HKSAR v. TSUI PING WING

HCMA857/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.857 OF 1999

(ON APPEAL FROM TMS10627 OF 1998)

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J U D G M E N T

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1. By this appeal, the appellant challenges the validity of Regulations 45(1)(a) and 57(1) of the Road Traffic (Public Service Vehicle) Regulations, Cap.374. Regulation 45(1)(a) states : -

"(1) The driver of a public bus, public light bus or taxi, when acting as such-

(a) shall behave in a civil and orderly manner;"

Regulation 57(1) makes the contravention of 45(1)(a) an offence punishable by a maximum fine of $3,000 and imprisonment up to six months.

2. Their validity is challenged on the basis that they are inconsistent with Articles 16 and 22 of the Hong Kong Bill of Rights. Article 16 guarantees freedom of expression. Article 22 guarantees equality before and equal protection of the law.

BACKGROUND

3. The appellant was charged with behaving other than in a civil and orderly manner. He was convicted after trial on 22 July 1999 by Mr R.D. Donald, a temporary magistrate. He imposed a fine of $500.

4. No challenge is made against the findings of fact. Put very briefly, the appellant, a taxi driver, picked up a passenger on a hot afternoon in July 1998. He was aggrieved by the shortness of the journey. He shook his head, and he turned the air conditioning down. He spoke into his radio in an impolite way intending to be heard by the passenger, "Just no fucking use, such a short distance. It was fucking troublesome." Similar phrases were repeated. At the end of the journey, the appellant directly insulted the passenger by saying, "What a fucking big deal. Such a short distance, take a taxi to go there. What a fucking big deal."

5. The appellant contends that the Regulation which prohibits such behaviour and language by a taxi driver is unconstitutional. The issues were fully argued before the learned magistrate. In a considered and careful statement, he made the following findings :-

(i) when a member of the public takes up the position of being a taxi driver, he must become subject to the rules and regulations imposed upon taxi drivers. In doing so, his freedom of speech is restricted.

(ii) the restriction on the freedom of speech is necessary in the circumstances of the defendant's position and the restriction has been lawfully imposed pursuant to Article 39 of the Basic Law and Article 16 of the Bill of Rights i.e. for respect of rights of others (Article 16(3)(a)) and for the protection of public order (Article 16(3)(b)).

(iii) the word "civil", should be given its ordinary grammatical meaning. The court noted that the dictionary meaning of "civil", in relation to manner, was "orderly, well governed, educated, refined, polite, decent, sober, gentle". As for "orderly", this was the opposite of not in an orderly manner and must mean disorderly, nothing less. The court found that in using obscene language towards his passenger, the defendant was not behaving in a civil and orderly manner.

(iv) In addition the learned Magistrate opined that a breach of Reg.45 should not be subject to criminal sanction.

He noted that a case such as this could, or should, be better dealt with civilly. However, there appeared to be no such mechanism except criminal sanction. Clearly, some type of regulation or control is vital. The legislature has clearly considered this matter and created a criminal offence.

The magistrate held that, at present, criminal sanctions are the only way of dealing with this type of situation as no civil sanctions exist. The learned Magistrate was aware that this in itself could be a breach of Art.22 but he was not prepared to say that Reg.45(1)(a) was in breach of Art.22.

THE APPEAL

6. On appeal, the appellant was represented by Mr Albert Ho, who also appeared in the Magistrates Court. Mr A.A. Bruce, S.C. leading Miss Jasmine Ching, appeared for the respondent in the appeal.

(a) Agreed principles

7. There was no dispute between the parties concerning the fundamental principles to be applied to the issue before the court. In particular : -

(i) This challenge to a Hong Kong Law is correctly based on the Hong Kong Bill of Rights. The Basic Law is also relevant in that Article 39 of the Basic Law incorporates the International Convention on Civil and Political Rights and Articles 19 and 26 of that Convention are in the same terms as Articles 16 and 22 of our Bill of Rights.

(ii) The court may seek guidance when interpreting the Bill of Rights from decisions in other common law jurisdictions. To this, Mr Bruce correctly submits that two caveats should be added. Firstly, the actual language of the provisions under scrutiny in other countries will invariably differ from jurisdiction to jurisdiction. Secondly, the countries themselves differ and their decisions should be viewed against their own backgrounds, histories and cultures. In other words, when considering the many learned judgments from the highest courts in the USA, Canada, the U.K., Australia and so on, one must not lose sight of the issue placed in its Hong Kong context. The Hong Kong taxi driver has a special place in the culture of Hong Kong. The court must remain aware of those special features in the Hong Kong context when determining whether a law with criminal sanctions which prevents a taxi driver from insulting his passenger with obscene and foul language should be struck down as being unconstitutional.

