R. v. CRAWLEY WILLIAM ALAN TERENCE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 77 OF 1997

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J U D G M E N T

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1. The evidence of the prosecution was that on 18^th May 1996, PW1, a cashier on duty at the Middle Road Public Carpark, was alerted by the alarm of the computer controlling the barrier at the exit. She looked towards the exit and saw a car being driven out of the car park through that exit crashing the barrier as it exited. She noted down the number of this car and later reported the matter to the police. She had checked the number she noted against the video recording of the incident before she reported to the police.

2. A police officer PW2 arrived at the scene and he checked the number recorded by PW1 against the video recording again. The number was confirmed to be EF6504. The registered owner was the appellant. In accordance with s.63 of the Road Traffic Ordinance, PW2 on 29^th May 1996 sent out a notice by registered post to the appellant requiring him to supply the name, address and driving licence number of the driver driving the vehicle at the material time within the specified period.

3. Subsequently, PW3 managed to speak to the appellant on the phone about this notice and later visited his office on 5^th June 1996 to deliver to him a notice under s.63. PW3's evidence on why he went there was this:

"I went with a subordinate, I was not sure that the lst Pol. 571 had arrived or not because I checked with the post office and they said they were not sure as to the exact location of the address.

I did not find residential address as there was no street name and no street number."

4. The notice was delivered to the appellant's secretary who later informed PW3 that the appellant was given the notice but refused to fill in any form as requested by the police. It is clear from the evidence of PW3 that the first notice on 29^th May 1996 had not been served on the appellant.

5. The magistrate found on PW3's evidence that it constituted sufficient personal service on the appellant of Pol. 571. It is therefore clear that the magistrate found as a fact that the notice was served on the appellant on 5^th June 1996 and the demand was made on that day.

6. The appellant was summoned for failing to provide within 21 days of a demand made on 29^th May 1996 the name, address and driving licence number of the driver who drove his vehicle on 18^th May 1996. Clearly, the alleged offence was in respect of his failure to comply with the demand made on 29^th May1996 and not the demand made on 5^th June 1996. The magistrate had found as a fact that service was on 5^th June 1996.

7. The appellant neither received nor was served with the demand made on 29^th May 1996 . The appellant in such circumstances could not possibly have complied with the demand made on 29^th May 1996. In the circumstances, he could not be convicted of the offence specified in the summons. He might or might not have been liable for an offence in respect of the demand made on 5^th June 1996, but that is another matter in respect of which he had not been summoned.

8. Mr Cheung for the prosecution conceded that the appeal should be allowed.

9. The appellant had put up a number of grounds of appeal but in the circumstances I need not go into them.

10. The appeal is allowed. The conviction is quashed and the fine and costs set aside. Any fine or costs paid shall be refunded to the appellant.