HKSAR v. CHAUDHRY, IFTIKHAR AHMED

HCMA 331/2021

[2022] HKCFI 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 331 OF 2021

(ON APPEAL FROM STV 500019 OF 2020)

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JUDGMENT

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NB: With the greatest respect to all of the Magistrates who dealt with this matter, for ease of reference I will refer to them as the First, Second and Third Magistrates.

1.  On 21 June 2021, the appellant appeared before Mr Pang Leung Ting, Magistrate for trial (“the Third Magistrate”), at which time the Court found it had no jurisdiction to hear the matter and made an Order setting aside a decision of the Second Magistrate and substituting the original conviction and penalty made by the First Magistrate.

2.  By reason of his Notice of Appeal dated 28 June 2021, the appellant now appeals against that Order on the grounds that he wishes to dispute liability and have a trial.

Facts of the Case

3.  The underlying offence took place on 7 September 2020, on which day the appellant was driving his motor vehicle registration number UB3331 when he jumped a red light.  He was stopped immediately at the scene by a police officer and informed of his offence.  He refused to accept a fixed penalty ticket.

4.  On 25 September 2020, the appellant was sent a ‘Notice Demanding Payment of Fixed Penalty’ (“the Notice”), to the appellant’s registered address in accordance with s3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap 240 (“the FP(CP)O”).   The appellant returned the signed slip indicating he wished to dispute liability. That was acknowledged by the police on 18 November 2020.

5.  On 28 December 2020, the police applied to the Shatin Magistrates’ Courts for a summons to be issued against the appellant. On 29 December 2020, that summons was sent to the appellant’s registered address requiring his attendance at court on 21 January 2021.

6.  On 21 January 2021, the appellant did not appear.  Being satisfied that the summons had been duly served upon the appellant, the Magistrate (‘the First Magistrate”) entered a conviction against the Appellant and ordered him to pay a fine of $1,700 within one month.  The appellant did not pay within the stipulated time frame, which was 21 February 2021, but did pay in full on 1 March 2021.

7.  In the interim, on 3 February 2021, the Judiciary received an application for review under s3B of the FP(CP)O.  The appellant was notified by way of letter dated 4 February, that the review was listed for 18 March 2021, before a different Magistrate (“the Second Magistrate”). The hearing on 18 March was adjourned through no fault of the appellant to 25 March 2021.  On 25 March 2021, the appellant attended and submitted that he had not received the summons under STV 500019/2020 dated 29 December 2020 (“the Summons”).  Whilst there had been a Certificate of Posting provided for the purposes of the hearing before the First Magistrate on 21 January 2021, there was no proof of service before the Second Magistrate.  That having been said, the address registered with the Transport Department was correct and the appellant accepted he had received the police correspondence i.e. the Notice and acknowledgment of 18 November 2020, but not the Summons.  He could not explain why.  As proof of service was not available, the Second Magistrate set aside the conviction order and adjourned the case for trial.

8.  The trial was set down for 21 June 2021. At that time, the Third Magistrate was of the view he had no jurisdiction to hear the matter.  He found that the order to set aside the conviction by the Second Magistrate was null and void and the conviction entered by the First Magistrate was valid.  He then made the appropriate consequential orders.

Reasons for Order

9.  The Third Magistrate took the view that the first set of proceedings on 21 January 2021 had been dealt with properly.  The conviction against the appellant was good for all purposes and noted that the resulting fine had been paid, albeit irregularly.  In his view that was the end of the matter and he had no jurisdiction to hear the proceedings before him. In doing so, he took into account the decision of Deputy High Court Judge Johnny Chan, as he then was, in HCMA 322/2016, in which the Judge made it clear that a review under s3B of the FP(CP)O can only be available where the appellant proves i) he did not receive the Notice and ii) the reason he did not receive the Notice was not because of his own fault, neglect or negligence[1]. He noted that this should have disposed of the matter before the Second Magistrate[2]. The Third Magistrate went on to consider a number of peripheral issues which this Court does not need to deal with on appeal.

Grounds of Appeal against Order

10.  There are no perfected grounds of appeal.

The Defence Case on Appeal

11.  The appellant submitted that he had used his younger brothers address for the purposes of his fleet of vehicles but that his brother was in Pakistan at the relevant time.  He could not explain why he did not receive the summons.  He did not assert that he had made any efforts to recover his mail.

