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Hksar v Yuong Ho Cheung And Others

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date23 September 2020
Neutral Citation[2020] HKCFA 29
Judgement NumberFACC1/2020
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC1/2020 HKSAR v. YUONG HO CHEUNG AND OTHERS

FACC No. 1 of 2020

[2020] HKCFA 29

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2020 (CRIMINAL)

(ON APPEAL FROM HCMA NOS. 381-399, 401-402, 404-405 AND 415 OF 2018

(CONSOLIDATED))

_________________________

BETWEEN
HKSAR Respondent
and
YUONG HO CHEUNG 1st Appellant
Appellant in
HCMA 381/2018)
YIP WAI MING 2nd Appellant
(Appellant in
HCMA 382/2018)
YIP KA SHING 3rd Appellant
(Appellant in
HCMA 383/2018)
CHOW KWOK KWONG ALAN 4th Appellant
(Appellant in
HCMA 384/2018)
CHAN PAK KAY ANDREW 5th Appellant
(Appellant in
HCMA 385/2018)
LAM YAN MING 6th Appellant
(Appellant in
HCMA 386/2018)
WONG WAI KEUNG 7th Appellant
(Appellant in
HCMA 387/2018)
TSANG KWOK MING 8th Appellant
(Appellant in
HCMA 388/2018)
HUI KWOK WAI 9th Appellant
(Appellant in
HCMA 389/2018)
LEE HING LUNG GARY 10th Appellant
(Appellant in
HCMA 390/2018)
LAU KIN FUNG BOSCO 11th Appellant
(Appellant in
HCMA 391/2018)
TSE KEE BO 12th Appellant
(Appellant in
HCMA 392/2018)
TONG PO HIN 13th Appellant
(Appellant in
HCMA 393/2018)
WONG SAI MING 14th Appellant
(Appellant in
HCMA 394/2018)
LI SUI LEUNG 15th Appellant
(Appellant in
HCMA 395/2018)
LEE KWOK LEUNG 16th Appellant
(Appellant in
HCMA 396/2018)
CHUNG TZE CHUN IVAN 17th Appellant
(Appellant in
HCMA 397/2018)
CHEUNG YUK FUNG ADRAIN 18th Appellant
(Appellant in
HCMA 398/2018)
WONG SIU PONG 19th Appellant
(Appellant in
HCMA 399/2018)
WONG TAK MING 20th Appellant
(Appellant in
HCMA 401/2018)
KONG CHEUK LAI 21st Appellant
(Appellant in
HCMA 402/2018)
FAN WING YAU 22nd Appellant
(Appellant in
HCMA 404/2018)
LAM KIN FAT 23rd Appellant
(Appellant in
HCMA 405/2018)
CHICK WAI HO 24th Appellant
(Appellant in
HCMA 415/2018)

_________________________

Before: Chief Justice Ma, Mr Justice Ribeiro PJ,
Mr Justice Fok PJ, Mr Justice Cheung PJ and
Lord Sumption NPJ
Date of Hearing: 1 September 2020
Date of Judgment: 1 September 2020
Date of Reasons for Judgment: 23 September 2020

________________________

REASONS FOR JUDGMENT

________________________

Chief Justice Ma:

1. I agree with the Reasons for Judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2. I agree with the Reasons for Judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

A. Introduction

3. Over the past decade, a form of transport has developed in many cities around the world from the use of new computer and internet technologies, including mapping and payment software programmes, that enable drivers of cars and passengers to locate one another, whether or not through third parties, and to request, provide and pay for carriage through the medium of their smartphones. The question that arises in this appeal is whether, in this jurisdiction, drivers who carry passengers in this manner can be guilty of the offence of contravening s.52(3) of the Road Traffic Ordinance (Cap.374) (“the RTO”). On the facts of this case, for the reasons which follow, an affirmative answer must be given to that question. Consequently, at the hearing, after hearing counsel for the appellants, the Court dismissed the appeal for reasons to be given in due course. These are my reasons for dismissing the appeal.

4. By s.52(3) of the RTO, it is provided that:

“(3) 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.”

5. Contravention of the prohibition in s.52(3) is an offence under s.52(10) of the RTO which relevantly provides:

“(10) Any person who contravenes—

(a) this section, other than subsection (2) [concerning user of an unlicensed rickshaw], commits an offence and is liable in the case of a first conviction for that offence to a fine of $5,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction for that offence to a fine of $10,000 and to imprisonment for 6 months”.

