, was based on the supposed distinction between the use of “hire or reward” and “hire and reward” in the old regime[85].  The magistrate found that:

“there had been a difference between “hire or reward” and “hire and reward” in the regulatory regime between 1957 and 1964, in which period, “hire or reward” was used in situations where the reward had depended on the distance of the journey in fact made”^[86].

The Appellants’ stance

69.  Mr Chan’s submission is that the magistrate was right that s 52(3), RTO, if based on the magistrate’s construction, would be overly broad.  He submits, however, that the magistrate’s construction requires the altering or adding of non-existent words to the statutory language in order to adopt the outdated legislation to a new state of affairs, which does not in any event achieve a desired outcome[87].  Mr Chan submits that the problem of overbroad would be solved if one reads into the provision “a requirement that a driver must be driving to fulfil an agreement of carriage with the passenger”[88].

The Respondent’s stance

70.  On the other hand, Mr Tam submits that the issue of “overbreadth” is simply not engaged and in any event he does not agree with the remedial interpretation as formulated by the magistrate.

Consideration

71.  I derive the following guidance from the judgment of Sir Anthony Mason NPJ in HKSAR v Lam Kwong Wai & Another[89], with whom the other members of the Court of Final Appeal agree, regarding the approach that the court should take when dealing with a constitutional challenge against the validity of a statutory provision:

(1)  The first task is to ascertain the meaning of the provision according to accepted common law principles of interpretation as supplemented by any relevant statutory provisions. 

(2)  The second task is to consider whether that interpretation derogates from the rights as protected by the Basic Law and the BOR. 

(3)  If that question is answered ‘Yes’, whether the derogation can be justified and, if not, whether it could result in contravention of the Basic Law or the BOR and consequential invalidity. 

(4)  If invalidity could result, then it will be necessary to decide whether the validity of the section or part of it can be saved by the application of any rule of construction, severance of the offending part, reading down, reading in or any other remedial technique available to the Court. 

72.  It is noted in Lam Kwong Wai & Another that “remedial interpretation” was more radical than common law interpretation, that it is an interpretation given to preserve a statute’s validity, but the interpretation is not one the statute is capable of bearing as a matter of ordinary common law interpretation.  Such interpretation is a departure from the legislative intent and does not depend on the particular form of words used.  The interpretation involves the well-known techniques of severance, reading in, reading down and striking out[90].

73.  As to the meaning of “arbitrary” in Article 28 of the Basic Law and the scope of that Article, it is held in Lau Cheong & Anor v HKSAR, ante, applied in So Wai Lun v HKSAR, ante that:

(1)  The Article expressly provides a constitutional guarantee against arbitrary "imprisonment" and not just against arbitrary "arrest or detention", as in the case of art.5(1) of the BOR.  Therefore, first, it extends its protection to offenders lawfully imprisoned after conviction by a court.  Second, art.28 is capable of invalidating, on the grounds of arbitrariness, substantive criminal laws founding a conviction and consequent imprisonment.

(2)  Whether an arrest or detention is "arbitrary" turned on the nature and extent of any departure from the substantive and procedural standards involved.  An arrest or detention was arbitrary if it is capricious, unreasoned, or without reasonable cause, that is, if it is made without reference to an adequate determining principle or without following proper procedures.  “Arbitrariness” was not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.  Further, laws which imposes sentences of imprisonment that are manifestly disproportionate could be struck down on the basis that the laws are arbitrary.

74.  Whether or not the concept of “overbreadth” is to be regarded as an aspect of the protection against “arbitrariness” entrenched by Article 28 of the Basic Law or pertaining to a separation protection generally entrenched by Article 39[91], based on what I consider to be the true construction of s 52(3), RTO according to accepted common law principles of interpretation, in my humble view the issues about “arbitrariness” or “overbreadth” are simply not engaged. My reasons are as follow:

(a)  As discussed above, in my judgment, according to accepted common law principles of interpretation, one should not read into s 52(3) “a requirement that a driver must be driving to fulfil an agreement of carriage with the passenger”.

(b)  On a plain and ordinary reading, the provision requires the prosecution to prove that the defendant driver was driving a motor vehicle with the prohibited subjective purpose.  In my judgment, this requirement of mens rea is certain and precise in its terms and rationally connected to its legislatively objective and therefore not arbitrary: see Lau Cheong v HKSAR, ante.

(c)  Also, in my humble view this requirement of mens rea, properly construed, effectively and properly limits the scope of the offence so that it will not embrace acts that go beyond the range of acts intended to penalized: 

(1)  in the common factual scenario of employed chauffeurs who drive their employers or the employers’ family and guests, the chauffeurs would not be caught by s 52(3), RTO as their reward comes not from the specific car journey in question but from their employment.  Besides, I do not think that ordinarily one would say that the chauffeurs have a purpose in their mind which is predominately business or commercial in character when they are driving for the carriage in question;

(2)  in social and domestic occasions where a driver receives a reward for driving relatives or friends – for example, a reward based on the costs of petrol, there have already been clear case authorities to the effect that so long as such arrangements do not acquire the character of business arrangements they should be regarded as natural ways of using a private car as such and should not be regarded as involving the carriage of passengers “for hire or reward”: see eg, Albert v Motor Insurers’ Bureau[92]; and

(3)  as regards the hypothetical scenario raised by Mr Chan during submission of an employed chauffer being asked to drive passengers who were charged a fare by his employer, with respect, the problem is more apparent than real.  If the chauffer does not know the employer is doing a business of providing carriage at a fare, then the chauffer’s position would be similar to those in (1) above.  On the other hand, if the chauffer knows that his employer is charging the passenger a fare for the carriage in question and that the vehicle is not covered by a licence or permit and in those circumstances he still assists the employer by driving the motor vehicle concerned, then I am unable to see why he should not be held liable either on the basis that he and the employer are acting in concert as a joint enterprise: see HKSAR v Chan Kam Shing[93]; or that he is aiding and abetting the employer in using the motor vehicle for a prohibited purpose: Johnson v Youden[94], approved in Mok Wei Tak v R[95].

