Q7. What could the driver do if a passenger does not have money to pay for the fare? Can the driver keep the HKID/passport/staff card/other personal belongings of the passenger until the fare is received, if the passenger is willing to do so?
What could the driver do if a passenger does not have money to pay for the fare?
The driver could request the passenger to give to the driver of the taxi his name and an address at which he can be found: see Regulation 48(1)(c) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).
If the passenger refuses to give to the driver of the taxi his name and an address at which he can be found, the taxi driver may arrest the person and may detain such person until he can be handed over to a police officer: see Section 58 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).
Can the driver keep the HKID/passport/staff card/other personal belongings of the passenger until the fare is received, if the passenger is willing to do so?
- HKID/passport
The driver can only keep the HKID/passport of a passenger under a lawful authority or where a reasonable excuse exists.
Under Section 7A(1A) of the Registration of Persons Ordinance (Cap. 177), any person who without lawful authority or reasonable excuse uses or has in his custody or possession an identity card or other document issued under Cap. 177 which relates to another person commits an offence and is liable on conviction on indictment to a fine at HK$100,000 and to imprisonment for 10 years; and on summary conviction to a fine at HK$50,000 and to imprisonment for 2 years.
Under Section 7A(2) of the Registration of Persons Ordinance (Cap. 177), an accused person shall be deemed to have an identity card or other document or a forged identity card or other document in his custody or possession if he :-
- Has it in his personal custody or possession; or
- Knowingly has it in the actual custody or possession of any other person, or has it in any other place, whether occupied by himself or not,
and it is immaterial whether the identity card or other document or the forged identity card or other document, as the case may be, is in such custody, possession or place for the use of the accused person or that of another person.
Lawful authority:
“Lawful authority” extends to and denotes any permission which may be lawfully given by a public officer or department or by a private person. It is submitted that this general definition applies: see Section 2(1) of the Summary Offences Ordinance (Cap. 228).
Reasonable excuse:
Whether the driver can keep the HKID/passport of the passenger depends on whether there exists any reasonable excuse for doing so. The relevant tests has been laid down in HKSAR v Ho Loy (2016) 19 HKCFAR 110, which are :-
- The matters said to constitute reasonable excuse must be identified;
- Whether the excuse is genuine, since the reason asserted for departing from a relevant prescription must be the real reason for doing so;
- Whether that excuse is reasonable, which the court will do on an objective standard depending on the particular facts of the case.
First, the excuse which is said to be reasonable is to keep a passenger’s ID as a pledge to pay for the unpaid fares. The excuse may be genuine. Thus, the question is whether by applying an objective standard, the excuse is reasonable.
In HKSAR v Chung Ka Wai [2018] 2 HKLRD 1090, Hon Yeung VP held that :-
“34. This court should point out that in daily life, it happens quite often that people have in their possession/custody an identity card relating to another person, which may not necessarily involve inherently culpable conduct. For example, parents may have in their possession their children’s identity cards for safety reasons; spouses may, for some reasons, have in their possession the identity card of one another; the same is true for family members too. In some commercial transactions, staff members may also need to keep the customers’ identity cards for a short while. Under the above circumstances, if those parents, spouses, family and staff members must discharge their legal burden by establishing the defence of “lawful authority” or “reasonable excuse” before they can absolve themselves from liability, it will bring huge trouble to these people who are in possession of an identity card relating to another person. Yet, this court also needs to point out that, under the above circumstances, there shall not be any difficulty for those charged with possession of an identity card relating to another person to raise the defence of “reasonable excuse”.”
Thus, whether there exists any reasonable excuse is a fact-sensitive matter. If the matter is said to be genuine, that the driver of the taxi genuinely wants to keep the passenger’s ID as a pledge, then it may constitute a reasonable excuse for keeping the passenger’s ID.
- Other belongings
If the passenger is willing to do so, it is not illegal for a driver to keep the staff card, or other personal belongings of the passenger until the fare is received.