THE QUEEN v. WONG KWOK WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 209 OF 1988

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J U D G M E N T

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1. This is an appeal against a conviction for failing to comply with traffic light signals, a contravention of Regulation 18 of the Road Traffic (Traffic Control) Regulations ("the Regulations")

2. When the matter first came before me on 3 May 1988 it appeared that the learned magistrate may not have been empowered to convict the Appellant for that offence if the proceedings were instituted, as they purported to be, under the Fixed Penalty (Criminal Proceedings) Ordinance ("the ordinance"). The hearing was adjourned at the Respondent's request to 10 May 1988 for further argument.

3. On that date Mr Bruce, who appeared for the Respondent, presented a written submission to which was annexed copies of documents in the possession of the Commissioner of Police which, in my view, ought to have been, but were not, put before the magistrate. After reading that submission with its annexures and hearing Mr. Bruce's oral submissions I announced that I would allow the appeal, prepare written reasons for my decision and send a copy by post to the parties. These are the reasons to be posted.

4. On 8 July 1987 the Appellant was driving a taxi along the inner-most of the three lane westward carriageway of Queen's Road West. Near the junction with Possession Street road markings indicated that traffic using the innermost lane had to turn left into Possession Street whilst traffic using the other two lanes had to proceed straight ahead. The Appellant did turn left into Possession Street but he was stopped by a police officer who gave him a fixed penalty ticket. The ticket alleged that he had committed the offence of failing to comply with a road marking contrary to Regulation 59 of the Regulations.

5. The officer was authorised to issue that ticket by S.3 of the Ordinance. Although the ticket specifically states and S.3 implies that payment of the penalty specified in the ticket discharges liability to conviction for the offence to which the ticket refers, the truth is that payment discharges liability only if the Commissioner of Police does not subsequently exercise his power under S.4 to withdraw the ticket and institute proceedings, otherwise than under the Ordinance. In practice, however, the Commissioner does allow payment to discharge liability and there is no doubt that, had the Appellant paid the $200 required by the ticket served on him, the payment would have been accepted and he would have been discharged from liability for the offence of failing to comply with a road marking. But, instead of paying, he wrote that same day to the Commissioner hotly disputing the allegation and requesting an explanation of how he had failed to comply with any road marking.

6. On 14 July 1988, one hand of the Commissioner replied to the effect that the Appellant's complaint was being investigated without prejudice to any further proceedings which might be instituted pursuant to S.3(3) of the Ordinance, whilst another hand posted him a notice dated 13 July 1987 pursuant to S.3(3) demanding payment of the fixed penalty payable, according to the schedule to the Ordinance, in respect of that offence and informing him that he should notify the Commissioner if he wished to dispute liability for that offence.

7. S.3 empowers the Commissioner to make such a demand whenever he is of the opinion that a person alleged to be guilty of such an offence ought to be proceeded against under the Ordinance. A demand made pursuant to SO(3) is the first step which must be taken if the Commissioner wishes to pursue recovery of the fixed penalty under the Ordinance rather than prosecute an alleged offender by instituting summary proceedings under the Magistrates' Ordinance. Such a demand must be made within one month of the commission of the offence [S.3(4)]. No other demand was ever made upon the Appellant within that time. The result is, as Mr. Bruce readily conceded, that no further proceedings under the Ordinance could have been taken against the Appellant unless they were for the purpose of recovering the fixed penalty payable in respect of the offence of failing to comply with a road marking.

8. What did happen, however, was that on 27 July 1987, in the course of the Commissioner's investigation into the Appellant's complaint, the officer who issued the ticket on 8 July made a statement, about the alleged offence. In it he said that the Appellant had proceeded to make his left turn into Possession Street at a time when the traffic lights were not in his favour because they were then only allowing forward travel in the two "straight ahead" lanes. He said that he told the Appellant he had failed to comply with a traffic light signal and that he was issuing a fixed penalty ticket for that offence. It was not until 24 July when he was asked to submit a report about the matter that he discovered that he had made an error about the Item number of the offence.