75.  As to the contention that the “new wine” of Uber cannot be put into the “old wine skin” of s 52(3), RTO, Mr Chan submits: 

“4.6. There is no question that, in the late 1970s to the early 1980s when the RTO was being considered and drafted, consideration was given to control and regulate the “pak pai” trade, and prevent “pak pais” from plying for hire as illegal taxis – see the Full Court’s observation in Leung Tak Kuen v The Queen [1972] HKLR 493 (at 495). It can also be seen from other provisions in the RTO, such as the prohibition against the use of an unlicensed rickshaw at s.52(2), that the RTO was specifically directed at the status quo of the road traffic industry in Hong Kong at the time.

4.7. In contrast, the inventive mode of operation pioneered by “Uber” did not come into existence until more than 30 years later. Uber is undoubtedly a “new state of affairs”, not “known to the Parliament to be existing” at the time when s.52(3) of the RTO was drafted and considered (see Royal College of Nursing at 822B per Lord Wilberforce).”^[96]

76.  With respect, I am unable to accept the above submissions.  The service provides by “Uber” drivers nowadays is not unlike that of “pak pai” drivers in the 1970s.  What is new is (a) the insertion of an intermediary (“Uber”) which facilitates and arranges the provision of carriage service by the driver to the passenger; and (b) a new payment method so that the passenger will not be paying the driver directly.  However, neither (a) nor (b) bears on any of the elements of offence pursuant to s 52(3).  Moreover, I do not think that a “pak pai” driver back in 1970s would have escaped liability simply by using a human go-between helping him to look for and arrange passengers in return for a share in the fare.  The terms of the predecessor of s 52(3), RTO could easily cover that situation.  There has never been any requirement in the law, before or after the enactment of RTO, as to how the defendant driver should meet his passenger and how the fare is to be paid in order to make out the offence.  Although the use of an intermediary might not have been common back in the 1970s, I do not agree that it was a situation not contemplated by the legislature.  By the same token, in my view, the wording of s 52(3), RTO is also “speaking to” Uber’s mode of operation and is capable of covering the Appellants’ activities in question.  What might not have been contemplated by the legislature is the substitution of an online platform for a human intermediary.  However, this change in technology does not affect the policy behind the legislation. 

77.  In view of my judgment that s 52(3), RTO, properly construed, is Basic Law compliant, it would not be necessary for me to deal with the “remedial interpretation” which the magistrate puts on s 52(3), RTO.  If it is argued that there should be a change in the policy behind s 52(3), RTO restricting of the use of private motor vehicles for carriage of passengers for hire or reward, any such change must be left to the Legislature.

78.  Without any disrespect to the substantial amount of work devoted by the magistrate in his attempt to achieve a “remedial interpretation”, I hope that I can be forgiven for not dealing with his formulation in any detail.  It suffices for me to say, with respect, that the distinction he drew between “hire or reward” and “hire and reward” in respect of the old Cap 220 regime is not justified when put in context:

(a)  as pointed out by Mr Chan, in Ord 39 of 1957, the phrase “hire and reward” was then used only in the definitions of “public cars”[97] and “hire omnibuses”, which allowed for “the use of the vehicles as a whole at or for a fixed or agreed rate or sum”;

(b)  as noted by the magistrate, in the amendment introduced by Ord 23 of 1964, the expression “hire and reward” was removed from Cap 220.  The definition of “public cars” was expanded to include those which were “hired or intended to be hired for the carriage of passengers under a contract expressed or implied, … for the use of the vehicles as a whole at or for a fixed or agreed rate or sum …”[98].  There was no longer a separate category of “hire omnibuses”, the same having been assimilated into the second limb of the definition of “public omnibuses” which were “hired or intended to be hired for the carriage of passengers under a contract expressed or implied, … for the use of the vehicles as a whole at or for a fixed or agreed rate or sum”[99] ; and

(c)  the definition of “public”, however, remained unchanged before and after 1964, namely,

““public” in relation to any vehicle means standing or plying for hire or available and intended for hire and carrying goods or passengers for hire or reward”

As pointed out by Mr Chan, the use of a fixed or agreed rate allowed for situations where the fare could be calculated on the basis of, inter alia, the distance travelled.  Therefore, the magistrate, with respect, erred in drawing a distinction between “hire and reward” and “hire or reward” on the basis of whether the fare was calculated according to the distance travelled.  As I have noted, the magistrate’s formulation is not one which commends itself to either the Appellants or the Respondent. 

79.  In my humble judgment, the magistrate also erred in imposing a requirement of interdependence between the reward and the distance travelled, as it is not borne out by the plain wording of the provision.

Ground 3: Contractual relationship between Uber and the Appellants

80.  Mr Chan submits that the magistrate’s finding that there was no evidence that any of the Appellants was performing a contractual duty owed to Uber or anyone is contrary to the evidence.  It is submitted that it is reasonably clear on the evidence that the Appellants were (or might have been) driving for the fulfilment of their independent contractual obligations (employment or otherwise) toward Uber, as opposed to driving for the arrangement between the Appellants and the passengers.  In other words, the Appellants were, according to Mr Chan’s construction of s 52(3), not driving “for the carriage of passengers for hire or reward”.  It is also submitted that, for the purposes of s 52(3) of the RTO, there is no legal difference between privately employed chauffeurs and Uber drivers on the evidence presented in the present cases.  Therefore, if privately employed chauffeurs do fall outside the ambit of s 52(3), so should the Appellants.

81.  With respect, I am unable to accept the above submissions.  In my judgment, whether or not the Appellants was performing a contractual duty owed to Uber is not determinative of the appeals.   

