HKSAR v. KWOK MAN CHI

HCMA 185/2023 & HCMA 186/2023

(Heard Together)

[2025] HKCFI 5396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 185 and 186 OF 2023

(ON APPEAL FROM KCP 12886 and 1541 OF 2023)

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BETWEEN

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DECISION

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1.  Two notices[1] were served on the Applicant by the police demanding payment of fixed penalty (the “Notices”) as she was the registered owner of a motor vehicle bearing registration number WN 6419 in two respective cases of illegal parking and road obstruction[2]. The Applicant did not notify the Commissioner of Police her wish to dispute liability for the contraventions of the relevant traffic offences nor did she pay the fixed penalty within 10 days of the issuance of the Notices. The Magistrate upon application under s. 16(2) of the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237) (the “Ordinance”) ordered[3] the Applicant to pay HK$1,080[4] for each of the Notices (the “Orders”).

2.  The Applicant was dissatisfied and applied to the Magistrate to review and rescind the Orders pursuant to s. 16A(2) of the Ordinance. At the end of the review proceedings[5], the Magistrate refused to rescind the Orders on the basis that he was not satisfied that the condition under s. 16A(1), namely the Notices had not come to the personal notice of the Applicant, had been met (the “Decision”).

3.  The Applicant appealed against the Decision and the appeal was dismissed under my judgment dated 2 September 2025 (the “Judgment”)[6].

4.  By a Notice of Motion dated 3 September 2025, the Applicant applied under section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) for a certificate that two points of law of great and general importance were involved in the Judgment. By a subsequent letter dated 25 September 2025, the Applicant withdrew the first point.

5.  Now the remaining proposed point of law is:

“In HKSAR v Li Cho Nim (李祖念) [2025] HKCFI 2188 (HCMA 115/2024), the court set out a principle: if the appellant did in fact comply with the requirements of the Fixed Penalty (Traffic Contraventions) Ordinance by notifying the Commissioner of Police of his intention to dispute liability, then the magistrate had no legal basis under section 16 of the Ordinance to make an order for payment of the fixed penalty and the additional penalty, and the relevant order should be quashed. In HKSAR v Kwok Man Chi (郭敏姿) [2025] HKCFI 4055 (HCMA 185 & 186/2023), however, the court took the view that even if the appellant could adduce evidence proving that she had notified the Commissioner of Police of her intention to dispute liability, she would still have to satisfy the court that she had not received the fixed penalty notice and that this was not due to her own negligence. Given these two differing rulings, which one is correct?” (the “Question”)

6.  Though the review proceedings and the appeal proceedings of this case were both conducted in Chinese, the Applicant asked for, and the Respondent agreed, that this application should be done in English and that it could be disposed of by paper.

7.  The relevant principles for this application are usefully summarised by Zervos JA in HKSAR v Kwan Tat Yee [7]. The grant of a certificate by the immediate appellate court is the first step in the process of applying for leave to appeal to the Court of Final Appeal on a point of law of great and general importance involved in its decision pursuant to s. 32(2) of the Court of Final Appeal Ordinance, Cap 484. The certifying court needs to be satisfied that the point of law (a) is involved in its decision; (b) is reasonably arguable; and (c) of great and general importance: Lee Kin Pong v HKSAR[8]; HKSAR v Fong Kwok Shan Christine[9].

8.  It is submitted by the Applicant that the Question is of great and general importance for it would provide certainty in the law on how review hearings under s. 16A of the Ordinance are to be approached and conducted so that all the defendants would not be left without clear guidance on how to conduct their defences. That contention is premised on the basis that the decision in Li Cho Nim and that in the Judgment on the application of s. 16 and s. 16A(1) of the Ordinance are conflicting, which is misconceived on the part of the Applicant. Those two decisions are not conflicting, they were case specific and the fact that they ended up with different results was simply due to different factual scenarios.

9.  It is provided under s. 16 and s. 16A(1) of the Ordinance that:-

“16. Recovery of fixed penalty

(1) If a person on whom a demand notice has been served has notified the Commissioner of Police, in accordance with that notice, that that person wishes to dispute liability, the matter must be determined by a magistrate on complaint, in a summary way, in accordance with this Ordinance.