(iii) Legislation which contains constitutional guarantees of fundamental rights and freedoms should be given a generous and purposive interpretation.

(iv) Guidance on such issues of interpretation is to be found in the "Siracusa Principles" named after a 1984 international conference. Clause 10 of section A part I states :

"Whenever a limitation is required in terms of the Covenant to be 'necessary', this term implies that the limitation :

(a) is based on one of the grounds justifying limitations recognized by the relevant article of the covenant;

(b) responds to a pressing public or social need;

(c) pursues a legitimate aim; and

(d) is proportionate to that aim.

Any assessment as to the necessity of limitation shall be made on objective considerations."

(b) The appellant's grounds

8. The appellant argued six grounds of appeal. If any one of them succeeds, then the appeal must be allowed. Grounds 1-5 concern Article 16 of the Bill of Rights. Ground 6 concerns Article 22.

Article 16 states : -

“ Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.

Article 22 states : -

" Equality before and equal protection of law

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

(i) Ground 1 - The learned magistrate erred in finding that a passenger had a right not to be insulted and verbally abused by a taxi driver and that that right was protected by Article 16(3)(a). The submission is that Regulation 45(1)(a) is not a justifiable restriction which is legitimate or necessary for the "respect of the rights or reputations of others".

(ii) Ground 2 - Regulation 45(1)(a) does not contain an ingredient that the conduct complained of could lead to a breach of the peace. The Regulation fails the "necessity" test. There is no evidence to show it is necessary in order to preserve public order. The submission is that the mere use of foul language falls short of "fighting words" which would, by their very utterance, be likely to incite an immediate breach of the peace.

(iii) Ground 3 - The Regulation fails the "proportionality" test. A maximum sentence of six months' imprisonment and a criminal conviction, it is submitted, is a disproportionate sanction for conduct by a taxi driver which is judged to be uncivil and not orderly. If there is a need to control or restrict the behaviour of taxi drivers, internal disciplinary procedures would suffice.

(iv) Ground 4 - The Regulation is too vague. The submission is that the expression "shall behave in a civil and orderly manner" is too vague or overly board. There are no statutory definitions of "civil" and "orderly". Standards of civility vary between different groups in a pluralistic society. A restriction that is void because of vagueness cannot be prescribed by law. In other words, a regulation is not "provided by law" if its words cannot be clearly construed.

(v) Ground 5 - The Regulation fails the "justification" test. It is submitted that the learned magistrate should have concluded that the prosecution had failed to demonstrate that the restrictions imposed by the regulation were demonstrably justifiable in a free and democratic society which upholds the aspirational value of pluralism, diversity and toleration. It is said that he failed to recognize that the use of foul language is quite common amongst certain groups and is not considered objectionable. It should, therefore, never be criminalized. It is manifestly unjust, so the submission goes, to criminalize the speaking of foul language (by a taxi driver in an uncivil and disorderly way) when the habit is commonplace and will cause no harm to the person on the receiving end.

(vi) Ground 6 - Equality before the law. Article 22 of the Bill of Rights is contravened because Regulation 45(1)(a) discriminates against taxi drivers and public bus and light bus drivers. There is no equivalent control over other sectors of public service, such as train drivers, firemen, customs and immigration officers, etc. The submission is that separating public vehicle drivers has no objective and reasonable justification.

9. I have set out the above grounds in outline form. Mr Ho, in his submission before the court, helpfully referred to a number of authorities in support of the various points he made. The research and industry of the appellant's solicitors had been far reaching and comprehensive. However, I have come to the conclusion without difficulty that the appeal must fail on every ground. I shall deal with each ground when I refer to the respondent's case below. The respondent's answers to the grounds of appeal entirely accord with the court's evaluation of each ground. I find the respondent's submissions to be correct in law in every respect. Accordingly, the recital of the respondent's case, hereafter, is also the court's decision in the appeal.

(c) The respondent's case and the Court's decision

10. Grounds 1-5 concern Article 16. The right in question is contained in Article 16(2). The restrictions on the right are contained in Article 16(3).

