LAU YUET WAH v. THE QUEEN

                Road traffic - mandatory disqualification from driving on third speeding conviction, within 3 years - proof of previous convictions where not admitted - Court may not take judicial notice of unproven previous convictions - In re J.K. Stonham M.P. 334/79 referred to,- Held: 1. Alleged previous convictions neither admitted nor proven; 2. Disqualification and re-testing orders quashed - Sections 41, 70, 75 Road Traffic Ordinance, Cap. 374; Sections 3A, 5, 7 Fixed Penalty (Criminal Proceedings) Ordinance, Cap. 240.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 423 of 1985

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BETWEEN

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JUDGMENT

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1. The appellant was convicted on 29th March 1985 of driving a motor vehicle on a road at a speed exceeding 70 kilometres an hour contrary to Section 41(1)(b) of the Road Traffic Ordinance, Cap.374 and fined $1,200. The learned Magistrate, finding that this conviction was a third or subsequent offence of speeding, further imposed the minimum mandatory driver's licence disqualification under Section 41(2) of 12 months. The consequential mandatory retesting order was also made under Section 70(1).

2. The appellant now appeals against sentence but limits his appeal to the disqualification and retesting order. The short formal ground of appeal is that there was no evidence before the learned Magistrate at the time of imposing the order for disqualification to prove that the appellant had three previous convictions for speeding. The appellant submits that he did not admit any previous speeding convictions and that the prosecution failed in terms of Section 75 to prove any previous convictions. The appellant further complained that the learned Magistrate had wrongly on his own motion between adjournments unilaterally enquired into the nature of prior 1983 fixed penalty proceedings for speeding, which had culminated in fines being imposed in San Po Kong Magistracy. Further, on the face of the San Po Kong Magistracy proceedings they were prima facie irregular. In reply the Crown submitted that the appellant had admitted 3 previous convictions for speeding and that the 12 months disqualification and retesting order were thereupon mandatory under Sections 41(2) and 70.

3. Turning first to the mandatory statutory provisions, Section 41(2), the excess speed section, clearly provides:

"(2) A person convicted of a third or subsequent offence under this section or under Section 15 of the repealed Ordinance relating to the speed at which any vehicle shall be driven on any road shall be disqualified for a period of less than 12 months."

Section 70 provides that "where a person is disqualified for a period of not less than 6 months the court shall" order him to be disqualified until he has passed the prescribed test of competence. The position therefore is that upon a mandatory period of 12 months disqualification being imposed under Section 41(2), mandatory retesting under Section 70 necessarily follows.

4. The undisputed facts were that after conviction the prosecution tendered an unsigned document entituled" Hong Kong Police Traffic Conviction Fixed Penalty Citations Summary" shich showed that fines of $200 had been imposed on the appellant for speeding on 31st October 1983, 7th October 1983 and 24th November 1983. In addition, in the instant proceedings, the appellant was on 29th March 1985 convicted of speeding on summons and not consequent to a fixed penalty notice.

5. When the details set out in the Summary were put to the appellant, who was represented, his reply, recorded by the learned Magistrate, was "All admitted." The solicitor for the appellant then immediately submitted to the learned Magistrate that the appellant questioned whether the 3 speeding entries in the summary were convictions for it was alleged that they were all fixed penalty tickets paid without any appearance in Court. The learned Magistrate was also referred to Sin Yiu-kong v. The Queen (1979) HKLR 194 and Ng Shiu-lun v. Attorney General Magistracy Appeal No.146/84. In the former case it was held that payment of a fixed penalty notice under the Fixed P alty (Criminal Proceedings) Ordinance, Cap.240.does not constitute a conviction and should not be taken into account in sentencing. In particular the Court condemned the practice of citations of prior fixed penalty notices and the sums paid thereunder, being produced and shown to the sentencing Magistrate. The latter case further confirms that duly paid fixed penalty notices should not be taken into account when sentencing.

