THE QUEEN v. TSANG KWOK HO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 793 of 1988

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BETWEEN

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Postscript added: 27 October 1988

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J U D G M E N T

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1. The appellant pleaded not guilty to two charges: one, overcharging of a taxi fare contrary to the Road Traffic (Public Service Vehicles) Regulations and the other of not displaying a distinguishable registration mark, an offence against other regulations made under the Road Traffic Ordinance.

2. The evidence before the learned Magistrate was that on the 16th May, a Taiwanese tourist on his first visit to Hong Hong was approached at the airport by a man offering to provide a taxi service for him. The tourist was then taken to a taxi of which the appellant was the driver. The appellant drove the tourist to his destination in Carnavon Road and on arrival sought from him $480 odd as fare. The meter had been tampered with so that instead of showing $48 and some cents, which was the correct fare for the circuitous route taken, it showed the fare as $480 odd. Some opaque sticky tape had been placed over the meter where the zero part of the cents component of the fare would ordinarily be displayed and another piece of similar tape was placed over the point which would have displayed the decimal point. The tourist handed the appellant a one thousand dollar note and received change on the basis that the correct fare was $480 odd.

3. The appellant probably would have retained the substantial profit which he made from the journey had it not been for the alertness of two public spirited citizens, one of whom, I am delighted to know from the evidence was, and I hope still is, a solicitor's clerk. The clerk and his companion had noticed that the taxi had its registration plate covered by a piece of cloth. Being suspicious that the tourist had been duped by the taxi driver they followed the appellant and noticed when he eventually stopped, in Mody Road that he then removed the cloth. They took note of the registration number, went back to Carnavon Road, located the Taiwanese tourist, and took him to the nearest Police Station, to report the matter.

4. The appellant, as the Magistrate found, had apparently observed the activities of the two public spirited citizens, became suspicious that his conduct might be reported to the police, and as a result, went to the Police Station on the pretext that the had discovered that he had mistakenly overcharged a passenger.

5. As I say, the learned Magistrate found that the appellant quite deliberately duped the tourist into paying the excessive fare, and as a result, he convicted him on both charges. By way of sentence he imposed a fine of $3,000 and ordered that the appellant be sentenced to imprisonment for six months in respect of the overcharging offence, in addition to an order that he be disqualified from holding a taxi driver's licence for a period of two years. in respect of the offence of covering up the registration number he imposed a fine of$1,000.

6. Mr. Kynoch, who represents him on this appeal, limits his appeal to the sentence of imprisonment imposed in respect of the overcharging conviction. The appellant did originally appeal against both convictions and sentence but on advice abandoned the appeals against conviction on the 12th October.

7. The learned Magistrate when imposing sentence drew an analogy between the facts of this case and an allegation of obtaining property by deception. He rightly pointed out that this was a serious case, affecting the reputation of our city as a tourist centre and affecting the reputation of our taxi drivers. Because of that he thought that a heavy prison sentence was warranted both as a punishment and as a deterrent to other taxi drivers who might be like minded to commit similar overcharging offences. He took account of the fact that no discount could be given to the appellant on the basis of a plea of guilty. He thought that this was the most serious of this type of offence and accordingly imposed the maximum penalty.

8. In the course of this appeal Mr. Kilgour has referred me to several cases, but in particular to the case of R. v. Leung Pui-ming, Magistracy Appeal 337 of 1988. That case was almost identical on its facts with this case. The only significant difference is that in that case the defendant was actually charged with obtaining property by deception in the lower court, in that case, the Magistrate imposed a sentence of imprisonment for 6 months, and ordered that he be disqualified from holding or obtaining a driving licence for two years.

9. On appeal, Bewley, J., whilst agreeing with the Magistrate that it was a serious matter affecting the reputation of Hong Kong as a tourist centre and that of its taxi drivers, nevertheless thought that although a prison sentence was warranted, 6 months was excessive in the circumstances and he reduced the sentence to one of four months imprisonment. He thought that as there was no power to limit the disqualification to taxis the disqualification order was proper

10. This appellant is a married man with a daughter aged 15 months and he is the sole breadwinner of his small family He was granted bail pending the hearing of this appeal after he had spent some 10 days in custody. Whilst he has been on bail, he has obtained employment as a foreman in a garment. factory earning $5,000 per month.

11. I agree with Mr. Kynoch that this was not a case for the imposition of the maximum penalty. Serious as the offence was, one cannot say that it is the worst possible type of this case imaginable. The maximum sentence must always be reserved for that hypothetical case. The sentence of imprisonment for 6 months must therefore be reduced. The only question is what is the firgure which should be substituted.

12. As the case is on all fours with Leung Pui-ming's case I would have been disposed to Substitute the same sentence as was imposed by the Appeal Court in that case. Here, however, in addition to the prison sentence, the appellant has been ordered to pay a fine of $3,000, a penalty apparently not impsoed in the case of Leung Pui-ming. Taking that into account, I think that the appropriate sentence is one of imprisonment for 3 months.

13. I do not think that this is a case for ordering suspension of the sentence as might be appropriate in the case of an offender who has not previously heard the sound of the prison doors closing behind him. This appellants does have a record apart from motoring offences. He was convicted 1982 of the Offence of Possession of Dangerous Drugs for the purpose of unlawful trafficking for which he received a sentence of imprisonment for 4 years. His record is in some respects not as bad as that of the defendant Leung Pui-ming who had seven previous convictions including convictions for offences of child cruelty. Nevertheless, because of his record the appellant is not entitled to the same discount and leniency which would be extended to an offender with no previous convictions or with a record of no significant criminal offences.

14. Accordingly, as I say, I do not think this is a case whore I should exercise a discretion and order that the sentence be suspended. I allow the appeal to the extent that the sentence of imprisonment for 6 months is quashed and I substitute therefore a sentence of imprisonment for 3 months.

15. The order for disqualification limits the disqualification to taxis, and I think both Counsel would agree with me that the Magistrate now has no power to so limit a disqualification order. Disqualification must relate to all vehicles.

16. It is, I think, desirable. that the appellant be precluded from obtaining a taxi driver's licence for a considerable period. However, there does not seem to be power to do that without at the same time disqualifying him from obtaining a driving licence in respect of all types of vehicles. I think, in the circumstances, that such an order is harsh, in that it may prevent him from earning a livelihood in other spheres of activity. Accordingly, I reduce the period of disqualification to 6 months.

Postscript: Mr. Tanzer was kind enough to contact me after part of this judgment was published in the Press on 26th October, 1988. He drew my attention to the fact that whilst the recent amendment to s.69 of the Road Traffic ordinance abolished the discretionary power to limit disqualification to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which an offence was committed, it did not affect disqualification orders imposed in respect of certain contraventions of the Road Traffic (Public Service Vehicles) Regulations. In relation to those contraventions - and a contravention of regulation 47 (the offence here) is included in that category - no discretion ever existed. Any disqualification is by law limited to the driving of a taxi (s.69(1)(f), s.69(2)(a)). The order made by the learned magistrate was not therefore a purported exercise of a discretion recently abolished (as it would have been if the charge had been, as it was in Leung Pui-ming, a charge of obtaining by deception) but the only type of disqualification order authorised by law in respect of a regulation 47 offence. Consequently although the disqualification order I made purports to cover all vehicles it is, by virtue of the provisions of the Ordinance just mentioned, limited to the driving of a taxi.