9. On 14 August 1987 the Commissioner wrote to the Appellant as follows:-

"The investigation into the complaint has now been completed and I am satisfied that the issue of the ticket was justified, as you failed to comply with a 'ahead only' traffic sign indicated by the arrow shown in the green light ...

Regret that the Reporting Officer made a wrong entry of the offence ... on the ticket. I hereby confirm that the appropriate offence for your case should read 'failing to comply with traffic sign'.

Please be advised that the mistake of this nature can be rectified. In accordance with the Magistrates Ordinance when this case is dealt with in court the correct offence of 'failing to comply with traffic sign' will be so stated in the summons ...

... in view of the error made in the ticket, I am prepared to accept your late payment. The institution of Court proceedings in respect of the Demand Notice could be discontinued, if you send ... a crossed cheque for $200 ... within 14 days ..."

The offence of 'failing to comply with traffic signs' is also a breach of Regulation 59.

10. It is true, as the Commissioner stated, that the mistake could have been rectified if the rectification steps included withdrawal of the ticket and the notice pursuant to S.4 and the institution of summary proceedings under the Magistrates' Ordinance. The mistake could not, however, be rectified so as to enable, proceedings under the Ordinance to be pursued, at that stage, in respect of any offence other than failure to comply with a road marking.

11. To come back to the story ...

12. The Appellant did not pay and on 21 October 1987 the Commissioner wrote to him as follows:-

"Further to our previous correspondence dated 14 August 1987 ...

After considering all the circumstances of this case, I am directed to prefer a charge of 'Failing to comply with Traffic Light Signal' against you. Accordingly, fresh application for a summons for your appearance in court will be made in due course.

Meanwhile, you are requested to reconsider once again your statutory rights - i.e. to settle the fixed penalty fine by way of late payment at this stage or to contest the matter in open court. You may forward by post a crossed cheque of $200 ... on or before 30 October 1987."

13. The offence mentioned-in that letter is a breach of Regulation 18 of the Regulations. Although it carries the same fixed penalty as the other two offences a conviction in respect of it carries an additional sting of three "offence points".

14. The Appellant did not pay. A summons, returnable on 23 December 1987, was issued on 26 November 1987.

15. The material parts of the Information which the Appellant was summoned to answer read as follows:-

"    INFORMATION FOR SUMMONS In the Magistrate's Court at Central Information is hereby laid by ... that -

(a)     the defendant ... did commit the offence of FAILING TO COMPLY WITH TRAFFIC LIGHT SIGNALS contrary to REG. 18 OF TC REGS CAP 374; and

(b)     a Notice MD121224(2) dated 13 July 1987 has been served on the defendant in accordance with Section 3(3) of [the Ordinance] and he has notified the Commissioner of Police in accordance with that notice that he wishes to dispute liability for the offence."

16. At the hearing on 7 March 1988 both the police officer who issued the ticket and the Appellant gave evidence. The police officer's evidence was that he had watched the Appellant's vehicle "slide through two red lights governing the taxi's left turn" and that when he issued the ticket to the Appellant he told him that the offence was failing to comply with the traffic light. He made a mistake by describing the offence as Item 27 instead of Item 14.

17. The Appellant's evidence was that he did not disobey a red light signal and that the officer at the time said he had failed to comply with the road marking.

18. The learned magistrate accepted the officer's evidence, convicted the Appellant and ordered him to pay the penalties mentioned in S.9A of the Ordinance.

WAS THE APPELLANT RIGHTLY CONVICTED?

19. Mr. Bruce conceded that the answer must be "No" if the magistrate was purporting to exercise jurisdiction under the Ordinance. Consistently with that concession he did not seek to support the making of the order as to the payment of the penalties. He did, however, seek to support the conviction.

