HKSAR v. GUNAWAN, INDRA

HCMA 39/2025

[2025] HKCFI 5615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 39 OF 2025

(ON APPEAL FROM WKL 150 OF 2024)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  The Appellant was accused of committing the offence of obstructing in public places, contrary to section 4A of the Summary Offences Ordinance, Cap. 228.

2.  On 2 October 2024, a notice under section 6(1)  of the Fixed Penalty (Public Cleanliness and Obstruction)  Ordinance, Cap. 570 (“the Section 6 Notice”)  was served on the Appellant, demanding him to pay a fixed penalty of $6,000 (“the Fixed Penalty”)  or inform the Director of Food and Environmental Hygiene (“the Director”)  if he wishes to dispute the liability within 10 days beginning on the date of service of the said notice, that is on or before 12 October 2024.

3.  However, the Appellant did not pay the Fixed Penalty nor did he notify the Director in accordance with the Section 6 Notice. 

4.  Therefore, upon the Director’s applications, the Magistrates’ Court served a Notice of Order to pay penalty under section 8(1)  of Cap. 570 on the Appellant on 22 November 2024, ordering him to pay the Fixed Penalty and additional penalty of $6,000 and costs in the sum of $300 within 14 days from the date of service or notice of the order (“the Order”). 

5.  The Appellant then applied for review of the above Order.  In the notice of appeal, the Appellant stated that there was a misunderstanding between him and the interpreter who failed to translate, and asked to be allowed to pay the Fixed Penalty only. 

6.  After the review hearing before the Magistrate, the Magistrate refused the Appellant’s application and upheld the Order.  The Appellant now Appeals against the Magistrate’s Order.

Magistrate’s finding

7.  For the interpretation at the review hearing, the Magistrate found that the interpreter had already confirmed the language with the Appellant before the commencement of the hearing, during which the Appellant never raised any issue with the translation.  The Magistrate was satisfied that there was a clear understanding of language between the Appellant and the interpreter who had translated the Appellant’s evidence and submission fully and accurately. 

8.  The Magistrate also stated the law that the Appellant has the burden to prove on the balance of probabilities that the Section 6 Notice did not come to his personal notice without any neglect on his part.

9.  After analysis, the Magistrate did not accept that he noticed the Director immediately upon receipt of the notice because P1 showed that he agree that he made the notification only on 16 October 2024. 

10.  The Appellant further said that he received the Section 6 Notice dated 2 October on 7 October 2024, within 10 days of its service.  Thus he had ample time to notify the Director in accordance with the notice if he wished to dispute the liability, that is by 12 October 2024, but he did so only on 16 October 2024.  Therefore, he failed to prove that section 6 did not come to this personal notice without any neglect on his part.  The Magistrate thereby refused to enact Appellant’s application for review. 

Grounds of appeal

11.  Firstly, the Appellant says that there was misunderstanding of the translation between himself and the interpreter.  And secondly, the Appellant also disputes the liability and seeks to adduce additional evidence, basically saying that he just unconsciously and reflexively accidentally moved his letterbox and there was a water basin leakage problem.  So he simply cleaned the wet floor, but he had been proving the notice of breaching the offence.  So the Appellant also seeks to adduce the photo of the scene. 

12.  The Appellant is simply saying that the officers passed in front of the shop and issued an offence or fine and he had already replied saying sorry and explained to the officer.  And later on in the review hearing, the Magistrate did not consider his evidence and decided to impose a double fine because of his late submission of the form to the court.

13.  The Appellant now declares that he had sent back the Form 2 by post office on time, not exceeding the time limit.  So he seeks to reverse the decision of the Magistrate.

Respondent’s reply

14.  Firstly, as to the new evidence concerning the photo and his assertion, the Respondent refers to the case of Mohammad Mahabobur Rahman v HKSAR [2010] 13 HKCFAR 20, stating the conditions to be satisfied before receiving any fresh evidence at the appeal.  That includes:

(a)  the fresh evidence is likely to be credible;

(b)  it would have been admissible in the courts below;

(c)  it is relevant to an issue in the appeal;

(d)  there is a reasonable explanation for the failure to adduce it in the courtd below; and

(e)  the court is satisfied that it would afford a ground of appeal. 

15.  However, the Respondent is saying that the Appellant simply reiterated what he said in the court at the review hearing and that cannot be received as fresh evidence. Secondly, the Appellant did not produce the photo at the review hearing and there was no reason why he did not do so.  Therefore, that should not be adduced as evidence at all. 

16.  As to the Magistrate’s Order, the Magistrate correctly stated that the Appellant has the burden to prove on the balance of probability that the Section 6 Notice did not come to his personal notice without any neglect on his part.  And while the Appellant had protested that he had immediately furnished notice of his intention to dispute liability to the Director upon receipt of the Section 6 Notice in his testimony during the review hearing, the Magistrate refused to accept this as the Appellant himself agree that he only made the notification on 16 October 2024, whereas he claimed he received the notice maybe on 7 October 2024. 

17.  So in any event, even if the Appellant’s version is to be accepted, the Appellant still had ample time to send his notice to dispute liability within the time limit, being 12 October 2024.  Yet, the evidence show he only did so on 16 October 2024.  So the Appellant had accordingly failed to prove that the Section 6 Notice did not come to his personal notice without any neglect on his part. 

18.  Therefore, the Respondent submits that there are sufficient grounds for the Magistrate to refuse the Appellant’s review of upholding the Order.  So the appeal shall be dismissed. 

Consideration

19.  In the Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial court.  On such rehearing, if the judge come 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. 

20.  I had the opportunity to go through the transcript of the review hearing, appeal bundle page 14 to page 19, from which the Appellant admitted having received the notice but he waited for 21 days to send the letter. 

21.  He later on also stated that he did reply immediately but he did not remember which date.  However, when referring to the said notice, the Appellant also admitted that the date was 16 October as written by him, and he maintained that he did reply within 10 days limit. 

22.  As to the ground of appeal, for the misunderstanding on translation, the Magistrate already stated that there was never any issue raised by the Appellant during the review hearing and there had not been any problem as shown in the transcript. 

23.  As to the photo now the Appellant sought to adduce, there was no reason why that had not been adduced during the review hearing.  Even if it were to be accepted, it simply referred to his dispute on liability, but the present appeal only concerned on whether he did reply to dispute briefly within time. 

24.  As shown on the notice dated 2 October 2024, the time limit shall be 12 October 2024 but the Appellant only replied on 16 October 2024.  The time limit imposed had clearly expired.

25.  Furthermore, according to the Appellant, it was simply not a case that he did not receive the notice at all.  Thus it also cannot be a case that it did not come to his personal notice without any neglect on his part. 

26.  So by rehearing, the Magistrate correctly refused the application to review.  The appeal against the Order is dismissed accordingly.