HKSAR v. KONG WAI KEUNG

HCMA482/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.482 OF 1998

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J U D G M E N T

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1. The Appellant was 'ticketed' for speeding on 17th September 1997 at 11.54 a.m. in Kwai Chung Road.

2. In accordance with s.3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap.240, a demand notice dated 25th November 1997 was served by post to the Appellant's registered address. Under s.3(6) of the Ordinance, the Appellant had 21 days from the date of that notice to serve a notice to the Commissioner of Police of his intention to dispute liability. That 21 days ended on 16th December 1997.

3. The Appellant admits to receiving the demand notice dated 25th November 1997, but only submitted a notice to dispute liability to the Commissioner of Police by hand on 22nd December 1997, which was six days outside the 21 day period prescribed by the Ordinance.

4. The Commissioner of Police replied by letter the following day, namely 23rd December 1997, that since the Appellant's notice to dispute liability was received by the Police outside the period for disputing liability, the Commissioner of Police would not entertain the Appellant's request to dispute liability. Thereafter numerous correspondence followed between the Appellant and the Commissioner of Police, but nothing availed the Appellant in his wish to dispute liability for the speeding offence.

5. An application was then made ex parte by the Police for an order under s.3A(1) of the Ordinance which was to be heard by a Magistrate on 20th February 1998. Prior to the hearing of that application, the Appellant applied to the Magistrate to stay the issue of the ex parte order sought. The Magistrate replied by letter dated 16th February 1998 to the effect that at that stage he had no jurisdiction to stay that application for an ex parte order.

6. On 20th February 1998, the ex parte application under s.3A(1) of the Ordinance was granted by the Magistrate and an ex parte order made against the Appellant for payment of the fixed penalty of $450, together with an additional penalty equal to that amount and costs of $440. By a fax letter dated 28th February 1998, the Appellant applied for a review under s.3B of the Ordinance of the ex parte order made against him on 20th February 1998. This application for review was refused by the Magistrate on the grounds that the Appellant admitted to receiving the demand notice but was late in submitting his notice to dispute liability.

7. The Appellant now appeals against the ex parte order of 20th February 1998 made against him on two grounds. Firstly, he says that the Magistrate, in making the ex parte order on 20th February 1998, should have considered his application for leave to dispute liability even though the time for doing so had expired. Secondly, he says that the Magistrate, when refusing his application for leave to review, had failed to consider the merits of his application and that the Magistrate was wrong in law to have refused his application.

8. I shall deal firstly with the review under s.3B(1) of the Ordinance which reads :-

" Where a magistrate is satisfied that the notice mentioned in section 3(3) has not come to the personal notice of the person to whom it 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 3A(1) and -

(a) if that person wishes to dispute liability for the offence, give leave to that effect; or

(b) if he does not wish to dispute liability -

(i) order him to pay the fixed penalty within 21 days of the order; and

(ii) order that, if he fails to pay that fixed penalty within that period, he shall be liable to pay immediately that fixed penalty together with an additional penalty equal to the amount of the fixed penalty."

Since it is accepted by the Appellant at all times that he did receive and had personal notice of the demand notice, s.3B(1) can have no application to this case. Accordingly, the Magistrate was not wrong to have refused the Appellant's application for a review under that section.

9. The second point I have to decide is whether a Magistrate has any discretion to hear the Appellant on the merits of his case, where the Appellant has not given notice to dispute liability within the specified period of 21 days before making the ex parte order under s.3A(1) of the Ordinance. The material words contained in s.3A(1) of the Ordinance are :-

"... and has not notified the Commissioner of Police, in accordance with that notice, that he wishes to dispute liability for the offence ..."

A notice to dispute liability which is outside the 21 day period prescribed by s.3(6) of the Ordinance is clearly not in accordance with the demand notice. Nothing in s.3 or s.3A of the Ordinance indicates that the Magistrate has a discretion once the notice to dispute liability is not given within the prescribed time period.

10. The powers of a Magistrate is wholly governed by the words of statutes and he has only such powers as is given to him by statutes. A clear example of this can be seen in s.114A of the Magistrates' Ordinance, Cap.227, where a Magistrate is given expressly, by statute, a discretion to extend the time limit for giving notice of appeal under s.114 of that Ordinance.

11. In the present case the Fixed Penalty (Criminal Proceedings) Ordinance does not, apart from s.3B, give the Magistrate any discretion insofar as the 21 day period for giving notice to dispute liability is concerned and therefore the Magistrate has no discretion, apart from s.3B, in the matter.

12. Even if the Magistrate did have such a discretion, which he does not have, in the present case, I cannot see that any Magistrate would have exercised that discretion in the Appellant's favour for in the course of hearing the appeal, I was told by the Appellant that the reason for his delay in giving notice to dispute liability was that he had entrusted a friend to give such notice for him, but that the friend had been late in doing so, and when he had realised the position and gave notice himself by hand, he was already six days out of time. Accordingly, this appeal is dismissed.