HKSAR v. CHIN VICTORIA VUI LUEN

HCMA 321/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 321 OF 2017

(ON APPEAL FROM ESP NO 781 OF 2017)

_______________________

_______________________

_______________________

J U D G M E N T

_______________________

1.  This is an appeal against the refusal of a magistrate to rescind an order for the payment of additional penalty and costs in relation to a demand for a fixed penalty that had not been paid within the prescribed period.

2.  On 20 December 2016, a Notice Demanding Payment of Fixed Penalty pursuant to section 15(3) of the Fixed Penalty (Traffic Contraventions Ordinance), Cap 237, (the Ordinance), was issued against the appellant.  The notice required that the appellant pay on or before 30 December 2016 a fixed penalty of $320.  The notice was issued to the appellant in respect of an offence for parking a motor vehicle likely to cause unnecessary obstruction of a road or danger to other persons using the road, contrary to section 4 of the Ordinance. 

3.  No payment was made by the due date.  As a result, an application was made to a magistrate pursuant to section 16(2) of the Ordinance for an order that the appellant pay the fixed penalty of $320 plus additional penalty of $320 and costs of $440 in the total sum of $1,080.  The magistrate made the order on 28 February 2017.  A notice of order was issued on 1 March 2017 which was served on the appellant. 

4.  The appellant paid the sum demanded under the notice of order but at the same time applied for a review of the matter pursuant to section 16A of the Ordinance. 

5.  Section 16A as far as material provides:

“(1) Where a magistrate is satisfied that the notice mentioned in section 15(3) has not come to the personal notice of the person liable 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 16(2) and—

(a) if that person wishes to dispute liability for the contravention, order that the matter be determined in accordance with section 16(1); or

(b) if he does not wish to dispute liability—

(i) order him to pay the fixed penalty within 10 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.

…” (Emphasis added)

6.  By virtue of section 16A, a magistrate upon being satisfied that the notice mentioned in section 15(3) has not come to the personal notice of the person to whom it is addressed, without any neglect by that person, may on an application rescind the order for the additional penalty and the costs which had been made.  There are two requirements in this section.  First, it has to be shown that the demand notice has not come to the addressee’s notice.  This has been interpreted as to mean that personal notice has not come “in time to pay the demand”.  See HKSAR v Preston [2014] 4 HKLRD 427 at paragraph 9 per Line J.  Secondly, it has to be shown that the addressee not having personal notice of the demand notice is not a result of any neglect on his part.  In my view, in the context of this section this requires applying practical common sense to the relevant circumstances under consideration. 

7.  The burden is on the appellant to satisfy the magistrate on the balance of probabilities that he was not neglectful in the circumstances described by him. 

8.  The application for review in the present case was heard by Ms Ho Lai Ming, Special Magistrate, on 6 June 2017, which she dismissed.  The appellant appeared before the Special Magistrate in person and gave evidence.  The Special Magistrate asked her a series of questions in order to ascertain whether the demand notice had not come to her notice and whether the failure of her not receiving notice of the demand notice was not attributable by any negligence on her part.  The Special Magistrate made the following findings of fact:

(i) the address as stated in the summons was the applicant’s registered address at the Transport Department;

(ii) she did not receive the notice;

(iii) she had a mailbox for that registered address;

(iv) her mailbox had no lock;

(v) anyone in her building could open her mailbox at any time;

(vi) her mailbox was open all the time;

(vii) she had been using the mailbox for 14 years;

(viii) during the 14 years there were multiple times she had received mail not belonging to her;

(ix) during the 14 years there were multiple times her mail had been misplaced to other places; and

(x) she did not do anything about this situation as she was not very concerned about it.

9.  The Special Magistrate dismissed the application for the following reasons:

“4. The mailbox and the system as testified by the Applicant obviously could not serve the purpose of securing the receipt of mails supposed to be received but the Applicant did nothing to the situation. I found that the Applicant had failed to prove that the failure in receiving or noticing the Notice was not attributable to her negligence. I therefore dismissed the application for review.”

10.  The appellant complains that she sought to submit to the Special Magistrate relevant information in relation to the review but instead was limited to responding to a series of questions from the Special Magistrate.  It is clear that the Special Magistrate was seeking to direct the appellant’s attention through the questions she asked to the two key issues that required to be addressed in accordance with section 16A.  The appellant was offered the opportunity by the Special Magistrate to provide any further information but declined to do so. 

11.  A magistracy appeal is an appeal by way of rehearing.  In an appeal of this type, the appellate court is required to reach its own independent decision as to whether it is satisfied to the requisite standard of the appealed decision on the record of the evidence given in the proceedings in the Magistrate’s Court supplemented by any further evidence it may admit.  See section 113 of the Magistrates Ordinance, Cap 227, Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 and HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.

12.  The appellant has submitted additional evidence in respect of whether the failure to receive notice of the demand notice was due to any neglect on her part.  The evidence was admitted pursuant to section 118(1)(b) of the Magistrates Ordinance, without objection from the respondent.  Although certain aspects of the additional evidence were the subject of questions or submissions by the respondent.

13.  The appellant’s evidence is that the building in which she lives consists of a small number of residences, 23 flats, which is monitored by three security guards.  She stated that all the occupants of the flats know each other, and that any misdirected mail to a neighbour would always find its way back to the correct mailbox.  It was on this basis that she was not concerned about any misdirected mail as she always felt secure in receiving her mail.  In the 14 years that she has lived at her residence, this had only happened on two or three occasions.  She explained that the reference to multiple times in her evidence before the Special Magistrate was to this number of occasions.  She also stated that in the past she has never missed, or been late in, making payment of a parking fine that had been imposed on her.  She explained that this showed that she would not have knowingly neglected to pay the fixed penalty in question.  The issue is whether in the circumstances she was negligent in not receiving the demand notice.  It is that issue that I have particularly focussed on.

14.  Mr Prakash Daryanani, for the respondent, submitted that notwithstanding the additional evidence, the appellant failed to show that not having notice of the demand notice was not a result of any neglect on her part.  He noted in particular that she did not have a lock on her mailbox and this neglect on her part would have attributed to her not receiving notice of the demand notice.  I reject this submission. It is not uncommon not to have a lock on your mailbox and it will depend on the situation and circumstances of the mailbox and the building in which it is located.  As explained by the appellant, she resides in a secure building where the number of flats is small and where misdirected mail has only occurred on two or three occasions. 

15.  I am of the view that in light of the additional evidence and in the circumstances of the case, the demand notice did not come to the appellant’s attention because of any neglect on her part.

16.  For the reasons that I have given, I would allow the appeal and would rescind the order for the appellant to pay the additional penalty of $320 plus the costs of $440.  I note that the appellant has paid these sums which I order should be repaid to her.