82.  As regards Mr Chan’s submission that the Appellants’ position was not different from privately employed chauffeurs, I beg to differ.  First of all, there was no evidence before the magistrate that the Appellants were employees of Uber.  That was not the stance of the defence at the trial and I do not understand Mr Chan to be arguing the otherwise now. Secondly, I have already rejected Mr Chan’s contention that it is a condition for a conviction of the offence under s 52(3) that the driver and the passenger had a direct agreement for carriage.  No issue was taken that the Appellants were driving “for the carriage of passengers” and that they knew at the time that the passengers would be charged for the carriage they were providing.  In my view, the only live factual issues are (i) whether the Appellants had a subjective purpose in their mind which was predominately business or commercial in character; and (ii) whether the reward, if any, which they expected to receive was to be derived from that particular carriage.  If the answers to the above are to be given in the affirmative, then the Appellants’ activities would clearly fall within the ambit of s 52(3), RTO and are clearly distinguishable from those of privately employed chauffers.  That leads me to the next ground of appeal.

Ground 4: “Piercing” of “Contractual Veil”

83.  The magistrate found that[100]:

“167.   The effect of taking this restrictive interpretation of section 52(3) is that if a defendant drives his car in performance of his duty under an employment contract, the section would not apply to him, unless the evidence is such as would allow the court to pierce the “contractual veil” to find beyond all reasonable doubt that the reward received is calculated per ride and by reference to the distance traversed.  The burden of proof of a contractual veil, if the issue of an employment contract arises, rests on the prosecution as part of its case on the relationship between the ride and the reward.” 

84.  Mr Chan submits that the magistrate erred in the above holding in that there was no evidence that any arrangements between Uber and the Appellants were created in order to “mask” anything, let alone the existence of any journey-dependent reward.  Amongst other matters, the Uber App itself clearly showed that the fares paid by the passengers to Uber related entities were distance-based with a proper receipt issued to the passengers via email.  What was not proved by the Prosecution with direct evidence was the nature of the reward (if any) payable by Uber to the Appellants and the nature of the arrangement between Uber and the Appellants.  It is also submitted that the Prosecution had failed to adduce any evidence capable of supporting the “piercing” of a contractual veil and the learned Magistrate was incorrect to place the burden on the Appellants to prove a lack of ulterior motive in their contractual relationship with Uber.

85.  In view of my judgment that a “remedial interpretation” of s 52(3) is not called for, I do not intend to deal with this part of the magistrate’s holding at length.  With respect, as I have said, the absence or presence of a contractual relationship between the Appellants and Uber is not determinative of these appeals if the Appellants’ activities and state of mind otherwise fall within the ambit of the provision.

Strict liability

86.  The prosecution has argued, both at the trial and in these appeals, that the offence under s 52(3) is one of “strict liability”.  The submission was rejected by the magistrate[101].  Having reviewed the relevant case authorities, including Hin Lin Yee v HKSAR[102], the magistrate said[103]:

“182. To prevent improper road use so as to reduce traffic congestion is of course a legitimate aim to pursue, as is the protection of any given industry (eg., the legal services industry). But the ultimate objection to the prosecution position is that a section 52(3) offence does not have the nature and effect of a regulatory offence at all. The nature and effect of a regulatory offence are explained in Hin Lin Yee’s case, the same case on which the prosecution relies:

‘[160] Regulatory offences do not as a rule involve conduct falling within the first of the aforementioned categories where absolute liability may be justified. The conduct being regulated generally forms an essential part of social life – the provision of food and drink, the operation of machinery, working on construction sites, selling pharmaceuticals and so forth. The policy of the law is not to say: “Proceed with these activities at your peril”, but to say: “When doing these things, you must meet proper standards aimed at promoting public health, safety and well-being.’

183. A section 52(3) offence does not have any of the regulatory characteristics referred to in the above paragraph; it is just an ordinary economic crime. In the view of this court, it is a regular offence rather than a regulatory offence, and this explains why in 1982 the legislature moved the offence from the regulations to the main Ordinance.

184.  As to the enforcement issue, it is a matter of inference arising from the evidence adduced whether a defendant has had the necessary guilty mind.  In the context of private car hire, the only enforcement problem, as far as this court can see, arises from the lack of a victim of crime.  Unless the passenger is dissatisfied with the services that the driver provides, neither a Uber driver nor his passenger would have much of a reason to report the crime.  Imposing strict liability on the driver cannot be justified on the basis of the passenger’s unwillingness to make a report to the police.  Regardless of the driver’s liability being full or strict, the passenger, a willing participant in the driver’s crime, will remain unwilling to report the crime.”

87.  The magistrate concluded by saying that:

“185. Having considered the five available alternatives[104], in view of the legislative history, in light of the statutory language and purpose, s52(3) offence requires full proof of mens rea and is not a strict liability offence.”

88.  Mr Tam submits that the above determination by the magistrate is erroneous in that “for the carriage of passengers for hire and reward” merely describes “a state of affair to be assessed objectively but not a mens rea requirement by itself”[105].  Mr Tam submits that once the prosecution proves that a private car has been driven for the carriage of passenger for hire or reward (as an objective state of affair), the driver cannot claim that he can drive a private car as an unlicensed taxi without obtaining approval from the authorities.  Mr Tam further submits that it accords with the policy objective of combating illegal hire cars to require the driver to prove that he had driven the car in a mistaken but honest and reasonable belief that the nature of the journey was lawful[106].