6. Counsel for the appellant submitted that the only admission made by the appellant was in relation to prior fixed penalty notices and there was no admission of any previous convictions. In that event it was submitted that the burden was on the Crown to prove any alleged previous convictions. Where that position arises Section 75 of the Road Traffic Ordinance prescribes the method of proof. Section 75 provides that a document certifying previous convictions purported to be signed by or on behalf of the Commissioner of Police shall, until the contrary is proved, be accepted as proof of its contents.

7. Both Counsel agreed that had the summary been signed that document would have complied with Section 75. I note that a space is provided at the bottom of the summary for it to be signed on behalf of the Commissioner of Police. Counsel for the Crown concedes that, the summary being unsigned, there has been non-compliance with Section 75. However, the Crown's submission is that the admission by the appellant of the contents of the summary provided adequate alternative proof. I accept that where a defendant clearly admits any previous convictions formal proof is unnecessary and a Magistrate is entitled under the Road Traffic Ordinance and otherwise to accept the admission as proof.

8. A difficulty which arises in this case is whether the appellant merely admitted prior fixed penalty notices or whether he admitted previous convictions for offences which originated by the issue of fixed penalty notices. This very distinction was raised on behalf of the appellant at the time the admission was made. I note that the summary includes a "Result Code" which includes the letters "C" for "Convicted" and "F" for "Fixed Penalty." There is therefore evidence on the face of the computerised summary that the prior speeding entries related to convictions. For the letter "C" is entered against each speeding entry. The entries only provide evidence but not proof.

9. I am satisfied that at the hearing on 5th March 1985 when the admission was made and the distinction between fixed penalty notice payments and convictions advanced, the learned Magistrate was properly not prepared to accept the admission as unequivocal. For he adjourned the proceedings for sentence to 14th March 1985 and on the latter date further adjourned sentence to 20th March 1985 for the express purpose of himself checking the files at San Po Kong Magistracy which was the magistracy referred to in the summary in relation to all the previous proceedings. On 20th March 1985 the learned Magistrate, according to his record, made the following statement to the parties:

"I am informed that the convictions by San Po Kong Magistrate are convictions for 'speeding under Section 7 of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap. 240."

The solicitor for the appellant then submitted that the prior speeding entries in the summary were not under Section 15 of the repealed Road Traffic Ordinance but merely enforcement proceedings to recover unpaid sums due under fixed penalty notices after the Crown had elected to issue fixed penalty notices instead of summonses for speeding under Section 15. Accordingly, it was submitted, the instant conviction was the first conviction for speeding for the. purposes of Section 41.

10. The learned Magistrate was obviously seized of the implications of this submission and further adjourned sentence to a future date so that the issue of whether the appellant had previously been convicted of speeding for the purposes of Section 41 could be considered and so that Crown Counsel might appear. Crown Counsel was apparently unavailable and subsequently submissions were made to the learned Magistrate only on behalf of the appellant on 29th March 1985 when the learned Magistrate held:

"My hands are tied by the orders for conviction by the San Po Kong Magistrate on summons apparently issued under Section 6 as the defendant was convicted: under Section 7(2) of the Fixed Penalty (Criminal Proceedings) Ordinance. I will impose penalty as though this is the third conviction, for speeding."

The language of the learned Magistrate's conclusion is qualified to the extent that he records that the prior summonses were "apparently" issued under Section 6 and that he imposed sentence as though' the instant offence was the third conviction for speeding.

11. However, the major difficulty which clearly existed at the final hearing when submissions were made arose front the effect of the Fixed Penalty (Criminal Proceedings)(Amendment) Ordinance 1981. Among the amendments introduced by that Ordinance were the enactment of a new 3A and 3B together with substantial amendments to Sections 3, 7 and 10. The practical effect of the amendments was that while unpaid fixed penalty notices were liable to result after summons in convictions under the old law, under the new law where Section 3A is invoked, fixed penalty proceedings cannot result in a conviction. A conviction may only result if alternatively a subsequent summons is issued under Section 5. Where proceedings are brought under Section 3A they are simply to recover unpaid sums due under fired penalty notices and culminate in an order and not a conviction. This major change in the legislation was fully appreciated by the learned Magistrate and set out in his statement of findings in some detail.

