R. v. FUNG, PAUL TIMOTHY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.900 OF 1995

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J U D G M E N T

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1. This was an appeal against an order made by a magistrate that the appellant pay a fixed penalty, an additional penalty and costs in respect of a traffic summons.

2. On 6th February 1995, the appellant was issued with a fixed penalty ticket for failing to comply with traffic light signals. In accordance with s.3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap.240, he was served with a demand notice by post. The appellant did not pay the fixed penalty and the Crown applied for an ex parte order under s.3A(1) of the said Ordinance in the appellant's absence. Such an order was granted on 28th April 1995 and the appellant was ordered to pay the fixed penalty, an additional penalty and costs.

3. He sought a review of that order and the hearing of the review was on 22nd August 1995. In the course of that review, the appellant claimed that he had never received the demand notice, but that he always wished to contest the traffic summons. The learned Magistrate found that the appellant was negligent in failing to give to the police an address where it was likely that he would receive mail forwarded to him. The Magistrate refused to change his order.

4. The appellant appeared before me armed with photographs and submissions to the effect that the original traffic summons was given to him in error. It seemed to me, on the face of what the appellant showed me, that he had a viable argument. Not wishing therefore to deny the appellant the right to dispute the summons on the technical ground that he had not given the police a mailable address, I allowed the appeal, reversed the learned Magistrate's order, and sent the matter back to the Magistrate to decide the traffic summons on its merit.