89.  Before dealing with the above submissions of Mr Tam, I note first of all that there has not been any appeal by the prosecution against the magistrate’s ruling on “strict liability”.  Since the prosecution contends that the magistrate’s determination on “strict liability” is erroneous as a point law, if they desire to have a ruling from the higher courts on this point, the proper way is for them to seek a case stated appeal pursuant to s105 of the Magistrates’ Ordinance, Cap 227[107].  A case stated appeal by the prosecution is not premised on an acquittal.  Being a party to the proceedings below, the Respondent could have applied for a case stated as of right but that had to be done within the time limit of 14 days after the magistrate’s determination.  The time limit has long expired and no extension has been sought.

90.  Since there has not been any appeal from the prosecution, and since I agree with the Appellants to the extent that s 52(3), RTO carries a mens rea requirement but that requirement, in my judgment, have been met to the requisite standard based on the available evidence, I do not think that it is necessary for me to deal with the Respondent’s submission on “strict liability”.  However, in deference to both counsel, I would say a few words as to why I agree with the magistrate that the offence in question is not one of strict liability. 

91.  As mentioned above, I am unable to accept Mr Tam’s submission that an offence under s 52(3) is one of strict liability. 

92.  First, I agree with Mr Chan’s submission that the principles expounded in Hin Lin Yee and Kulemesin regarding the displacement of the common law presumption of mens rea are only relevant where the provision is silent or ambiguous as to the requirement of the mental element in question.  However, this is not the case with s 52(3), RTO. Although I do not agree with the magistrate that an offence under s 52(3) offence “does not have any of the regulatory characteristics”, as discussed above by a plain and ordinary reading of s 52(3), it is clear that the provision expressly requires mens rea by using the connector “for” to link up the act of driving of a motor vehicle with the purpose of “the carriage of passengers for hire or reward”.  

93.  Secondly, if it is accepted that the phrase “for the carriage of passengers for hire or reward” pertains to the purpose of the driving which is the actus reus of the offence, then that purpose must be the purpose of a specific human being, rather than an objective purpose of the vehicle in general.   

94.  Thirdly, it is clear and natural reading of the provision that it is the defendant driver’s purpose that the provision is concerned about: Leung Kui Fai v Attorney General[108]. 

95.  Fourthly, the statute book is rife with examples of offences which have a mental element, notwithstanding that words such as “knowingly” or “with intent” are absent.  As Mr Chan points out, obvious examples of those include offences in the Prevention of Bribery Ordinance, Cap 201, in which the phrase “as an inducement to, or reward for, or otherwise on account of” appears in ss 4, 5, 6, 7 and 9 of the POBO and that provides the link between the advantage and the subjective purpose of the offender for which the advantage is solicited, offered or accepted. 

Ground 5: freedom of choice of occupation

96.  As mentioned above, the Appellants acknowledge that this court is bound by the decision of the Court of Appeal in Leung Sze Ho Albert v Bar council of the Hong Kong Bar Association, ante, which is against the Appellants.  As such, I am not going to deal with this point which, if need be, will have to be taken in another venue.

Factual Findings

97.  Turning to the factual findings, the magistrate said[109]:

“191. On the facts found in these cases, the court draws the following only reasonable and irresistible inferences:

(i) The 28 defendants responded to the passengers’ requests for transport services via Uber; they turned up at the pick-up points on purpose, by design, rather than as a matter of coincidence;

(ii) The fares were journey-dependent, firstly, as to their calculation because the passengers were shown the routes and the fares before the selection of the cars to be used, before the commencement of the journeys, and, secondly, because the fares were paid almost immediately after the rides;

(iii) The defendants and the passengers were strangers to each other; the passengers were passengers in the defendants’ cars solely because the journeys were intended to be paid;

(iv) The fares were charged to the passengers’ credit cards accounts in Hong Kong on the day of the offences, so payments of the fares were made;

(v) There is no evidence tending to show any of the defendants was at the time of the offences performing a contractual duty owed to Uber or anyone. Even if there had been such a contractual duty, the court would find, on the basis of the evidence adduced, beyond all reasonable doubt that the contract must have been entered into to mask the interdependence between the fares and the journeys;

(vi) Based on the findings in (i) to (v) above, the court draws the following two further, only reasonable and irresistible inferences –

(a) The defendants had allowed the passengers, who were strangers, to get in their cars solely for the reason and purpose of the car rides that were to be paid; and

(b) The defendants must have known and intended that the journeys were to be paid.” 

192.     Section 52(3) does not require the reward to be paid specifically by the passenger or received specifically by the driver, but specific knowledge and intention on the part of the driver that the journey would come or did come with a reward must be proved beyond all reasonable doubt; and where the reward was in fact paid, the full offence is complete and committed.”

98.  As regards the finding at §191(ii) that there was an interdependence between the reward and distance travelled, although this conclusion may be justified on the evidence before the magistrate, because of my view that a “remedial interpretation” is not called for, in my humble view this finding is not necessary for conviction.

99.  As regards the finding at §191(v) above that the contract, if any, between the Appellants and Uber must have been entered into to mask the interdependence between the fares and the journeys cannot be supported.  There was no evidence to show that the Appellants intended to “mask” anything.  However, in my humble view this is an irrelevant consideration and, as I have said, not determinative of these appeals.

100.  As regards the finding at §191(vi)(a), in my humble view, it is not a necessary condition that payment is the “sole” reason or purpose for the carriage in question provided that the defendant driver’s purpose is of a predominantly commercial or business character. 

101.  Save and except the aforesaid reservations, by way of hearing, based on the evidence before the magistrate[110] and in the absence of any additional evidence filed for the purpose of these appeals, I agree with the rest of the findings made by the magistrate at §191 of the Statement Findings.

102.  As regards §192 of the Statement of Finding, I agree to the extent that s 52(3) does not require the reward to be paid specifically by the passenger or received specifically by the driver.  However, as discussed above, I do not agree that there has to be actual payment before the full offence can be completed.  As I have said, “for hire or reward” pertains to the mental element of the offence rather than the actus reus.

