HKSAR v. YUONG HO-CHEUNG

Press Summary (English)

Press Summary (Chinese)

[2018] HKMagC 3

KCCC 3412-3432, 3496, 3629, 3969, 3971, 3974/2017, 502 & 503/2018

(Consolidated for Verdicts)

IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3412 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3413 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3414 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3415 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3416 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3417 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3418 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3419 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3420 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3421 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3422 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3423 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3424 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3425 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3426 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3427 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3428 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3429 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3430 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3431 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3432 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3496 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3629 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3969 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3971 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3974 OF 2017

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 502 OF 2018

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IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 503 OF 2018

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Reasons for verdicts

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INTRODUCTION

1.  Revolutionary as the invention of the internet was, it was not until the arrival of the immense access to the internet via mobile devices that our modern life became truly revolutionised.  With movable access to the world-wide web, the world is no longer what it was a mere twenty years ago, and the rapid rise of Uber in the last ten years epitomises a world rapidly and relentlessly “algorithmicised”.

2.  In early 2015, when Uber claimed a territorial reach of 260 cities in 45 countries, when it declared an increase of its scale and services in Toronto, and when it said it “expected to have 15,000 drivers signed up under the Uber X Driver App in Ontario by year-end,” the City of Toronto fought the software in court, fought it in equity, and lost.[1]

3.  His Honour Mr Justice Dunphy of the Superior Court of Justice, Ontario, said that when Toronto was founded some two centuries ago, transport had been by foot or by horse, but a hundred years later, private automobile “marked a disruptive change in the technology of the era.”[2] His Honour framed the issue of the case in this way: Had the regulations, crafted in a different time, created a flexible firewall capable of fending Uber off, or a Maginot line behind which the taxi industry had retreated.[3]  In this context, it is well-known in war history that the famous French line failed in no time.

4.  That was not the first or the only case in which Uber’s operation in Canada was sought to be regulated and its expansion restrained.  A couple of months before the Toronto case[4] was heard, the City of Edmonton confronted Uber in a court challenge.  In that case, not only did Edmonton fail to bring to court the correct contestants to sue, but it failed also to show that Uber Canada had received “a fee in relation to the rides in Edmonton or at all.”[5]

5.  In the course of His Honour’s ruling, Mr Justice Crighton of the Alberta Court of Queen’s Bench remarked: “It is not surprising … that legislation drafted to accommodate a more static, paper and people driven environment, sometimes lags behind the technological response to individual preferences and demands.”[6]

6.  In our part of the world, instead of horses and carriages, it was litters, sedan chairs, and rickshaws, carried on broad shoulders, powered by strong legs, that were disruptively replaced by cars.  In Hong Kong, what remains of these former forms of transport is a reference in our statute strictly prohibiting the use of rickshaws on our roads, for whatever purpose, unless the rickshaws are licensed.[7] 

7.  This court will say nothing of the heated debate whether our statute has created – to borrow Mr Justice Dunphy’s metaphor – a flexible penal firewall capable of providing perennial protection to a portion of our transport industry.  The principal issue at trial before this court is, in essence, whether our legislative regime has constructed a Maginot Line, one that not even the most powerful of our prosecutors is allowed to bypass.  In resolving this issue, the court must bear in mind the principal differences between the present 28 prosecutions and the two Canadian precedents so heavily relied upon by the defence in these proceedings. 

8.  The Toronto and Edmonton cases[8] were civil in nature.  The cities sought equitable reliefs compelling Uber – unless otherwise licensed to continue – to cease and desist, which, to Uber, could very well have meant “to cease to exist.”  In respect of all disputes, legal and factual, the parties in the two cases bore a lesser burden of proof than a prosecutor in a criminal case. 

9.  In the 28 criminal cases before this court, the prosecution must meet a much more stringent standard of proof of all necessary facts in support of a conviction.  Further, the offence-creating provision concerned must, at common law, be given a restrictive construction.  Further still, a criminal court must, when dealing with conflicting constructions of a penal provision and when in doubt, adopt a construction most favourable to the accused.

PROSECUTION CASE   

10.  In none of the 28 prosecutions before this court is Uber implicated as a defendant; the defendants here are Uber drivers.  They were each charged with the offence of driving for the carriage of passengers for hire or reward, the charges having been laid against them – with one exception – under sections 52(3) and 52(10) of the Road Traffic Ordinance, Cap. 374, the exception being a case in which the charge was preferred specifically under sections 52(3)(a) and 52(10)(a).[9] 

11.  It was alleged in the particulars of offences that each of the defendants drove, on a day specified, a private car for the carriage of passengers for hire or reward.  The prosecution case is that the offences committed by the defendants were complete on – specifically – the respective day of the defendants driving their cars to carry passengers, and not on the day of the receipt by them of the rewards from Uber, and not on a day unknown within a period of time covering the offending driving of the cars and the illegal receipt of the monies.

12.  The prosecutions proceed in this trial by way of facts and documents that are agreed. 

(1)  The 1^st to the 23rd cases

The first 22 cases

13.  In the first 22 cases, a total of 13 undercover police officers, acting on their own or with a colleague, conducted 22 operations between 28 April and 23 May 2017.[10]  Some of the officers installed Uber’s Rider Apps a couple of days, about a week, or about a month before the operations,[11] while others used mobile phones with Rider Apps already installed.[12]  The Apps were all registered in the officers’ own names with details of their own credit cards for payment.[13] 

14.  During the operations, the officers activated the Apps and requested for transport services, from various locations[14] to various destinations.[15] They were given three types of cars from which to choose, [16] with three corresponding prices, together with a map in which the journeys sought were described.[17]  In each case, the officer chose only the type of car.  The Apps then showed the make and model and the registration mark of a chosen car, together with the defendant’s nickname and photograph.  A little later, the defendant showed up at the pick-up point in his car, where the officer (in some cases, with a colleague) got in the car; and the journey began.

15.  The journeys were completed in most of the cases.[18] In several of them, however, the police took actions and arrested the defendants before they arrived at the destinations.[19]  Whether or not the journeys were completed, the trips were paid by credit card transfers, and the officers were notified of the payments;[20] the charging parties – in banker’s terms, the acquiring parties – were either Uber,[21] Uber HK,[22] or Uber BV.[23] 

16.  Upon subsequent police enquiry, 17 defendants confessed to have worked as Uber drivers;[24] five remained silent.[25] Of the 17 defendants who confessed, 16 of them said that Uber would remit their shares in the fares to their bank accounts.[26]  Of the 16 defendants who knew of the remissions, 11 of them[27] said that Uber would transfer to them 75%[28] or thereabouts[29] of the fares, four had no idea or could not recall how their shares were arrived at,[30] and the remaining one declined to say anything about how his share in the fares was calculated.[31]

The 23rd case

17.  The 23rd case before the court did not come to light as a result of a police undercover operation.[32]  What took place was this.  On the second day of his stay in Hong Kong, Mr G Bonifacio, a businessman from the Philippines, used his Rider App to request for transport services; a map describing the route and the fare were shown on the screen of his mobile phone.  In response to Mr Bonifacio’s request, the defendant arrived at Tsuen Wan in his car to pick him up.  En route to Wan Chai, the vehicle in front of the defendant’s car braked to a halt.  The defendant failed to stop in time and ran into it.  Mr Bonifacio was injured as a result and was taken to hospital for treatment.  Upon discharge from hospital, he notified Uber of the accident and was offered a refund of the fare charged.

(2)  The 24th to the 28th cases

18.  Subsequent to the close of evidence of the first 23 cases, five other prosecutions of Uber drivers came before this court for trial.[33] The five defendants were each prosecuted with an offence contrary to sections 52(3) and 52(10) of the Road Traffic Ordinance, Cap. 374, charging them for driving a private car for carriage of passengers for hire or reward.

19.  In the 24th case, a civilian Mr Liu, an aged retiree, installed Uber’s Rider App on his mobile phone and requested for transport services from Shatin to Cheung Sha Wan.[34]  The App responded by showing the route to Mr Liu’s destination and provided a choice of cars to be used, with the corresponding fares.  Mr Liu made his choice and was shown on the screen of his mobile phone the defendant’s nickname and photograph, together with details of the chosen car.  Shortly afterward, the defendant arrived in his car and provided Mr Liu with the requested conveyance. The journey was purportedly completed, the fare was duly paid, but Mr Liu realised only then that he had been driven to the wrong place.  Dissatisfied, he made a complaint to the police of the matter.

20.  Later that day, Mr Liu used the same method to arrange for transport from Shamshuipo to Fanling.  In response, another Uber driver showed up in another car and provided him the services sought.  The incident led to the prosecution of the driver in the 25th case[35] before this court. 

21.  The 26th case[36] involved also Mr Liu.  On this occasion, he used his Rider App to arrange for transport from Shatin to Wanchai.  A Uber driver responded and provided the services required. The transaction was completed with only one unusual feature: for reasons unknown, Mr Liu was charged a lesser amount than as initially shown on the screen of his mobile phone. 

22.  The 27th and 28th cases involved another civilian passenger Mr Doo.  In the 27th case, he obtained transport services using his Rider App, in very much the same manner as shown in all the other cases before this court.[37] However, he was charged more than as initially shown on the screen of his mobile phone.  Suspecting that he had been over-charged, he made a report to the police.  The same evening, he acquired transport services by the same method again, which led to the prosecution of the 28th defendant before this court.[38]

23.  The fares in the 24th to 28th cases were charged to Mr Liu’s and Mr Doo’s credit card accounts; the acquiring parties were either Uber HK or Uber TRIP.

(3)  The 28 cases before this court

24.  In all but one[39] of the 28 cases, the acquiring parties’ references had the suffixes of either “NL”[40] or “NLD”[41] (which are commonly used to designate the Netherlands).  In more two-third of them, settlement of accounts involved an overseas transaction fee being levied, showing that the payments were made in a foreign currency and that their receipt had taken place outside Hong Kong.[42]

25.  It was admitted by the parties in all 28 cases that, first, the Transport Department had never issued any hire car permits in respect of the cars the defendants drove and, second, none of the defendants had applied for such a permit.[43]  However, under reg. 15(5) of the Road Traffic (Public Service Vehicles) Regulations, Cap. 374D, a “hire car permit … may only be issued to the registered owner of the private car,” and not to the drivers involved, and not to the cars concerned.  And in the Ordinance, “owner” in relation to a vehicle includes “the person by whom a vehicle is kept and used,” whereas “registered owner” is separately defined.[44]

26.  In three of the 28 cases before the court, the defendants admitted under caution to be the registered owners of the cars concerned;[45] in light of the admitted facts that they had never applied for a hire car permit, the prosecution has in those three cases proved that the cars had been operated without such a permit. 

27.  The situation with respect to the remaining 25 cases is not so clear-cut.  In 19 cases, the defendants have either made no cautioned responses in this regard[46] or said that the cars belonged to their friends,[47] younger brother,[48] wives,[49] mother,[50] or father-in-law.[51]  In the remaining six cases, the defendants did say they owned the cars but nothing about who the registered owners were.[52] 

DEFENCE CASE

28.  None of the 28 defendants elect to give evidence; and in contesting the charges, 21 of them rely on their clear records.[53]

ANALYSIS

Overview

General considerations

29.  The prosecution has the burden to prove the charges beyond all reasonable doubt; the defendants have no burden whatsoever to prove anything, for they are presumed innocent.  It is the defendants’ right not to give evidence; the court cannot draw any adverse inferences arising from the manner in which they exercise their right.  Some defendants rely on their clear records in their defence.  A clear record shows that the defendant does not have any disposition to commit a crime, and it supports his credibility in all he says in his defence, in court or outside, under caution or otherwise.  Material prejudicial to the defence is ignored.[54]  The cases are consolidated for verdicts only, and the facts and evidence of each case are considered separately.

30.  The 28 defendants were prosecuted under section 52(3) of the Road Traffic Ordinance, Cap. 374,[55] which provides insofar as is relevant to the present proceedings:

“No person shall –

(a) drive or use a motor vehicle; …

for the carriage of passengers for hire or reward unless...

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

Five major issues

31.  In the past, the law in Hong Kong with respect to road traffic control had developed alongside its English counterpart.  On 28 July 1982, Mr Alan Scott, Secretary for Transport, told the Legislative Council: “The present Road Traffic Ordinance (Cap. 220) was enacted in 1957… This legislation was largely based on practice in the United Kingdom.”[56]  For a long period of time, there had been a problem in the administration of the regulatory regime on the Hong Kong as well as the English side, namely, a profound confusion in the law arising (i) from the statutory requirement – and the subsequent changes thereof – for insurance coverage in respect of third party risks and (ii) from the closely related prohibition against the use of private vehicles for carriage of passengers for hire or reward. 

32.  Cases concerning motor insurance liabilities were tried before the civil court.  Prohibition against private car hire was enforced by way of criminal prosecution.  In those days, a major dispute in the insurance cases concerned the interpretation of the phrase “a vehicle in which passengers were carried for hire or reward” and related phrases like “social and domestic occasions”, as they appeared in motor insurance policies.  The criminal court, on the other hand, was repeatedly called upon to construe the phrase “drive or use a private vehicle for the carriage of passengers for hire or reward”, as it appeared in the relevant offence-creating provisions.  Jurisprudence developed in the civil court of England with respect to the proper construction of “hire or reward” exerted considerable influence on the criminal bench of Hong Kong, resulting in much confusion. 

33.  The origin of the phenomenon was not difficult to trace.  It was the famous dictum of Branson J in Wyatt v Guildhall Insurance Company Ltd,[57] a motor insurance judgment delivered in 1937, which had, for a long time that followed, been accepted as settled law of England.[58]  His Lordship said:

“I think that this sub-section is really dealing with vehicles normally or habitually used in the way mentioned in the exception, and that the mere fact that on an isolated occasion a man takes some reward – not necessarily a monetary reward – for the conveyance of a passenger in his car does not render him liable to a penalty for not having an insurance policy covering that passenger on that occasion.” [59] (emphasis supplied)

The potential of applying His Lordship’s dictum to the prosecution of private car hire was clear and appealing. It was in this judicial environment that various Pak Pai cases came before our criminal bench in the 1960s and 1970s for adjudication on the proper meaning of “hire or reward” as an element of offence.

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,” ^[60] 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,’[61] and so much so that Lord Denning pleaded: “I hope that Parliament will soon remedy the position.”^[62] 

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.  The 28 defendants before this court were all charged with an offence under section 52(3) of the 1982 Ordinance.  In this trial, the court is called upon to address the following major issues:

(i)  old cases, old regime, but new law;

(ii)  elements of offence under section 52(3) of the Road Traffic Ordinance, Cap. 374;

(iii)  constitutionality of the subject offence;

(iv)  strict liability; and

(v)  findings in respect of the present prosecutions.

