Q2. Can a taxi driver refuse to take a passenger who is known to be an infectious disease carrier or be subject to compulsory quarantine?
The driver of a taxi shall not without reasonable excuse wilfully refuse or neglect to accept a hire from a hirer whether the intention of such hirer is indicated expressly or by implication: see Regulation 37(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).
In determining whether the driver of a taxi has a reasonable excuse, the Court will look at the following three circumstances :-
- 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.
[See HKSAR v Ho Loy (2016) 19 HKCFAR 110]
What constitutes a reasonable excuse depends on the fact of each case and there is no hard-and-fast rule: see香港特別行政區 訴 梁偉民 (HCMA 333/2018, 20 December 2018):-
“24. The Appellant’s appeal is allowed in the present case based on the special circumstances and evidence of the case. I must emphasize that the cardinal principle of “passenger having the right to choose taxi, but taxi driver cannot choose passenger” has not been changed. Taxi drivers in the industry should not treat the present case as the precedent of legal refusal of taking passenger. As to the meaning of “reasonable excuse”, it absolutely depends on the facts of each particular case and there is no hard-and-fast rule.” [English Translation]
In香港特別行政區 訴 王祁偉 (HCMA 280/2015, 3 July 2015), the taxi driver in the mid-way stopped and requested the passenger to get off the car on the ground that he saw the passenger having red spots on his skin and mistaken that the red spots are infectious. The Court of First Instance held that the red spots may not be infectious and that the driver’s act was “discriminatory”. The driver in that case remained guilty of refusing or neglecting to drive the taxi to any place indicated by a hirer under Regulation 37(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).
However, each case must turn on its own fact. Where the driver knows that a passenger is suffering an infectious disease, a refusal to accept hire on the ground of “self-help” may constitute a “reasonable excuse”. Of course, this would also depend on whether such excuse is genuine.
Under Regulation 32(1) of Prevention and Control of Disease Regulation (Cap. 599A), a person shall not, knowing that he is a contact or is infected with a specified infectious disease, expose other persons to the risk of infection—
- by the person’s presence or conduct in—
- any public conveyance; or
- any street, public place, place of entertainment or assembly, club or hotel; or
- by carrying on any trade, business or occupation.
A person who contravenes Regulation 32(1) or (2) commits an offence and is liable on conviction to a fine at $10,000 and to imprisonment for 6 months: see Regulation 32(3) of Prevention and Control of Disease Regulation (Cap. 599A).
Thus, the ground of “self-help” may constitute a reasonable excuse in rejecting hire from hirer with infectious disease or under a quarantine order (where there is risk of infection of COVID 19).