103.  As aforesaid, there is no dispute that at the material times the Appellants were driving a motor vehicle “for the carriage of passengers” and that the motor vehicles in question did not have a relevant licence or permit.  By way of rehearing, in the absence of evidence to the contrary, I have no doubt that the Appellants were providing the carriage for a purpose which was predominately commercial or business in nature rather than a friendly or social arrangement.  Moreover, I find further that the only reasonable inference is that the Appellants were not performing the carriage gratuitously but were expecting a reward in return which was to be derived from the particular carriage in question, albeit not directly from the passengers concerned. 

Conclusion

104.  Based on the reasons given above, the appeals are dismissed.

105.  It only remains for me to thank counsel for their valuable assistance. 

Annexure 1

STATEMENT OF COMMON FACTS

The 1^st to 22^nd and 24^th to 27^th cases (KCCC 3412-3432, 3496, 3969, 3971 & 3974/2017 and 502/2018) (HCMA 381-402, 404-406 & 415/2018) (a total of 26 cases)

1.  The decoy officers and two civilian witnesses (“PWs”, collectively) registered accounts for using the “UBER” mobile applications (the “Rider Apps”) by providing their account identifiers, email addresses, mobile phone numbers and credit card numbers.

2.  On the dates of the offences, all PWs logged in the Rider Apps on their mobile phones and requested for “uberX”[111], “UberBLACK”[112] or seven-seater[113] carriage services by setting their locations as the pick-up locations and certain locations as the destinations.  Most of the Rider Apps subsequently displayed maps showing PWs’ respective locations[114] and that there were small cars in the vicinity[115].  The Appellants’ nicknames[116], photographs depicting the Appellants[117], vehicle registration marks of the cars and descriptions of the car models were also displayed on the Rider Apps.  Some PWs received telephone calls on their mobile phones and had telephone conversations with the callers (see Annex I).

3.  A while later, the Appellants drove private cars to the pick-up locations.  PWs boarded the cars from the rear doors.  Some Appellants confirmed the destinations with some PWs when they boarded the cars (see Annex II).  Afterwards, the Appellants drove the cars off with PWs on board.  Throughout the journeys, the Rider Apps on some of PWs’ mobile phones displayed small cars which showed the real-time locations of the relevant cars on the maps and the estimated arrival time.[118]  During the journeys, some PWs had conversations with some Appellants (see Annex II).[119]

4.  The journeys were completed in most of the cases.  However some of the Appellants were arrested before they arrived at the destinations.[120] Whether or not the journeys were completed, all PWs received electronic bills/ receipts/ emails confirming the fares of the journeys.  The Rider Apps on some of PWs’ mobile phones also displayed a page where PWs could give a rating on a scale of five stars.[121]  Bank records of PWs confirmed that payments were made in favour of UBER, UBER HK, UBER BV, UBER TRIP or UBER ADJ from PWs’ registered credit cards.

5.  Upon subsequent police enquiries and under caution, 17 Appellants[122] confessed to have worked as Uber drivers.  Amongst the 17 Appellants who confessed, 16 of them[123] stated that Uber remitted their shares of the fares of the journeys to their bank accounts.  Out of the 16 Appellants who acknowledged the remissions from Uber, 11 of them[124] stated that Uber transferred to them around 75% of the fares of the journeys, whilst 4 of them[125] had no idea or could not recall how their shares were arrived at, and the remaining one[126] made no admission in respect of the details of the share arrangement (see Annex III).

6.  Some of the Appellants’ mobile phones were seized from the Appellants.[127] Some of them contained the “Uber Driver” or “Uber Partner” mobile applications (the “Driver Apps”, collectively) in which there were records including the details, charging rates and fare records of the subject journeys, accounts registered under the Appellants’ names, details of the cars and some income records (see Annex IV).  Some of them also contained telephone records between the Appellants and PWs.

7.  As at the dates of the offences, there was not any hire car permit within the meaning of section 2 of the Road Traffic Ordinance, Cap. 374 (the “Ordinance”) in force in respect of the cars driven by the Appellants.

The 23^rd case (KCCC 3629/2017) (HCMA 403/2018)

8.  Prior to the subject journey on 17 May 2017, Mr. Gino BONIFACIO, a businessman from the Philippines, registered for the Rider App by providing his personal details and details of his own credit card for payment. 

9.  On 17 May 2017, Mr. BONIFACIO logged in the Rider App to request for carriage services.  Similar to PWs in the aforesaid cases, Mr. BONIFACIO set his location as the pick-up location and entered the destination.  The Rider App then displayed the vehicle registration mark of a car (which was not Appellant’s car) and the driver’s nickname (which was not Appellant’s nickname).  A while later, the Appellant drove a private car to the pick-up location, where Mr. BONIFACIO and Mr. Benjamin De Leon boarded the car and began their journey.

10.  Inside the Western Harbour Crossing, while the car was on the way to the destination, a traffic accident occurred.  Mr. BONIFACIO sustained injuries in the accident and was sent to a hospital for medical treatment.  Mr. BONIFACIO later informed Uber of the accident and was subsequently offered a full refund of the fare of the journey. 

11.  As at 17 May 2017, there was not any hire car permit within the meaning of section 2 of the Ordinance in force in respect of the said car in the instant case.

Dated this 29^th day of January, 2019.

Annex I: Telephone conversations

1.  Some PWs received telephone calls on their mobile phones.  Some callers stated that they were the Uber drivers[128] and confirmed the pick-up locations with PWs[129].

2.  In KCCC 3412/2017 (HCMA 381/2018), PW received on her mobile phone a telephone call from a male who told PW that he was the Uber driver and had parked his car at a particular location to pick up PW. 

3.  In KCCC 3413/2017 (HCMA 382/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver and would arrive in a few minutes.

4.  In KCCC 3414/2017 (HCMA 383/2018), PW received on her mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he was on the way.