The 1st issue: Old cases, old regime, but new law

Inappropriate use of Pre-1982 cases

Pre-1982 regulatory regime

37.  There is nothing wrong, generally speaking, with relying on old cases, and the prosecution has done just that in these proceedings.  But the six 1960s and 1970s precedents[63] relied on by the prosecution were decided under the original 1957 legislation,[64] which was amended in 1964[65] and 1977,[66] and the 1979 Revised Edition[67] of which could not, in terms of scope and approach, possibly compare with the 1982 enactment.[68]  The prosecution makes use of pre-1982 cases as if they are necessarily relevant, persuasive, or binding, still.  No attempt has been made to explain why they are still relevant, still persuasive, or still binding.  The problem is this.

38.  Equal in stature, the Legislature and the Judiciary (together with the Executive) are pillars of modern governance, each discharging important constitutional functions.  The Legislature concerns itself with appropriate enactments at appropriate time to verbalise popular will and vision.  The Judiciary is charged with the duty to administer justice.  Relying unquestioningly on old cases despite a major revision of the relevant regulatory regime is inappropriate and dangerous: inappropriate because there must have been a social problem so pressing, so prominent, so pervasive that the Legislature has taken steps to address; dangerous because it may resurrect and summon from its grave the very social evil that a replacement enactment has put to rest.

39.  Judicial disinterment of social ills that the Legislature has taken actions to cure (eg., confusion in the law) must, unless there exist absolutely no alternatives, be avoided.  Judicial intervention of this kind is plainly unwarranted.  Such intervention can arrest the most serious of legislative endeavours, can have a long-lasting effect, and can be costly and time-consuming to correct; such intervention is contrary to the entrenched legal principle that legislative intent must be respected and must, wherever possible, be given full effect; such intervention can compromise the fundamental principle of separation of powers.  The court must therefore be vigilant at all times, must exercise utmost care at all times, to ensure that there be no such judicial missteps.  And in this exercise, the prosecution is expected also to do its best.

Two central concepts contained in the definition of the word “public”

40.  To understand the background to the issues raised in the old cases and the bases on which they were decided, a brief examination of the 1957 legislation[69] should suffice; but in view of the issues raised in this trial, both the previous and the current regimes have to be more thoroughly analysed. 

41.  The previous regulatory regime was founded upon two concepts.  The two founding concepts had held the regime together throughout its entire history between 1957 and 1982.  In this period of time, the two concepts were encapsulated in the definition of the generic term “public”, by reference to which a vehicle would be considered or classified as a public vehicle.  The word “public” was defined in two phrases, each constituting a distinct concept of its own, each being the alternative to the other.  The two phrases were (i) “standing or plying for hire or available and intended for hire” and (ii) “carrying goods or passengers for hire or reward.”[70]

42.  Under the old law, vehicles with a public character were all referable to one or both of the two alternative concepts.[71] In the present proceedings, because of the defence submission[72] with respect to a “contract expressed or implied,” the two concepts have once again assumed prominence – more specifically, the first concept of “standing or plying for hire or available and intended for hire.”

43.  To take the analysis one step further, there were in fact two limbs within the first concept in the definition of “public”.  The two limbs were (a) “standing or plying for hire” and (b) “available and intended for hire”.  The first limb was defined in the Ordinance, the second one was not.  “Standing or plying for hire” meant a vehicle “being on any road…having a driver who is exhibiting any sign or signal indicating that [the vehicle]…was available for hire…”.  

44.  It must at once be noted that the first limb of “standing or plying for hire” already contained within it an explicit reference to the vehicle being “available for hire”.  This was plainly different from “available and intended for hire” as that phrase was used in the generic definition of “public”.  The only possible inference must be that the addition of the two words “and intended” in the definition of “public” was meant to cover situations other than “standing or plying for hire” on a road.  This is a point of crucial importance, crucial because – together with the definition of “taxis” under the old law – it provides the basis on which the court rejects the defence submission with respect to a “contract expressed or implied”; this issue will be dealt with below.

45.  Turning to the definition of “public cars” in the original 1957 Ordinance, the salient point is that it contained an additional contractual element.  They were defined as cars, not being taxis, “which carry or are intended to carry passengers for hire and reward 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.”[73] (emphasis added)  “Hire omnibuses” were similarly defined, but this term was removed from the Ordinance in 1964.[74]

46.  In 1964, by way of an amendment bill, the expression of “hire and reward” was removed, and the definition of “public cars” was expanded to cover two situations.[75]  First, public cars could be operated by “stand[ing] or ply[ing] for hire and [being] used to carry passengers at separate and distinct fares…”[76] (emphasis supplied)  Under this limb, the fare was not negotiable, and there was no requirement for a contract between the carrier and the passenger inter se. Second, the definition provided that public cars could also be “hired or [be] intended to be hired for the carriage of passengers under a contract expressed or implied, other than a hire purchase agreement, for the use of the vehicles as a whole at or for a fixed or agreed rate or sum.”[77] (emphasis suppled)  In this latter situation, the rate or sum for the hiring of the public car was negotiable between the parties, and a contract of hire was necessary.  A similar expansion took place in respect of “public omnibuses”, a term also referred to and relied on by the defence in closing submission.[78]

Definition of “taxis” standing uniquely and conspicuously apart

47.  As noted above, vehicles having a public character were all referable to one or both of the two central concepts, to one of which might also attach a contractual element, ie., when the vehicles were to be contracted out as a whole for the actual or intended use by somebody else under a contract of hire.  The definition of “taxis” was unique in the regulatory regime.  It contained not only the two central concepts but also – as a necessary qualifying condition – a reference to a contract express or implied.  “Taxis” meant “any cars [1] which stand or ply for hire and [2] in which the passengers are carried for hire or reward under [3] a contract expressed or implied for the use of the vehicles as a whole at a rate indicated by the taximeter.” (numbers and emphasis added)  

48.  In respect of “taxis”, intended use was irrelevant, the definition targeted actual use only.  And more importantly, this definition incorporated the two central criteria for designating a vehicle as a public car, plus the additional element, not of a contract of hire as in the case of “public cars”, but of a carrier contract “expressed or implied”.  And even more importantly, despite the expansion of taxis into three categories in 1976, the gist of the original 1957 definition of “taxis” had remained intact[79] throughout the entirety of the old regime until the passing of the 1982 Ordinance.

Salient features of the old law

49.  Two things are clear under the old law.  Firstly, “hire or reward” and “hire and reward” were – until the removal of the latter expression in 1964[80] – used in different context to mean different things.  There exists a body of jurisprudence, not referred to by the parties in the present proceedings, concerning the conjunction “or” as it appears in “hire or reward”, which has a significant impact on the prosecutions before this court; this issue will be discussed below.  

50.  Secondly, public cars could be operated, but taxis must be operated, pursuant to “a contract expressed or implied.”  In the case of taxis, where the fare was not predetermined, there had to be a carrier contract for “hire or reward”.  For public cars, on the other hand, the consideration for a contract of hire must be fixed or agreed, and the contract must be one for “hire and reward”.  Although the expression “hire and reward” was dropped in 1964, intact and maintained was the phrase “at or for a fixed or agreed rate or sum” as it appeared in the definitions of “public cars” and “public omnibuses”[81] in respect of a contract of hire.  

51.  In contrast, “private cars” were defined as “cars which are not public cars or taxis and are not used to carry passengers for hire or reward.” (emphasis added) This was, in the view of this court, where the problem began.

Contractual demarcation under the pre-1982 legislation

52.  Under the 1957 enactment, there was a sharp contractual demarcation between “private cars” and “taxis”, contractual in the sense that the characterisation of a vehicle as one or the other hinged upon, among other things, the existence or otherwise of a carrier contract. Carrying passengers for hire or reward simpliciter did not appear, and in motor insurance cases was certainly not regarded as, sufficient to deprive a private car of its private character (see Branson J’s dictum above).  It was repeatedly argued, even before our criminal court, that there had to be a carrier contract between the driver and the passenger, the existence of which was needed – as was commonly understood in those days, it seems – to push a private car over to the “public” side of the regulatory regime. 

53.  It appears, and it is unnecessary for present purposes to decide, that a similar contractual demarcation might have existed in the English road traffic regime at the time. The English Court of Appeal made reference to “a contract express or implied” under the English Road Traffic Act (1930) in a civil case, namely, Coward v The Motor Insurers Bureau.[82] The court said:

“In s.61 it is quite plain that the expression “vehicles carrying passengers for hire or reward”, is limited to vehicles in which passengers are carried for a monetary consideration legally recoverable by the carrier. The references … to “separate fares”, and … to contract express or implied, make this clear.’[83] (emphasis added)

Pre-1982 cases relied on by the prosecution

54.  Coming back to the cases on which the prosecution relies, the appellant in Kwong Pak-yam v The Queen[84] was convicted of two charges, one of which[85] was a charge of driving a private car for hire, a charge preferred against him under reg. 26(2) of the Road Traffic (Registration and Licensing of Vehicles) Regulations (1956).  Relying on Coward’s case[86], he argued on appeal that there was no evidence of a carrier contract between him and the passenger. 

55.  The court in Kwong Pak-yam’s case[87] recognised that a carrier contract in breach of the criminal provision of reg. 26(2) would be unenforceable, meaning that the fare was not legally recoverable, but held, dismissing the appeal, that:

“[I]t was necessary for the prosecution here to establish an express or implied agreement of carriage. … It was … inevitable that on this evidence the learned magistrate should come to the conclusion that this was something more than a friendly arrangement such as was found to exist in Coward’s case.”[88] (emphasis added)

56.  The prosecution relies on a submission of counsel appearing for the Crown (as the prosecution then was) in Kwok Pak-yam’s case[89] that the journey had been made in the common expectation that a payment would be made,[90] and argues that the appropriate test for the subject offence should be more than “a friendly arrangement” or more than “a social and domestic occasion”.[91]  With this proposition, this court disagrees. 

57.  First, the court in Kwok Pak-yam’s case[92] ruled specifically that the prosecution must prove an agreement of carriage, albeit unenforceable at law, to establish the “hire or reward” element of the offence.  Second, it is clear that the court mentioned a “more than friendly arrangement” just to explain the outcome in Coward’s case.[93]  A friendly arrangement, even paid and lasted for 18 months, so held the English Court of Appeal, remained just friendly.  Kwok Pak-yam’s case[94] had never had an agreement of carriage substituted for the mere proof of an arrangement that was just more than friendly.

58.  None of the other 1960s and 1970s cases cited by the prosecution have ruled that such an agreement was not required.  They emphasised, rather, the business or commercial nature of the agreement between the driver and the passenger.  In Reg v Ngai Kam-chung,[95] the court found that an intention to enter into an agreement that the work should not be gratuitous was necessary.[96] In Chan Kai-lap v The Queen,[97] it was held that proof of habitual use of the vehicle for “hire or reward” was not required.  The cases of Cheng For Kar v The Queen[98] and of Li Wing-cheung v The Queen[99] were to the same or similarly effect, namely, an isolated incident could support an irresistible inference that a defendant was in the business of using his private car for hire.[100]    

59.  Next, the prosecution refers to HKSAR v Chan Chi Ho (transl.)[101] and HKSAR v Lam Shing-yin,[102] and submits that “local courts have since consistently upheld convictions for provision of illegal passenger carriage service based on the evidence of a single transaction.”[103]  The prosecution submission is correct.  But the defendants in those two cases were, by that time, proceeded against under section 52(3) of the Road Traffic Ordinance, Cap. 374, this being an obvious and important aspect of the two cases which the prosecution has nowhere in the present proceedings sought to address.  What appears to have escaped the prosecution’s attention is this.

Confusion in the law in England and in Hong Kong in the 1960s and 1970s

60.  Significant regulatory changes were made by the 1982 enactment to address a major problem: confusion in the law.  The confusion in this branch of the law in England had, as noted above, extended itself to Hong Kong.  Various English civil cases were cited before our criminal bench – but this was far from surprising.  The contractual demarcation in our former regulatory regime was, in the court’s view, responsible for much of the confusion.  In conjunction with Branson J’s authoritative dictum, the contractual demarcation required the court, even a criminal court, to approach the issue of “hire or reward” from a contractual point of view.  And the problem was this. 

61.  It is a fundamental principle of contract law that a contract would come into existence when promises supported by valid and valuable consideration are made in circumstances showing that the parties have intended to create a legally enforceable contract.  In a business or commercial setting, such an intention can be readily inferred, but complications can arise when promises are exchanged between friends or family members.  It was in this light that in Connell v Motor Insurers’ Bureau,[104]Sachs LJ said:

“This is not merely one of those domestic or social occasions to which the learned author of Cheshire and Fifoot, 6^th ed. (1964), refers as being those on which legally binding contracts are in appropriate circumstances found not to have been made.” [105] (emphasis added)

62.  Various English motor insurance cases were relied on by appellants before our criminal court.  It was held in Connell’s case[106] that a handful of isolated incidents were insufficient to make it mandatory for the driver of a private car to have his passengers insured on the basis of the vehicle being used for “hire or reward”, and that habitual use of the car for such a purpose was required.  And Connell’s case[107] was relied on by the appellant in Chan Kai-lap’s case.[108] 

63.  Then came the case of Albert v Motor Insurers’ Bureau,[109] the leading authority on “hire or reward”.  The House of Lords found that a carrier contract was not required for “hire or reward”, and that the test was “a systematic carrying of passengers for reward going beyond the bounds of mere social kindness.”  Albert’s case[110] was cited by the appellant in Li Wing-cheung’s case,[111] but the court there decided that based on the evidence of even one solitary transaction, the driver could be found to be in a business arrangement, rather than a social one.  The question arises: what has the 1982 enactment done to address an obviously unsatisfactory state of the law in regard to road traffic control?

Removal of contractual demarcation by the 1982 enactment

The present prosecutions before this court

64.  Under the previous regulatory regime, to establish “hire or reward”, a carrier contract[112] was once thought to be essential; an unenforceable agreement of carriage[113] was considered necessary throughout; and in the end, bounds of mere social kindness[114] became relevant.  But all this has changed with the passing of the 1982 Ordinance. 

65.  The contractual demarcation, which had been steadfastly maintained all along, [115] was decisively breached and broken at last.  Contextual considerations such as social and domestic occasions, which were relevant to the issue of contractual intention and which in the language of the criminal law must be understood to mean motives for the commission of the offence, are no longer relevant.  But the prosecution in the present proceedings continues to make reference to contextual considerations, such as social and domestic occasions, still. 

