HKSAR v. DEVGUN, ANKIT KUMAR

HCMA 360/2025

[2026] HKCFI 2618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 360 OF 2025

(ON APPEAL FROM KCV 32/2025)

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J U D G M E N T

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1.  The appellant was issued a Fixed Penalty Notice dated 27 September 2024 alleging failure to comply with traffic signs on 18 September 2024[1]. As the appellant had notified the Commissioner of Police that he would wish to dispute liability, a Summons dated 25 February 2025 (“the Summons”) was issued and the appellant was required to appear on 25 March 2025 at Kowloon City Magistrates’ Courts to answer the information laid. On 25 March 2025, the appellant was absent and it was ordered that he shall pay $450 as fixed penalty, $450 as additional penalty and $500 as costs (“the Order”). On the appellant’s application to review the Order, the application was refused and the Order was upheld.

2.  The appellant now appeals against the Order.

The review hearing of the Order

3.  At the review hearing of the Order on 16 September 2025, the appellant submitted that he did not receive the Summons, and thus he was not aware of the hearing on 25 March 2025. He stated that the Summons was sent to his office address in Tsim Sha Tsui (“TST address”) which he had not used for over 1.5 years. He invited the court to consider that subsequent correspondence was sent to his correct address in Sham Shui Po (“SSP address”) and he could receive all of them, which suggested that there was no fault on his part in relation to the wrong address on the Summons. The appellant also emphasized that the hearings between 25 March 2025 and 16 September 2025 wasted his time and effort and someone should be liable.

4.  The prosecution submitted that the Summons had been sent to the appellant’s registered address, which was proved by a Certificate of Posting (“Certificate of Posting”). The Certificate of Posting showed that the Summons issued under section 5(1) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap. 240 (“the Ordinance”) was sent to the TST address on 26 February 2025. The prosecution further produced several sets of “Application for Renewal of Vehicle Licence” (“the Applications”) which were submitted to the Transport Department on the appellant’s behalf with his signatures. The Applications showed that the appellant’s registered address was changed from the SSP address to the TST address on 7 February 2025, and subsequently changed to the SSP address again in July 2025.

5.  The appellant replied that the dealings with the Transport Department were handled by agents as he had a lot of cars.

Magistrate’s findings

6.  The magistrate considered the submissions by both parties, all the materials and香港特別行政區 訴 陳民和 HCMA 322/2016 and HKSAR v Chaudhry Iftikhar Ahmed HCMA 331/2021. The magistrate found the primary issue was whether there was good service in respect of the Summons. He referred to section 5 of the Ordinance and stated that upon production by the prosecution of the Certificate of Posting and a certificate under section 8 of the Ordinance (“Section 8 Certificate”), it shall be conclusively presumed that the summons was duly served. He found the prosecution had produced the required certificates and the address on the certificates and the Summons was the registered address of the appellant at the material time. He therefore found that it shall be conclusively presumed that the Summons was duly served. He further stated that as the appellant was absent on 25 March 2025, the case was then determined in his absence pursuant to section 6 of the Ordinance, and based on the materials before him, the Order was made.

7.  Having reconsidered the above matters at the review hearing, the magistrate upheld the Order.

Grounds of appeal

8.  In the Notice of Appeal lodged by the appellant, it was stated that the ground of appeal was “the order was too severe”.

9.  At the appeal hearing, the appellant stated that the Summons was sent to the wrong address. He then sent a letter to Court regarding the Order and a new hearing date was fixed. He thought the case would be refixed for a trial. However, after several hearings during which the prosecution was not ready, then the matter was heard in September 2025 and the Order was upheld. He said someone should be responsible for the waste of his time and effort during those hearings. In gist, the appellant repeated what he said during the review hearing.

