ATTORNEY GENERAL v. M.J. MCINNES, ESQ., MAGISTRATE

                Sections 13 and 16 of Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237 - Defendant owner of vehicle admitting contraventions in court in March 1984 - Mandatory for magistrate to impose fixed penalty - Costs - Special provisions in S.22(2)(a) of Fixed Penalty (Traffic Contraventions) Ordinance about costs override general provisions of S.69 and S.71 of Magistrates Ordinance - Where contravention admitted, magistrate empowered to make no order as to costs, but if does order costs, mandatory $20 minimum - $400 maximum.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

________

                                                                                 ___________

__________

JUDGMENT

__________

1. The Respondent is a magistrate. In March this year, he dealt with two summonses for violations of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap.237.

2. In one of those cases, (SPS324626/84), a Miss Chau Yuk Hing admitted that on the 13th September 1983 her vehicle had contravened the provisions of Section 7 of the Ordinance which relates to parking in unauthorised places.

3. Miss Chau gave an explanation to the learned magistrate to the effect that she had received a ticket for parking in the same spot on a previous occasion but on her protesting to the Transport Department, the ticket had been withdrawn. That apparently led her to believe it was alright to park in that place.

4. On hearing Miss Chau's explanation, the learned magistrate treated the contravention as proved, but, nonetheless, declined to impose any fixed penalty upon her. Nor did he make any order as to costs.

5. In the other case, (SPS361029/84) a Mr. Tsoi Kan Wai admitted that on the 23rd October 1983 his vehicle had caused an unnecessary obstruction, contrary to Section 4 of the Ordinance. The learned magistrate duly imposed a fixed penalty of $140 upon Mr. Tsoi, together with costs of $15. $15 happens to be the amount of fixed costs an owner is required to pay by virtue of Section 20B of the Ordinance when he discharges his liability for a fixed penalty at least 72 hours before his case is first due to come to court.

6. By the present proceedings, the Crown seeks a judicial review of both of the learned magistrate's decisions. In the case against Miss Chau, the Crown contends that the learned magistrate lacked the power to excuse Miss Chau from liability to pay a fixed penalty of $140, whereas in the case against Mr. Tsoi the Crown challenges his jurisdiction to impose costs in the sum of $15.

7. According to the Crown, Section 22(2)(a) of the Ordinance empowered the magistrate either to impose costs of between $20 and $400, or otherwise to make no order as to costs. What the magistrate could not do, according to the Crown, was to make an order for costs, but to assess them at less than $20.

8. The wording of Section 22(2)(a) is as follows:

 

(a)	may at the same time make an order for the payment of costs by the defendant of not less than $20 or more than $400;

9. I will deal with the case involving Miss Chau first. Section 13 of the Ordinance states that there shall be a fixed penalty for a contravention of various provisions of the Ordinance including Section 4. The amount of that fixed penalty has been set at $140. Section 16 goes on to provide that if the fixed penalty is not paid in accordance with a prescribed notice, the fixed penalty shall be recoverable summarily as a civil debt by complaint made to a magistrate.

10. I am of the opinion that once a magistrate finds that there has been one of the contraventions referred to in Section 13 of the Ordinance, then as night follows day, the magistrate must make a finding of liability to pay the fixed penalty. Nowhere is any dispensing power conferred upon the magistrate. Therefore, the learned magistrate in the present proceedings acted without authority in purporting to excuse Miss Chau from liability to pay the fixed penalty of $140 in respect of her admitted contravention of Section 4 of the Ordinance.

11. No attempt has been made by the learned magistrate to identify any source of authority for him to avoid the provisions of the Ordinance in Miss Chau's case.

12. However, in the case involving Mr. Tsoi, the learned magistrate had recourse to Sections 69 and 71 of the Magistrates Ordinance, Cap.227 as his justification for settling upon a figure of $15 as the appropriate amount of costs to be ordered against Mr. Tsoi.