66.  Unlike the 1957 Ordinance, the following expressions are no longer defined in the Road Traffic Ordinance, Cap. 374: “public”, “public cars”, and “omnibuses”.  Taxis are now defined by way of registration pursuant to the Ordinance,[116] rather than with reference to “a contract expressed or implied”.  Gone therefore is the element of “a contract expressed or implied” as it appeared in the previous definitions of “public cars”,[117] “hire omnibuses”,[118] and “taxis”.[119] 

67.  More importantly, a “private car” under the 1982 legislation is no longer defined in contradistinction to “public cars” and “taxis” as it previously was.[120]  Now it is defined primarily with reference to its passenger carrying capacity: “a motor vehicle constructed or adapted for use solely for the carriage of a driver and not more than 7 passengers and their personal effects but does not include … [a] taxi.”[121] So gone finally is the contractual demarcation between a “private car” and “taxis”.  And most importantly in the context of the present proceedings, gone also are the contextual considerations such as social and domestic occasions.

68.  The removal of the contractual demarcation in the 1982 Ordinance represented a most significant change in our regulatory regime.  But there was another one, another more drastic, more fundamental, more problematic one, one that calls into question the constitutionality of section 52(3) of the Road Traffic Ordinance, Cap. 374; and the court will return to this issue later. 

69.  The evidence produced by the prosecution in these proceedings would appear to show that other than the physical car journey in which they were involved, there was no relationship between the driver and the passenger inter se.  The prosecution evidence would appear to demonstrate that the driver was just the driver and the passenger the passenger.  And this constitutes one of the major premises from which the defence attacks the prosecution case.  The defence argues: “No contractual relationship or arrangement would appear to exist between the Defendants and the respective undercover officers or Mr Bonifacio.”[122] The obvious question now is, of course, “Does it matter anymore?” 

70.  To this question, the prosecution says yes, for reasons that have never been successfully articulated.  The defence says yes, for reasons that have been presented with exemplary articulation.

Prosecution position on a carrier contract or agreement inter se

71.  The prosecution says: “[A]s long as the car is being used for the passage of passengers on a social and domestic occasion, there is no need to obtain a hire car permit,”[123] and “the driver…would not be caught by section 52(3) of the Ordinance for carrying members of his employer’s family on a social and domestic occasion.”[124]  The prosecution submits: “Each case will be assessed according to its merits in accordance with the Prosecution Code.”[125] There are serious objections to the prosecution submission. 

72.  Who has the burden to prove social and domestic occasions?  Burden of proof is a matter of law, and the Prosecution Code does not have the status of law.  If the burden is on the prosecution, the obvious objection is that section 52(3) does not contain any requirement for the prosecution to prove “without reasonable excuse” as an element of the offence (cf. HKSAR v Lam Yuk Fai).[126]  If the burden is on the defence, the obvious objection is that section 52(3) does not come with any statutory defence to that effect.  The prosecution further argues that the proper test should be “the commercial nature of the journeys.” [127]  By “commercial nature”, the prosecution must have meant activities undertaken with a view to profit, at the risk of loss.  The obvious objection here is that section 52(3) never requires proof of the prohibited car hire having been committed “in the course of business,” never requires the court to turn its mind to the defendant’s profit or loss.  In all these scenarios, the prosecution appears to invite the court to legislate, to fill the gap, a function that no courts of Hong Kong have ever had, do have, or ever will have.

73.  When dealing with the purposive approach in the construction of statutory provisions, the prosecution suggests that a literal reading of section 52(3) would result in absurdities,[128] in that all types of motor vehicles would fall within the scope of its prohibition, except those mentioned in section 52(3)(i), (ii), (iia), and (iii),[129] eg., a licensed bus.  The court considers the prosecution submission on absurdity misconceived.  

74.  Absurdity in the area of construction of statutes can arise in various ways.  A classic example is where the language used in a statutory provision, when given a natural reading, is so contradictory that it is impossible to apply the provision in a sensible way.  Read plainly and naturally, section 52(3) is clearly capable of sensible applications, although some of its potential applications might not be as the prosecution would desire.  There is nothing unusual, nothing difficult to understand, nothing absurd in the language of section 52(3).  What is unusual, difficult to understand, if not absurd, is the prosecution’s insistence on relying on Kwong Pak-yam’s case[130] which required proof of an unenforceable agreement of carriage for the purposes of a reg. 26(2) prosecution.[131]   

75.  Under the old law, proof of an unenforceable agreement of carriage was required because of Branson J’s dictum, because of the contractual demarcation identified above.  But in criminal law, an agreement to perform an act amounting to the commission of a criminal offence is not only void and unenforceable inter se but also criminal and prosecutable as a conspiracy, whether or not the act is in fact performed. Successful proof of an illegal agreement of carriage, a necessity under the old law, is sufficient for a conviction of a conspiracy to commit the offence of private car hire.  The scope of such a conspiracy is unlikely to go further than the overt acts of the substantive offence, plus the necessary mens rea.  In consequence, the conspiracy would in most cases be co-extensive with the substantive offence. 

76.  It is, of course, within the power of our legislature to enact a substantive offence to include lesser offences; supremacy of our legislature reigns supreme, subject only to the Basic Law, the Bill of Rights, and the common law doctrine of absurdity.  For example, under the Dangerous Drugs Ordinance, Cap. 134, manufacture of a dangerous drug includes the trafficking in it, and trafficking in a dangerous drug includes the possession of it.  But the legislature must be aware of common law practices of long-standing, a well-known one of which is this: when the prosecution prefers, on the same indictment, a count of substantive offence together with a corresponding, co-extensive conspiracy count, the court will require the prosecution to justify the joinder, failing which the court will put the prosecution to an election as to which count to proceed. 

77.  In the court’s view, there is no reason for the legislature, having removed the contractual demarcation, to turn around to insist on proof of a conspiratorial agreement as a pre-condition for a conviction of the substantive offence of private car hire, disregarding an established common law practice thereby.  The prosecution is incorrect to advocate an approach of interpretation of section 52(3) that requires proof of an illegal agreement of carriage in support of a prosecution of private car hire, as if the 1982 Ordinance had never been enacted, as if the contractual demarcation were still intact.[132] If there were anything absurd about the law on the prohibition against private car hire, it would arise not from section 52(3) itself, but possibly from a wrong interpretation of it.

Defence position on a carrier contract or agreement inter se

78.  The defence, on the other hand, submits:

‘[T]he reference to “contract expressed or implied” appears in the definitions of taxis, public cars and public omnibuses in the older versions of the RTO. The reference is used to distinguish between the vehicle standing or plying for hire (the first alternative), and a vehicle being hired out as a whole under a “contract” at or for a fixed [or] agreed rate or sum (the second alternative). The fact that the reference to “contract express[ed] or implied” is absent from the standing or plying for hire part of the definition cannot automatically mean that there is no contract of carriage when a fare paying passenger boards a vehicle standing or plying for hire –a contract of carriage clearly still exists in such circumstances. Therefore there is no interpretative significance in its absence. The only purpose for using a reference “contract express[ed] or implied” in the second alternative is to distinguishthe second alternative from the first, in that a vehicle can be used for hire or reward under a contract in circumstances where the vehicle was not standing or plying for hire.’[133]

79.  The defence makes a further point relying on reg. 38 and then reg. 33 of the current Road Traffic (Public Service Vehicles) Regulations, Cap. 374D.  “Public service vehicles” means “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.”[134]  Under reg. 38, the first three types of public service vehicles can be hired out, as a whole, with or without the provision of a driver,[135] in accordance with what is described in reg. 33(4) as a “pre-arranged contract of hire.”  The defence submits that “in the context of hiring a public vehicle as a whole”, a contract has not disappeared “in the current version of the RTO.”[136]

80.  The defence further argues: ‘The prohibition against driving motor vehicles for hire or reward had not, in any previous versions, incorporated within it a reference to a “contract” or “contract of carriage”.’  However, the defence insists –

‘on an agreement … from which the driver was to be rewarded for his carriage service (or from a common expectation of payment for the carriage service), such that it can be said that the driver was driving for that purpose. This was the basis upon which old cases like Kwong Pak Yam … used the concept of “an express or implied agreement of carriage”, as opposed to being influenced by the used of the word “contract” in the definition of taxis, public cars or public omnibuses in the old RTO.’[137]

81.  The defence’s first two points can be dealt with together.  The defence is entirely correct in saying that under the old law, a “contract expressed or implied” insofar as it related to “public cars” applied only to vehicles being hired out or contracted out as a whole.  It must be noted, however, that “public cars” did not include “taxis”, and “private cars” could not be “taxis” or “public cars”.  In this context, the unique definition of “taxis” and its significance under the previous regulatory regime must not be ignored and must be taken into account.

82.  Taxis in the old days must be operated by actual standing or plying for hire on the road, and passengers in a taxi must be conveyed under a carrier contract express or implied.  “Private cars” were defined in contradistinction to “taxis” and “public cars”.  In consequence, a rigid contractual demarcation was erected, one that was not removed until 1982.  As noted above, under our current regime, to establish the “hire or reward” element of the offence of private car hire, it is no longer necessary to consider whether or not there has been a carrier contract or agreement between the driver and his passenger inter se.

83.  The court disagrees with the defence that “when a fare paying passenger boards a vehicle standing or plying for hire –a contract of carriage clearly still exists… ,”[138]  although the defence submission appears to be consistent with what Lord Denning said in Connell’s case:[139]

“I should have thought that, in the ordinary way, when a man agrees to carry a man for payment, there is a contract, albeit informal, no matter whether the payment is by way of contribution to the petrol or a reward for the lift.”[140]

Under the old regulatory regime, contextual consideration had to be considered.  In the old days, if a passenger on a social and domestic occasion chose to pay his driver, the court could, but it did not necessarily have to, conclude that there had been a carrier contract or agreement between them.  In our current regime, a carrier contract or agreement between the driver and the passenger inter se is, in the view of this court, simply irrelevant.

84.  The defence is correct that in the prohibition against private car hire, there are no references to a contract in situation of standing or plying for hire, and that the lack of such references does not preclude a carrier contract from being entered into between the driver and his passenger.  The objection to this argument is this. 

85.  The fact that reg. 33(4) and reg. 38 provide for the hiring of a taxi as a whole pursuant to a “pre-arranged contract of hire” is irrelevant to the use of the taxi by way of standing or plying for hire on the road.  Now that even taxis are not subject to a carrier contract in its normal, regular operation on the road, what benefits, what justifications, what necessities are there for the court to still insist, in a prosecution of a section 52(3) offence, on proof of a carrier contract or agreement between the driver and the passenger inter se, a carrier contract or agreement that is unlawful, one that corresponds to and is co-extensive with the substantive offence?   

86.  With respect to the third point, the defence argument that Kwong Pak Yam’s case[141] required the proof of a carrier agreement in order to connect the act of driving with its illegal purpose must be rejected; that was not what happened in fact. 

87.  Our criminal court had never considered that an unenforceable agreement of carriage was required to provide the connection between the act of driving and the carriage for passengers for hire or reward.  What in fact happened was that our criminal court had tried strictly and strenuously to apply the English civil cases to establish the “hire or reward” element of the offence in Pak Pai prosecutions.  Our criminal court was unable to do so, however, because of the common law principle that an unlawful contract could not be enforced.  In the end, our criminal court had the English approach relaxed and modified.  A complete answer to the third point raised by the defence can be found in AG v Lun Chan,[142] in which the Full Court said:

‘… Upjohn, L.J., when delivering the judgment in the Coward case, went on to indicate that there could be no hire or reward, within the meaning of the statute, unless there was a “monetary reward legally recoverable by the carrier under a contract express or implied by the mere act of entering the vehicle”[143]… this statement of English law … appears … to enable anyone … to argue: “You cannot convict me of using my car for hire or reward, … since public policy precludes the courts from enforcing a contract for an illegal purpose …”.

It is not apparent that Upjohn L.J. had such an argument in mind when propounding his proposition and it looks as if any such proposition, at least so far as Hong Kong is concerned, should be qualified by saying “legally enforceable unless debarred by public policy”.  This would, however, still leave the requirement of a contract which would have been enforceable if public policy had not intervened.’[144] (underline supplied)

88.  The answer to the defence’s third point was repeated in Kwong Pak-yam’s case[145] itself, the case on which the defence seeks to rely.  The court there said:

“Nevertheless, as the judges in Attorney-General v Lun Chan pointed out, the form of local legislation may make it necessary to adapt the language of Upjohn L.J. in Coward’s case because an agreement which contemplated a breach of regulation 26(2) of the Road Traffic (Registration and Licensing of Vehicles) Regulations, 1956, would not be legally enforceable.”[146]

Conclusion on improper use of old cases

89.  This court is called upon to adjudicate on the basis, not of the 1957 Ordinance or any amended versions of it, but of the 1982 Ordinance.

90.  It is the judgment of this court that a contractual demarcation had existed in the previous regulatory regime, and that demarcation was removed in the 1982 enactment.  In removing it, the legislature has sought to address a profound confusion of the law, one that had troubled our criminal court for decades. 

91.  The legislative initiative launched in 1982 has achieved considerable success over the last three and a half decades.  Issues of a carrier contract, of an agreement of carriage, of habitual use for hire or reward, of more than a friendly arrangement, of going beyond the bounds of mere social kindness have not, it appears, been raised again before our criminal bench.  Of post-1982 precedents in which these points were still pursued by the parties, were still pondered upon by the bench, the prosecution in the present proceedings has none to produce, and the defence has produced none.

Proper use of pre-1982 cases

Has anything survived the change in regulatory regime?

92.  There is nothing wrong with relying on old cases when, in particular, a principle of law has arisen from them, a principle that has captured the essential reasoning of the decisions, a principle that has applications outside the particular factual context of the cases from which it was derived, provided always that the principle has not been made obsolete by a legislative enactment.  Something did survive the change in legislative regime: the court’s approach in the construction of the conjunction “or” in “hire or reward”. [147] And this has a direct impact on the outcome of the present proceedings.

93.  Under the old law, “hire or reward” and “hire and reward” were, until the 1964 amendments, used differently in different context to mean different things.  When the fare depended on the distance travelled, as it did in the case of taxi journeys, the Ordinance used “hire or reward”, but when the contract rate or sum must be fixed or agreed, it was “hire and reward”.[148] In the opinion of this court, the interdependence between the fare and the distance traversed represented prima facie a key to understanding the different usage of the two expressions.  While “hire and reward” was all but abandoned in 1964, “hire or reward” remains.  In the instant cases, the evidence shows that the fares did depend on the journeys sought: the route was always shown, together with the fare, on the screen of the passenger’s mobile phone.

94.  AG v Lun Chan[149] was decided by the Full Court in 1964.  At trial, the magistrate found the defendant guilty of driving his private car, not for “hire or reward”, but specifically for reward alone, and acquitted him nevertheless of using a motor vehicle without third party insurance, on the basis that no evidence had been adduced to show habitual use of the defendant’s car for hire or reward.  The Attorney-General appealed.