Respondent’s submissions

10.  The respondent submitted that given the appellant had notified the police that he wished to dispute liability upon receiving the demand notice, section 5 of the Ordinance would apply. In particular, under section 5(1)(b) of the Ordinance, the Summons may be served by post to the registered address of the appellant. Once the certificates under section 5(2) were produced and subject to section 6(2), it shall be conclusively presumed that the Summons was duly served. Further, the Certificate of Posting shows that the date of posting of the Summons was 26 February 2025, well before the time appointed in the Summons for the hearing on 25 March 2025. The respondent submitted that all the requirements under the Ordinance had been satisfied and it was conclusively presumed that the Summons was duly served on the appellant. Therefore, the magistrate could hear the information in the absence of the appellant under section 6(1) of the Ordinance.

11.  It was pointed out that the documents produced by the prosecution to the Court at the hearing included a copy of the demand notice, the Certificate of Posting and the Section 8 Certificate[2]. By virtue of section 7(1) of the Ordinance, the substance of the offence had been proved by the prosecution upon production of these documents. Thus, the magistrate was correct in making the Order on 25 March 2025.

12.  The respondent submitted that the magistrate had correctly applied the relevant legal provisions in accordance with the available information before him in reaching the decision to uphold the Order at the review hearing.

13.  It was further submitted that the present case was similar to that in 香港特別行政區 訴 陳民和 HCMA 322/2016 in which the appeal was dismissed. In gist, the appeal was dismissed on the ground that once the prosecution submitted the Certificate of Posting and the prescribed form of certificate under section 8 of the Ordinance, the legal effect was that the magistrate must conclusively presume that the summons had been duly served. The reason why the appellant did not receive the summons was not a matter for the Court to further investigate on appeal.

14.  The respondent pointed out that it was apparent from the records obtained from the Transport Department that the appellant’s registered address at the time of issue and service of the Summons was the TST address. Even though the appellant claimed it was a mistake made by his agent when conducting the filing work on his behalf, the appellant should have a proactive duty to ensure the information provided to the Transport Department was accurate and updated. The respondent submitted that as the prosecution had proved service of the Summons in accordance with the legal requirements stipulated in the Ordinance, the magistrate was correct in ruling that the Summons was duly served, in entering a conviction against the appellant, and in upholding the Order at the review hearing.

Consideration

15.  The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. 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.

16.  In the present case, the appellant received the demand notice. He then notified the Commissioner of Police of his intention to dispute liability. Therefore, the review procedure under section 3B of the Ordinance is not applicable as it only applies to cases in which the Commissioner of Police has not been notified of any intention to dispute liability by the recipient of the demand notice[3].

17.  As the respondent has correctly set out, the relevant provisions applicable to the present case are sections 5-8 of the Ordinance. In the present case, the prosecution had produced proof to show the registered address of the appellant as kept in the records of the Transport Department at the time of the issue and service of the Summons was the TST address. The Summons was posted to the TST address in accordance with the requirement under the Ordinance. At the hearing on 25 March 2025, in the absence of the appellant, the magistrate considered the documents produced by the prosecution. I agree with the respondent that, in view of the materials produced by the prosecution, the magistrate must conclusively presume that the Summons was duly served on the appellant. He was thus entitled to make the Order in the absence of the appellant and entitled to uphold the Order at the review hearing. The appellant confirmed that he had received the demand notice but not the Summons. As held in 香港特別行政區 訴 陳民和, the reason why the appellant did not receive the Summons is not an issue which the appellate court can delve into at the appeal[4].

18.  I understand the appellant’s request is for an opportunity to cross-examine the police officers who alleged the appellant had failed to comply with traffic signs. I also understand his grievance for the inconvenience caused by those hearings after he wrote to court to apply for review of the Order. However, I do not see any impropriety or error in the findings or legal procedure when the magistrate handled the case in the appellant’s absence. At the review hearing, the magistrate rightly pointed out that the hearing was not about what happened on the offence day but whether the Order should be upheld.

19.  By way of rehearing, I have considered all the information and evidence before the magistrate as well as the submissions from the appellant and the respondent. I find the magistrate has correctly considered and applied the relevant provisions of the Ordinance regarding the use of various certificates and the presumption regarding service of the Summons. I find no error in the magistrate’s decision to uphold the Order. The appeal is dismissed.