HKSAR v. WINDLE, CHRISTOPHER

HCMA 506/2024

[2026] HKCFI 5436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 506 OF 2024

(ON APPEAL FROM STP NO 26674 OF 2024)

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BETWEEN

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REASONS FOR JUDGMENT

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Introduction

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 was not paid within the prescribed period.

2.  On 9 July 2024, a Notice Demanding Payment of Fixed Penalty (“the Notice”) was issued to the Appellant pursuant to section 15(3) of the Fixed Penalty (Traffic Contraventions Ordinance), Cap. 237 (“the Ordinance”). The Notice required the Appellant to pay a fixed penalty of $320 on or before 19 July 2024. The Notice concerned an offence committed on 6 June 2024 at Tsuen Nam Road, namely 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.  The Appellant neither paid the fixed penalty within the statutory time limit nor notified the Commission of Police that he wished to dispute liability for the offence. An application was therefore made to the magistrate under section 16(2) of the Ordinance for an order requiring the Appellant to pay the fixed penalty of $320 plus additional penalty of $320 and costs of $440, totalling $1,080. The magistrate made the order (“the Order”) on 20 September 2024, and a Notice of Order[1] was issued on 23 September 2024 and served on the Appellant.

4.  The Appellant applied to the magistrate to rescind the Order, explaining that he had been absent from Hong Kong between 2 July 2024 and 2 August 2024.

5.  In September, the Appellant applied for a review under s16A of the Ordinance. The magistrate refused the application on the ground that the Appellant had disclosed no ground for review.

6.  On 6 November 2024, the Appellant paid the total sum of $1,080. He then applied for an extension of time to file a Notice of Appeal (Form 103). The magistrate refused the application, but the Court of First Instance granted it in December 2024.

7.  At the appeal hearing, the Appellant appears in person. He filed a letter dated 10 January 2025 (“1^st Letter”) stating out the ground of appeal, and a further letter of the same date (“2^nd Letter”) giving his reasons for the appeal.

Magistrate Refused the Application for Review

8.  In the Reasons for Order, the magistrate said[2]:

“Legal Principle

2. Pursuant to section 16A of the Ordinance, the applicant needs to prove on a balance of probabilities that the Notice has not come to his personal notice without any neglect by him.

3. An application for review made under section 16A of the Ordinance is different from an application for review made under section 104 of the Magistrates Ordinance (“MO”), Cap 227, Laws of Hong Kong. While under subsection 4A of section 104 of the MO, a magistrate shall not reject an application for a review without giving the applicant or his counsel an opportunity to make representations to him in open court, there is no such provision in the Ordinance.

Analysis

4. The Notice was dated 9 July 2024 and the last date for payment or notification of dispute was stated to be 19 July 2024.

5. In the Letter, the applicant stated that he was out of Hong Kong from 2 July 2024 to 2 August 2024. He opened the letter on 2 August 2024, and he was unable to make payment for the fixed penalty as the last date for payment had expired.

6. The applicant did not state in the Letter, however, that any measure was taken to ensure that his mail, particularly urgent ones, were taken care off while he was out of Hong Kong. For example, had the applicant engaged someone to check his mail for him while he was out of Hong Kong, the applicant could have been alerted of the last date for payment of the Notice and made arrangements for payment of the fixed penalty. Even if the applicant could not make payment while abroad, he could arrange to have someone pay for the fixed penalty first on his behalf.

Conclusion

7. Therefore, I was of the view that the Letter failed to disclose that the Notice has not come to the personal notice of the applicant without any neglect by him. As I was not satisfied that the defendant disclosed any ground for review, in order to save court resources, I refused the review application without a hearing.”

Ground of Appeal

9.  In the Notice of Appeal, the Appellant stated that his ground of appeal was as follows:

“The fixed penalty notice did not come to my notice. I was overseas when the notice demanding payment was delivered to my residence, and by the time I returned to HK and tried to pay, the payment mechanism had been disabled as the deadline had been missed.”

10.  In the 1^st letter, the Appellant stated:

“I was absent from Hong Kong when the fixed penalty notice was delivered to my address and returned only after the payment date deadline. I made the arrangements for my mail to be monitored while I was overseas to ensure I could address any urgent issues.”

11.  In his 2^nd Letter, the Appellant provided a chronology of his review applications and the events leading to his failure to receive the Notice and pay the fixed penalty. He explained that the Notice did not come to his notice on or before the due date because he was outside Hong Kong from 2 July 2024 to 2 August 2024. He attached his flight tickets as evidence of his absence. Upon returning to Hong Kong and discovering the Notice on 2 August 2024, he attempted to pay the fixed penalty immediately, but the online payment option had been disabled.

12.  The Appellant further stated that, during his absence and contrary to what the magistrate mentioned in paragraph 6 of the Reason for Order, he had instructed his son Thomas Windle (“Thomas”) to monitor his mail during the summer of 2024, including the period from 2 July 2024 and 2 August 2024. He said that he had made similar arrangements for the past 4 summers. Screenshots of the WhatsApp conversations between the Appellant and Thomas in 2022 summer were attached to show that Thomas had dealt with a similar fixed penalty notice. The Appellant explained, however, that Thomas was too busy with work and did not monitor the mail adequately during the summer of 2024.