95.  The Full Court allowed the appeal and reversed the acquittal.  In the course of its rulings, the court noted that (i) in Bonham v Zurich General Accident & Liability Insurance Co., Ltd,[150] it was held (in the words of the Full Court) “a similar payment did not amount to hiring the car but did result in the car being used for reward”,[151] and (ii) the judgment in Bonham’s case[152] was powerfully endorsed by the Scottish High Court in Aitken v Hamilton.[153]  The Scottish High Court there adopted Uthwatt J’s judgment in Bonham’s case[154] in which His Lordship said:

“It appears to me that a distinction falls to be drawn between the word ‘hire’ and the word ‘reward’. The first word necessarily imports, I think, an obligation to pay. The inclusion of the second word is … for the purpose of bringing in a subject matter which does not include hire and including cases where there is no obligation to pay.”[155]

96.  The Court Full in AG v Lun Chan[156] did not disturb the magistrate’s finding in respect of carriage of passengers for reward alone and said:

“Had it been necessary…, we would have been disposed to follow the decision in Bonham’s case and to adopt the view of the Scottish Judges in Aitken’s case.”[157]

In addition, while the case of AG v Lun Chan[158] dealt with the term “hire or reward” as it was used in an insurance policy, the court took the matter further and remarked:

“It is … possible that the same expression may have different meanings when used in the context of an Act of Parliament and … of a commercial document; however much one may regret the misunderstandings that may arise if the same expression does not mean the same thing, particularly when parties are entering into obligations that are intended to be related to the requirements of the Act.” [159]

97.  Of the case of AG v Lun Chan,[160] a subsequent Full Court in Chan Kai-lap’s case[161] had this to say:

“The Full Court [in AG v Lun Chan][162] gave a very careful and lengthy judgment… Not only do we respectfully agree with this authority on the interpretation and construction of this section, but we are further of the opinion that it is binding upon us.”

98.  These were considered opinions of high authority, and they coincided with the majority decision of the House of Lords in Albert’s case[163] in 1971, an opinion of even higher stature and authority.  Lord Donovan and Lord Pearson held there that “hire or reward” must be read disjunctively; with their Lordships’ judgments Lord Diplock agreed.  Lord Pearson provided powerful reasons for his judgment:

“In my opinion, there is no need to say that in this composite expression the word ‘hire’ and the word ‘reward’ are synonymous. That would be a surprising statement, because it would mean that the words ‘or reward’ add nothing and might as well have been omitted. It is not the practice to insert unnecessary words in an Act of Parliament. The probable explanation of the composite phrase is that the words ‘for hire’ were used because they are the most familiar words to describe remuneration for carriage in some vehicles and the words ‘or reward’ were added because ‘reward’ is a wider word and apt to cover some forms of remuneration or some arrangements for which the words ‘for hire’ might not be appropriate.” [164]

99.  On this issue, the defence points out that the focus of the English provisions and relevant insurance terms had been on “the vehicle” rather than “the driver” or “the act of the driving”; but the focus of section 52(3) is certainly not on the vehicle.[165]  This point was made also by Lord Denning in Connell’s case,[166] adopted by Lord Donovan in Albert’s case,[167] but emphatically rejected by Viscount Dilhorne in the same case.[168]  True it is that none of the cases examined in this part of the discussion concerned directly a prosecution of private car hire.  However, the essential reasoning provided in these judgments for construing “hire or reward” disjunctively is compelling and self-sustained, self-sustained in that the validity of the proposition does not depend on the specific facts of the cases.  On this issue, Lord Pearson’s reasoning must prevail.    

100.  Despite the passage of time, despite the revised regulatory regime, despite the tremendous technological tide, this court concludes that the principle propounded in these precedents concerning the proper construction of “hire or reward” survives; the principle is applicable to the expression “hire or reward” as it appears in section 52(3) of the Road Traffic Ordinance, Cap. 374; and the principle is binding upon this court.

101.  In HKSAR v Tse Yee Ping,[169] the Court of Final Appeal said:

“The fact that a statute renders a specified activity criminal is not … a reason for giving the definition of the specified activity an artificially narrow meaning. It is merely a reason … for giving the definition the narrower meaning, when it is, on a fair reading, otherwise equally capable of having a wider or narrower meaning.”

The disjunctive construction of “hire or reward” has an obvious effect in enlarging the scope of the offence under section 52(3) of the 1982 Ordinance, an enlargement that has a clear and critical consequence on the constitutionality of the charge.  An examination of the elements of the section 52(3) offence will provide the necessary introduction to the constitutionality issue that is to follow.

The 2nd issue: Elements of the current offence

General principle

102.  Identification of elements of offence does not usually present much of an issue at trial, but in the instant cases, it turns out to be otherwise.  In principle and in practice, the prosecution must prove all elements of the offence; if the offence is a statutory one, the elements must be ascertained in accordance with the words of the offence-creating provision; and the applicable principle is that a penal provision must be construed strictly in favour of the prosecuted.

Prosecution submission on the law

103.  In respect of the proper construction of an offence-creating provision, the prosecution refers to section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which provides:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

104.  The prosecution submits that the court should adopt a purposive approach in regard to the interpretation of section 52(3).  In particular, the prosecution stresses that both the context and the purpose of the enactment should be considered, even in the absence of any ambiguity;[170] the context should be taken in its widest sense, including other provisions in the same statute and the then existing state of the law;[171] social and technological changes since the enactment must be taken into account;[172] and the statute should be taken as always speaking.[173]

Defence submission on the law

105.  The defence highlights the following matters for the court’s consideration.  In China Field Ltd v Appeal Tribunal (Buildings) (No.2),[174] the Court of Final Appeal said most forcefully:

“[T]here has been a distressing development by the courts which allows them to distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they consider desirable. It cannot be said too often that this is not permissible… [I]ntention of the legislature … must be ascertained by a proper application of the interpretative process. This does not permit the Court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing.”[175]

106.  In addition, the defence relies on a powerful judgment, namely, the dissenting judgment of Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security,[176] a judgment which has since been regarded as authoritative:[177]

“[I]t is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time… [W]hen a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention… [T]here is one course which the courts cannot take… they cannot fill gaps; they cannot by asking the question ‘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.”

Issue in dispute

107.  None of the above principles are in dispute in this trial.  The prosecution argues that section 52(3) is technologically neutral, and that it applies to private car hire via Uber.  The defence urges the court to view section 52(3) in such a way as would have it disapplied when a driver carries passengers in discharge of a contractual duty towards his employer or the like, rather than in performance of a duty under a carrier contract with the passenger.

Relevant provisions

108.  Before examining the offence-creating provision in section 52(3), several important definitional provisions must be borne in mind.  They provide the necessary context without which the offence cannot be accurately analysed.  Many of these statutory definitions are relevant also to the constitutional issue, an issue that will be considered below.

109.  Insofar as is relevant to present purposes, a “driver” is defined as any persons in charge of or assisting in the control of the vehicle.[178] A “passenger” means all persons on board a vehicle, except the driver.[179]  A “motor vehicle” means all forms of road transport that are mechanically propelled.[180]  A “private car” is defined primarily with reference to its passenger carrying capacity, but it does not include a taxi.[181]  A “taxi” means a motor vehicle registered as such.[182]  And a “hire car permit” can be issued only to registered owners of private cars authorising their use for the carriage of passengers for hire or reward.[183]  And “hire or reward” is not defined anywhere in the Ordinance.

110.  Section 52(3) provides:

“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.

Prosecution position untenable

111.  In regard to the issue of elements of offence, the prosecution position is not the easiest to understand. At one point, the prosecution says that the guilty conduct is just the driving, and that (i) the carriage of passengers and (ii) the “hire or reward” constitute the objective circumstances of the illegal driving.[184]  At another point, the prosecution argues that payment of the reward is not an element of the offence,[185] and that its place in this offence is just to provide a characterisation of the journey as a business or commercial activity.[186]  At yet another point, the prosecution submits that the focus should be on “hire or reward”.  The prosecution insists that section 52(3) is silent as to mens rea (on this issue of mens rea, see paragraphs 170 to 172 below).

112.  The prosecution must have had an offender’s criminal acts equated with actus reus of the offence.  This is wrong.  The editors of Textbook of Criminal Law (Glanville Williams, 2015) said in Chapter 10:

“Although lawyers find the expression actus reus convenient, it is misleading in one respect. It means not just the criminal act but all the external elements of an offence. The term actus reus covers all the physical aspects of a crime including physical events that result from omissions when there is a duty to act.”

113.  The prosecution submission in regard to elements of offence must be dismissed.  By way of illustration, the court has pointed out during the trial that there is no evidence showing receipt by the defendants of any rewards.  On this issue, the prosecution seeks to rely on Orr v Trafalgar Insurance Company Ltd[187] and argues that proof of an obligation to pay would suffice for the element of “hire or reward”.  In Orr’s case,[188] the English Court of Appeal said:

“[W]hen the question arises … whether … a motor car is being used for the purpose of private hire, that necessarily involves a decision as to whether … there was … an obligation, express or implied, to make payment for the journey in question.”[189] (emphasis supplied)

114.  In closing submission, the prosecution asks the court not to attach weight to the Toronto case[190] because of its civil nature, not to attach weight to the Edmonton cases[191] because of its civil nature, and to attach weight to Orr’s case[192] despite its civil nature.  The prosecution position is untenable, untenable not because it blows hot and cold, but because it is contrary to legal principles that are basic and fundamental. 

115.  In criminal law, assumption of an obligation to pay is synonymous with a subjective intention to make payment.  No amount of a guilty mind can, without more, result in a criminal conviction unless the crime charged is one of conspiracy, for the prosecution of which offence a meeting of the mind would suffice and proof of overt acts is unnecessary.  On the other hand, when an offender has full mens rea to commit an offence but has gone just beyond the preparatory stage of its commission, the proper charge must be one of attempt rather than the complete offence.  And a criminal law court must accept that the legislature is, at all times, fully conversant with these principles of criminal law.

116.  In the present proceedings, proof of the passenger’s full intention to pay goes nowhere near proving the physical, external element of “hire or reward”.  In the court’s view, the prosecution’s reliance on Orr’s case[193] is completely misplaced.  The prosecution appears to have – once again – brushed aside the important distinction in criminal law between substantive and inchoate offences (see also paragraphs 75 to 77 above), a consideration that is seldom relevant in a civil dispute, but a distinction that must have been within the knowledge of the legislature.  It is entirely within the constitutional charter and competence of the legislature, one must remember, to make inchoate conduct or behaviour a full statutory offence.  A good example relevant to the present discussion can be found in section 52(5) of the Ordinance, which reads:

“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; …”

In the court’s view, there is a strong presumption, rebuttable only by the clearest of necessary implications to the contrary, that the legislature legislates for substantive offences, leaving inchoate offences to the professional judgment of the prosecution.

Defence position accepted

117.  The defence position is that the prosecution is wrong about section 52(3) being silent on mens rea.  In a clearly and carefully crafted submission, the defence argues that the subject matter of the offence is the driving of the vehicle by the defendant, and that the driving falls foul of section 52(3) only if it is done with the primary intention of carrying passengers and a secondary intention that the carriage of passengers must be for hire or reward.  The defence stresses that this is the proper construction of section 52(3) as the word “for” is used, firstly, between the act of driving and the carriage of passengers and, secondly, between the carriage of passengers and the reward.

118.  The defence argument on mens rea cannot be faulted, except that it is the court’s view that the focus of a section 52(3) offence is not on the act of driving but something else (see paragraph 164 below).  In any event, the prosecution concedes in closing submission that no prosecution should be instituted against an employed truck driver who had no knowledge that a passenger had been carried, eg., where a person had hidden himself under the truck, or against a salaried chauffeur whose employer had lied to him, saying that the conveyance of passengers was free of charge.

Conclusion on elements of offence

119.  According to the natural reading of the words used, the physical aspects of a section 52(3) offence, in the context of the present proceedings, are:

(i) the defendant must be the driver of a vehicle;

(ii) the vehicle must be mechanically propelled;

(iii) there must have been at least one passenger (rather than goods) on board the car;

(iv) the car must have been driven on a journey (rather than, eg., sliding down a slope due to mechanical failures);

(v) there must be a reward paid or received for the carriage of the passenger; and

(vi) if the vehicle is a private car, its registered owner must not have, in force, a hire car permit in his favour.

120.  Item (vi) is crafted in the form of a negative aversion, with respect to which the prosecution has the benefit of section 94A of the Criminal Procedure Ordinance, Cap. 221.  The burden is on the defence to prove the existence of a hire car permit, a matter that is completely within the competence and convenience of the prosecution nowadays.  In the present prosecutions, the non-existence of a hire car permit is not disputed.  Still, the prosecution has failed to have the issue exhausted by way of a proper section 65C agreement (see paragraphs 25 to 27 above).  As no decision on this issue is required of the court, the court will say no more of this issue.

121.  In conclusion, except item (vi), the other physical, external aspects of the offence detailed in items (i) to (v) in paragraph 119 above, together with the offender’s full intention and knowledge of them, constitute the elements of the subject offence, which must be proved to the required standard of beyond all reasonable doubt.

The 3rd issue: Constitutionality of the subject offence

122.  The court is required by law to give a statutory provision a fair, large, and liberal construction to ensure the attainment of the legislative intent (see section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, reproduced in paragraph 103 above).[194]  In this formulation of the law, fairness not only comes first but also provides the overarching principle in the application of the section.  No large and liberal construction can possibly survive if it is unfair.  The issue is what is meant by fairness in this context.  In the consideration of an offence-creating provision, there are at least three relevant aspects.

123.  To the accused, fairness requires that the presumption in favour of positive proof of mens rea be applied. To the prosecution, fairness may require that failure to comply with prevailing safety standards and the like be strictly or absolutely criminalised.  In due administration of criminal justice, fairness may require a penal provision that infringes fundamental rights and liberty be nullified.  These three aspects of fairness are all engaged in the present prosecutions.

124.  The Hong Kong Bill of Rights Ordinance, Cap. 383, was not promulgated until 8 June 1991.  In the court’s view, enhanced vigilance with respect to potential issues of constitutionality is necessary when dealing with pre-1991 legislations like the Road Traffic Ordinance, Cap. 374.  The degree of vigilance exhibited in Lam Yuk Fai’s case[195] exemplifies what is required.  In that case, the Court of Final Appeal said of a constitutional point:

“These points were not argued at the trial or before the Court of Appeal and so were not considered by those courts. They were certified by this Court because of their importance.”[196]

Freedom of employment

125.  During the trial, the issue is raised whether, in its application to Uber drivers, section 52(3) might infringe the fundamental right and freedom provided in art. 33 of the Basic Law.  Art. 33 reads:

“Hong Kong residents shall have freedom of choice of occupation.”

126.  The defence indicates that the issue has been decided in the Court of Appeal case of Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association.[197]  The defence position on this issue is detailed in the written submission for the purpose of preserving the point for future consideration if the occasion presents itself.  In consequence, it is unnecessary to take the matte further.   

