HKSAR v. LEE CHI WANG JOHNSON

HCMA 632/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 632 OF 1999

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J U D G M E N T

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The appellant was issued a fixed penalty ticket on 23rd December 1998 for parking causing obstruction. He did not pay the fixed penalty because he wanted to dispute liability. His defence is that his car was not at the location referred to in the fixed penalty ticket and he alleges that he has security video camera recording for proof.

2. In due course, the appellant received a Notice Demanding Payment of Fixed Penalty ("the statutory demand") sent by the police pursuant to section 15(3) of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237. By this statutory demand, the appellant was required to pay the fixed penalty or notify the police on or before 5th February 1999 that he disputes liability. According to the appellant's own evidence, on 4th February 1999, he put three pieces of paper in an envelop and posted the envelop to the police. The papers were (1) a copy of the statutory demand but on it the appellant has scribbled "I oppose. Please investigate this summons. Never received it"; (2) the completed counterfoil giving notice to dispute liability; and (3) a hand-written letter stating his defence and the evidence he has.

3. By a letter dated 11th February 1999, the police acknowledged receipt of the appellant's complaint dated 4th February 1999. The police letter further stated that proceedings on the fixed penalty ticket will be put on hold and the complaint will be investigated. The next thing the appellant heard, San Po Kong Magistracy had on the ex parte application of the police imposed on the appellant the fixed penalty, additional penalty and costs totalling $1,080.00. The appellant applied for review and was heard on review. At the review hearing held on the 21st May 1999, the appellant gave evidence along the lines as related above. The evidence from the police were limited to four formal documents. The trial magistrate disbelieved the appellant and affirmed the earlier order imposing fixed penalty, additional penalty and costs.

4. The relevant provisions in the Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237 are:-

15. Notice and payment of fixed penalty

(1) If a police officer has reasonable cause to believe that a contravention is being or has been committed, he may give the registered owner of the vehicle concerned or, where section 3(2) applies, the driver liable an opportunity to discharge his liability in respect of that contravention by payment of a fixed penalty.

(2) For the purpose of subsection (1) notice in the prescribed from shall be delivered personally to the person in charge of the vehicle or fixed on the vehicle:

Provided that the operation of this section or section 16 shall not be affected by a failure to comply with this subsection.

(3) If the fixed penalty is not paid within 21 days after the date of a contravention a notice shall be served on the person liable -

(a) demanding payment of the fixed penalty; and

(b) informing the person that if he wishes to dispute liability for the contravention he should so notify the Commissioner of Police:

Provided that no notice shall be served under this subsection -

(i) if the Commissioner of Police is of the opinion that no further proceedings should be taken in respect of the contravention; or

(ii) after the expiry of 6 months from the date of the contravention.

(4) A notice under subsection (3) may be served by sending it by post -

(a) where it is directed to a registered owner, to his registered address; or

(b) where it is directed to a driver under section 3(2), to the address where the driver normally works.

(5) A notice under subsection (3) shall be in such form as may be prescribed and shall state that the person liable is required -

(a) to pay the fixed penalty; or

(b) to notify the Commissioner of Police that he wishes to dispute liability for the contravention.

16. Recovery of fixed penalty

(1) Where a person on whom a notice under section 15(3) has been served has notified the Commissioner of Police, in accordance with that notice, that he wishes to dispute liability, the matter shall be determined by a magistrate on complaint, in a summary way, in accordance with this Ordinance.

5. There is no doubt that the police sent the section 15 statutory demand to the appellant. There is also indisputable evidence that the police received from the appellant a complaint dated 4th February 1999. Notwithstanding that, according to a certificate from the police to the court, the appellant had not notified the police that he wished to dispute liability. This certificate, a standard form, is rather ambiguous. It does not say whether no notice to dispute liability was given or late notice to dispute liability was given. No evidence was called to clarify the ambiguity. To complicate matters, the prosecutor intimated to the trial magistrate that the police had received only the hand-written letter from the appellant but not the completed counterfoil giving notice to dispute liability.

