ATTORNEY GENERAL v. AU YEUNG WING CHOI

1989, No. 513

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H E A D N O T E

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Liability to incur points not discharged by payment of fixed penalty before service of notice by Commissioner of Police under Section 3(3) of Cap. 240.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRLMINAL APPEAL NO. 513 OF 1989

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J U D G M E N T

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1. This is an appeal by the Attorney General, by way of case stated, from a decision on a question of law by Mr. White at North Kowloon Magistrates Court.

2. The respondent was summonsed on a complaint, pursuant to S. 8 of the Road Traffic (Driving-Offence Points) Ordinance Cap. 375 ("the Points Ordinance"), that he had incurred 15 points in respect of Fixed Penalty Offences committed within a two year period and therefore should be disqualified from holding or obtaining a driving licence.

S. 8 provides

"(1)Subject to sections 5 ^,and 6, where 15 or more points have been incurred by a person in respect of offences which were committed within a period of 2 years of each other, he shall be liable to be disqualified from holding, or obtaining a driving licence in accordance with this section.

(2) Where the circumstances mentioned in subsection (1) arise in relation to any person, the Commissioner shall apply to a magistrate by way of complaint for the issue of a summons and a summons may be issued specifying the date of the commission of, and the number of points incurred in respect of, each offence mentioned in subsection(1)."

S. 2(2) of the Points Ordinances provides: "(2) For the purposes of this Ordinance, a person becomes liable to a fixed penalty when he pays the fixed penalty in accordance with a notice served on him under section 3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance or when he is ordered to pay a fixed penalty under section 3A of that Ordinance."

"Fixed penalty" is defined in S. 2(2) as "a fixed penalty incurred under the Fixed Penalty (Criminal proceedings) Ordinance", Cap. 240 ("The Fixed Penalty Ordinance").

S. 4(1) of the Points Ordinance provides:

"(1) Subject to section 6(2), where a person-

(a)is convicted of a scheduled offence; or

(b) becomes liable to a fixed penalty in respect of a scheduled offence,

he shall incur the appropriate number of points in respect of that offence."

3. The magistrate found that the respondent had paid the fixed penalty, in respect of four offence, in accordance with and after receipt by him of a notice served by the Commissioner of Police under S. 3(3) of the Fixed Penalty Ordinance; but that, in respect of the offence committed on 2nd January, 1987, he had made payment pursuant to a notice issued by a police officer under S. 3(l) of that ordinance.

4. It was contended on behalf of the respondent that the effect of S. 2(2) was that he had not become liable under S. 4(1)(b) to a fixed penalty in respect of the offence committed on 2nd January, 1987, and that he had not incurred the appropriate number of points in respect of that offence. By reason of this it was argued that he had not incurred 15 points and was not liable to disqualification under S. 8(1) of the Points Ordinance.

5. It was contended on behalf of the appellant that, as S. 8(1) refers to the commission' of an offence, it is the fact of commission of an offence alone and not the point of time and the circumstances under which respondent paid the fixed penalty due in respect of the offence, which rendered the respondent liable to incur points.

6. The magistrate's decision is set out in para. 11 and 12 of the case:

"11.(a)I was of the opinion that under S. 4(1)(b) Cap. 375, where a person becomes liable to a fixed penalty in respect of a scheduled offence he shall incur the appropriate points in respect of that offence. From S. 4 it follows that a person only incurs points when he becomes liable to a fixed penalty. I found that S. 3 of Cap. 240 creates a scheme under which after police officer has issued the notice under S. 3(1) of Cap. 240, the Commissioner of Police must decide whether to proceed. If he does decide to proceed he then issues a notice under S. 3(3) of Cap. 240 demanding payment of the fixed penalty. I took the view that it is this notice and not the issue by the police officer of the. S. 3(1) notice, that dicates the point at which a person becomes liable to pay a fixed penalty under section 4(1)(b) Cap. 240, referred to above. This was by virtue of the wording employed in S. 2(2) of Cap. 375.

(b) Under section 3(8) of Cap. 240 where a person has received a fixed penalty notice under S. 3(1) and pays it, he shall not he liable to he prosecuted or convicted for a schedule offence Under section 3(1) he can discharge his liability to such conviction by paying the fixed penalty beforehand.

(c) On a consideration of all of the above I reached the view that as a driver does not become liable to incur points until he receives the Commissioner of Police's notice under S. 3(3) of Cap. 240, he may avoid incurring points by paying the fixed penalty before the Commissioner of Police issues that notice.

12.     As it was agreed before me and found as fact, that no notice under S. 3(3) of Cap. 375 had been served on the Respondent in respect of the offence committed on the 2nd January 1987; it followed that he had not incurred points in respect of that offence. And that as the total number of points he had incurred in respect of the other offences did not total 15, he was not liable to disqualification under s. 8(1) of Cap. 375. I therefore dismissed the complaint."