Respondent’s submissions

13.  Section 16A of the Ordinance provides that:

“(1) If a magistrate is satisfied that the demand notice has not come to the personal notice of the person to whom the demand notice 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 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 that person does not wish to dispute liability—

(i) order that person to pay the fixed penalty within 10 days of the order; and

(ii) order that, if that person fails to pay that fixed penalty within that period, that person shall be liable to pay immediately that fixed penalty, together with an additional penalty equal to the amount of the fixed penalty.”

14.  Section 16A accordingly imposes two requirements. First, the Appellant must show that the Notice did not come to his personal notice. Secondly, he must show that this occurred without any neglect on his part. The burden is on the Appellant to satisfy the magistrate on the balance of probabilities that he was not neglectful in the circumstances described: HKSAR v CHIN Victoria Vui Luen[3].

15.  The Respondent submitted that the Appellant had failed to establish on the balance of probabilities that the Notice did not come to the personal notice without any neglect on his part, for the following reasons:

a. Whilst the Appellant had instructed Thomas to check his mail regularly during his summer absence, if Thomas forgot or was too busy to do so, the Appellant should have followed up with Thomas or arranged for another person to check the mail. The available evidence did not show the Appellant had done anything similar in this regard;

b. As pointed out by the magistrate, the Appellant failed to take any measure to ensure that his mail, particularly the urgent ones, were attended to and brought to his attention while he was away.

16.  The Respondent stated that even though the Appellant had engaged Thomas to keep an eye on his mail, the available evidence did not show that the Appellant had taken the initiative to ask for updates on his mail and proactively reminded Thomas to check his mail regularly while he was out of town.

17.  The Appellant repeatedly pointed out in the Notice of Appeal and the 2^nd Letter that his attempt to pay the fixed penalty failed because the payment mechanism had been disabled after the due date. His attempt to pay after the due date was of little relevance in relation to whether the Notice had failed to come to his personal attention without neglect on his part.

Consideration

18.  In HKSAR v Hui Lai Ki[4], the Court of Final Appeal held that magistracy appeals are conducted by way of rehearing on the evidence before the trial court. The judge must be satisfied that the Appellant's guilt was proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict.

19.  I consider it necessary to provide a brief chronological summary of the events leading to the issuance of the Order and, subsequently, to the present appeal.

20.  In his letter of 26 September 2024, the Appellant stated only that he had been absent from Hong Kong between 2 July 2024 and 2 August 2024. Upon his return to Hong Kong, he became aware that a fixed penalty had been issued to him and that the payment deadline had been 19 July 2024. He applied to the court for a review. His application was refused by the magistrate on 30 September 2024.

21.  By letter dated 16 October 2024, the Appellant requested reasons for the refusal. On 24 October 2024, the court replied that his application “disclosed no ground for review”.

22.  On 29 October 2024, the Appellant wrote again to the magistrate. It was only then that he expressly raised the statutory requirements that the Notice had not come to his personal notice and this had occurred without any neglect on his part. He stated: “the notice had not come to my attention without neglect on my part. I have previously provided proof of this absence from Hong Kong, and would like to apply for a review”.

23.  On 1 November 2024, the court replied by informing him of the magistrate’s order: “Previous Order Stands”.

24.  As stated in preceding paragraphs, the Appellant subsequently lodged the present appeal.

25.  As outlined above, the magistrate in paragraph 6 of the Reasons for Order said[5]:

“6. The applicant did not state in the Letter, however, that any measure was taken to ensure that his mail, particularly the urgent ones, were taken care off [of] while he was out of Hong Kong. For example, had the applicant engaged someone to check his mail for him…”

26.  I note that the Appellant is a layperson. He could not reasonably be expected to know that, under s16A, he was required to establish both that: (i) the Notice did not come to his personal notice; and (ii) this had occurred without any neglect on his part. Although he had stated in his letter of 26 September 2024 that he had been outside Hong Kong, he did not at that time explain that he had asked his son, Thomas, to monitor the mail on his behalf.

27.  The Appellant only became aware that he was required to address the issue of ‘no neglect’ after the magistrate had refused his application. The assertion that Thomas had been asked to monitor the mail, as he had allegedly done on previous occasions, might or might not have been accepted by the magistrate. However, that is not my point. In my view[6], it would have been appropriate for the magistrate to hear fully from the Appellant regarding the circumstances relevant to the two statutory issues, and in particular, why he considered that there had been no neglect on his part. The Appellant would also have been subject to cross-examination. It appears to me that the magistrate refused his review application prematurely, without affording the Appellant a full opportunity to address the issue of whether the failure to appear was attributable to any neglect on his part.

28.  For the reasons given above, I allow the appeal. The Order requiring the Appellant to pay the additional penalty of $320 and the costs of $440 is rescinded. I note that those sums have already been paid. I order that they be refunded to the Appellant.