HKSAR v. WU KAR LUN, CHARLES

HCMA 269/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 269 OF 2015

(ON APPEAL FROM KCP NO 462 OF 2015)

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J U D G M E N T

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1.  This is an appeal against the refusal of a magistrate to rescind an order for the payment of additional penalty and costs in relation to a demand for a fixed penalty that had not been paid within the prescribed period.

2.  On 17 April 2015, Mr Gary M H Chu, Deputy Special Magistrate, (the Magistrate) dismissed the appellant’s application for review of a notice demanding payment of a fixed penalty under section 15(3) of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap 237 (the Ordinance).

3.  On 6 November 2014 at about 9.37 pm, a fixed penalty notice was attached to a vehicle owned by the appellant for unauthorised parking.  A notice demanding payment of the fixed penalty of $320 was sent to the appellant on 9 December 2014.  It demanded that payment be made of the fixed penalty by 19 December 2014.  No payment was made by the due date and an application was made pursuant to section 16(2) of the Ordinance for an order that the appellant pay the fixed penalty of $320 plus addition penalty of $320 and costs of $440 in the total sum of $1,080.  An order was made by a magistrate to that effect on 9 February 2015 and a notice was issued on 10 February 2015. 

4.  At the review hearing on 17 April 2015 before the Magistrate, the appellant testified that he did not receive the notice until 20 December 2014, that is, one day after the deadline for payment of the fixed penalty.  He immediately made payment of the fixed penalty but it was rejected.  The appellant explained he is a teacher and lived at teachers’ quarters provided by the school where he works.  In the relevant Transport Department documents he gave the address of the teachers’ quarters as his place of residence.  He explained that he lived there together with his family for the last six years where a locked mailbox was not available and that mail would be sorted out and then distributed to the addressee.  He further explained that there was another teacher with a similar name to his and that sometimes their letters got mixed up and would be wrongly distributed to them.  He acknowledged that ever since he had been in the quarters the problem had come up from time to time and that he had not made any specific alternative arrangements to ensure that correspondence addressed to him was properly received.  In this regard, he was queried as to whether he could have arranged an alternative correspondence address, such as, another residential address or a post office box.  I am not sure that this was such a serious problem, that it would be reasonable to expect him to make alternative arrangements for the receipt of his mail as suggested. 

5.  To put the matter in its proper perspective, the problem only arose from time to time, and the appellant did bring it to the attention of the staff responsible in an effort to ensure that the mix up did not occur in the future.

6.  The Magistrate explained in refusing the review that although he found that the notice had not come to the personal attention of the appellant on or before the deadline for payment of the penalty, the appellant could not prove that there was no neglect on his part.  He noted that the appellant realised that there was an inherent problem with the delivery of mail at his quarters which had been the case for the last six years.  He found that his failure to take any steps to rectify the situation by changing his correspondence address to one where receipt would be assured constituted neglect on his part.  He concluded that the appellant could not show on the balance of probabilities that the notice had not come to his personal notice at the material time without any neglect on his part.  He noted that the police had sent the notice to the correct address as supplied by the appellant and that no payment had been made by the deadline.  He refused the review application.

7.  Section 3B of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap 240 as far as material provides:

“(1) 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 and costs of not less than $80 or more than $1500.” (Underline added)

8.  By virtue of section 3B, a magistrate upon being 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, may on an application rescind the order for the additional penalty and the costs which had been made.  There are two requirements in this section.  First, it has to be shown that the demand notice has not come to the addressee’s notice.  This has been interpreted as to mean that personal notice has not come “in time to pay the demand”.  See HKSAR v Preston [2014] 4 HKLRD 427 at para 9 per Line J.  Secondly, it has to be shown that the addressee not having personal notice of the demand notice is not a result of any neglect on his part. In my view, in the context of this section this requires applying practical common sense to the relevant circumstances under consideration. 

9.  The burden is on the appellant to satisfy the magistrate on the balance of probabilities that he was not neglectful in the circumstances described by him.  There is no doubt that the appellant is a responsible person who used his best endeavours to address the occasional problem of having his correspondence mixed up with someone else that lived at the same residential address where he resided with his family.  The mix up of correspondence was not something of his making.  It was simply a problem that arose from time to time due to the inadvertence of the person who sorted out and distributed the mail to the teachers living in the quarters at the school.

10.  From my assessment of the problem that the appellant experienced with his mail, it was one that only arose occasionally and when it did he sought to bring it to the attention to the relevant persons in order to have it rectified.  The appellant argued that arranging an alternative method to receive his mail, such as providing his mother’s address or obtaining a post office box, would have in his circumstances, exacerbated the problem and not resolved it. 

11.  Taking everything into account, and the particular circumstances of this case, I am satisfied that the failure of the appellant in not receiving notice of the demand notice was not attributable to any negligence by him.  I should say that the issue of the addressee’s neglect will depend upon the particular circumstances of the case and is a question of fact and degree.  I consider that he made reasonable efforts to address the problem and therefore the notice did not come to his attention because of neglect by him. 

12.  For the foregoing reasons, I allow the appeal and rescind the order for the appellant to pay the additional penalty of $320 plus the costs of $440 that he was ordered to pay.