6. According to the Statement of Findings by the trial magistrate, she disbelieved the appellant's evidence that (1) he had put the completed counterfoil giving notice to dispute liability in the envelop containing the complaint letter and (2) he had posted the envelop on 4th February. During the hearing before me, I was informed that unless the appellant sent the completed counterfoil notice to dispute liability, the police would treat the case as a "no dispute" one even if the appellant had sent a complaint letter.

7. However, section 15(5) of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237, only requires the appellant "to notify" the police. There is no where in this section or in any other part of the Ordinance provision requiring the appellant "to notify by specified form". All that the appellant has to do is to notify. In principle, there is not even need for notification in writing. Contrast this with the requirement in the same subsection specifying that the police statutory demand must be by a prescribed form. The prescribed form of statutory demand does contain a counterfoil for the recipient to complete giving notice to dispute liability; however, there is nothing in the prescribed form to say that the recipient must use the counterfoil to give notice to dispute liability. In the premises, I held that the appellant was entitled to use any method and any manner to communicate to the police of his wish to dispute liability. In this case, the appellant wrote a letter. It is abundantly clear from the letter that the appellant disputes liability and, better still, he gave the grounds of defence and indicated the evidence he has. So, even if the appellant had not put a completed counterfoil in the envelop containing the complaint letter, he did by the complaint letter notify the police of his wish to dispute liability.

8. Quite frankly, having gone through the Statement of Findings, I cannot find convincing reason given by the trial magistrate on why she did not believe the appellant that he had sent the completed counterfoil. The appellant went through the trouble of scribbling on a copy of the statutory demand and writing out a letter. There was no reason for him not to apply a few more strokes on the counterfoil and put that counterfoil together with the other two documents in the same envelop. Moreover, by scribbling the characters on a copy of the statutory demand and sending it in the same envelop to the police, that document alone is also sufficient to give the requisite notice to dispute liability.

9. Was the notification late? There is no clear evidence from the police. The police did receive the complaint. If the envelop was posted on 4th February 1999, in the normal course of Hong Kong efficient postal service, it would have arrived at its addressee the following day, 5th February 1999, in the nick of time. The only reason given for the trial magistrate not believing the appellant posted the envelop on 4th February 1999 is that the appellant had on another occasion communicated with the magistracy by fax at the eleventh hour. Well, that other occasion is proof that the appellant was capable of doing things in the nick of time. The only logical conclusion on the evidence before the trial magistrate is that the appellant did post the envelop with three notices on 4th February 1999 and it did reach the police on 5th February 1999.

10. The appellant having given valid and timely notice to dispute liability, the police ought to have proceeded in accordance with section 16 of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237 rather than to apply ex parte for additional penalty and costs. The proper step was to file complaint and obtain date to hear the dispute on liability. Counsel for the respondent conceded that since the police did not file complaint pursuant to section 16, the complaint is by now time barred.

11. The ex parte application for additional penalty and the review hearing were both faux pas and of no effect. I therefore quashed the fixed penalty, the additional penalty and the order for costs imposed by the magistracy. The appellant is entitled to be refunded the $1,080.00 he has paid. I declared that the matter is time-barred and no further proceeding may be taken against the appellant on the alleged traffic contravention.

12. I am told that if notice to dispute liability is not given in a standard form like the counterfoil in use there will be tremendous practical difficulties for the police. I can understand that. But I am not a law maker. I can only apply the law as it is. Perhaps the solution is to take urgent steps to amend the law. In this connection, I venture to suggest that perhaps consideration should be given to requiring notice to dispute liability, in standard form, be sent with payment of the fixed penalty (refundable upon proof of no liability) or a small fee to cover processing costs to the Director of Accounting Services. The Director of Accounting Services, after collecting payment, then transmits the dispute notice to the police for follow-up. This new procedure may eliminate arguments over whether notice was sent or received and eliminate frivolous disputes over liability.