5.  In KCCC 3415/2017 (HCMA 384/2018), PW received on his mobile phone two telephone calls from a male who told PW that he was the Uber driver, confirmed the pickup location and stated that he needed some time to arrive at the pick-up location.

6.  In KCCC 3416/2017 (HCMA 385/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed the pick-up location and stated that he needed more time to arrive at the pick-up location.

7.  In KCCC 3421/2017 (HCMA 390/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he had almost arrived.

8.  In KCCC 3422/2017 (HCMA 391/2018), PW received on his mobile phone a telephone call from a male who asked if PW had requested for Uber and confirmed the pick-up location.

9.  In KCCC 3423/2017 (HCMA 392/2018), PW called the number shown on the Rider App and a male, who answered the call, confirmed that he was the driver of the car shown on PW’s Rider App.  The male told PW that he would arrive in a few minutes and would call PW upon his arrival.  Later, PW again received on his mobile phone a telephone call from the male who stated that he had arrived outside a specific location to pick up PW.

10.  In KCCC 3425/2017 (HCMA 394/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he needed about 15 minutes to arrive.  Later, PW again received another telephone call from the male, confirming PW’s exact location and informing PW that he was on the way.

11.  In KCCC 3426/2017 (HCMA 395/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he would arrive in about 2 minutes.

12.  In KCCC 3427/2017 (HCMA 396/2018), PW received on his mobile phone a telephone call from a male who told PW that he was the Uber driver, confirmed PW’s exact location and stated that he was on his way.

13.  In KCCC 3429/2017 (HCMA 398/2018), PW received on her mobile phone a telephone call from a male who told PW that he was the Uber driver and would arrive in around 5 minutes.  Later, PW again received another telephone call from the male who informed PW that he had arrived at the pick-up location.

14.  In KCCC 3430/2017 (HCMA 399/2018), PW received on her mobile phone a telephone call from a male who confirmed that he was the driver of the car shown on PW’s Rider App and told PW that he had stopped the car at a particular location due to parking restrictions and asked PW to go there.  As PW arrived at the caller’s stated location, the Appellant waved at her and told her that he was the Uber driver.

15.  In KCCC 3431/2017 (HCMA 400/2018), PW received on his mobile phone a telephone call from a female who told PW that she was the Uber driver, confirmed PW’s exact location and stated that she would arrive in a few minutes.

16.  In KCCC 3496/2017 (HCMA 402/2018), PW received on his mobile phone a telephone call from a male who asked if PW had requested for Uber, confirmed the pickup location with PW and asked PW to wait for a while.

17.  In KCCC 3969/2017 (HCMA 404/2018), PW had a missed telephone call from a specific number and he thus called the number back.  A male answered the call and confirmed the pick-up location with PW. Shortly afterwards, PW received a call from the said number again and the male told PW that he would soon arrive to pick up PW.

18.  In KCCC 3971/2017 (HCMA 405/2018), PW pressed the “call” button on the Rider App and made a call to the telephone number shown thereon.  A male answered the call and told PW that he was on his way and asked PW to wait for a while.

19.  In KCCC 502/2018 (HCMA 415/2018), PW received on his mobile phone two telephone calls from a male.  In the first call, the male confirmed the destination with PW and informed PW about the vehicle registration mark of his car.  He also confirmed with PW the pick-up location and stated that he would arrive soon.  In the second call, the male told PW that he had arrived at the pick-up location but could not find PW.  PW then told him that he was waiting at a specific location. 

Annex II: Events after arrival of the cars

1.  Upon boarding the cars, some PWs had a conversation with some of the Appellants.

2.  In KCCC 3412/2017 (HCMA 381/2018), the Appellant first confirmed the destination and the route with PW after she boarded the car.  During the journey, the Appellant told PW that the income as an Uber driver was not bad.

3.  In KCCC 3413/2017 (HCMA 382/2018), the Appellant first confirmed the destination with PW after he boarded the car. During the journey, the Appellant stated that he was a full-time Uber driver and that the income as an Uber driver could barely make ends meet.  Later, the Appellant’s car was briefly intercepted by a police officer.  Before the car came to a stop, the Appellant asked PW for his surname and said that PW was his friend.

4.  In KCCC 3414/2017 (HCMA 383/2018), after PW boarded the car, she confirmed the destination with the Appellant.  During the journey, the Appellant asked if PW needed to work on that day (as it was a holiday) which PW answered in the affirmative.  PW commented that working as an Uber driver was quite nice as the Appellant would have more freedom.  The Appellant then stated that his business fluctuated and it was usually relatively quiet in the afternoon.

5.  In KCCC 3415/2017 (HCMA 384/2018), during the journey, the Appellant told PW that he purchased the car 4-5 months ago and presently worked as a full-time Uber driver.  The Appellant also stated that he drove 8 to 10 hours per day and earned around $10,000 per month.  Later, the Appellant’s car was intercepted briefly by a police officer.  Before the car came to a stop, the Appellant told PW that they were friends.

6.  In KCCC 3416/2017 (HCMA 385/2018), during the journey, the Appellant told PW that he had been an Uber driver for 3 years and presently worked as a full-time Uber driver with monthly income of around $30,000.

7.  In KCCC 3419/2017 (HCMA 388/2018), during the journey, the Appellant told PWs that he worked as a part-time Uber driver with monthly income of around $8,000 to $9,000.  The Appellant stated that he usually picked up passengers during rush hours (mornings and evenings) on weekdays.  He also stated that he worked on weekends as well since some families preferred to request seven-seater carriage services to go to the countryside on weekends and such longer journeys would generate higher fares.

8.  In KCCC 3420/2017 (HCMA 389/2018), after PWs boarded the car, the Appellant first asked if PWs were police officers, and if so, whether or not they could let him go because he had earned only some $200 for picking up customers in the morning.  In response, PWs denied that they were police officers and continued with their journey.