Analysis

12.  Two issues arose in this matter.  Firstly, the issue of the fixed penalty notice under s3 of the FP(CP)O and whether the appellant had any right of review in all the circumstances of the case. Secondly, the issue of a summons for the offence by the Shatin Magistrates’ Courts and whether the powers of the Court were properly exercised by the First Magistrate.  The former issue appears to have gained a significance in proceedings which was misplaced.

Fixed Penalty Procedure

13.  Section 3 of the FP(CP)O reads:

“(1) If a police officer has reason to believe that a person is committing or has committed a scheduled offence, he may give that person a notice in the prescribed form offering that person an opportunity to discharge any liability to conviction for that offence by payment of a fixed penalty therefor at any place specified in the notice.

(2) A notice under subsection (1) shall be given by the police officer to the person concerned —

(a) by delivering it personally to that person; or

(b) by fixing it to the vehicle used or involved in the commission of the offence:

Provided that the operation of this section, section 3A and section 5 shall not be affected by a failure to comply with this subsection

(3) Subject to subsection (4), where the Commissioner of Police is of the opinion that a person alleged to be guilty of a scheduled offence ought to be proceeded against under this Part in respect thereof, he shall, as soon as practicable after the commission of the offence, serve on that person a notice-

(a) demanding payment of the fixed penalty; and

(b) informing the person that if he wishes to dispute liability for the offence, he should so notify the Commissioner of Police.”

(4) A notice under subsection (3) shall be served within 1 month of the commission of the offence:

Provided that where the identity or address of the person to be served is not ascertained within 7 days after the commission of the offence, the notice may be served not more than 6 months after the commission of the offence.

(5) A notice under subsection (3) shall be served by sending it by post to the registered address of the person to be served.

(6) A notice under subsection (3) shall be in the prescribed form and shall state that the person on whom it is served is required —

(a) to pay the fixed penalty; or

(b) to notify the Commissioner of Police that he wishes to dispute liability for the offence,

within 21 days after the date of the notice.

(7) Where a notice under subsection (3) is served on any person, no proceedings shall be taken against that person in respect of the offence specified in the notice until the expiry of 21 days after the date of the notice.

(8) Subject to section 4, where a person has received a notice under subsection (1) or (3) and has paid the full amount of the fixed penalty shown in the notice, he shall not be liable to be prosecuted or convicted for the scheduled offence specified in the notice.”

14.  The officer in question witnessed the appellant running a red light.  He therefore had reason to believe that the appellant had committed an offence[3]. He immediately apprehended the appellant and sought to serve a fixed penalty notice[4]. By reason of the refusal of the appellant to accept personal service by the officer under s3(2)(a) of the FP(CP)O, he was properly served in compliance with s3(5) when the Notice was sent to his registered address.  This was the address submitted to the Transport Department and accepted by the appellant as the address used by him.  He availed himself of the opportunity to inform the Commissioner of Police that he was disputing liability under s3(6) of the Ordinance and accordingly, the Commissioner of Police sought proceedings to be commenced under s3(3).

The Summons

15.  The summons was issued on 29 December 2020.  It was sent to the same address to which all other correspondence had been sent and all other correspondence had been received by the appellant.  He has no explanation for why he did not receive the summons dated 29 December 2020 informing him that he had to attend the Shatin Magistrates’ Courts on 21 January 2021.  In the normal course of events, service of a summons by post under s8(2)(a)(ii) of the Magistrates Ordinance (“the MO”) is deemed not to have taken place under s8(2)(b), if the person does not appear at the time and place specified in the summons and it ‘shall’ be served by hand.  However, s5(1) and (2) of the FP(CP)O overrides that requirement.

16.  Section 5 of the FP(CP)O states;

“(1) Where —

(a) a person fails to pay a fixed penalty in accordance with a notice served on him under section 3(3); and

(aa) he notifies the Commissioner of Police that he wishes to dispute liability for the offence or he is given leave under section 3B(1)(a); and

(b) proceedings are taken against him in respect of the scheduled offence specified in the notice,

then, notwithstanding section 8 of the Magistrates Ordinance (Cap 227), a summons issued in those proceedings may be served on the person named therein by sending it by post to the registered address of that person.