12. The submissions made to the learned Magistrate on behalf of the appellant were advanced on the basis that as under the new legislation the appellant took no step after receipt of the fixed penalty notices, there was no jurisdiction to issue a summons under Section 5 which was a prerequisite to a conviction subsequently being entered. Nor had the Crown elected under Section  4 to withdraw the fixed penalty notice to enable a summons to be issued. The Crown had therefore limited itself to recover the sums due under Section 3A which could then culminate only in an order and not a conviction.

13. The learned Magistrate recognised that the submissions made on behalf of the appellant correctly set out the position under the new law. However, the learned Magistrate, with respect, properly held that the new law did not apply to the three speeding entries in 1983. This followed from the fact that the Fixed Penalty (Criminal Proceedings) (Amendment) Ordinance, while enacted in 1981, did not come into force until 1st April 1984 - L.N. 95/84.

14. In these circumstances I uphold the learned Magistrate's conclusion that the old law applied to the 1983 speeding entries. Under the old law all proceedings commenced by summons under Section 5 and were liable to culminate in conviction unless prior payment was made in terms of the then Section 9(1). There were no alternative court proceedings similar to the new Section 3A where no conviction is sought.

15. Having reached that conclusion it was open to the learned Magistrate, as a matter of law, to find that the appellant had previous speeding convictions if they were proven. In view of the nature of the qualified admission of the entries in the summary the learned Magistrate properly looked elsewhere for the necessary proof. The unsigned summary equally clearly resulted in Section 75 being inapplicable. However, there were a number of other alternatives open to the Crown to prove the alleged previous convictions. Application could have been made for an adjournment to enable a signed copy of the summary to have been tendered. Any previous convictions could also have alternatively been proven pursuant to Section 29 of the Magistrates Ordinance, Cap. 227, Section 63 of the Criminal Procedure Ordinance, Cap.221 or Section 15 of the Evidence Ordinance, Cap.8. The Crown was content to follow none of these four alternatives.

16. Instead what happened was that the learned Magistrate, between the adjourned hearings of 14th March 1985 and 20th March 1985, on his own motion obtained the San Po Kong Magistracy files relating to the three 1983 speeding entries. After considering them he reached the conclusion that it appeared that, after summonses were issued under Section 5, hearings were conducted in the absence of the appellant in terms of Section 6, and convictions entered. In his Statement of Findings the learned Magistrate explains the steps he took to investigate the matter and that he found that the San Po Kong Magistracy files were endorsed "Defendant convicted." In summarising what appeared in those files the learned Magistrate stated:

"At each hearing the defendant did not appear (see . Section 6) and all proofs required under Sections 5(2) and 7(1) were produced ... It therefore follows, in my view, after all proofs under Sections 5(2) and 7(1), the defendant must be convicted of the scheduled offence i.e. Section 15(1) of the Road Traffic Offence, Cap.220."

17. As to these findings, Counsel for the appellant made two submissions. First, that the learned Magistrate after holding that the old law applied, in considering the 1983 San Po Kong files, wrongly refers to the new law. Under the old law there was merely a Section 7 simplicities. Under the new law Section 7 has been amended and enlarged to create Sections 7(1)(2) and (3). There was no Section 7(1) under the old law. The San Po Kong Magistracy proceedings occurred during the long delay after the enactment of the Amendment in 1981 and its coming into force in 1984. The appellant submits that when the difference between the old and new law was central to the dispute before the learned Magistrate, the use of new law references in dealing with the old law, raises the possibility that the San Po Kong magistrate may have wrongly applied the new law. The learned Magistrate's own investigations and his explanation of the files he had perused, it was submitted, raised a doubt whether any convictions had properly been recorded and subsequently entered into the computer. In dealing with the old law the Magistrate wrongly referred to Sections 7(1) and (2).