13. Those sections are as follows :-

        69.     (1)    In every case of summary conviction or of an order made by a magistrate, except as provided in section 71, it shall be lawful for the magistrate making the same to award and order in and by the conviction or order that the defendant shall pay to the complainant or informant respectively such costs, not exceeding $5,000, as he may think fit; and where a magistrate dismisses the complaint or information he may, if he is satisfied that the proceedings ought not to have been instituted or pursued against the defendant, order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as he may think fit.

 

       (2)     The sum so allowed for costs shall in every case be specified in the conviction or order or order of dismissal as aforesaid, and the same shall be recoverable in the same manner and under the same warrants as a fine or a sum of money adjudged to be paid in and by such conviction or order is to be recoverable, and in any case where there is no such fine or sum to be thereby recovered, then such costs shall be recoverable by distress and sale of the goods and chattels of the party or by imprisonment for any term not exceeding 14 days, unless such costs shall be sooner paid.

 

        71.     (1)    Where a fine adjudged by a conviction by a magistrate to be paid does not exceed $20, then, except so far as the magistrate may think fit expressly to order otherwise, an order shall not be made for payment by the defendant to the complainant or informant of any costs; and the magistrate shall, except so far as he thinks fit expressly to order otherwise, direct all fees payable or paid by the complainant or informant to be remitted or repaid to him.

 

        (2)     The magistrate may also order the fine or any part thereof to be paid to the complainant or informant in or towards the payment of his costs.

 

14. It is my opinion that the general provisions about costs in the Magistrates Ordinance cannot prevail against the particular provisions about costs in the Fixed Penalty (Traffic Contraventions) Ordinance when a case involving a fixed penalty is before the court.

15. It is ail very well to pray in aid the provisions of the Magistrates Ordinance in a situation where the magistrate wishes to ease the burden on the citizen by imposing costs of less than $20 in a Fixed Penalty case, but the obverse side of the coin is that if magistrates in Fixed Penalty cases can award less costs than those provided for in Section 22(2)(a) of the Fixed Penalty (Traffic Contraventions) Ordinance, they must also, as a logical corollary, be entitled to impose up to the $5,000 limit permitted by the Magistrates Ordinance, rather than the $400 limit contained in the Fixed Penalty (Traffic Contraventions) Ordinance.

16. I hold that the provisions in the Fixed Penalty (Traffic Contraventions) Ordinance about costs override those in the Magistrates Ordinance.  The Crown is, therefore, correct in the construction it urges me to adopt for Section 22(2)(a) of the Fixed Penalty (Traffic Contraventions) Ordinance : the magistrate can make no order as to costs, but if he does order costs, then they must be between $20 and $400.

17. The sympathy which the learned magistrate felt towards Mr. Tsoi was wholly understandable. Mr. Teed had been under a misconception about the law and was not convinced that he had committed any contravention until the law was explained to him in court. As Mr. Tsoi was not someone who was out to waste the court's time, the learned magistrate obviously took the view that he should be in no worse position than someone who pays the fixed penalty at least 72 hours before the court proceedings are due to come on.

18. While the decision reached by the learned magistrate impressed me as sensible enough on the particular facts before him, it was, nonetheless, a decision he lacked jurisdiction to make in view of the wording of Section 22(2 )(a).

19. The remedy sought by the Crown on both cases is certiorari. If I were to adopt that particular remedy and remit the matter back to the learned magistrate, such a course would, in my opinion, cause unnecessary waste of time and inconvenience. It is far better for me to dispose of the whole matter here and now. The only possible order which can be made against Miss Chau is that she is liable to pay the fixed penalty of $140 in Case No. SPS324626/84, so I now order accordingly.

20. In Mr. Tsoi's case, the learned magistrate took the view that it was appropriate for him to pay some costs. Due to a misunderstanding of the law, the learned magistrate ordered him to pay less than the minimum. I think the fairest order is that he should pay the minimum costs, namely $20, so that there is an upward adjustment of $5 above the $15 originally ordered.

21. My orders are, therefore, that Miss Chau is adjudged liable to pay $140 and Mr. Tsoi is liable to pay a further $5.