THE ATTORNEY GENERAL v. WONG CHI WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1507 OF 1994

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JUDGMENT

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1. This was an appeal by way of case stated by the Attorney General against a decision made by the learned magistrate in relation to an offence contrary to ss.12(1), 12(5) and 19 of the Road Tunnels (Government) Ordinance, Cap.368. The respondent was charged that he failed to give in writing within 21 days after the date of demand, the address and driving licence number of the person suspected of having committed the offence of crossing double-white lines whilst driving a vehicle in the Aberdeen Tunnel area on 3rd September 1993. The evidence was that at the relevant time the vehicle involved was registered in the name of the respondent, Wong Chi-wai. The evidence further was that a notice requiring identification of the driver was sent by recorded post to the address of the respondent, and that a receipt was signed by a person called Wong Chi-fai, obviously a member of the respondent's family.

2. The respondent was not represented at trial and did not cross-examine the only prosecution witness, a Mrs Ng Leung Win-sum of the Transport Department. At the conclusion of the Crown case, the learned magistrate found there was a case to answer. The respondent did not give evidence and called no witnesses. At the end of the case the learned magistrate decided that :

The first question of law arising in this case as stated by the learned magistrate was :

"FIRSTLY WHETHER I was correct in holding that before I could convict the Respondent of the offence charged, it was necessary for there to be evidence before the court of the suspected offence referred to in Exhibit P3."

3. Section 12 of Cap.368 states as follows :

"Obligation to give information relating to the driving of vehicles

There is nothing in that section or indeed any other section which requires any more than that the notice include a reference to the offence it is alleged was committed and which gives rise to the notice itself. The Hong Kong legislation is in very similar terms to s.168 of the Road Traffic Act 1972 which provides :

4. That legislation was considered in the case of Jacob v. Garland [1974] RTR 40. The defendant keeper of a vehicle received a request from a chief officer of police to identify its driver on a specified date. The defendant submitted that the prosecution had to prove that the car was involved in an offence committed by its driver on the specified date and that, in the absence of such evidence, there was no case to answer.

5. Lord Widgery CJ stated at 43 A and B :

"When the keeper of a vehicle receives [a request under s.168(2)], then he is required to comply with it, in other words, to give such information as to the identity of the driver as he was required by the request to give. If he takes no notice of the request and fails to observe it at all, then in my judgment he commits an offence and all the prosecution have to do is to prove that the notice was served and not complied with ... the burden on the prosecution in a simple case where the defendant does not comply with the notice at all will be, I think, that the prosecution need only show the service of the notice and a failure to respond to it in any way."

6. In the present case, the notice was in all respects adequate in that it included a statement of the alleged offence, i.e. crossing continuous double white lines. That was all that was required. The answer to the first point of law stated by the learned magistrate is "no".

7. In passing, I should mention that it was difficult to understand how that the learned magistrate, having found there was a case to answer, could come to the view that she eventually did. If it was indeed her view that it was an essential element of the offence charged that the Crown prove that the driver referred to was suspected of having committed an offence, and that there was no evidence that the driver of the vehicle had committed any offence, then she ought to have found no case to answer. She could not logically find there was a case to answer, and then, without there having been any defence evidence or submission, decide that the prosecution had not established its case beyond reasonable, doubt.

8. The second point of law in the case was whether or not the learned magistrate was "correct in holding that Exhibit P4 was sufficient evidence that service of Exhibit P3 had not been effected on the Respondent". Exhibit P4 was the recorded delivery receipt which was signed by the person called Wong Chi-fai, obviously a member of the respondent's family. The learned magistrate found that as this receipt existed, that was sufficient evidence that service of Exhibit P3 had not been effected on the respondent. This was a very strange finding indeed. Section 8(1) of the Interpretation and General Clauses Ordinance, Cap.1, states as follows :

"Where, any ordinance authorises or requires any documents to be served or any notice to be given by post or by registered post, where the expression 'serve' or 'give' or 'send' or any other expression in used, the service or notice shall be deemed to be effected by properly addressing, pre-paying the postage thereon and dispatching it by post or by registered post, as the case may be, to the last known postal address of the person to be served or given notice, and, unless the contrary is proved, such service or notice shall be deemed to have been effected at the time at which the document or notice would be delivered in the ordinary course of post."

The notice in question which was Exhibit P3 was sent by registered post and the receipt P4 was signed by Wong Chi-fai on its delivery. This, it appears to me, was evidence that the notice was served, and within the required period of three months. In his very helpful skeleton argument, Mr Browne quoted a number of authorities in support of his submission that the service had been adequate. I will merely quote from one them. In the case of Thomas Bishop Ltd. v. Helmville Ltd. [1972]1 AER 365 at 368 f-h, Salmon LJ said this about English legislation similar to the Hong Kong legislation in question :

"In my view, unless the contrary is proved, service is deemed to be effected on the day when a letter containing a writ, prepaid, properly addressed and posted, would be delivered at the defendant's correct address in the ordinary course of post. If it is so delivered the defendant is not entitled to have judgment set aside as of right on the ground that the document did not come to his knowledge. When time of delivery is relevant, he is entitled to have such judgment set aside if he can prove that the writ was not delivered at his address in time or at all. This view seems to me to be consistent with the statute, authority and good sense."

There was in this case no evidence to the contrary. There was merely evidence that the notice had been posted and that it had been received within the prescribed time. Exhibit P4 was evidence that it had been received rather than evidence to the contrary. The answer therefore to the second question posed by the learned magistrate is quite clearly "no".