18. Secondly, Counsel for the appellant submitted it was improper for the learned Magistrate, on his own motion, to peruse files in other proceedings without those files being produced consequent to an application by the Crown or a party to the proceedings. During argument on the procedure followed, I took the opportunity to observe that although the facts were different, the action of a magistrate for sentencing purposes, on his own motion obtaining files of other proceedings, which culminated in convictions, was considered by the Full Court in Re an application by J.K. Stonham M.P. No.334/79. In that case evidence of a previous appearance was not placed before the Court by either party and the learned Magistrate absolutely discharged the defendant and ordered that no conviction be recorded. Later he reviewed his sentence, on his own motion, after he learned that the defendant had previously appeared. For the purposes of the review he obtained, on his own motion, the record of the other proceedings and disclosed them for consideration to the parties.

19. The Full Court, in holding that the learned Magistrate wrongly took judicial notice of the other proceedings, made a number of general observations on the power of a magistrate, on his own. motion, to take judicial notice of other proceedings:

"A previous conviction, or possibly in certain circumstances a finding of guilt, is in a different category to the matters we have mentioned. It must be evidenced before a Court. By this we mean that it must either be proved by the calling of evidence or by being put to the accused and admitted by him.

        In particular if the latter is the case then a magistrate would be well within his rights to call for the convicting magistrate's minute or register, kept under the provisions of Section 34 and 35 respectively of the Magistrates Ordinance, so as to have the facts of the previous conviction before him should he deem it necessary."

20. There are, of course, a ,number of distinctions between that case and the instant appeal. In the case before the Full Court the prior finding had not either directly or indirectly been placed before the learned Magistrate by either party. In the present case there was at least an unadmitted summary before the learned Magistrate which referred to computerised codes relating to convictions. On the other hand , the Full Court only go so far as to state that where a proven or admitted conviction is before the Court a Magistrate may then on his own motion, obtain the record of the prior proceedings. In the present case there was neither a proven nor an admitted previous conviction before the learned Magistrate.

21. On the general question the Full Court observed:

"The magistrate is a creature of statute and unless there is specific provision to permit his introducing into evidence of his own volition previous convictions or offences he in our view cannot do so. This also applies to taking judicial notice of such matters. There are no such provisions. Indeed Section 29 of the Ordinance militates against such possibility. For if -a Court could take judicial notice of something which we think must be proved before it this section would not need to exist.

            The Courts of Magistrates in Hong Kong operate the adversary and not the inquisitorial system ... We agree that a magistrate has a duty not only to the offender but also to the community at large to see that a proper sentence is passed. But he must exercise that duty on matters put before him and he cannot be faulted in the exercise of his duty if, for some good reason or a reason thought to be good, certain matters are not 'put before him' which, had they been, could have effected the sentence he imposed."

22. As to the first submission, I recognise that there was no Section 7(1) or 7(2) in the old law although the old Section 7 is very similar to the new Section 7(1). However, whether the learned Magistrate has erred in referring to Section 7(1) or whether . it was the San Po Kong Magistrate who wrongly referred to Section 7(1), is a matter I cannot resolve on the information before me. I accept the Crown's submission that the content of the two provisions is similar. However, in view of the conclusion I have come to on the second submission, I do not need to consider further the implications arising from the reference to the wrong statutory provision.

23. As to the second submission, I find that that the appellant did not admit any previous convictions. The burden was therefore on the Crown to establish those alleged previous convictions beyond reasonable doubt.

24. The Crown elected not to discharge that burden. What happened was that from entries in the summary, the criminal nature of which was not admitted, the Magistrate on his own motion obtained files of other proceedings and then purported to take judicial notice of their contents. Quite apart from the contents possibly being erroneous in law, such a course was at least undesirable when the very issue of the nature of those entries was hotly disputed. However, in view of the general principles enunciated in Re an application by J.K. Stonham (supra) I hold that apart from being undesirable, the possible other convictions and their supporting records, were not matters of which the learned Magistrate in the circumstances of this case was entitled to have taken judicial notice. The alleged previous convictions had either to be proven or admitted. In the event they were neither proven nor admitted.

25. The learned Magistrate was obliged to sentence the appellant on the basis that he had no previous speeding convictions. The mandatory disqualification provisions of Section 41(2) and re-testing provisions of Section 70 therefore did not apply. The appeal against sentence is therefore upheld to the extent of quashing the orders of disqualification and for re-testing. The fine of $1,200 is confirmed.

DATED this 24th day of June 1985.