Arbitrary arrest, detention or imprisonment

(a)  Uncertainty and overbreadth

127.  Section 52(3) is not uncertain, section 52(3) is too certain and is most certainly too wide.  In closing submission, the prosecution argues at length that the offence meets the requirement of legal certainty and is thus constitutional,[198] citing Winnie Lo v HKSAR,[199] Shum Kwok Sher v HKSAR,[200] and B v Commissioner of the Independent Commission Against Corruption.[201]  In particular, Mo Yuk Ping v HKSAR[202]has been relied on in support of the submission that ‘The “proportionality test” … has no place in resolving issue of legal uncertainty.’[203]  The paragraph cited by the prosecution reads:

“79. There is no basis in either authority or principle for using the proportionality test as a criterion of legal certainty… [I]t was not applied in R v Rimmington ... (the public nuisance case). Nor does Committee for the Commonwealth of Canada v Canada ... a case relied upon by the appellant, support the use of the proportionality test otherwise than in the context of constitutional cases where a restriction on a fundamental right or freedom is in issue.”

128.  In the court’s view, the prosecution must have missed the strategic use by the Court of Final Appeal of (i) Rimmington’s case[204]and (ii) Committee for the Commonwealth of Canada v Canada[205] to deal with two distinct branches of constitutional law.  The former case was one of legal uncertainty, and the latter case “overbreadth”.  The two branches of law were highlighted by Woolf J (as he then was) as early as in 1984 in R v Secretary of State for Trade and Industry, ex p Ford,[206] a case that was cited by our Court of Final Appeal in Noise Control Authority v Step In Ltd.[207]  His Lordship said:

“As was made clear by a series of authorities, uncertainty of language rarely creates the necessary degree of invalidity to cause the courts to intervene. It seems to me that a similar approach has to be applied to uncertainty of application, and especially in the area of consumer protection it is unfortunately inevitable that those who are responsible for supplying the public will at times be put in situation where they will have to make difficult decisions as to whether or not they are infringing the law.” (emphasis supplied)

The two constitutional concepts were starkly explained in Mo Yuk Ping’s case[208] itself, the very case on which the prosecution relies:

“77. The appellant’s case of overbreadth raises different considerations. Ms Montgomery QC acknowledges that vagueness and overbreadth are two distinct concepts – the intended breadth of a law may be clear yet its application may be overboard.”

129.  A comparison between reg. 29(2) and (2A) of the former regime,[209] and section 52(3) of the present Ordinance (reproduced in paragraph 110 above) will show how much wider the scope of prohibition of section 52(3) is.  Reg. 29(2) and (2A), long repealed, provided:

(2)  No person shall drive, use or suffer or permit to be driven or used, any motor vehicle which is registered as –

 (a)  [Deleted, L.N. 161/77]

 (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.

(2A)  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 reward unless there is in force in respect of that vehicle a hire car permit issued under regulation 29C, 29E or 29F.

130.  Except for those under section 52(3)(i), (ii), (iia) and (iii), private hire of all types of motor vehicles, registered or not, are now prohibited; but under the old law, private hire of only five categories of registered motor vehicles were criminalised.  The expansion of the prohibition is, on one view, needed and justified, for it brings within its scope motor vehicles that are not registered at all under the Ordinance.  But the expansion must be viewed in the context of the wide definitions of “a motor vehicle” and “a passenger” (see paragraph 109 above).  The four exceptions aside, section 52(3) has applications to all motor vehicles, as long as there is a passenger on board, as long as the journey is paid, in cash, in kind, or in kindness;[210] and the section applies regardless of the makes and models of the cars, regardless of their desired or designated use or purpose. 

131.  In the wordings of section 52(3), it matters not who pays or who receives the reward, whether the reward is paid before, during, or after the ride; the section applies so long as the reward is referable to the ride, and so long as the driver has the necessary knowledge and intention to commit the crime.  Prima facie, employed drivers of all motor vehicles of all kinds (except those permitted under section 52(3) itself) who provide carriage to passengers are all caught by this prohibition. In ascertaining the scope of the section 52(3) prohibition, it is important to bear in mind the case of HKSAR v Tse Yee Ping[211] (see paragraph 101 above). 

132.  A side issue arises in the trial.  Does section 52(3) apply to ambulance drivers, police car drivers, etc.? The parties refer the court to section 66 of the Interpretation and General Clauses Ordinance, Cap. 1, and section 3 of the Road Traffic Ordinance, Cap. 374.  In brief, the former provision is to the effect that no Ordinances of Hong Kong shall affect the right of or be binding on the State, whereas the latter says certain Parts of the Road Traffic Ordinance, Cap. 374, apply to vehicles and persons in the public service of the State. 

133.  It is unnecessary for present purposes to examine the issue of state immunity in depth.  Section 3 of the Road Traffic Ordinance, Cap. 374, contains a very limited form of vicarious liability on the government in situation where a driver in its employ is prosecuted with certain offences under the Ordinance.  The vicarious liability ceases to apply if “it is shown … that only the driver was responsible.”[212]  If it is necessary to decide the issue of state immunity, the court is inclined to find that section 52(3) applies to government drivers.  It is unreasonable if a driver on government payroll uses a government car to conduct private car hire, he can claim state immunity on the basis that the car he has used happens to be a government car. 

134.  The extensiveness of the section 52(3) prohibition is indirectly recognised by the defence but dismissively marginalised by the prosecution.  The defence says: “Take the example of the chauffeur who is paid to drive his employer’s senior officer and customers. Regardless of the arrangement among his employer and the officers/customers, the chauffeur himself would be driving pursuant to a “commercial arrangement”; he definitely would not be driving on a “social and domestic occasion.”[213]  The prosecution for its part says: “Each case will be assessed according to its merits in accordance with the Prosecution Code.”[214] 

135.  The court is in no position to determine, without reference to the objective that the provision seeks to achieve, whether the section 52(3) prohibition is excessively extensive.  What then is the objective of the prohibition against private car hire?  The prosecution submits:

“It is the government’s aim to provide a safe, efficient, reliable and environment-friendly transport system that meets the community’s economic, social and recreational needs, and that is capable of supporting sustainable development in Hong Kong.”[215]

The court shall, for the time being, assume that the prosecution submission is correct, but this issue will be discussed in detail when the court deals with the rationality and proportionality tests below. 

136.  In this part of the discussion, the case of Canada (Attorney General) v Bedford[216] is instructive, a judgment that appears to this court to be a ground-breaking one, ground-breaking in respect of the common law principle of stare decisis, and ground-breaking in respect of the constitutional law principles of arbitrariness, overbreadth, and gross proportionality.  On the issue of overbreadth, the Supreme Court of Canada held:

“[101] Another way in which laws may violate our basic values is through what the cases have called “overbreadth”: the law goes too far and interferes with some conduct that bears no connection with its objective…

[105] The overarching lesson that emerges from the case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal…

[108] The case law on arbitrariness, overbreadth and gross disproportionality is directed against two different evils. The first evil is the absence of a connection between the infringement of rights and what the law seeks to achieve – the situation where the law’s deprivation of an individual’s life, liberty, or security of the person is not connected to the purpose of the law. The first evil is addressed by the norms against arbitrariness and overbreadth, which target the absence of connection between the law’s purpose and the s.7 deprivation…

[112] Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose…

[113] Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others…

[123] All three principles – arbitrariness, overbreadth, and gross disproportionality – compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness. That is, they do not look to how well the law achieves its object, or to how much of the population the law benefits. They do not consider ancillary benefits to the general population. Furthermore, none of the principles measure the percentage of the population that is negatively impacted. The analysis is qualitative, not quantitative…a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient…”

137.  It appears from the Canadian jurisprudence that the analysis on the issue of overbreadth is a qualitative one.  It involves a comparison between human rights infringement and the objective of the law concerned, rather than a consideration of the effectiveness of the law.  The chief complaint in a case of overbreadth is that a legal measure has a reach – qualitatively – beyond its legitimate aim.  

138.  Section 52(3) constitutes, in the view of this court, a case of overbreadth: a significant sector of our driving public, namely, employed drivers, in their daily, income-deriving activities, is put at risk of a prosecution under section 52(3), a legal measure that does not have any connection to the objective of the prohibition (see paragraph 135 above).  Various types of employed drivers for carriage of passengers for reward in the form of a salary are necessary for the normal functioning of society; not only should they not be banned from our roads, they must be allowed their full right to make a living by doing so.  The next issue is whether a fundamental right is engaged.

(b)  Constitutionally protected rights and freedom

139.  As a matter of logic, when a penal provision overreaches into conducts not having any bearing to its objective, it must necessarily engage the constitutional guarantee in art. 28 of the Basic Law, which provides:

“The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of person shall be prohibited…”

140.  At one point, the defence suggests that consideration of arbitrary or unlawful arrest and detention under art.28 goes no further than laws that regulates the power, and the exercise thereof, of arrest and detention, and it does not reach over to the offence for the investigation and prosecution of which the arrest and detention are effected.  When a court orders a term of imprisonment, continues the defence, issues of arbitrariness or unlawfulness of the imprisonment can have a further reach than the court order that authorises the deprivation of the prisoner’s liberty; it reaches over to the arbitrariness and unlawfulness of the offence concerned.

141.  The court is unable to accept the defence contention.  Arrest, detention, and imprisonment are different forms of deprivation of freedom of the person, a freedom that is declared to be inviolable in the opening sentence of art.28.  In argument, the court makes the observation that arbitrary or unlawful arrest, detention, and imprisonment are put pari passu in the second sentence of art.28.  In further submission, the defence places before the court (for which this court is grateful), among other cases, Lau Cheong & Another v HKSAR,[217] which provides the legal framework for the consideration of arbitrariness or unlawfulness of arrest or detention reaching over to the offence for which the arrest and detention are made. 

142.  Lau Cheong’s case[218] held:

“[41] The terms of BL art.28 differ from those of BOR art.5(1). Article 28 expressly provides a constitutional guarantee against arbitrary “imprisonment” and not just against arbitrary “arrest or detention”… Plainly, “imprisonment” covers incarceration pursuant to a sentence lawfully imposed by a court after a criminal conviction…

[42] … Article 28 prohibits not merely “unlawful” imprisonment but “arbitrary or unlawful” imprisonment. It envisages that a term of imprisonment lawfully order may nonetheless be “arbitrary”. It follows that such arbitrariness may reside in the substantive rules of criminal liability whose breach led to the imprisonment ordered. …

[44] In Fok Lai Ying v Governor in Council & Others[219] … Lord Cooke … noting:

The expression arbitrary interference can also extend to interference provided for under the law.  The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.”

As the defence has helpfully pointed out, Lau Cheong’s case[220] was affirmed and applied by the Court of Final Appeal in So Wai Lun v HKSAR.[221] 

143.  In conclusion, the constitutional protection provided in art.28 of the Basic Law against arbitrary or unlawful arrest, detention, and imprisonment is engaged and infringed by section 52(3) on ground of overbreadth.  To put the matter beyond doubt, apart from arrest and detention, arbitrary or unlawful imprisonment is also engaged as the subject offence does, on a first conviction, carry a maximum term of three months’ imprisonment.[222]

(c) Rationality and Proportionality

144.  It is a defence submission that “where a clearly prescribe[d] provision is challenged for being overbroad and therefore infringes another constitutionally protected freedom, a proportionality analysis is required.”[223] With this proposition of the defence, this court disagrees.  In the court’s view, the rights-infringing provision in the present prosecutions cannot possibly be saved by the application of rationality and proportionality tests; there are several reasons for this.

145.  First, subsequent to Bedford’s case[224], the Supreme Court of Canada in Carter v Canada (Attorney General)[225] was again called upon to consider the common law principle of stare decisis as well as the three constitutional principles.  The court affirmed and applied the Bedford decision on both scores, and said with respect to overbreadth:

“[46] The argument before the trial judge involved a different legal conception of s.7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez. The majority of this Court in Rodriguez acknowledged the argument that the impugned laws were “over-inclusive” when discussing the principles of fundamental justice (see p.590). However, it did not apply the principle of overbreadth as it is currently understood, but instead asked whether the prohibition was “arbitrary or unfair in that it is unrelated to the state’s interest in protecting the vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs which are said to be represented by the prohibition” (p.595). By contrast, the law on overbreadth, now explicitly recognized as a principle of fundamental justice, asks whether the law interferes with some conduct that has no connection to the law’s objectives (Bedford, at para. 101).[226] This different question may lead to a different answer.” (emphasis supplied)

Quite obviously, the Supreme Court of Canada did not support the attempt made by the Rodriguez court in applying what was akin to the rationality and proportionality tests to justify the law in question.

146.  It is the view of this court that when a legal measure is overbroad in its scope amounting to overbreadth, the attending infringement of a person’s fundamental rights and liberty cannot possibly be justified on the basis that the measure remains somehow rationally connected with its legitimate aim, or that it remains somehow no more than that which is absolutely necessary to pursue its legitimate aim.  The well-known doctrine of margin of appreciation does not even begin to enter into the picture.  In the court’s view, the use of the rationality and proportionality tests to justify an overbroad provision is inherently incoherent, and must be wrong in constitutional law. 

147.  Second, the editors of Archbold Hong Kong (2018)[227] said:

“Article 39 of the Basic Law sets out two preconditions to the restriction of rights and freedoms. First, the rights and freedoms in the Basic Law and Bill of Rights may only be restricted as prescribed by the law: Basic Law, Article 39.  The expression “prescribed by law” mandates the principle of legal certainty, that the restricting law must be formulated with a sufficient degree of precision so that the individual is given some indication as to how he may regulate his conduct: Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 [60]; Bahadur [228], at [34].  It follows that the court, having found the legislative scheme inconsistent with a Basic Law right (eg right to travel and right to enter), may not apply a proportionality test to uphold the decision against the applicant as this would be imposing a restriction not prescribed by law: Bahadur above, at [34].” (emphasis added)

148.  The issue of the court’s jurisdiction to apply the proportionality test in the situation referred to in the paragraph above did not appear to have arisen directly in the two authorities cited therein.  It is unnecessary here to make a final determination on the validity of the proposition put forward by the editors of Archbold Hong Kong; this court does not disagree with it but is of the view that another approach in respect of this issue is worth considering. 

149.  Art. 11 of the Basic Law provides, inter alia:

“No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.”

As noted above, on the basis of overbreadth, section 52(3) infringes the constitutional guarantee provided in art. 28 of the Basic Law, and it contravenes art. 11 by the same token.  It goes without saying that no courts of Hong Kong have the jurisdiction to validate a contravention of the Basic Law; any judicial decisions to that effect, either directly or indirectly, must be null and void.  In consequence, this court has no jurisdiction to conduct the rationality and proportionality tests to justify an infringement, occasioned by a legislative enactment, of the fundamental rights and liberty protected by the Basic Law. 

