Case Detail

HKSAR v. SO NAI CHUNG PILOT

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41199-EN-2004-07-22

HKSAR v. SO NAI CHUNG PILOT

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HCMA000571A/2004

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)

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

BETWEEN
	HKSAR	Respondent

	AND

	SO NAI CHUNG PILOT (蘇乃忠)	Appellant

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

Coram: Deputy High Court Judge Fung in Court

Date of Hearing: 22 July 2004

Date of Decision: 22 July 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.

	(B. Fung)
	Deputy High Court Judge

Representation:

Ms Lynda Shine, SGC of the Department of Justice, for the Respondent

Appellant in person

HCMA000571/2004

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)

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

BETWEEN
	HKSAR	Respondent

	AND

	SO NAI CHUNG PILOT (蘇乃忠)	Appellant

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

Coram: Deputy High Court Judge Fung in Court

Date of Hearing: 7 July 2004

Date of Judgment: 7 July 2004

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

J U D G M E N T

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

1. The appellant 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. He was fined $2,500. He is now appealing against sentence.

The facts

2. On 17 April 2004 the appellant drove his taxi into Carpark 2 of the Hong Kong International Airport. He later drove up to and touted an undercover police officer posing as a tourist in the loading area of Carpark 2. The deal was struck to take her to Yuen Long for $200.

3.In mitigation, the appellant submitted that there was no sign at the airport that he could not pick up a passenger in that area. The Magistrate rejected his claim of lack of knowledge as the appellant was a taxi driver for 20 years. The Magistrate found that the appellant knew very well that he could not tout in a carpark in the airport.

Grounds of appeal

4. The appellant complained that the Magistrate ought not have rejected his submission that he had no knowledge that Carpark 2 was a prohibited area. At the appeal, he put in evidence of photographs used submitted that they did not show any sign specifying that the carpark was an area where he could not pick up a passenger. As to the negotiating of the fare, he said he knew that taxi driver should not tout for passenger but it was the disguised passenger who asked for a reduced fee and in the circumstances of the economy, he went by her proposal.

Consideration upon appeal

5. Section 26 of the Airport Authority Bylaw reads as follows :

"(1) No person shall, without permission of the Authority, carry on any business, carry on any activity as a hawker, sell or distribute anything, conduct any survey, tout, solicit or invite persons to purchase, expose or offer anything for sale or hire or make any offer of services in any part of the Bylaw area."

6. The venue in question was a Bylaw area and no person is permitted to make an offer of transport to any other person without the permission of the Airport Authority. This fact was admitted by the appellant upon entering the plea of guilty. As to the fact there was no sign, this matter did not take it any further because it was admitted that this was a Bylaw area and the Magistrate had found that an experienced taxi driver would know this fact. I do not find that I should disturb this finding as the basis of sentence by the Magistrate. Further, the case also involved the touting of passengers by agreeing to a reduced fee or a fixed fee. The maximum sentence for the offence was a level 3 fine ($10,000) and one month imprisonment. The Magistrate took into account the prevalence of this offence in the airport and touting was unfair to other taxi drivers and he imposed a fine of $2,500.

7. In all the circumstances, I do not find this fine excessive. Hence the appeal is dismissed.

	(B. Fung)
	Deputy High Court Judge

Representation:

Ms Lynda Shine, SGC of the Department of Justice, for the Respondent

Appellant in person