11. The parts of Article 16(2) which relate to what the taxi driver said and the way he said can be summarized thus - "Everyone shall have the right and freedom of expression ... which includes freedom to impart information and ideas ... orally ...". The importance of the right was considered in Ng Kung-sui and another [1999] 3 HKLRD 907. At p.921, having stressed its importance, Li CJ went on to say :-

"Freedom of expression is not an absolute. The Preamble to the ICCPR recognises that the individual has duties to other individuals and to the community to which he belongs. Article 19(3) itself recognises that the exercise of the right to freedom of expression carries with it special duties and responsibilities and it may therefore be subject to certain restrictions."

12. A preliminary question therefore presents itself. Is a mouthful of abuse from a rude taxi driver an expression which enjoys any protection from human rights legislation? The answer, perhaps surprisingly, is that it probably does. There is no doubt that those who have been responsible for drafting such important constitutional legislation and the learned academics, and judges who have made subsequent commentaries and judgments had their minds on a higher plain than that illustrated by the subject matter of this appeal. Although initially tempting, the court should not say it is not a protected expression at all simply because it amounts to the bad tempered rantings of a foul mouthed taxi driver. However, there are degrees of protection. Mr Bruce is right when he says "this earful must be at the lowest end of the heap for protection".

13. We ultimately therefore arrive at the real issue to be determined when dealing with Grounds 1-5 collectively. Is the restriction on the freedom of expression which is contained within Regulation 45(1)(a) justified? Article 16(3) expressly deals with the circumstances in which the freedom can be restricted. To be valid, the restriction must be :-

(a) provided by law, and

(b) necessary for the respect of rights or reputations of others, or

(c) necessary for the protection of national security, or

(d) necessary for the protection of public order, or

(e) necessary for the protection of public health or morals.

(a) Provided by law

14. In this context, it is necessary to construe the Regulation. The appellant contends it is too vague to regulate his conduct. The argument is that the words "civil and orderly" are too broad to say that the expression used is prohibited by them. All that is required to refute this argument is common sense. Elaborate submissions complaining about the lack of any statutory definition of "civil and orderly" are misplaced. Neither is there any mileage in the argument that there is a grey area between what is orderly at one extreme and what is disorderly at the other. The Regulation is framed in positive terms. A failure to conform with the standard required by conducting oneself in a manner which is not "civil and orderly" is an offence. Taken in its context of the whole of Regulation 45 (which provides for a further 12 ways in which a public service vehicle driver shall behave), the purpose of (1)(a) is to promote a proper standard of manners and safety, to which every passenger is entitled.

15. The Regulation restricts behaviour. This case concerns the use of expression as part of behaviour. The Regulation enables the court to consider both what was said, why it was said, to whom it was said and how it was said in determining whether the driver's behaviour was less than civil and orderly as a result. It is a simple task to apply the facts in each case to the words of the Regulation in the context of the purpose of the legislation. The words themselves should be given their ordinary natural meaning, which the learned magistrate correctly did. Further statutory definition would be undesirable and unnecessary.

16. In short, the Regulation as drafted plainly enables a taxi driver to understand how his conduct is being regulated. By the application of common sense, he can foresee with reasonable certainty what standards are expected and what standards of behaviour would fall short.

(b) Necessary?

17. The onus is on the respondent to satisfy the court that the restriction of the freedom of expression is necessary.

18. Taxis play an important part in the complex web of Hong Kong society. There are many thousands of them and they are used by residents and visitors alike, from every strata of the community. Every taxi journey is a contract of hire. Every passenger pays for the service and subjects him or herself to the competence, skills and character of the particular driver inside the confines of a moving motor car. In such circumstances, is it necessary to control the way they behave, including the things they say and the way they say them by the provision of criminal sanctions? In the judgment of this court, the answer is a resounding "Yes".

19. To argue that bad language is quite common and even inoffensive amongst certain members of society misses the point. Hong Kong's reputation, to a not insignificant degree, depends on the manners of its taxi drivers. It is not overstating the position to say that they represent and epitomise Hong Kong's standard of behaviour at street level. To control such a public group by merely internal disciplinary proceedings or the risk of being taken to the Small Claims Tribunal would be wholly inadequate. So inadequate, in reality, as to be tantamount to having no remedy at all to control this special group of public servants. A successful challenge to this Regulation, on constitutional grounds, would suggest that our society places greater importance on a taxi driver's fundamental rights to express himself in any way he chooses (including obscenities) than on society's rights to impose criminal sanctions, where necessary, on the behaviour of those who choose to be taxi drivers. That cannot be right.