(2) If a person on whom a demand notice has been served has not paid the fixed penalty and has not notified the Commissioner of Police, in accordance with that notice, that that person wishes to dispute liability for the contravention, a magistrate must, on an application which may be made in the absence of that person, order that person to pay the fixed penalty, together with an additional penalty equal to the amount of the fixed penalty, within 14 days of being served with notice of the order.

(3) – (6) …

16A. Review of proceedings

(1) If a magistrate is satisfied that the demand notice has not come to the personal notice of the person to whom the demand notice is addressed without any neglect by that person, the magistrate may, on an application of which reasonable notice has been given to the Commissioner of Police, rescind the order made under section 16(2) and …

(2) – (5) …”

10.  Quite clearly, in review proceedings under s. 16A of the Ordiance, a magistrate has to be satisfied under s.16A(1) of two conditions, namely (1) the demand notice has not come to the personal notice of the applicant and (2) that it is without any neglect by the applicant, before he may rescind the order for payment. This is well-settled and followed in many other similar decisions, including 香港特別行政區 訴 莊楚海[10] , 香港特別行政區 訴 林小碧[11] and 香港特別行政區 訴 鍾泰[12]. In fact, such principle was recited by the learned Judge in the case of Li Cho Nim[13].

11.  In Li Cho Nim, that appellant’s case was that he admitted having received the fixed penalty notice in question, but that he had notified the Commissioner of Police of his intention to dispute liability of the contravention electronically and also by putting such intention in writing on the fixed penalty notice by post[14]. As such, the issue of dispute was whether or not that appellant had in fact notify the Commissioner of Police of his intention to dispute liability for the contravention, instead of whether he had received the fixed penalty notice (which he admitted)[15].

12.  The learned Judge in Li Cho Nim held that while electronic notification did not constitute effective notification, the magistrate nevertheless failed to hear evidence properly and rule on whether or not the appellant had in fact mailed the notice and thereby notifying the police by post of his intention to dispute the contravention in accordance with the methods set out in the notice[16]. The learned Judge observed that, if that appellant had in fact comply with the statutory requirement (i.e. s. 16(1)) by notifying the Commissioner of Police that he intended to dispute liability, then the magistrate would have no legal basis under s. 16 (i.e. s. 16(2)) to order for payment of the penalty with the additional penalty and that the relevant order should be quashed[17]. It was on that basis that the learned Judge found that the magistrate erred and that the learned Judge allowed the appeal. That decision was simply based on the specific facts of that case (i.e. a factual dispute which the magistrate failed to resolve) and that it did not differ from or add anything new to the well-established principle in the application of s. 16A(1) of the Ordinance for the conduct of review proceedings.

13.  Going back to the present case, unlike the appellant in Li Cho Nim, the Applicant failed to tell the Magistrate at the review proceedings whether or not she had received the Notices. On that very issue, the Applicant told the Magistrate that she was “not sure” (“唔清楚”) and that she “let [her] husband handle the matter” (“交畀我先生處理”)[18]. As such, the Applicant did not confirm with the Magistrate as to whether the Notices “has come to the personal notice” of the Applicant, which is the first condition to be satisfied in review proceedings under s. 16A(1) of the Ordinance.

14.  In fact, that case of Li Cho Nim had been relied upon by the Applicant in this appeal, which I had considered and distinguished it from the present case on facts, namely the appellant in Li Cho Nim admitted having received the relevant fixed penalty notice (and therefore the issue was whether he had effectively notify the Commissioner of Police of his intention to dispute liability as he claimed to have sent the notice by post) whereas the Applicant in the present case refused to admit or deny whether she had in fact received the Notices in the first place[19].

15.  I therefore came to conclude, as the Magistrate did, that the Applicant was not able to satisfy the requirements set out in s. 16A(1) of the Ordinance to have the Orders rescinded and on that basis dismissed the appeal[20].

16.  As illustrated above, the case of Li Cho Nim and the present case are of different factual scenarios leading to different factual disputes and that the different outcomes are case specific involving no legal arguments. The Applicant’s contention that the decisions in those two cases are conflicting and that they set out different principles in review proceedings under s. 16A of the Ordinance was wholly misconceived.

17.  The Question proposed by the Applicant is not a reasonably arguable one of great and general importance. The requirement under s. 32(2) of the Court of Final Appeal Ordinance, Cap 484 has not been satisfied. I decline to issue a certificate for the Question and this application is refused.