9.  In KCCC 3423/2017 (HCMA 392/2018), the Appellant confirmed the destination with PWs after they boarded the car.

10.  In KCCC 3425/2017 (HCMA 394/2018), the Appellant confirmed the destination with PWs after they boarded the car. During the journey, the Appellant told one of PWs how to better set the pick-up location.

11.  In KCCC 3426/2017 (HCMA 395/2018), after PWs boarded the car, one of PWs confirmed the destination with the Appellant. During the journey, the Appellant told PWs that they were his first clients of the day and he was a part-time Uber driver who mainly drove UberBLACK carriage services.  The Appellant then explained that the income from UberBLACK, but not uberX, could cover the costs of driving the car.

12.  In KCCC 3427/2017 (HCMA 396/2018), the Appellant confirmed the destination with PWs after they boarded the car.

13.  In KCCC 3428/2017 (HCMA 397/2018), the Appellant alighted from the car and asked if PW had requested for Uber carriage service which PW answered in the affirmative.  When PW boarded the car, the Appellant confirmed the destination with PW.  At the end of the journey, PW asked the Appellant how he could pay the fare and the Appellant responded that PW did not need to pay the Appellant and Uber would issue a salary to the Appellant.

14.  In KCCC 3429/2017 (HCMA 398/2018), the Appellant confirmed the destination with PW after she boarded the car.  During the journey, the Appellant explained to PW about the calculation of fares for using uberX, UberBLACK and seven-seater carriage services.

15.  In KCCC 3430/2017 (HCMA 399/2018), before PW boarded the car, the Appellant waved at PW and told PW that he was the Uber driver.

16.  In KCCC 3431/2017 (HCMA 400/2018), before PW boarded the car, the Appellant told PW that she was the Uber driver and assisted PW to put his luggage into the baggage compartment of the car.  The Appellant also confirmed the destination with PW after he boarded the car.

17.  In KCCC 3432/2017 (HCMA 401/2018), during the journey, the Appellant had a lengthy discussion with PW and told PW about his experience and his income as an Uber driver.  He also stated that Uber drivers earned around 75% to 80% of the fares of the journeys from Uber.

18.  In KCCC 3496/2017 (HCMA 402/2018), after PWs boarded the car, the Appellant told PWs that they should have called him earlier if their pick-up location had changed.  In response, one of PWs apologised to the Appellant.  During the journey, the Appellant told PWs that cars registered under UberBlack could also take orders of uberX but passengers would only need to pay the fare of uberX.

19.  In KCCC 3969/2017 (HCMA 404/2018), after PW boarded the car, the Appellant apologised for arriving late to pick PW up and then confirmed the destination with PW.

20.  In KCCC 3971/2017 (HCMA 405/2018), the Appellant confirmed the destination with PW after he boarded the car.

21.  In KCCC 3974/2017 (HCMA 406/2018), the Appellant confirmed the destination with PW after he boarded the car.

Annex III: Arrest and caution

1.  Some of the Appellants made admissions at the scene upon their arrests and during their cautioned interviews.

2.  In KCCC 3413/2017 (HCMA 382/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in March 2017 and had the Driver App on his mobile phone.  He admitted that he would receive the fares of the journeys from Uber through a bank account.  He also admitted that he had provided carriage services for around 50 times.

3.  In KCCC 3414/2017 (HCMA 383/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in October 2016 and had the Driver App on his mobile phone.  He admitted that he would receive around 75% of the fares of the journeys from Uber through a bank account.

4.  In KCCC 3415/2017 (HCMA 384/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in July 2016 and had the Driver App on his mobile phone.  He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account.  He also admitted that he had provided carriage services for around 100 times per month and earned a monthly income of around HK$15,000.

5.  In KCCC 3416/2017 (HCMA 385/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about two years and had the Driver App on his mobile phone.  He admitted that he would receive the fares of the journeys from Uber through a bank account.

6.  In KCCC 3417/2017 (HCMA 386/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about half a year and had the Driver App on his mobile phone. He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account.

7.  In KCCC 3418/2017 (HCMA 387/2018), upon arrest, the Appellant’s car was searched and a white card at the storage compartment at the driver’s door of the car which stated “Uber invitation code: Sq8V8PHMVE” was found.  Under caution upon arrest, the Appellant admitted that he drove with Uber but denied ever received any payment from passengers.  During the cautioned interview, the Appellant stated that he had registered with Uber as a driver in around November 2016 and had the Driver App on his mobile phone.  He admitted that he would receive the fares of the journeys from Uber through a bank account.

8.  In KCCC 3421/2017 (HCMA 390/2018), under caution upon arrest, the Appellant admitted that he drove with Uber to earn some money and asked for a chance.  During the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about eight months and had the Driver App on his mobile phone.  He admitted that he would receive 75% of the fares of the journeys from Uber.

9.  In KCCC 3422/2017 (HCMA 391/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about one year and had the Driver App on his mobile phone.  He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account.

10.  In KCCC 3423/2017 (HCMA 392/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in November 2016 and had the Driver App on his mobile phone.  He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account.  He also admitted that he usually got more passengers during rush hours in the mornings and evenings.

11.  In KCCC 3424/2017 (HCMA 393/2018), under caution upon arrest, the Appellant admitted that he worked as a part-time Uber driver to earn some money to pay his school fees.  During the cautioned interview, the Appellant stated that he had registered with Uber as a driver in March to April 2017 and had the Driver App on his mobile phone.  He admitted that he would receive 75% of the fares of the journeys from Uber through a bank account.

12.  In KCCC 3425/2017 (HCMA 394/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in September 2016 and had the Driver App on his mobile phone.  He admitted that he had been informed of how to receive remuneration.  He also admitted that he drove the car as an Uber driver when he had time, sometimes once or twice per week and sometimes took the whole week off if he was busy.

