Hong Kong court upholds ban on Uber drivers without hire-car permit, saying new modes of transport do not outdate old traffic laws

A Hong Kong court has upheld a ban on Uber drivers without a hire-car permit, maintaining 24 previous convictions on the grounds that new modes of transport do not outdate old traffic laws.

In a judgment handed down at the High Court on Friday, Mr Justice Alex Lee Wan-tang ruled that the drivers, each of whom were convicted in a lower court of driving passengers without a hire-car permit, had committed the offence of offering carriage services of a commercial or business nature, while expecting a reward in return, albeit not directly from the passengers concerned.

This is the first appeal to pit Uber against the city’s authorities, after 28 drivers, aged 22 to 60, were fined between HK$3,800 (US$485) and HK$4,500 in July 2018.

But the attempt ended in failure, as Lee found that the mode of operation introduced by Uber, which acts as an intermediary between drivers and passengers, is also under the supervision of Section 52(3) of the Road Traffic Ordinance, which was last updated more than three decades ago.

The ride-hailing service has not obtained a government permit for transport services since its arrival in 2014, and as a result Uber drivers who have no hire-car permits continue to face arrest.

In March last year, the firm launched Uber Flash, an initiative to partner with local taxi drivers, in a bid to comply with Hong Kong’s regulations. But a small taxi firm it partnered with backed out at the last minute.

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Lee ruled that for the offence of driving passengers without a hire-car permit, the prosecution only needed to show the court a driver used a motor vehicle to carry passengers “for hire or reward”. Whether the vehicle is “private” or “public” was irrelevant. He also ruled that the payment by passengers need not be made directly to drivers to secure conviction.

Derek Chan Ching-lung SC, who represented all appellants in the case, argued that the innovative mode of business pioneered by Uber called into question whether existing traffic laws were capable of keeping pace with technological advancement.

But Lee refuted the claim, saying the booming service was only different from illegal taxis in the 1970s in ways that it inserted an intermediary – Uber – to facilitate and arrange the carriage service, and gave rise to a new payment method so that the passenger would not pay the driver directly. However, neither of these features were relevant to what constituted the offence in this case.

“Although the use of an intermediary might not have been common back in the 1970s, I do not agree that it was a situation not contemplated by the legislature,” Lee said in his judgment.

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“If it is argued that there should be a change in the policy restricting the use of private motor vehicles for carriage of passengers for hire or reward, any such change must be left to the legislature.”

Under the existing law, any person who drives, uses, or suffers or permits to be driven or used, any motor vehicle for the carriage of passengers for hire or reward, is punishable by a fine of HK$5,000 and up to three months in prison for first offenders. Subsequent convictions may result in a fine of HK$10,000 and imprisonment of six months.