(2) Upon the production by the prosecution of –

(a) a certificate of posting of that summons under section 29 of the Evidence Ordinance (Cap 8) ; and

(b) a certificate under section 8,

it shall, subject to section 6(2), be conclusively presumed that the summons under subsection (1) to which the certificates relate was duly served.”

17.  For the purpose of proceedings under the FP(CP)O service was therefore good.

Proceedings upon Summons in the Absence of the Defendant

18.  Where a person who is the subject of a summons fails to appear, s6 of the FP(CP)O states:

“(1) If a person served with a summons under section 5 does not appear before the court at the time and place required by the summons and service is proved under section 5(2), the court may hear and determine the case in the absence of the defendant.

(2) For the purposes of subsection (1), a summons shall be deemed not to have been served unless service was effected at a reasonable time before the time appointed in the summons for the appearance of the defendant before the court.”

19.  The First Magistrate had the power to deal with the appellant in his absence.  In order to do so he was required to ensure good service under the FP(CP)O, which he did.  He then heard and determined the case in accordance with s6(1) and entered a conviction against the appellant with a fine of $1,700 to be paid within a month.

Review under s3B

20.  On 18 March 2021, and after having paid his fine, the appellant came before the Second Magistrate and sought to review the decision of the First Magistrate.  The matter was adjourned to 25 March 2021, at which time, the Second Magistrate made two errors.  Firstly he appears to have considered the hearing to be a review under s3B of the FP(CP)O and secondly he appears to have reviewed the procedure in respect of service of the Summons, without apparent recourse to s5 of the FP(CP)O.

21.  Section 3B of the FP(CP)O states:

“(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 $1,500.

(2) Any application under subsection (1) may be made in person or by counsel or solicitor and the magistrate, for the purpose of securing the attendance of witnesses and generally conducting the proceedings, shall have all the powers of a magistrate hearing a complaint under the Magistrate’s Ordinance (Cap 227).

(3) An application under subsection (1) shall be made within 14 days of the date which the magistrate is satisfied is the earliest date on which the order mentioned in section 3A(1) came to the personal notice of the person to whom that order relates.

(4) Where the person against whom an order is made under subsection (1)(b) fails to pay the amount of the fixed penalty, additional penalty and costs, he shall, for the purposes of section 68 of the Magistrates Ordinance (Cap 227), be deemed to have failed to have paid a sum adjudged to be paid by a conviction and shall be liable to be imprisoned under that section.

(5) A magistrate may for good cause, on an application by the Commissioner of Police at any time, rescind any order for the payment of a fixed penalty and any other order made in the same proceedings.

(6) Where a magistrate makes an order under subsection (1)(a), proceedings may be taken, notwithstanding section 26 of the Magistrates Ordinance (Cap 227), within 6 months of the date of that order.”

22.  There was no issue as to the procedure adopted under the FP(CP)O at the point in time when a summons was issued against the appellant under STV 500019/2020.  The appellant had received notice of the Fixed Penalty and he had replied to confirm that he was disputing it.  As a consequence, s3B of the Ordinance was never applicable.  Nevertheless, s5 of the FP(CP)O was applicable insofar as it applied to the service of a summons arising out of the FP(CP)O.  The Second Magistrate erred in not applying that section and, as a consequence, applied the wrong test.  Having done so he erroneously set aside the original determination of the First magistrate and adjourned the matter for trial.

Conclusion

23.  The Third magistrate was alive to the issues at hand and dealt with the case in a proper manner.  With respect to the Second Magistrate, the determination of the First Magistrate should never have been set aside and the only recourse of the Third Magistrate was to re‑instate that conviction and the fine, which had, in any event been paid and not subsequently repaid.

24.  This appeal is dismissed.  A considerable amount of judicial time and effort has been expended on a matter which should not have been entertained after 21 January 2021.  Whilst the appellant may have misunderstood his rights as a result of the second hearing and orders of the Second Magistrate, I am sure that the Third Magistrate more than amply explained the situation to the appellant and his appeal to this Court was wholly misguided and without merit.

25.  No order as to costs.