13.  In KCCC 3426/2017 (HCMA 395/2018), under caution upon arrest, the Appellant admitted that he drove with Uber because he just got married and needed extra money to pay his expenses.  During the cautioned interview, the Appellant stated that he had registered with Uber as a driver in March 2017 and had the Driver App on his mobile phone.  He admitted that he would receive 75% of the fares of the journeys by bank transfers.  He also admitted that he had provided carriage services whenever he was available and usually had around 8 orders of carriage services per day.

14.  In KCCC 3427/2017 (HCMA 396/2018), under caution upon arrest, the Appellant admitted that he drove with Uber to see if he could make a living as he was in debt.  During the cautioned interview, the Appellant stated that he had registered with Uber as a driver for about a week and had the Driver App on his mobile phone.  He admitted that he would receive around 75% to 80% of the fares of the journeys by bank transfers from Uber.  He also admitted that he had provided carriage services for around 40 times and earned around HK$3,000 to HK$4,000.

15.  In KCCC 3428/2017 (HCMA 397/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver for a few weeks and had the Driver App on his mobile phone.  He stated that the relationship between Uber and him was an employer-employee relationship.  He admitted that he would be paid by Uber by bank transfers.  He also admitted that he had provided carriage services for around 5 times.

16.  In KCCC 3430/2017 (HCMA 399/2018), during the cautioned interview, the Appellant stated that he had registered with Uber as a driver in November 2016 and had the Driver App on his mobile phone.  He admitted that he would receive a share of the fares of the journeys from Uber by bank transfers and he understood that Uber would deduct certain amount of fees from the fares of the journeys.

17.  In KCCC 3431/2017 (HCMA 400/2018), under caution upon arrest, the Appellant admitted that she drove with Uber occasionally to supplement her living expenses.  During the cautioned interview, the Appellant stated she that she had registered with Uber as a driver in August to September 2016 and had the Driver App on her mobile phone. She admitted that she would receive 75% of the fares of the journeys by bank transfers.

18.  In KCCC 3432/2017 (HCMA 401/2018), under caution upon arrest, the Appellant admitted that he was a part-time Uber driver to earn some money and asked for a chance.  During the cautioned interview, the Appellant had registered with Uber as a driver for about half a year and had the Driver App on his mobile phone.  He admitted that he received around 77% of the fare of the subject journey with PW by bank transfers from Uber.  He also admitted that he usually worked for around 3 hours (which consisted of around 4 orders) every day.

19.  In KCCC 3496/2017 (HCMA 402/2018), during the cautioned interview, he only confirmed his telephone number.  Pursuant to the witness statement of PW, PW received a telephone call from the said telephone number from a male who asked if PW had requested for Uber and confirmed the pickup location with PW. 

Annex IV: Appellants’ mobile phones

1.  In KCCC 3412/2017 (HCMA 381/2018), the Appellant’s mobile phone contained the Driver App, in which there were records of an account registered under the Appellant’s name.

2.  In KCCC 3413/2017 (HCMA 382/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW and some income records.

3.  In KCCC 3414/2017 (HCMA 383/2018), the Appellant’s mobile phone contained the Driver App.

4.  In KCCC 3415/2017 (HCMA 384/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW, an account registered under the Appellant’s name and some income records.

5.  In KCCC 3416/2017 (HCMA 385/2018), the Appellant’s mobile phone contained the telephone record between the Appellant and PW, as well as the Driver App.

6.  In KCCC 3417/2017 (HCMA 386/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW, an account registered under the Appellant’s name and some income records.

7.  In KCCC 3418/2017 (HCMA 387/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including an account registered under the Appellant’s name and the details of the car.

8.  In KCCC 3419/2017 (HCMA 388/2018), the Appellant’s mobile phone contained the Driver App.

9.  In KCCC 3421/2017 (HCMA 390/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PWs.

10.  In KCCC 3422/2017 (HCMA 391/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PWs.

11.  In KCCC 3423/2017 (HCMA 392/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PWs.

12.  In KCCC 3424/2017 (HCMA 393/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PWs.

13.  In KCCC 3425/2017 (HCMA 394/2018), the Appellant’s mobile phone contained the telephone record between the Appellant and one of PWs, as well as the Driver App, in which there were records including the fare record of the subject journey taken by PWs, an account registered under the Appellant’s name, the details of the car and some income records.

14.  In KCCC 3426/2017 (HCMA 395/2018), the Appellant’s mobile phone contained the telephone record between the Appellant and one of PWs, as well as the Driver App.

15.  In KCCC 3427/2017 (HCMA 396/2018), one the Appellant’s mobile phones contained the telephone record between the Appellant and one of PWs, as well as the Driver App, in which there were records including the fare record of the subject journey taken by PWs, an account registered under the Appellant’s name, the details of the car and some income records.

16.  In KCCC 3428/2017 (HCMA 397/2018), the Appellant’s mobile phone contained the Driver App, in which there were records of an account registered under the Appellant’s name.  The records including the said account, the details of the car and some income records could also be accessed through a web browser on the phone.

17.  In KCCC 3430/2017 (HCMA 399/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the details and charging rate of the subject journey taken by PW.

18.  In KCCC 3431/2017 (HCMA 400/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW, an account registered under the Appellant’s name, the details of the car and some income records.

19.  In KCCC 3432/2017 (HCMA 401/2018), the Appellant’s mobile phone contained the Driver App, in which there were records including the fare record of the subject journey taken by PW, an account registered under the Appellant’s name and the details of the car.

20.  In KCCC 3496/2017 (HCMA 402/2018), the Appellant’s mobile phone contained the telephone record between the Appellant and one of PWs, as well as the Driver App.

Annexure 2

STATEMENT OF ISSUES

Dated this 29^th day of January, 2019.