20. His submission was that, although paragraph (b) of the Information was appropriate only where proceedings were being brought under the Ordinance, paragraph (a) was sufficient as an Information to support the issue of a summons under the Magistrates' Ordinance calling upon the Appellant, as it did, to answer the summons and be dealt with according to law. The Commissioner was entitled, so the submission went, to proceed by way of Information and summons under the Magistrates' Ordinance. The Ordinance provided a bar to such proceedings only in respect of a scheduled offence for which the alleged offender had already paid the fixed penalty in response to a notice under S.3(1) or to a demand under S.3(3) and the Commissioner had accepted payment as a discharge of that liability. The Appellant had received neither a notice nor a demand in respect of the scheduled offence of failing to comply with traffic light signals. Consequently, there was no bar to the Commissioner's instituting proceedings under the Magistrates' Ordinance in respect of that offence. There was in substance, even though not in form, an Information and summons before the learned magistrate sufficient_.to institute proceedings which could lead to a proper conviction authorised by the Magistrates' Ordinance.

21. Notwithstanding those submissions I am convinced that the Commissioner did not institute proceedings under the Magistrates' Ordinance for the purpose of having a magistrate determine whether the Appellant was guilty or not guilty of the offence alleged in the information, but instituted proceedings under the Ordinance seeking recovery of a fixed penalty.

22. It is true that the information and summons did substantially comply with the requirements of the Magistrates' Ordinance in respect of the institution of proceedings' under that Ordinance which ultimately end in a finding that the commission of the offence alleged in the information has or has not been proved. But it is also true that every form of information and summons required for the-purpose of instituting court proceedings under the Ordinance complies substantially with those same requirements under the Magistrates Ordinance consequently, the fact that there is a substantial compliance with those requirements does not, by itself, indicate that the proceedings have been instituted under the Magistrates' Ordinance rather than under the Ordinance.

23. Whether the proceedings have been instituted under one Ordinance rather than the other has important consequences. If they are instituted under the Magistrates' Ordinance then there can be no conviction and no order for a defendant to pay a penalty until the court is satisfied either by evidence adduced by the informant or by a defendant's in-court-admission that the alleged offence was in fact committed. If, however, they are instituted under the Ordinance anyone or other of the following consequences can ensue:-

(a)   the defendant can be ordered to pay a penalty even though the court does not proceed to conviction in respect of the alleged offence [S.3A(1), (4); 3B(1), (4)]; (b) he can be. convicted for the alleged offence in the absence of any. proof whether byway of evidence adduced by the informant or by his own in-court-admission that the alleged offence was in fact committed [Ss.6, 7]; (c) he is debarred from contesting, at the hearing, the truth of the allegation that he committed the alleged offence unless he has, prior to the hearing, given notice, in accordance with the relevant provisions of the Ordinance, that he wishes to dispute liability for the alleged offence [S.3A(1) ];

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(d) he is subject to the sanction of a further mandatory fine if, after having given notice of a desire to dispute liability, he fails to demonstrate to the magistrate that the desire had the backing of a good defence [S. 9A].

 

24. Proceedings under the Ordinance are therefore radically different from summary proceedings under the Magistrates' Ordinance. The information in this case by including paragraph (b), sought the exercise of a magistrate's powers under the Ordinance and succeeded in influencing the magistrate to exercise those powers. It was not an information lodged for the purpose of instituting summary proceedings under the Magistrates' Ordinance. It was in the purported exercise of a power invoked by the information filed by the Commissioner that the Appellant suffered the sanction of a fine for failing to proffer a good defence. That would not have happened if the proceedings were governed by the Magistrates' Ordinance' rather than the Ordinance.

25. The Commissioner had no authority to file the particular information. By filing an. information containing false allegations he misled the magistrate into believing that the case was one which was properly brought under the Ordinance. If the information, and the material put before the magistrates' court in support of it, had not been misleading the magistrate would not have been persuaded to make orders not authorised by law in the circumstances of this case.

26. The appeal is allowed and the Respondent is ordered to pay costs in respect of the Appellant's three court appearances. I fix those costs at $210 because the Ordinance considers that the Commissioner is entitled to $70 costs per court appearance when he is successful.