HKSAR v. CHAN KIN‑FUNG, PHIL

HCMA 531/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 531 OF 2014

(ON APPEAL FROM ESM 4833 OF 2012)

_______________

________________________

R E A S O N S   F O R   J U D G M E N T
________________________

1. This is an appeal against two decisions by Deputy Special Magistrate Robin KT Yue on 12 June and 1 August 2014 to refuse Review Applications brought by the appellant and in respect of the 2^nd Review the award of $6,000 costs to the respondent.

Synopsis of relevant events

2. (1) On 19 September 2012, the appellant signed and returned to the police a form POL 571 addressed to his company at Rm 1312, Fl 13, Block 1, Lippo Centre. He admitted he was the driver when an alleged offence of failing to comply with a traffic signal took place.  He gave that office address as his address.  That POL 571 was addressed to his company, Wallbanck Brothers.  At the same time there was a letter addressed to Wallbanck Brothers informing them that the recorded address with the Transport Department was different from the actual address and drawing attention to the need to notify the Commissioner for Transport in writing of ANY change in particular within 72 hours of such a change.  Further that if a notice demanding payment under the Fixed Penalty (Criminal Proceedings) Ordinance, Cap 240 was to be issued, it would be posted to the address registered with the Commissioner for Transport of the driver concerned.

 (2) On 21 September, he signed and returned another POL 571 sent to the same address but directed to him personally, identifying himself again as the driver and giving that same address.

 (3) At that time, the addresses registered with the Commissioner for Transport in respect of the appellant were a home address of Flat A, 10^th Floor, St Louis Mansion, 20, Macdonnell Road and a correspondence address of Rm 1, Floor 26, Block 2, The Lippo Centre.  Despite the notice of 17 September 2012, to inform the owner that this address would be used for any demand notice, the appellant made no application in writing to change that address being the correspondence address.

 (4) A notice demanding payment of $600 or notification of intention to dispute, liability for the offence was duly sent to the appellant at the registered correspondence address.  This is dated 9 October 2012.

 (5) On 4 January 2013, a magistrate at Eastern Magistracy, imposed an order for the fixed penalty of $600, an additional penalty of $600 and costs of $400. The total was $1,640.  This was issued on 7 January and again sent to the registered correspondence address. 

 (6) The appellant sought a Review under section 3B of the Fixed Penalty (Criminal Proceedings) Ordinance Cap 240.  This was dismissed on 25 June 2014.

 (7) The appellant then sought a Review Hearing of the dismissal of the Review on 25 June under section 104 of the Magistrates’ Ordinance, Cap 227 which was also dismissed.

 (8) The Magistrate ordered the appellant to pay $6,000 costs to the respondent on 1 August 2014.

The appeal

3. Whilst it remains somewhat unclear as to the precise grounds of appeal, it appears to be on the basis that the magistrate erred in holding that the registered address means the correspondence address lodged with the Commissioner for Transport.  That the registered address was the home address but with a suggestion that the notice should be served on both addresses.

4. That the appellant had discharged his burden of informing the Commissioner of Transport of the change in the correspondence address, if indeed such a duty arose by his informing the police of his address in his reply to two POL 571s. 

5. That in general the appellant’s rights, as guaranteed by Article 35 of the Basic Law and Article 11 of the Bill of Rights had been breached. 

6. That the appellant should not have had costs awarded against him in respect of the 2^nd Review as it was meritorious and he was exercising his constitutional right.

Findings

7. Having considered the appellant’s lengthy written and oral submission, the respondent’s more measured written and oral submissions and the learned magistrate’s clear and helpful Statement of Findings.  I concluded that the appeals should be dismissed. The basis being as follows:

(1) The registered address for these purposes is the residential address unless the applicant elects for a correspondence address in which case that assumes the status of the registered address.  The application form for driving licences is clear on this point.  The correspondence address is expressed to be for “the purposes of contact and mailing” when the residential address cannot be used.

(2) That in the notice dated 17 September 2012, the appellant was told clearly that the police would use the registered address held by the Commissioner for Transport to serve notices regarding any fixed penalties.

(3) The appellant failed to inform the Transport Department in writing of the change of the correspondence address which for the purposes is the registered address in proper time.

(4) That informing the police of the address for correspondence in the POL 571 is insufficient compliance with requirements.

(5) That the learned magistrate was correct to accept that although the notice had not come to the appellant’s personal notice that it could not be shown by the appellant that it was so because of no neglect on his part.

(6) Indeed he himself had designated the old correspondence address as the registered address then failed to change that address as is required.

(7) There is no relevant application to this simple statutory process of any Article of the Basic Law or Bill of Rights.

(8) That the 2^nd Application of Review was merely repetitious of the first and rightly failed for the same reasons.

(9) That the learned magistrate could not be criticised in law or fact for granting costs against the appellant.  The exercise of a constitutional right does not mean that if the application fails no costs should be awarded against the losing party.

8. Therefore the appeals fail and are dismissed.