SYED AHMAD NOH v. THE QUEEN

Road Traffic - procedure - information executed within statutory time limit but laid and summons issued after expiration thereof - whether merely a procedural defect waived by the represented defendant's plea of guilty - Held:

IN THE SUPREME COURT OF HONG KONG

Appellate Jurisdiction

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JUDGMENT

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1. On 14th May, 1985 a learned Magistrate convicted the appellant, on his plea of guilty, of driving a motor vehicle at an excessive speed contrary to Section 41(1)(a) of the Road Traffic Ordinance, Cap. 374. The appellant admitted two prior speeding convictions on 21st November 1982 and 18th July 1983. Following the plea of guilty and those admissions the appellant was fined $200, disqualified for 12 months and ordered to be re-tested under Section 70(1) before being issued with a new driver's licence.

2. Section 41(2) provides that a person who is convicted of a third or subsequent speeding offence shall be disqualified for a minimum period of not less than 12 months. Prior speeding offences remain relevant until a period of 3 years has elapsed when they respectively cease to be applicable for the purposes of Section 41(2). In other words after 3 years the conviction is spent. The slate is then wiped clean for all speeding convictions of 3 years of age or older. The Section 70 re-testing order is mandatory where the holder of a driver's licence is disqualified for a period of not less than 6 months.

3. The short point of law, taken by the appellant on this appeal, is that the information was not laid within 6 months of the alleged offence. In this regard Section 26 of the Magistrates Ordinance, Cap. 227 provides:

There is no special limitation period prescribed in the Road Traffic Ordinance. The present offence is not indictable. The time limitations imposed by Section 26 therefore applies.

4. The general practice is for the police informant to prepare and execute the information at a Police Station after which it is lodged at the appropriate Magistracy. A Magistrate or an authorised officer under Section 8 then causes a summons to be issued pursuant to the information. The defendant is served with the latter summons while the information remains in the Magistracy. The only document received by the defendant will therefore be the summons which will usually be dated some days subsequent to the date of the information.

5. The relevant dates in this particular case are:

                4.9.84:    Date of alleged offence.

               25.2.85:  Date of information.

                6.3.85:    Date information lodged at Magistracy.

                9.4.85:    Date summons issued.

6. The information was therefore executed before the expiration of 6 months but lodged 2 days after the expiration of that period of 6 months. The material date is the date the information is lodged for that is the date when the information is formally laid. If the information is lodged within the statutory period of 6 months, it matters not whether the summons is issued or served after the expiration of that period. In Cheung Kwok-cheung v. The Queen ⁽¹⁾ the parties agreed that for the purposes of Section 26, the effective date of the laying of an information is the date the information is lodged in Court. However, the Court of Appeal's judgment does not rest on that agreement, for it went on to cite R. v. Leeds Justices ⁽²⁾ as authority for that proposition. In the instant case the information was purportedly laid 6 months and 2 days after the commission of the alleged offence. There was therefore non-compliance with Section 26.

7. However, Counsel for the Crown submitted that at the trial the appellant, who was represented by Counsel, pleaded guilty and raised no objection to the lateness of the information. It was submitted that in those circumstances the appellant had waived any irregularity. If noncompliance with Section 26 was merely a procedural defect, there would have been substance to the Crown's submission. However, the defect goes to jurisdiction. Where there is a lack of jurisdiction that defect cannot be cured by agreement, waiver or by a plea of guilty by a defendant represented or unrepresented. These conclusions merely correspond with well settled law and reflect the judgments of the Full Court in Attorney-General v. Tong Yiu-pui ⁽³⁾ and more recently the Court of Appeal in Cheung Kwok-cheung v. The Queen (supra).

8. I therefore hold that because the information was laid out of time the learned Magistrate had no jurisdiction to hear the charge, accept the plea of guilty or impose the conviction and consequential orders. The defect, going to jurisdiction, was not capable of being waived by the appellant or by his then Counsel. The appeal is upheld. The conviction and consequential orders are quashed. Any fine paid shall be refunded to the appellant.

(1)    (1982) HKLR 126

(2)    (1981) 3 All ER 72

(3)    (1972) HKLR 71