R. v. CHAN LUN FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 598 OF 1995

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J U D G M E N T

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1. The appellant was convicted of the offence of travelling on a light rail vehicle without first paying the appropriate fare and obtaining the appropriate ticket, contrary to By-law 6(c) and 41 of the North-West Railway By-laws made under Cap. 372.

2. Two officers from the KCR Corporation were performing ticket checking duty on a platform at the Light Rail Retail Depot Stop. They saw the appellant alight from a light rail carriage. The appellant was stopped and he was asked to see his ticket. The appellant after a while produced the ticket and the time marked on it was 15.35 hours. There was some dispute as to the correct time at the time when the appellant was stopped. The case against him was when the ticket was produced the time was 17.40 hours. The officers considered that the appellant had travelled on an expired ticket and required the appellant to pay a surcharge. The appellant agreed to pay and he signed an agreement to postpone payment of a surcharge of $217.00. He was subsequently summoned for the offence under By-law 6(c).

3. By-law 6(c) is as follows :

"6. Entry and travel prohibited without payment of fare No person shall without the authority of an official ....

(a) travel on any bus;

(b) board or attempt to board any vehicle of the Northwest Railway; or

(c) travel or attempt to travel upon any vehicle of the Northwest Railway

without first paying the appropriate fare and, where a ticket is issued, obtaining the appropriate ticket."

4. By-law 10 provides for travelling on a vehicle without a ticket or with expired or inappropriate ticket.

"(1) if a person ... travels or attempts to travel on any bus or vehicle of the Northwest Railway

(a) without a ticket;

(b) with a ticket which has been altered ... or damaged;

(c) with a ticket that has expired;

(d) ....

(e) ....

he shall be regarded as not having paid his fare and shall be liable to pay a surcharge to the Corporation.

(2) For the purposes of By-law 10(1)

(a) a ticket other than a season ticket or stored value ticket shall expire in the event that a passenger fails to complete the journey to which the ticket relates within 2 hours of being issued with a ticket.

(b) ...."

5. The penalty section for contravening By-law 6 is By-law 41 -

"A person who contravenes a by-law set out in the first column of the Schedule commits an offence and is liable to the penalty set out in the second column of that Schedule opposite the reference to that by-law"

6. In the Schedule, the penalty specified for contravening By-law 6 is a fine of $5,000.00.

7. Thus By-law 6(c) makes it an offence for a person boarding a vehicle without first buying a ticket. The penalty for it is a fine. This is not applicable to the situation where a person who has bought a ticket and then boards the vehicle and travels on it and the ticket expires in point of time before he completes the journey in which case, By-law 10 applies. By-law 10 does not make it an offence punishable with a fine for a person travelling with an expired ticket. The law makes it clear that these are two different situations which should be dealt with differently. It would be wrong to rely on By-law 10(c) to conclude that travelling on an expired ticket amounts to an offence under By-law 6(c). In any case, it would be wrong to punish a person twice for the same act.

8. The learned magistrate found that the appellant admitted that it was 5.40 p.m. when the officers checked the ticket. He also found that the officers and the appellant checked their watches which showed 5.40 p.m. The time marked on the ticket was 1535 hours. This must be the time according to the clock at point of issue and the expiry time should be two hours later according to this clock. The learned magistrate relied on the time on the watches of the officers which the appellant disputed its accuracy. There was no evidence that the officers had checked the accuracy of the time shown on their watches against the time at point of issue. It could not have been beyond reasonable doubt that the appellant had failed to complete his journey before the expiry of two hours from the time of issue.

9. Counsel for the Crown indicated that in view of the minor difference in time, the Crown would not support the conviction.

10. The appeal is allowed. The conviction quashed and sentence set aside. Fine paid to be refunded to the appellant.