7. The question of law for the opinion of this court is: -

"Was I correct in finding that no liability in a fixed penalty in respect of a scheduled offence and the consequent incurring of points under S. 4(1)(b)of the Road Traffic (Driving Offence Points) Ordinance Cap. 375, arises where a person who has been given a notice by a police officer under " S. 3(1)of the Fixed Penalty (Criminal Proceedings) Ordinance Cap. 240 discharges, by payment of fixed penalty his liability to conviction for the offence alleged in that notice before the Commissioner of Police has served on that person a notice under S.3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance Cap. 240?"

8. The scheme created by the Fixed Penalty Ordinance is essentially a voluntary procedure under which a person may, by paying a fixed penalty, avoid prosecution in respect of a range of offences. A person falls under the scheme only if he volunteers payment of the fixed penalty or neglects to take steps to dispute liability If he wishes to contest the matter, he is dealt with under ordinary criminal procedures for the prosecution of summary offences. Hence, the Points Ordinance refers to the incurring of a fixed penalty; the penalty is brought a oneself, without a prosecution.

9. The Fixed Penalty Ordinance provides for the incurring of a fined penalty in five situations

(1)Under Section 3(1)

(2)Under Section 3(3)

(3)Under section 3A(1)

(4)Under Section 3B(1)

(5)Under Section 9

In four of these situations, the person concerned indicates expressly by payment or a statement to a magistrate, that he does not wish to dispute liability. In the fifth situation that covered by Section 3A(1) of the Fixed Penalty Ordinance, because the person fails to express his wish to dispute liability, it is assumed he does riot wish to do so and he is ordered to pay.

10. Thus far it is clear that in all five situations, a fixed penalty is incurred under the Fixed Penalty Ordinance within the terms of Section 4 of the Points Ordinance. The scheme of the Points Ordinance is to penalise bad driving and to disqualify the persistent had driver when he incurs 15 or more points. On this basis, there is no logical reason at all why any of the five situations should be distinguished from the others.

11. Section 4 of the Points Ordinance speaks, in this context of a person incurring penalty points where he "becomes liable to a fixed penalty" incurred under the Fixed Penalty Ordinance. Why does the section concern itself with the question of becoming liable, when it seems to have settled the question of the category of person concerned by referring to fixed penalties incurred under the Fixed Penalty Ordinance? The answer to this must be that there is some purpose in knowing when a person becomes liable to the penalty incurred. That is the trigger for the incurring of the driving-offence points. This argument is supported by the fact that there is, in some situations, a difference in point of time between the incurring of the fixed penalty and liability to pay it. For example, without reference to section 2(2) of the Points Ordinance, it appears that, under Section 3A of the Fixed Penalty Ordinance, a person incurs the fixed penalty when the magistrate orders him to pay it, but he is not liable to it until the expiry of 14 days. Similarly, under Section 3B of the same ordinance, a person is allowed 21 days within which to pay the penalty.

12. The date on which a person incurs the points is of some importance. Section 3(1) of the Points Ordinance requires the Commissioner for Transport to record the date when the points were incurred. Reference to this date is relevant for the purposes of Section 3(3), 7(l), 8(1), 8(2) and 9(1)(b) of the Points Ordinance.

13. One interpretation of S. 2(2) is that, in spite of the fact that other provisions may indicate clearly and sensibly that points are incurred in all five of the situations previously mentioned, it provides that points are incurred in only the two situations specifically referred to. This is the interpretation the magistrate adopted. This interpretation, having regard to the scheme of the Points Ordinance and the lack of any obvious and logical reason to distinguish between the five situations should, in my view, be adopted only if there is no other reasonable interpretation.

14. To construe the subsection in the manner suggested by the respondent would lead to inconsistency and injustice. What possible reason can there be for inflicting the penalty on the person who pays under Section 3(3) of the Fixed Penalty Ordinance, after receipt of the Commissioner of Police's notice, but not on the person who pays after he is ordered to do so, under Section 3B of that ordinance by order of a magistrate.

15. To avoid absurdity and to preserve sensibly the scheme of the Points Ordinance, it is perfectly possible to construe Section 2(2) as not selecting only two situations in which a fixed penalty is incurred.

16. Any other interpretation would have some strange results elsewhere in the Fixed Penalty Ordinance. Section S(l)(a) refers to a person who "fails to pay the fixed penalty in accordance with a notice served on him under Section 3(3)". It would be nonsense, in that context, to suggest that a person who pays before such service is such a person.

17. A notice under Section 3(3) requires a person to pay the fixed penalty or notify the Commissioner of Police if' the wishes to dispute liability. Section 3A(1) provides for certain consequences if a person has not, amongst other things, "notified the Commissioner of Police, in accordance with" the notice under Section 3(3), that he wishes to dispute liability. If a person has, on receipt of the notice under Section 3(1) and before receipt of the notice under Section 3(3) informed the Commissioner of police that he intends to dispute liability, it cannot seriously be argued that he bas not notified the Commissioner of Police "in accordance with" the Section 3(3) notice What he has done is just what the notice requires. Similarly, the person who pays on a Section 3(1) notice has done precisely what the Section 3(3) asks him to do. He has not acted contrary to the Section 3(3) notice but "in accordance with" it.

18. The answer to the question posed by the magistrate is no. Counsel for the appellant does not seek a disqualification order. The case is therefore remitted for information only.

19. Appeal allowed.