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Uber drivers have been dealt another blow in Hong Kong, with 24 of them losing their appeal against passenger-carrying convictions. Photo: Handout

Uber drivers in Hong Kong lose final court appeal against convictions for carrying passengers

  • City’s most senior judge dismisses challenge from 24 motorists in ruling Uber calls disappointing
  • Despite operating in the city for six years, the firm’s rides have been deemed illegal for taking passengers without a hire-car permit
Uber

Twenty-four Uber drivers found guilty of carrying passengers for hire or reward have lost their last-ditch appeals in the first such case heard by Hong Kong’s top court.

Chief Justice Geoffrey Ma Tao-li on Tuesday dismissed the unprecedented challenge before prosecutors could respond to the appellants’ case heard in the Court of Final Appeal, and reserved full judgment to be handed down at a later date.

The popular ride-hailing service has been struggling to comply with local laws, while providing millions of trips to Hongkongers since it arrived in the city in 2014.

Uber described the ruling as disappointing and demanded an urgent meeting with the Hong Kong government to find a solution for ride-hailing services in the city.

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The case stemmed from the conviction of 28 drivers, the largest group so far, who were fined between HK$3,000 and HK$4,500 in 2018.

The Court of First Instance last year threw out the appeals lodged by 24 of the drivers, finding that new modes of transport did not outdate old traffic laws.

Under the Road Traffic Ordinance, any person who drives, uses, suffers, or permits to be driven or used, any motor vehicle for the carriage of passengers for hire or reward without a hire car permit is guilty of an offence punishable by a maximum fine of HK$5,000 (US$644) and up to three months in prison on first conviction.

At issue was the proper interpretation of the phrase, “for the carriage of passengers for hire or reward”, in Section 52(3), which created the offence.

Jonathan Caplan QC, for the drivers, said the licensing regime was created to restrict and control the use of private vehicles for hire or reward as there was a real concern that private cars were plying for hire on the streets before the permits were introduced in 1977.

But the section does not capture all those who drive for reward, he said, as that interpretation would be too wide, covering arrangements such as private chauffeurs.

05:06

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Instead, Caplan argued that the disputed phrase imparts mens rea – or the intention of wrongdoing – on the provision, contrary to the prosecution’s claim that it was a strict liability offence that does not require proof of such intention.

“What needs to be proved is a direct agreement between drivers and passengers that the drivers would be rewarded for the instance of carriage,” he told the panel of five judges. “The Uber situation is quite a different operation and a very different enterprise from the others – it clearly isn’t something within the contemplation of the legislature.”

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Caplan observed that his clients were not driving because of an agreement with passengers, but pursuant to a pre-existing, general agreement with Uber.

“We’re dealing with a situation where technology has arranged both the carriage and payment directly with the passenger,” he continued. “It cannot possibly be said that the driver is plying for hire. He’s not motivated by passenger reward, he’s motivated by Uber, albeit he’s paid, he’s motivated by a different contractual relationship.”

The five judges were Ma and leading justices Robert Ribeiro, Joseph Fok, Andrew Cheung Kui-nung and Lord Jonathan Sumption.

An Uber spokesman said after Tuesday’s ruling: “We are disappointed by the court’s decision today, and we will continue to support the 24 driver-partners and their families during this challenging time.

“This decision, coupled with the continuing lack of progress on ride-sharing regulation, is also disappointing for the more than 14,000 driver-partners who rely on Uber during the current economic crisis, and the millions of Hongkongers they help get from A to B.

“We urgently call for the government to meet with us so all industry participants can work together to find a solution.”

This article appeared in the South China Morning Post print edition as: End of the legal road for Uber drivers as top city court throws out appeals
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