150.  Third, assuming contrary to the above discussion that the court can perform the rationality and proportionality analyses, the burden is upon the prosecution to justify the infringement.  On this aspect of the issue, the prosecution has placed before the court material demonstrating the following. 

151.  First, Hong Kong experienced an expansion in its road system in the 1980s, but the rate of expansion has become stagnant since then.  Second, there has been a sharp rise in the number of private cars in recent decades, putting significant stress on the loading of our road system.  Third, private cars are inefficient as a means of mass transport.  Fourth, the average urban car speed has been low and it is getting lower still.  Fifth, severe traffic congestion is noted during peak hours at various locations.  Sixth, the mass transit system in Hong Kong has been expanded and is continuing to expand.

152.  Despite all the problems that Hong Kong has in its transport system, Hong Kong still “has one of the most efficient [public transport] systems in the world”.[229] In 2014, Hong Kong came “first in the world in the Urban Mobility Index”.[230]

153.  It is of course in the interests of society to regulate road use as road systems are expensive and time-consuming to design, build, and maintain.  No road systems can be conceived and constructed in vacuum, ie., independently of urban planning, of demographic changes, of financial constraints, and of environmental considerations.  Control on road use is a legitimate social concern.  The number of private cars has been on the rise.  If a significant number of the private cars that would otherwise have stayed in carparks to await its next private use are to occupy our road surface for hire or reward, this can aggravate the presently strained loading of the road system.  But the issue is by how much?

154.  Uber claimed it expected to have, by the end of 2015, some 15,000 drivers in the Ontario area operating one of the several types of Uber cars alone (see paragraph 2 above).  In Uber BV & ors v Aslam & ors,[231] it was not disputed that there were, towards the end of 2016,[232] around 30,000 Uber drivers in the London area and about two million passengers had registered themselves to use Uber’s services.  The prosecution submits that the Uber cases decided in Canada and England are irrelevant.  But these judgments pinpoint the fact that of evidence capable of showing the extent in Hong Kong of the use of Uber Apps, Driver and Rider, the prosecution has produced none.  In conclusion, the prosecution has failed to discharge its burden to justify the infringement.

(d)  Remedial interpretation

155.  The prosecution does not appear to have prepared for an examination of the constitutionality of the subject offence; that is a matter for the prosecution, with which this court has no quarrel.  Throughout the trial, the court has repeatedly indicated that the section 52(3) prohibition might be excessively extensive and, subsequent to the close of evidence, invites the parties to address the court on the issue of constitutionality.  The prosecution has in effect declined to do so; that again is a matter for the prosecution. 

156.  The prosecution has properly reminded the court, relying principally on the Court of Final Appeal case of Secretary for Justice v Yan Yuk Lung,[233] of the procedures to follow when the court is minded to declare the subject offence unconstitutional.

157.  The effect of that case is, in brief, that where a magistrate makes a finding of unconstitutionality, the magistrate should consider the applicability of section 27 of the Magistrates Ordinance, Cap. 227, to amend the information, by substituting (if need be) the original charge with one that is constitutional valid; but before amending the information, the magistrate should afford the prosecution an adequate opportunity to challenge the finding by way of case stated, rather than proceed to dismiss the information.  That approach was followed in Secretary for Justice v Latker.[234]

158.  In closing submission, both the prosecution and the defence ask the court to abandon the constitutional analysis, on the basis that if this court is to find that the section 52(3) prohibition infringes a relevant constitutional guarantee, the court cannot, in the parties’ joint view, undertake a proportionality analysis to save the provision.  And the defence goes even further.  The defence says: ‘As Mo Yuk Ping and Lau Wai Ho makes clear, the analyses of rationality or proportionality do not feature in a legal certainty analysis, nor would this Court be able to exercise any “remedial function.”’[235]  (emphasis supplied)

159.  In principle, there can be no reasons why any courts of law should sidestep a constitutional issue, the fundamental duty of the court being to administer the law, not any laws, it must be admitted, but laws that are found or generally accepted to be constitutionally valid. Yan Yuk Lung’s case[236] has provided the procedures to follow at this level of the court if a constitutional challenge is sustained.  There can be no reasons at all to refrain from making a declaration of unconstitutionality if the due administration of the criminal law requires such a declaration to be made, even if that would mean that the trial process has to be arrested pending a final determination in the higher courts.

160.  The defence submission that this court has no jurisdiction to remedy the rights-infringement provision by adopting a Basic Law-compliant interpretation of it must be dismissed.  The court’s jurisdiction comes from the Basic Law itself, according to the decision of HKSAR v Lam Kwong Wai and another[237], a case that neither the prosecution nor the defence has referred to in these proceedings.  The Court of Final Appeal said:

“[67] The next question is: does the Basic Law confer on the courts a power of remedial interpretation? … The function of the courts of the Region is described by or referred to, in the expressions “adjudicate cases” and “adjudicating cases” which are to be found in the Basic Law (arts 84 and 158).

[68] The Basic Law neither sets out the powers of the courts nor the remedies which they may grant. The absence of provisions in the Basic Law dealing with these matters is not surprising. Article 83 of the Basic Law provides that the powers and functions of the courts “shall be prescribed by law”. No doubt this provision enables the legislature to confer powers and functions on the courts but it does not exclude the implication of powers and functions from the Basic Law itself.

[69] In common law systems, courts enjoy wide-ranging inherent and implied powers and there is no reason to think that the courts of the HKSAR stand as an exception to the generality of this statement. The Basic Law recognizes that the courts of the Region (including this Court) are equipped with powers to grant appropriate remedies. In this respect, there is a distinction between inherent jurisdiction and jurisdiction by implication. When a statute sets up a court with a jurisdiction, it acquires by implication from the statute all powers necessary for its exercise (Grassby v The Queen (1989) 168 CLR 1 at 16-17, per Dawson J). As the courts are established by the Basic Law, the powers which they possess and the remedies which they may grant should be characterized primarily as implied, though some powers to be implied under the Basic Law may be ultimately traced back to the common law.

[70] The grant of judicial power and, for that matter, the investing of jurisdiction in a court, carry with them all those powers that are necessary to make effective the exercise of judicial power and jurisdiction so granted. “Necessary”, in this context, means “reasonably required” … These powers will include power to grant and employ such remedies as may be appropriate. …

[71] For the purpose of disposing of these appeals, it is necessary only to decide whether the powers of this Court and other courts in the HKSAR including the making of a remedial interpretation of a statutory provision in order to preserve its validity … Such an interpretation involves the well-known techniques of severance, reading in, reading down and striking out. These judicial techniques are employed by the courts of other jurisdictions whose responsibility it is to interpret and pronounce on the validity and compatibility of legislation which is challenged on ground that it contravenes entrenched or statute-based human rights and fundamental freedoms. …

[73] In the context of the Basic Law, which arms the HKSAR with a modern constitution including entrenched rights and freedoms, the concept of judicial power necessarily includes the making of remedial interpretations in the sense already discussed.  It is recognized as an incident of the exercise of judicial power in other jurisdictions.”

161.  Is the magistrates’ court “a court of the HKSAR” equipped with the implied powers to adopt a remedial interpretation of section 52(3)?  Many think not, because our legislature has never established such a court.  But the magistrates’ court is, in fact, a court of the HKSAR; it has always been since July 1997, according to the Basic Law.  Art. 81 provides:

“The Court of Final Appeal, the High Court, district courts, magistrates’ courts and other special courts shall be established in the Hong Kong Special Administrative Region. …”

162.  The court has not only the power but is in fact under a duty to perform the remedial analysis, to exhaust all possibilities of interpreting the provision in order to make it Basic Law-compliant.  Sir Anthony Mason framed the issue in Lam Kwong Wai’s case[238] in these terms:

“[57] In essence, the question is whether the courts of the Region have power or, indeed, a duty to so construe s.20(1) when read with s.20(3)(c) as to preserve its validity, even if the interpretation is one which would go beyond ordinary common law interpretation because it may involve the use of judicial techniques such as reading down, reading in and striking out. …” (emphasis supplied)

163.  Turning to section 52(3), the offence seeks to prohibit an activity that is economic or financial in nature, and is best characterised as an economic crime.  In respect of the types of motor vehicles and the kinds and timing of the payment or receipt of the rewards, there can be no objection for the prohibition to have as wide a coverage as the wordings of the section naturally and reasonably allow. 

164.  The key feature of this provision is, in the court’s view, the car journey (see item (iv) in paragraph 119 above).  Under section 52(3), a driver is caught by this section because he is the driver of the car in the car journey, a passenger is a passenger within the scope of this section because he is the passenger in the car journey, and the reward to be paid or received is a reward within the scope of this section because of the car journey.

165.  In common law, it is generally accepted that an act can be done to achieve multiple purposes, for more reasons than one.  Where proof of a reason or purpose is required (see item (v) in paragraph 119 above), the prosecution does not have to prove that the illegal reason or purpose was the only reason or purpose for which the defendant committed the guilty act.  The prosecution must prove, however, that the defendant has had an operating reason or purpose in mind, one that is prohibited by the law; nothing less would suffice.  In this formulation of the common law approach, “operating” means a “significant” or “substantial” reason or purpose contributing to the commission of the guilty conduct; again, nothing less would suffice.

166.  In the exercise of the court’s remedial function, it is the judgment of this court that in order to secure a conviction in respect of a section 52(3) offence, the prosecution must prove 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, (ii) the passenger has accepted the carriage for no other reasons but a payment of the reward quid pro quo the journey, in that (a) not only has the reward come about as an incident of the specific car journey concerned and (b) but its calculation must also depend on the distance travelled.  On point (b), 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 (see paragraphs 49 and 93 above).

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. 

168.  Further, if a defendant drives his car for carriage of passengers for reward in situation where he would have provided the transport without payment in any event, due to the existence of some special relationship between him and the passenger, section 52(3) would have no application to his case, unless, again, the evidence before the court is such as would allow the court to pierce the “relationship veil” to find beyond all reasonable doubt that the relationship was relied on by the defence to mask the journey-dependent nature of the reward, per ride and as per the distance travelled.  The burden to pierce the relationship veil rests likewise on the prosecution.

(e) Conclusion on constitutional issue

169.  In exercise of the court’s duty pursuant to Lam Kwong Wai’s case,[239] the court finds that section 52(3) is Basic Law-compliant and therefore constitutionally valid when interpreted in accordance with paragraphs 163 to 168 above.

170.  The court’s jurisdiction to consider a section 27 amendment arises only when the court is poised to declare a penal provisional unconstitutional, but this court has specifically found the offence constitutional on a remedial interpretation.  The charges as laid in the present prosecutions do not require amendment; they are not defective within the meaning of section 27 of the Magistrates Ordinance, Cap. 227, in that there is no defect in the formulation of the charges and there is no variance between the evidence and the information. 

171.  All that the court has done in these proceedings is to take a restrictive view of the offence-creating provision, and this is done in order to ensure that it is Basic Law-compliant. In this regard, there is no difference between the present prosecutions and a case in which the trial court adopts a restrictive interpretation of a penal provision under the common law.  There are no reasons to arrest pronouncement of judgments in the instant cases.

The 4th issue: strict liability

172.  The issue of strict liability is straightforward for two reasons: the law is settled (see, in particular, HKSAR v Choi Wai Lun),[240] and the prosecution position is completely misconceived.

173.  There is a common law presumption that proof of mens rea is required: “[I]nstead of demanding a justification for reading in a mens rea requirement, the modern starting-point is that mens rea is presumed to be an essential ingredient where the statute is silent on the mental element unless that presumption is displaced expressly or by necessary implication.” [241]

174.  Modern approach in interpretation of statute never requires the legislature to adopt a formulaic formulation to signify that mens rea is expressly required.  The use of words like “knowing”, “with intent”, etc., is never a must.  A good example is provided in section 52(3)(b) of the Road Traffic Ordinance, Cap. 374 (see paragraph 110 above), which contains a permitting and suffering offence.  The natural meaning of the words “permit” and “suffer”, by themselves and without more, imports the notion of knowledge, for how can anyone permit or suffer an act to be done without knowing that the act is to be or is being done?  The same analysis applies to the word “for” which is twice used in section 52(3)(a). 

175.  The prosecution position that section 52(3) is silent on mens rea must be wrong (see also paragraphs 111 to 118 above).  This conclusion is supported by an examination of the legislative history and by the existence of a reverse onus provision in the former as well as the revised regulatory regime.  Under the former regime, the prohibition against private car hire was provided in reg. 26(2), or reg. 29(2A) as reg. 26(2) was later to become.  To continue this discussion, reference is now made to the reverse onus provision in section 6 of the 1957 Ordinance, which section was first introduced into the regime in 1958, which read:

“(1) Any regulation made under this Ordinance may provide that in any criminal proceedings for a contravention thereof –

(a) it shall be for the person charged with such contravention to prove certain facts; or

(b) facts may be presumed, with or without proof of other facts, until the contrary is proved.

(2) Any regulation made in the exercise of the powers conferred by subsection (1) shall be subject to the approval of the Legislative Council.

176.  When the road traffic regime was revised in 1982, the legislature reproduced section 6 of the 1957 Ordinance and had it re-enacted as section 14 of the 1982 Ordinance.  Nothing can be clearer that the legislature has intended, and still intends, to reserve to itself the right to enact offences with a reverse onus of proof and with a rebuttable presumption of facts.  There are two significant points here.  First, not every Ordinance providing for regular as well as regulatory offences comes with a reverse onus provision.  Second, in the 1982 enactment, the legislature has removed the prohibition against private car hire from the regulations and has it installed in the principal Ordinance instead.  Nothing can be clearer that the legislature has never intended that the prosecution in a criminal trial on a section 52(3) charge is to have in its favour the benefit of a reverse onus, or is to have the benefit or of any presumptions of facts (except the negative averment in connection with the hire car permit, or more precisely, with the lack of it).