20. The respondents' argument on this aspect of the appeal is further strengthened when one weighs in the balance the fact that a taxi driver requires a licence to operate. The licence enables the driver to take money from the public in return for the provision of a service. Such a regime requires firm control. The controls are in place when a person applies for the licence. He cannot then turn around and say he does not like the controls, provided they are not unreasonable. In the Canadian case of R. v. Wholesale Travel Group Inc. [1991] 84 DLR 161, the court said :-

"The licensing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility. Therefore, it is said, those who engage in regulated activity should, as part of the burden of responsible conduct attending participation in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere."

21. In my judgment, it is perfectly reasonable for this society to say - if you want to join the ranks of the Hong Kong taxi drivers, you must accept some limitations on your rights to behave in any way you choose. Furthermore, such is the nature of the licence you are seeking that severe penalties will be imposed if you break the rules.

22. Under Article 16(3) for a restriction on the freedom to be necessary, it must be for at least one of four possible reasons provided for in Article 16(3)(a) and (b). In this particular case, the necessity to control taxi drivers' conduct by criminal sanctions falls within three of the four as follows :-

(i) For the respect of the rights of others

23. The "rights of others" are those of the passengers. In the absence of these criminal sanctions, the passenger's only remedy would be an action for breach of an implied term in a contract of hire. Any member of the public would find such a remedy too troublesome to pursue. Placed in its overall context, it is clearly necessary to impose criminal sanctions as an alternative to the unrealistic contractual remedies.

(ii) For the protection of public order

24. It is eminently foreseeable that abusive and insulting conduct by a taxi driver could spark off a breach of the peace. If such a risk is real, it is necessary to prevent it. A breach of the peace is very likely to involve criminal conduct, accordingly, criminal sanctions are required against those who cause it.

(iii) For the protection of public morals

25. No one could sensibly argue that public morality is not adversely affected by the use of obscene or blasphemous language directed at or even in the presence of young children. Generally speaking, responsible adults use their best endeavors to shield young children from such language. A public service vehicle driver who does not respect this and expresses himself in a way which is not civil and orderly is damaging the standards of morality set by parents and teachers.

(c) Ground 6 : Equality before the law

26. In summary form, Article 22 prohibits discrimination. Everyone is entitled to the same protection of law. The appellant's argument is that because other sectors of society are not subjected to Regulation 45(1), he is being discriminated against. The simple answer is that this is not discrimination at all. It is true that taxi drivers are put in a separate and distinct category, and subjected to separate and distinct rules of conduct. The reasons for this are all those matters already referred to.

27. Discrimination implies treatment which is unfair because it is different on grounds such as "race, colour, sex, language, religion, political or other opinion, rational or social origin, properly birth or other status". The only part of this provision which could be remotely applicable are the words "or other status". For the argument to succeed, the court would have to conclude that the fact of being a licenced taxi driver is some "other status" which has caused the discrimination. In R. v. Mai Wai Keung (No.2) [1992] 2 HKCLR 207, Bokhary JA observed :-

"Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown : one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational ; and, three, that such departure is proportionate to such need."

28. The court is persuaded that the different and distinct treatment of taxi drivers by Regulation 45(1)(a) is not discrimination but in any event is genuinely needed, rational and proportionate.

Summary

29. The appeal is dismissed on the basis of the following findings :-

(1) Regulation 45(1)(a) restricts the appellant's freedom of expression and that restriction is provided by law.

(2) It is a limited restriction not of the type primarily contemplated by Article 16.

(3) The restriction is necessary as defined by Article 16(3).

(4) The purpose of the Regulation was to prohibit precisely the sort of conduct of which the appellant was guilty.

(5) Regulation 45(1)(a) is not inconsistent with Article 22 of the Bill of Rights. It does not discriminate against the appellant in the true sense of the word and, accordingly, there is no requirement to justify it.

30. This appeal has concerned one bad tempered taxi driver. It has already been observed that in many respects, because of their special role in Hong Kong society, taxi drivers set a standard of behaviour by which the region is judged. I am confident that the vast majority of public vehicle drivers are acutely aware of this and are content to be judged by their own high standards. The criticism of this appellant is particular to him. I would not be at all surprised if the vast majority of taxi drivers welcome the controls put on their conduct as a means of maintaining high standards of behaviour which almost all drivers aspire to and which the community expects.

31. Finally, where the amount of time, money and effort spent on a case is out of proportion to its importance and prospects of success, the court should not shrink from saying so. The court recognises the importance of the right of any litigant to be heard on a Bill of Rights argument and the right of appeal, however, if one takes a step back and considers this particular issue in context, it is perhaps surprising that the learned magistrate's careful judgment after a full hearing was not accepted.