THE QUEEN v. LEE CHI CHONG

THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 900 OF 1988

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J U D G M E N T

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1. The Appellant pleaded not guilty to a charge of common assault, the particulars of offence^, being that on 20th of December 1987 outside the Sanatorium Hospitalin Village Road he assaulted one Solomon Wong.

2. The prosecution evidence was to the effect that Wong, a ten-year old schoolboy, was accompanying his, mother and his brother at 4:30 a.m. on 20th December because the mother wanted to go to Happy Valley police, station to report the loss of her passport. They went to a taxi stand near the Sanatorium Hospital where the Appellant was the driver of a taxi waiting for a fare. Solomon went to the taxi to engage it and although as the learned magistrate says, the evidence "as it came out at the time was confusing", there seems to be no doubt that at the time Solomon approached the taxi from one side, an adult male approached. it from the other. Eventually the taxi driver pulled Solomon from the taxi and it is that conduct which founds the allegation of assault.

3. Both Solomon's mother and his brother gave evidence as did the taxi driver and another witness called by the taxi driver. The taxi driver's evidence was that Solomon and the adult male boarded the taxi at about the. same time but with the adult male winning the race by a narrow margin.

4. Solomon's mother agreed that Solomon was naughty in that he kicked. the' taxi driver and Solomon himself agreed in cross-examination that when the taxi driver had politely asked him to r get off the taxi he, Solomon, then kicked the back of the seat where the taxi driver was and that the taxi driver then alighted, opened thedoor and took him from the taxi.

5. The learned magistrate did not accept the taxi driver's evidence and generally accepted the evidence of Solomon and his mother.

6. The submission was made to the learned magistrate that the appropriate regulations governing the hire of taxis provided that the taxi driver, once his taxi was hired, could not without reasonable excuse permit any other person to enter the taxi without the consent of the hirer, It was submitted that the taxi driver was therefore authorised, to remove Solomon from the taxi once Solomon refused to alight. The learned magistrate found that the taxi driver did physically remove Solomon from the taxi and seemed to convict the taxi driver of assault on that basis. He did not deal with the question of whether the taxi driver was exercising a right to remove Solomon and so did not consider whether he used more force than was necessary in the circumstances so as to commit the offence of assault by unlawfully applying force to Solomon.

7. In the circumstances of this case, it was necessary for him to make such finding before he could find the Appellant guilty. As he did not do so the conviction is unsatisfactory. The Appeal is therefor allowed and the conviction and sentence quashed.