177.  Assuming that the court is wrong on this issue, assuming that section 52(3) is silent on mens rea, is the presumption of mens rea displaced?  On this issue, it is evident that the prosecution has misunderstood Hin Lin Yee v HKSAR.[242]  The prosecution makes three major points.  First, the prosecution argues that Hin Lin Yee’s case[243] emphasises that the application of the conventional guiding principles in imposing strict liability “necessarily depends on what alternatives exist to take the place of the mens rea requirement, should it be supplanted?”[244]  There are altogether five such alternatives now.  Second, there is “generally less need to feel inhibited about overriding the presumption in relation to what may compendiously be called ‘regulatory offences’.” [245]  Thirdly, the prosecution says that imposing strict liability in respect of private hire car can assist in the enforcement of the section 52(3) prohibition, “for there are many kinds of case where putting on the prosecutor full burden of proving mens rea creates great difficulties and may lead to many unjust acquittals…”[246]

178.  The prosecution has misunderstood the effects of Hin Lin Yee’s case.[247]  The reason that all courts of Hong Kong must now consider the five alternatives is to avoid situations like those confronted by the English court in R v Warner[248] and Sweet v Parsley,[249] of the latter of which our Court of Final Appeal in Hin Lin Yee’s case[250] said:

“[59] In the same case, Lord Pearce again expressed his regret at having no intermediate option. Having suggested that an approach requiring the defendant to persuade the jury that he did not know might in some cases be the best solution, he continued:

‘If it were possible in some so-called absolute offences to take this sensible halfway house, I think that the courts should do so.  This has been referred to in Warner’s case …  I see no difficulty in it apart from the opinion of Viscount Sankey LC in Woolmington v Director of Public Prosecutions …  But so long as the full width of that opinion is maintained, I see difficulty.  There are many cases where the width of that opinion has caused awkward problems.’ ”

179.  The Court of Final Appeal repeated this point in Choi Wai Lun’s case:[251]

“[35] … A court may recoil from imposing absolute liability for a particular offence and so hold against displacement, while it may be prepared to hold that the presumption is supplanted in favour of the second or third Kulemesin alternative. The decision in R v K[252] that the offence of indecent assault requires proof of full mens rea, should be viewed in that context. With no intermediate option, it is not surprising that the House of Lords ruled in favour of requiring mens rea instead of absolute liability.”

180.  Nowhere in the judgments of our Court of Final Appeal cited before this court has it been ruled that the conventional guiding principles for finding strict liability are no longer relevant, nowhere in those judgments has it been decided that the prosecution no longer needs to identify the relevant matters referred to in Hin Lin Yee’s case:[253]

“[44] … The case-law employs the same concepts and terminology in discussing the mental requirements, postulating the need, for example, to examine the statutory language and purpose; the nature and seriousness of the offence and its attendant penalties and social stigma; the utility of imposing sanctions; the prevailing societal conditions; and so forth.” (emphasis supplied)

In fact, in Choi Wai Lun’s case,[254] the court specifically noted:

“[37] However, given the manifest purpose of section 122(2) viewed in the light of the Hong Kong courts’ long-standing policy regarding age-related sexual offence, I am of the view that the presumption of mens rea is clearly displaced in respect of indecent assault on persons under the age of 16 in this jurisdiction.” (emphasis supplied)

181.  When pressed in argument, the prosecution submits that the legislative aim of section 52(3) is to reduce improper road use, and that strict liability is required because of a perceived difficulty on the part of the prosecution to prove the defendant’s knowledge that the journey is paid.  On the defence side, it is submitted that whatever the legislative purpose of section 52(3) is, it cannot be for the protection of the taxi industry.

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,[255] 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.

Conclusion on strict liability

185.  Having considered the five available alternatives, in view of the legislative history, in light of the statutory language and purpose, it is the judgment of this court that the section 52(3) offence requires full proof of mens rea and is not a strict liability offence.

The 5th issue: Findings in respect of the present prosecutions

186.  The prosecution has provided the court (for which the court is grateful) with a detailed and well-referenced schedule containing a summary of evidence in each of the 28 prosecutions.  With the defence consent, the schedule is made an annexure to this consolidated “Reasons for Verdict”, and the court orders that the schedule do form part of the judgment of the court.  The court finds proved and established beyond all reasonable doubt the facts, acts, and circumstances arising from the agreed evidence contained in the schedule.

187.  Before analysing the facts proved and drawing inferences from them, the court observes that according to the Bankers’ Affirmations placed before the court as part of the prosecution case, the payments and receipt of the rewards must have, in the first instance, taken place overseas.  The Bankers’ Affirmation were compiled in accordance with the provision of Section 20 of the Evidence Ordinance, Cap. 8. 

188.  Section 20 is a powerful and useful provision of our law, but it is not powerful enough to make all inadmissible hearsay evidence admissible.  One of the requirements of a Bankers’ Affirmation is for the deponent to vouch for the safe use and operational state of the computers involved in the processing and reproduction of the relevant bank records.  Such a deponent is obviously in no position to make comments on a computer that is physically outside Hong Kong.  Banks can of course exist and operate in one jurisdiction alone, but they all conduct overseas transactions.  The prosecution might wish, for future purposes, to give further thoughts to the issue of proof of overseas bank records and transactions. 

189.  There is no evidence before the court showing any of the defendants had provided carriage to the passengers in fulfilment of a contractual duty owed to Uber.  There is no evidence capable of severing the fares from the rides, eg., where a defendant was entitled to a salary not calculated by reference to the occurrences of, and to the distances to be covered in, the rides, or where the defendant would be entitled to his salary even though he was unable to provide the carriage services, eg., due to sickness or when he was granted paid leave.

190.  In the context of the present prosecutions, the court finds (i) the conversations between the defendants and the undercover officers and (ii) the cautioned responses of the defendants do not take the respective cases of the parties any further.

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 had 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.

CONCLUSION

193.  Momentous technological breakthroughs never take account of prevailing public policies, but prevailing public policies must take account of momentous technological breakthroughs. Material placed before this court shows that the problem of personalised and point-to-point passenger services has caught the attention of the administration in the course of 2015.[256] There is no evidence before the court showing the current extent of the problem in Hong Kong, so the court will make no comments on this issue.  In any event, this court hopes that the relevant authorities – to borrow a phrase from Lord Denning – “will soon remedy the position.”

194.  Having considered the evidence, the extensive and in-depth submissions by the parties (for which the court is grateful), and in view of the findings in paragraphs 189 to 192 above, the court finds beyond all reasonable doubt that all the elements of the offences have been established against the 28 defendants, and the court finds them guilty of the offence they each face in their respective case.

________________________

Summary of Evidence

________________________

Part A. The 1^st to the 23^rd cases

[N.B. “3412/PW1” refers to PW1 in KCCC 3412/2017

“3412/Exh. P1 at [3]” refers to paragraph 3 of Exh. P1 in KCCC 3412/2017]

Part B. The 24^th to the 28^th cases

[N.B. “3969/PW1” refers to PW1 in KCCC 3969/2017

“3969/Exh. P1 at [3]” refers to paragraph 3 of Exh. P1 in KCCC 3969/2017]

-END-

[1] City of Toronto v Uber Canada Inc. et al. 126 OR (3d) 401

[2] City of Toronto v Uber Canada Inc. et al. 126 OR (3d) 401, [3] and [4]

[3] City of Toronto v Uber Canada Inc. et al. 126 OR (3d) 401, [12]

[4] City of Toronto v Uber Canada Inc. et al. 126 OR (3d) 401

[5] Edmonton (City) v Uber Canada Inc [2015] AJ No.357

[6] Edmonton (City) v Uber Canada Inc [2015] AJ No.357, [23]

[7] See sections 26 and 52(2) of the Road Traffic Ordinance, Cap. 374

[8] City of Toronto v Uber Canada Inc. et al. 126 OR (3d) 401, and Edmonton (City) v Uber Canada Inc [2015] AJ No.357

[9] KCCC3629/2017

[10] Which resulted in the 22 prosecutions in KCCC3412 to 3432/2017, and KCCC3469/2017

[11] The undercover officers in KCCC3412 to 3426/2017, and KCCC3496/2017

[12] The undercover officers in KCCC3428 to 3432/2017

[13] See the officers’ witness statements produced to court under section 65B of the Criminal Procedure Ordinance, Cap. 221

[14] Kowloon Tong, Cheung Sha Wan, Yau Ma Tei, Hung Hom, Sham Shui Po, Mei Foo, Tsim Sha Tsui, Kowloon City, Olympic City, Sycamore Street, and Tsuen Wan

[15] Sham Shui Po, Kowloon Tong, Tai Kok Tsui, Ho Man Tin, Yau Ma Tei, Tsim Sha Tsui, Hung Hom, Tseung Kwan O, Hong Kong International Airport, and Hoi Ping Road

[16] Uber X, UberBLACK, Seven-seater

[17] See photographs captured of the screens of the mobile phones

[18] In 18 cases: KCCC3412 to 3420, 3425 to 3432, and 3496/2017

[19] In four cases: KCCC3421 to 3424/2017

[20] See the officers’ witness statements produced to court under section 65B of the Criminal Procedure Ordinance, Cap. 221

[21] See the Banker’s Affirmations in KCCC3422 and 3429/2017

[22] See the Banker’s Affirmations in KCCC3412 to 3419, 3423 to 3428, 3430, 3432 and 3496/2017

[23] See the Banker’s Affirmations in KCCC3420 and 3421, and 3431/2017

[24] KCCC3413 to 3418/2017, KCCC3421 to 3428/2017, and KCCC3430 to 3432/2017

[25] KCCC3412/2017, KCCC3419 and 3420/2017, KCCC3429/2017, and KCCC3496/2017

[26] KCCC3413 to 3418/2017, KCCC3421 to 3428/2017, and KCCC3430 to 3432/2017

[27] KCCC3414/2017, KCCC3417/2017, KCCC3421 to 3424/2017, KCCC3426 and 3427/2017, KCCC3431 and 3432/2017

[28] KCCC3421 to 3424/2017, KCCC3426/2017, and KCCC3431 and 3432/2017

[29] KCCC3414/2017 (about 75%), KCCC3427/2017 (75% to 80%), and KCCC3432/2017 (about 77%, which is arrived at by calculation only – see Q&A 19)

[30] KCCC3413, 3418, 3428 and 3430/2017

[31] KCCC3425/2017

[32] KCCC3629/2017

[33] KCCC3969, 3971 and 3974/2017, and KCCC502 and 503/2018

[34] KCCC3969/2017

[35] KCCC3971/2017

[36] KCCC3974/2017

[37] KCCC502/2018

[38] KCCC503/2018

[39] See the Banker’s Affirmation in KCCC3425/2017

[40] See the Banker’s Affirmations in KCCC3412 to 3415, 3422 to 3424, 3426, 3428 to 3432, 3969, 3971, 3974/2017, and 502 and 503/2018

[41] See the Bankers’ Affirmations in KCCC3416 to 3421/2017, 3427 and 3496/2017

[42] See the Banker’s Affirmations in the following 16 cases: KCCC3412 to 3422, 3426, 3427 and 3496/2017, and 502 and 503/2018

[43] See the Admitted Facts and para.195 of the Prosecution Closing Submissions dated 7/5/2018

[44] See the definitions of “owner” and “registered owner” under section 2 of the Road Traffic Ordinance, Cap. 374

[45] KCCC3416, 3417, and 3426/2017

[46] KCCC3412, 3419, 3420, 3429, 3432, and 3629/2017, 3939, 3971 and 3974/2017, and KCCC502 and 503/2018

[47] KCCC3425, 3427, and 3430/2017

[48] KCCC3414/2017

[49] KCCC3428 and 3496/2017

[50] KCCC3424/2017

[51] KCCC3431/2017

[52] KCCC3413, 3415, 3418, and 3421 to 3423/2017

[53] See the admitted facts in KCCC3412 to 3415, 3418, 3420 to 3423, 3425 and 3426, 3428, 3430 to 3432, 3496, 3629, 3969 and 3974/2017, and KCCC502 and 503/2018

[54] Eg., the first sentence in para.5 of the Discussion Paper for LegCo Panel Meeting of 21/8/2016 at Tab 27 of the Prosecution Bundle of Authorities (Vol 2)

[55] The full version of section 52(3) is reproduced at para. 110 below

[56] LegCo Official Report of Proceedings dated 28 July 1982 (see Tab 2 of the Defence List of Authorities)

[57] Wyatt v Guildhall Insurance Company Ltd [1937] 1 KB 633

[58] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1, per Lord Denning on p.3

[59] Wyatt v Guildhall Insurance Company Ltd [1937] 1 KB 633, at p.662

[60] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1, at p.6

[61] Albert v Motor Insurers’ Bureau [1972] RTR 230, at p.251B-F

[62] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1, at p.6

[63] Kwong Pak-yam v The Queen [1965] HKLR 931, Ngai Kam-chung v The Queen [1965] HKLR 941, and Chan Kai Lap v The Queen [1969] HKLR 463, and Cheng For Kar v The Queen (unreported, CACC316/1972, 12 July 1972), Li Wing-Cheung v The Queen [1973] HKLR 98, and Lee Hing Cheong v The Queen (unreported, CACC866/1973, 14 December 1973)

[64] Gazette (Suppl. No.3) dated 22 November 1957 (see Defence Suppl. List of Authorities at Tab 31)

[65] Gazette (Suppl. No.3) dated 10 July 1964 (see Defence Suppl. List of Authorities at Tab 32)

[66] Gazette (Suppl. No.3) dated 27 May 1977 (see Defence Suppl. List of Authorities at Tab 33)

[67] Prosecution Bundle “Road Traffic Ordinance, Cap. 220,” supplied to the court at the court’s request after the close of evidence

[68] Gazette (Suppl. No.3) dated 16 July 1982 (see Defence Suppl. List of Authorities at Tab 34)

[69] Gazette (Suppl. No.3) dated 22 November 1957 (see Defence Suppl. List of Authorities at Tab 31).  The parties have agreed that the court can use this Bill as if it was the enacted version of Cap. 220.  The defence has during closing submission helpfully supplied the court with the 1964 Revised Edition of the Road Traffic Ordinance, Cap. 220. The definitions appear in section 2(1) and (2).

[70] See the definition of “public” under section 2 in Gazette (Suppl. No.3) dated 22 November 1957

[71] See the definitions of “public goods vehicles”, “taxis”, “public cars”, “public omnibuses”, “hire omnibuses”, under section 2(2)(b), (c), (d), (f) and (g) in Gazette (Suppl. No.3) dated 22 November 1957   See also the definitions of “taxis”, “public cars”, “public omnibuses”, under section 2(2)(b), (c)(i) and (ii), and (e)(i) and (ii) in the 1964 Revised Edition of the Road Traffic Ordinance, Cap. 220

[72] See para. 3.10 of the Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018

[73] See Gazette (Suppl. No.3) dated 22 November 1957 (see Defence Suppl. List of Authorities at Tab 31). 

[74] But this definition of “hire omnibuses” was removed altogether when section 2(2)(g) was deleted in 1964.  See Gazette (Legal Suppl. No.3) dated 10 July 1964 (see Defence Suppl. List of Authorities at Tab 32), and section 2(2) of the 1964 Revised Edition of the Road Traffic Ordinance, Cap. 220.

[75] Gazette (Legal Suppl. No.3) dated 10 July 1964 (see Defence Suppl. List of Authorities at Tab 32), and section 2(2) of the 1964 Revised Edition of the Road Traffic Ordinance, Cap. 220.

[76] See section 2(2)(c)(i) of the 1964 Revised Edition of the Road Traffic Ordinance, Cap. 220.

[77] See section 2(2)(c)(ii) of the 1964 Revised Edition of the Road Traffic Ordinance, Cap. 220.

