HKSAR v. SO NAI CHUNG PILOT

HCMA571/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.571 OF 2004

(ON APPEAL FROM TWCC 1390 OF 2004)

----------------------

-----------------------

--------------------

D E C I S I O N

--------------------

1. The applicant So Nai Chung pleaded guilty to one charge of offering services without the permission of the Airport Authority, contrary to sections 26(1) and 62 of the Airport Authority Bylaw made under section 35(11) of the Airport Authority Ordinance, Cap.483.

2. He appealed against the sentence before me. At the hearing of the appeal, the applicant confirmed that he was only appealing against sentence, not conviction. The appeal was dismissed. He now applies to me to certify that a point of law of great and general importance is involved in the decision, pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap.484.

Background

3. The applicant was a taxi driver. He picked up an undercover police officer, posing as a tourist, at the loading area of Carpark 2, Hong Kong International Airport. He also touted business by negotiating a fixed fee with the undercover agent. Carpark 2 was a Bylaw area under section 26 of the Airport Authority Bylaw and no person shall, inter alia, make any offer of services in any part of the Bylaw area without the permission of the Authority.

4. The applicant pleaded in mitigation before the Magistrate that there was no sign specifying the Carpark was a Bylaw area, and he did not have any knowledge. The Magistrate rejected his plea as the applicant was an experienced taxi driver for 20 years. The Magistrate also took into account the aggravating feature of touting, the prevalence thereof and the need of a deterrent sentence. The Magistrate imposed a fine of $2,500. The maximum fine is $10,000.

5. I dismissed the appeal as I saw no ground to disturb the findings of the magistrate and I did not find the fine excessive.

Notice of motion

6. The notice of motion raised the following ground :

"During the appeal hearing it was only after 30 minutes that the prosecution presented a s.26 charge sheet ... Both the Judge and the prosecution did not understand the charge. How could I, a taxi driver, know [it]?"

7. At the application, the applicant further said he was not representing himself alone, but all the taxi drivers in Hong Kong. He submitted that if the Magistrate were right, there would be no need for any road sign in Hong Kong.

8. No point of law of great and general importance is involved in the decision, or raised by the applicant. It was only a matter of sentencing in the Magistrate not accepting facts pleaded in mitigation, which was within his power to do so. Hence, the application is refused.