HKSAR v. YUONG HO CHEUNG AND OTHERS

FAMC No. 58 of 2019

[2020] HKCFA 10

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NOS. 381-399, 401-402, 404-405 AND 415 OF 2018 (CONSOLIDATED))

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DETERMINATION

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The Appeal Committee:

1.  The applicants were Uber drivers each convicted of an offence against section 52(3) of the Road Traffic Ordinance[1] involving driving or using a motor vehicle for the carriage of passengers for hire or reward without a hire car permit being in force in respect of the vehicle.

2.  They now seek leave to appeal on the following questions of law:-

Question 1

What are the elements of s.52(3)(a) of the Road Traffic Ordinance, Cap 374 (“RTO”)? In particular: –

(i)  what is the proper construction of the phrase “for the carriage of passengers for hire or reward” as used in that sub-section;

(ii)  whether the sub-section requires proof that a defendant driver was driving for the subjective purpose of fulfilling a direct agreement for carriage between himself and the passenger from which the driver expected to be rewarded; and

(iii)  whether the sub-section requires proof that the defendant driver must have a “subjective purpose in their mind which was predominantly business or commercial in character” [Judgment §§65(iii) and 82], and if so, what does this element entail?

Question 2

In respect of the compatibility of section 52(3)(a) RTO with Article 28 of the Basic Law (“BL”), and depending on the answer to [Question 1] above:

(i)  Whether BL Article 28 protects residents against laws which are overbroad, in particular whether the phrase “arbitrary or unlawful” encompasses the concept of “overbreadth”?

(ii)  Whether section 52(3)(a) RTO engages BL Article 28, and if so, whether it is inconsistent with BL Article 28 and is unconstitutional?

Question 3

In respect of the compatibility of section 52(3)(a) RTO with BL Article 33, and depending on the answer to [Question 1] above:

(i)  Whether BL Article 33 is confined to protecting residents only against being forced to work in any particular field of occupation against their wish?

(ii)  If [Question 3(i)] is answered in the negative, whether, on a correct construction, BL Article 33:

(a)  encompasses the freedom to work in any particular field of occupation of his choice; and/or

(b)  protects residents against the prevention from pursuing an occupation of his choice?

(iii)  Whether section 52(3)(a) RTO engages BL Article 33, and if so, whether it is inconsistent with BL Article 33 and is unconstitutional?

3.  Leave to appeal is also sought on the substantial and grave injustice ground on the basis that the Courts below erred in finding that there was no contractual relationship (employment or otherwise) between the applicants and Uber.

4.  We grant leave to appeal only in respect of Question 1 which we reframe as follows:

“What, on the true construction of the Road Traffic Ordinance, Cap 374 are the elements of the s.52(3) offence with which the applicants were charged, and in particular what is the proper construction of the phrase ‘for the carriage of passengers for hire or reward’ as used in that sub-section?”

5.  We refuse leave in respect of Questions 2 and 3 since we do not consider it reasonably arguable that the constitutional issues referred to therein in arise on any of the statutory constructions canvassed.

6.  Insofar as relevant, we consider the matters referred to under the rubric of “substantial and grave injustice” can be addressed when dealing with Question 1 and do not justify the separate grant of leave.

7.  The appeal will be listed for hearing on 1 September 2020.