[78] See para. 3.10 of the Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018

[79] See section 2(2)(b), (ba) and (bb) of the 1979 Revised Edition of the Road Traffic Ordinance, Cap. 220, in particular, section 2(d)

[80] Gazette (Legal Suppl. No.3) dated 10 July 1964 (see Defence Suppl. List of Authorities at Tab 32), and section 2(2) of the 1964 Revised Edition of the Road Traffic Ordinance, Cap. 220.

[81] See sections 2(2)(c)(ii) and (e)(ii) of the 1979 Revised Edition of the Road Traffic Ordinance, Cap. 220

[82] Coward v The Motor Insurers Bureau (1962) 1 All ER 531, where the driver of a private car agreed to give a friend a lift several times, each on payment of 10s and a drink.

[83] Coward v The Motor Insurers Bureau (1962) 1 All ER 531 at p.538H-I

[84] Kwong Pak-yam v The Queen (1965) HKLR 931, which was decided in 1965, by which time the definition of “public cars” had been amended but the contractual demarcation referred to in the preceding paragraphs of this judgment remained. See Gazette (Suppl. No.3) dated 10 July 1964, at section 2(d)(ii) of the amendment bill (see Defence Suppl. List of Authorities at Tab 32).

[85] The other charge was one of driving a motor vehicle without third party insurance.

[86] Coward v The Motor Insurers Bureau (1962) 1 All ER 531

[87] Kwong Pak-yam v The Queen (1965) HKLR 931

[88] Kwong Pak-yam v The Queen (1965) HKLR 931, pp.935-6

[89] Kwong Pak-yam v The Queen (1965) HKLR 931

[90] See Prosecution Closing Submission at para. 203, and Kwong Pak-yam v The Queen (1965) HKLR 931, pp.935-6.

[91] See Prosecution Closing Submission at para. 233

[92] Kwong Pak-yam v The Queen (1965) HKLR 931

[93] Coward v The Motor Insurers Bureau (1962) 1 All ER 531

[94] Kwong Pak-yam v The Queen (1965) HKLR 931

[95] Reg v Ngai Kam-chung [1965] HKLR 941, where the driver and the passenger did not talk about money until the end of the journey.

[96] Reg v Ngai Kam-chung [1965] HKLR 941, at p.950

[97] Chan Kai-lap v The Queen [1969] HKLR 463, by which time reg. 26(2) had been replaced by reg. 29(2)

[98] Cheng For Kar v The Queen (unreported, CACC316/1972, 12 July 1972)

[99] Li Wing-cheung v The Queen [1973] HKLR 98

[100] Albert v Motor Insurers’ Bureau [1972] RTR 230, the leading English case on “hire or reward”, was mentioned in the judgments. 

[101] HKSAR v Chan Chi Ho (transl.) HCMA1007/2005

[102] HKSAR v Lam Shing-yin HCMA559/2007

[103] Prosecution Closing Submission, para.209

[104] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1

[105] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1, at p.5

[106] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1

[107] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1

[108] Chan Kai-lap v The Queen [1969] HKLR 463

[109] Albert v Motor Insurers’ Bureau [1972] RTR 230, where, for about eight years, the driver took his co-workers to work on payment of irregular sums, or on payment in kind, or for free.

[110] Albert v Motor Insurers’ Bureau [1972] RTR 230

[111] Li Wing-cheung v The Queen [1973] HKLR 98

[112] Coward v The Motor Insurers Bureau (1962) 1 All ER 531

[113] Kwong Pak-yam v The Queen (1965) HKLR 931, pp.935-6

[114] Albert v Motor Insurers’ Bureau [1972] RTR 230

[115] See eg., section 2(2)(b), (ba), (bb), (c)(i) and (ii), (d), (e)(ii) of the 1979 Revised Edition of the Road Traffic Ordinance, Cap. 220, in particular, section 2(d)

[116] See the definition of “taxi” in section 2 of the Road Traffic Ordinance, Cap. 374

[117] See para.45 and 46 above

[118] See para.45 above

[119] See para.47 above

[120] See para.51 above

[121] See the definition of “private car” in section 2 of the Road Traffic Ordinance, Cap. 374

[122] Defence Closing Submission dated 21/5/2018 at para. 5.7, and see Defence Closing Submission dated 29/6/2018 at para.1.1(ii)

[123] See para.233 of the Prosecution Closing Submissions dated 7/5/2018

[124] See para.234 of the Prosecution Closing Submissions dated 7/5/2018

[125] See para.12(iv) of the Prosecution’s Speaking Note dated 28/5/2018

[126] HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281

[127] See para.3(iii) of the Prosecution’s Speaking Note dated 12/6/2018

[128] See Prosecution’s Speaking Note dated 21/6/2018

[129] That is to say: a licensed public bus, public light bus or taxi, private bus used in taking students and teachers, etc., private light bus used for specified purposes, and private cars whose registered owners have in force a hire car permit in his favour.

[130] Kwong Pak-yam v The Queen (1965) HKLR 931

[131] See para.2(i) and 3(iii) of the Prosecution’s Speaking Note dated 12/6/2018

[132] See para.2(i) and 3(iii) of the Prosecution’s Speaking Note dated 12/6/2018

[133] See para. 3.10 of the Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018

[134] See the definition of “public service vehicles” under section 2 of the Road Traffic Ordinance, Cap. 374

[135] See reg. 38(2) of the Road Traffic (Public Service Vehicles) Regulations, Cap. 374D, which is a permissive provision only.

[136] See para. 3.11 of the Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018

[137] See para. 3.12 of the Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018

[138] See para. 3.10 of the Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018

[139] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1

[140] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1, at p.4

[141] Kwong Pak-yam v The Queen (1965) HKLR 931

[142] AG v Lun Chan [1964] HKLR 763

[143] AG v Lun Chan [1964] HKLR 763, at p.773

[144] AG v Lun Chan [1964] HKLR 763, at pp.776-7

[145] Kwong Pak-yam v The Queen (1965) HKLR 931

[146] Kwong Pak-yam v The Queen (1965) HKLR 931, at p.935

[147] See para. 49 above

[148] See para. 50 above

[149] AG v Lun Chan [1964] HKLR 763

[150] Bonham v Zurich General Accident & Liability Insurance Co., Ltd (1945) KB 292

[151] AG v Lun Chan [1964] HKLR 763, at p.772

[152] Bonham v Zurich General Accident & Liability Insurance Co., Ltd (1945) KB 292

[153] Aitken v Hamilton (1964) JCL 192

[154] Bonham v Zurich General Accident & Liability Insurance Co., Ltd (1945) KB 292

[155] Reproduced in AG v Lun Chan [1964] HKLR 763, p.778

[156] AG v Lun Chan [1964] HKLR 763

[157] AG v Lun Chan [1964] HKLR 763, at p.780

[158] AG v Lun Chan [1964] HKLR 763

[159] AG v Lun Chan [1964] HKLR 763, p.773

[160] AG v Lun Chan [1964] HKLR 763

[161] Chan Kai-lap v The Queen [1969] HKLR 463, pp.466-7

[162] AG v Lun Chan [1964] HKLR 763

[163] Albert v Motor Insurers’ Bureau [1972] RTR 230

[164] Albert v Motor Insurers’ Bureau [1972] RTR 230, at p.248D-G

[165] Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018, at para.5.5-5.10

[166] Connell v Motor Insurers’ Bureau [1969] 2 Lloyd’s LR 1, at p.3

[167] Albert v Motor Insurers’ Bureau [1972] RTR 230, at p.237H-K

[168] Albert v Motor Insurers’ Bureau [1972] RTR 230, at p.241F

[169] HKSAR v Tse Yee Ping (2016) 19 HKCFAR 427, at [51]

[170] HKSAR v Lam Kwong Wai(2006) 9 HKCFAR 574, at p.606E

[171] HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, at [13]

[172] HKSAR v Wong Yuk Man (2012) 15 HKCFAR 712, at [27]

[173] B v Commissioner of Independent Commission Against Corruption (2010) 12 HKCFAR 1, at [13], and HKSAR v Wong Yuk Man (2012) 15 HKCFAR 712

[174] China Field Ltd v Appeal Tribunal (Buildings) (No.2)[174](2009) 12 HKCFAR 342

[175] China Field Ltd v Appeal Tribunal (Buildings) (No.2)[175](2009) 12 HKCFAR 342, at [36]

[176] Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, at p.822B

[177] Regina (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, at [10]

[178] See the definition of “driver” under section 2 of the Road Traffic Ordinance, Cap. 374

[179] See the definition of “passenger” under section 2 of the Road Traffic Ordinance, Cap. 374

[180] See the definition of “motor vehicle” under section 2 of the Road Traffic Ordinance, Cap. 374

[181] See the definition of “private car” under section 2 of the Road Traffic Ordinance, Cap. 374

[182] See the definition of “taxi” under section 2 of the Road Traffic Ordinance, Cap. 374

[183] See the definition of “hire car permit” under section 2 of the Road Traffic Ordinance, Cap. 374

[184] See para.6 of the Prosecution’s Speaking Note dated 28/5/2018

[185] See para.5 of the Prosecution’s Speaking Note dated 12/6/2018

[186] See para.12 of the Prosecution’s Speaking Note dated 28/5/2018

[187] Orr v Trafalgar Insurance Company Ltd (1948-49) 82 Ll L Rep 1.  In that case, a passenger Mr Moore sought a car for hire.  The hired car that was to provide the services broke down; and in its place, a private car driven by Mr Prescot arrived, just as Mr Moore was thinking he might as well hitch-hike.  There had been no discussion between Mr Prescot and Mr Moore concerning payment for the ride.  An accident took place during the journey, resulting in injuries to Mr Orr.  In the end, no rewards were paid by Mr Moore for what he had intended to be a ride in a car for hire.  The English Court of Appeal found that Mr Prescot had driven his private car for hire or reward. 

[188] Orr v Trafalgar Insurance Company Ltd (1948-49) 82 Ll L Rep 1

[189] Orr v Trafalgar Insurance Company Ltd (1948-49) 82 Ll L Rep 1, per Tucker LJ at p.6

[190] City of Toronto v Uber Canada Inc. et al. 126 OR (3d) 401

[191] Edmonton (City) v Uber Canada Inc [2015] AJ No.357

[192] Orr v Trafalgar Insurance Company Ltd (1948-49) 82 Ll L Rep 1

[193] Orr v Trafalgar Insurance Company Ltd (1948-49) 82 Ll L Rep 1

[194] Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1

[195] HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281

[196] HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281, at p.287C-F

[197] Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association [2016] 5 HKLRD 542

[198] Prosecution Closing Submission dated 7/5/2018, at paras. 236-246

[199] Winnie Lo v HKSAR (2012) HKCFAR 16 at [72]-[77]

[200] Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381

[201] B v Commissioner of the Independent Commission Against Corruption (2010) 13 HKCFAR 1

[202] Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386

[203] Prosecution Closing Submission dated 7/5/2018, at para. 242

[204] R v Rimmington [2006] 1 AC 459

[205] Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385

[206] R v Secretary of State for Trade and Industry, ex p Ford (1984) 4 Tr L 150

[207] Noise Control Authority v Step In Ltd (2005) 8 HKCFAR 113 at p.131J-132D

[208] Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386

[209] Reg. 29(2) and (2A) of Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap. 220H, in “Road Traffic Ordinance, Cap. 220,” supplied to the court at the court’s request after the close of evidence.  See also para.205 of Prosecution Closing Submission dated 7/5/2018

[210] To borrow the description of “reward” from Willis J in the first instance judgment of Albert v Motor Insurers’ Bureau [1972] RTR 230, at p.233H-I, and 234A-B 

[211] HKSAR v Tse Yee Ping (2016) 19 HKCFAR 427, at [51]

[212] See section 3 of the Road Traffic Ordinance, Cap. 374.

[213] Defendants’ Reply Submissions dated 21/5/2018 at para.3.29

[214] See para.12(iv) of the Prosecution’s Speaking Note dated 28/5/2018

[215] Prosecution Closing Submission dated 7/5/2018, at para.256(a), citing Hong Kong 2016, HKSAR Government at p.205 of Tab 23 of the Prosecution Lists of Authorities

[216] Canada (Attorney General) v Bedford[216][2013] 2 SCR 1101

[217] Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415

[218] Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415

[219] Fok Lai Ying v Governor in Council & Others [1997] HKLRD 810, (1997) 7 HKPLR 327

[220] Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415

[221] So Wai Lun v HKSAR (2006) 9 HKCFAR 530

[222] See section 52(10)(a) of the Road Traffic Ordinance, Cap. 374

[223] Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018, para. 4.18

[224] Canada (Attorney General) v Bedford[224][2013] 2 SCR 1101

[225] Carter v Canada (Attorney General) [2015] 1 SCR 331

[226] See paragraph 136 above

[227] See paragraph 19-13

[228] Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480

[229] Report on Study of Road Traffic Congestion in Hong Kong, Transport Advisory Committee (December 2014), para. 3.5.1 (Tab 22 of Prosecution Lists of Authorities)

[230] Report on Study of Road Traffic Congestion in Hong Kong, Transport Advisory Committee (December 2014), para. 3.5.1, footnote no.4 (Tab 22 of Prosecution Lists of Authorities)

[231] Uber BV & ors v Aslam & ors UKEAT 0056/17/DA, para. 2 (see Defence List of Authorities, Tab 22)

[232] This information came from the first instance judgment delivered on 28 October 2016 (see Defence List of Authorities, Tab 21)

[233] Secretary for Justice v Yan Yuk Lung (2007) 10 HKCFAR 335

[234] Secretary for Justice v Latker [2009] 2 HKC 100

[235] Defendants’ Responses to Questions Raised by this Court by way of letter dated 23 May 2018, para. 4.21

[236] Secretary for Justice v Yan Yuk Lung (2007) 10 HKCFAR 335

[237] HKSAR v Lam Kwong Wai and another (2006) 9 HKCFAR 574

[238] HKSAR v Lam Kwong Wai and anor (2006) 9 HKCFAR 574

[239] HKSAR v Lam Kwong Wai and anor (2006) 9 HKCFAR 574

[240] HKSAR v Choi Wai Lun [2018] HKCFA 18

[241] HKSAR v Choi Wai Lun [2018] HKCFA 18, [13]

[242] Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142

[243] Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142

[244] Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142, [44]

[245] Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142, [142]

[246] Sweet v Parsley [1970] AC 132 at p.150, cited in HKSAR v Choi Wai Lun [2018] HKCFA 18, [21]

[247] Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142

[248] R v Warner[1935] AC 462, at page 481

[249] Sweet v Parsley [1970] AC 132

[250] Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142

[251] HKSAR v Choi Wai Lun [2018] HKCFA 18

[252] R v K [2002] 1 AC 462

[253] Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142

[254] HKSAR v Choi Wai Lun [2018] HKCFA 18

[255] Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142

[256] The first sentence in para. 5 of the Discussion Paper for LegCo Panel Meeting of 21/8/2016 at Tab 27 of the Prosecution Bundle of Authorities (Vol 2)