6. The appellants each faced a single charge of “driving a motor vehicle for the carriage of passengers for hire or reward without a hire car permit” contrary to s.52(3) and s.52(10) of the RTO.

7. On the relevant dates charged, the appellants each drove and carried passengers in a private car in the following circumstances. The passengers, 21 of whom were undercover police officers and three of whom were civilians, had each used the Uber App on their smartphones to request a ride from a specified location to another specified location. The appellants respectively drove to the appointed places to pick up the passengers and then drove the passengers to their specified destinations. At the end of each trip, the fare was paid for by the passenger by a credit card transfer to an Uber entity and the passenger was notified by the Uber App of the amount paid. Although there was no direct evidence of the receipt by the appellants of any payments relating directly to the particular trips, there was some evidence of Uber paying remuneration to some of them. There was no hire car permit in force in respect of any of the motor vehicles driven by the appellants.

8. On 17 July 2018, the appellants were each convicted by a magistrate of the offence charged and sentenced to fines ranging from HK$3,000 to HK$4,500.[1] On 13 September 2019, their appeals against conviction to the Court of First Instance were dismissed.[2] On 29 November 2019, the judge refused to certify that points of law of great and general importance were involved in his judgment.[3] On 20 March 2020, the Appeal Committee granted leave to appeal to the Court of Final Appeal on the following question of law:

“What, on the true construction of the Road Traffic Ordinance, Cap.374, are the elements of the s.52(3) offence with which the applicants were charged, and in particular, what is the proper construction of the phrase ‘for the carriage of passengers for hire or reward’ as used in that sub-section?” [4]

B. The legislative scheme

9. The issue to be addressed in this judgment, as will be seen when the appellants’ case is discussed below, is one of statutory construction of s.52(3) of the RTO. It is therefore convenient to begin by setting out the legislative scheme in which that provision falls.

B.1 Prohibition on certain types of user of vehicles

10. As might be expected from its subject matter, the RTO is an ordinance of considerable breadth. Its long title states that it is “[t]o provide for the regulation of road traffic and the use of vehicles and roads (including private roads) and for other purposes connected therewith.” In addition to the principal ordinance, there are regulations in subsidiary legislation covering activities including the construction and maintenance of vehicles, driving licences, parking, public service vehicles, the registration and licensing of vehicles, safety equipment, traffic control and so forth.

11. Part 6 of the RTO is headed “Use, Sale and Hire of Vehicles” and s.52 is the first section in that part. The heading of s.52 itself is “Restriction on the use of vehicles” and it contains a series of prohibitions in respect of various types of vehicles and activities. The prohibitions apply unless the vehicles concerned have been properly licensed. Section 52 essentially imposes a licensing regime as its regulatory purpose.

(1) In HKSAR v Cheung Wai Kwong, the Court addressed the prohibition in s.52(1) and made certain observations about the legislative purpose of licensing under that provision.[5]

(2) In this appeal, we are concerned with the prohibitions in s.52(3), namely on (a) the driving or use of a motor vehicle for the carriage of passengers for hire or reward, and (b) the suffering or permitting of a motor vehicle to be driven or used for the carriage of passengers for hire or reward, unless the vehicle is licensed as a public bus, public light bus or taxi (s.52(3)(i)), or is licensed as a private bus or private light bus and used for particular types of carriage (s.52(3)(ii) and (iia)), or is a private car and there is a hire car permit[6] in force in respect of it (s.52(3)(iii)).

(3) It is relevant to note one of the other prohibitions in s.52, namely s.52(6) which provides that: “No person shall permit or suffer a motor vehicle which is licensed as a private car, private light bus or private bus to stand or ply for hire or reward.”

(4) As will be seen, these or similar prohibitions have been part of the road traffic legislation in Hong Kong for many years.

B.2 The hire car permit regime

12. Section 52(3) applies to motor vehicles, which, as defined,[7] covers any mechanically propelled vehicle. The present case is concerned, within that definition, with private cars. The prohibition in s.52(3) does not apply to a private car in respect of which a hire car permit is in force.

13. The regulations concerning hire car permits are contained in Part III of the Road Traffic (Public Service Vehicles) Regulations (Cap.374D). A “hire...

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