THE QUEEN v. TANG FU WAH

BETWEEN :

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JUDGMENT

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Preliminary

1. The appellant was convicted of speeding, contrary to section 41(1)(a) of the Road Traffic Ordinance (Cap.374).

2. The prosecution case was that radar, operated by the police, established that the appellant was driving Kowloon Taxi BM 9706 on the Tuen Mun Road at a speed of 93 kilometers an hour, in a zone restricted to 70 kilometers, on the morning of 11th March, 1985.

3. The appellant, who elected to give no evidence and called no witnesses, was convicted by a magistrate, fined $1,200, ordered to pay $300 costs, and disqualified for one year for all vehicles, with an order that he should be retested.

4. The substantial ground of appeal put forward by the appellant was based on the wording of section 68 of the Road Traffic Ordinance (Cap.374) and on the sequence of events as they affected him.

Sequence of Events

5. On 11th March, shortly after the of fence was committed, a police officer issued a fixed penalty ticket to the appellant, for the offence of exceeding the speed limit.

6. The appellant paid this fixed penalty, a sum of $200, on 26th March.

7. By a letter dated 4th April, from the Commissioner of Police, the appellant was informed that the fixed penalty notice was withdrawn and that proceedings by way of traffic summons would be instituted in respect of the alleged offence.

8. He was further informed the reimbursement would be made to him if he had paid the fixed penalty amount demanded.

9. It was admitted by the Crown that this letter was the first intimation of an intention to prosecute.

Section 68 of Cap. 374

10. Section 68 of the Road Traffic Ordinance reads as follows -

"68. (1) Subject to subsection (2), a person prosecuted for an offence under section 36, 37, 38 or 41 (which relate respectively to causing death by reckless driving, reckless driving, careless driving and driving in excess of the speed limit) shall not be convicted of such offence unless -

 

    (2)      Subsection (1) shall not apply if it appears to the court or magistrate that -

 

 

(3)    The requirements of subsection (1) shall in every case be presumed to have been complied with unless and until the contrary is proved. ”

 

11. Counsel for the Crown conceded that the issue of the notice of intention to prosecute on 4th April did not satisfy paragraphs (a), (b) or (c) of section 68(1).

12. He argued, initially, that the conditions of paragraph (d) of section 68(1) were satisfied since the appellant was charged with an offence under section 41 and had been served with a notice under section 3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance.

13. However, after reflection, he conceded that there had not been a failure by the appellant to comply with the Fixed Penalty notice, since he had paid the amount due under the notice.

14. Nor could the Crown rely on the presumption provided by section 68(3), since the evidence established that the provisions of subsection (1) had not been complied with.

Prejudice to the appellant

15. The appellant's main ground was that section 68(2) (a) was not applicable, so as to validate the prosecution "out of time", because the appellant must have been prejudiced at his trial by reason of the fact that he had been issued with and paid a fixed penalty ticket.

16. The prejudice was said to have arisen from the likelihood that a defendant, if he chose to give evidence, would be cross-examined as to why he paid the fixed penalty, if he did not consider himself to be guilty of the offence in respect of which he had done so. The appellant himself gave no evidence in support of this proposition which, Mr. Cunston conceded, had to be derived from the circumstances.

17. As I understand it from Crown Counsel, the usual practice, and it is a sensible enough one, is for a fixed penalty ticket to be issued on the spot in cases of speeding. If, on further investigation, the police consider that the incident was a serious one or that the record of the accused's warrants it, a summons may be issued and the fixed penalty notice cancelled. Section 4 of the Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240) authorizes such a procedure.

18. If, therefore, a defendant pays the fixed penalty and later receives a summons, is the fact of his payment, with its admission of guilt, to be regarded as prejudicing him in his defence?

19. The magistrate did not direct his attention to this issue in his statement of findings, since he was informed only that a fixed penalty ticket had been issued and withdrawn, not that the defendant had paid it. Inherent, though not expressed, in his conclusion that the defendant had not been prejudiced by the failure of the prosecution to comply with section 68(1) of Cap.374, must be a finding that the mere issue and withdrawal of a fixed penalty ticket does not amount to prejudice. This is surely a correct conclusion in view of the terms of section 4(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap.240, which states that the withdrawal of a fixed penalty notice is not to bar any proceedings in respect of the offence specified is the notice.

20. The magistrate found in terms that the delay of "some seven days" in sending a notice of intended prosecution to the appellant had not prejudiced him in his defence in any way. This is hardly surprising, in the absence of any evidence that this short delay had had any effect.

21. Section 68(2)(a) provides that section 68(1) shall not apply if it appears to the court that "the person prosecuted was not prejudiced in his defence by a failure to comply with that subsection".

22. The magistrate, as I have noted above, did not know that the appellant had paid the fixed penalty ticket, only that it had been withdrawn. So it cannot be said, therefore, that he was prejudiced by the knowledge of the admission inherent in such payment. This is not, however, the only consideration, since a defendant can be prejudiced in his defence even if the facts giving rise to such prejudice are not known to the magistrate.

23. I think that the answer to Mr. Gunston's submission is that, if there was any prejudice to the defendant, this was not caused by a failure by the prosecution to comply with section 68(2), but by the appellant's own action in paying the fine. If he pleads not guilty when the summons for speeding is heard, he may well find himself questioned as to why he paid the fixed penalty. But it will be his earlier admission that creates his difficulties, not the lateness of the notice of intended prosecution.

24. It is worth noting that it is possible for a fixed penalty notice to have been paid, and withdrawn, and a summons issued within 14 days under section 68(1)(c). In such circumstances, the defendant cannot plead prejudice.

Sentence

25. I gave leave to appeal against sentence out of time. The main submission was that the disqualification should have been restricted to the class of vehicle being driven by the appellant at the time of the offence, namely, to drive taxis, a limited form of disqualification which is permitted by section 69(2) of Cap.374.

26. To permit the appellant to drive vehicles other than taxis would not help him to earn his living as a taxi driver. Nor were there any special grounds, other than the inconvenience involved, advanced for limiting the magistrate's order for disqualification in the manner suggested.

27. The appellant has a poor driving record, with 15 convictions for driving offences since 1976. I see no reason for interfering with the penalties imposed by the magistrate.

28. The appeals against conviction and sentence are refused.