HKSAR v. Koromiko International Ltd

HCMA 23/2018

[2018] HKCFI 1296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 23 OF 2018

(On appeal from ESP 2538/2017)

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J U D G M E N T

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1.On 4 October 2016, a vehicle owned by the Appellant, a limited company, was parked so as to be likely to cause unnecessary obstruction of a road or danger to others.  For that reason, the Appellant was served with a demand dated 4 November 2016 for payment by 14 November 2016 of a fixed penalty in the sum of $320.  On the basis that this fixed penalty was not paid, an order was made by a Magistrate on 11 April 2017 requiring the Appellant to pay within 14 days a sum of $1,080, made up of a fixed penalty of $320, an additional penalty of $320, and costs of $440. 

2.The Appellant sought a review of that order.  Its application for review was dismissed.  It now appeals against that dismissal.  The Special Magistrate’s reasons for that dismissal are set out in a document headed “Reasons for Order”.  Those reasons read as follows:

“1. A magistrate made a court order for the Applicant to pay $1,080. The Applicant sought a review of that order. The application for review was dismissed by me. The Applicant now appeals against that dismissal.

2. In accordance with the cases of Chong Cho Hoi and Ball, it is incumbent upon the applicant to prove two matters, namely, (i) the applicant did not receive or had no notice of the Notice Demanding Payment of Fixed Penalty (hereinafter referred to as “The Notice”) and (ii) the failure of the applicant in receiving or noticing the Notice was not attributable to the negligence of the applicant. Though the standard of proof is a civil one (i.e. on the balance of probabilities), the requirement is high.

3. According to the representative of the Applicant: (i) the address as stated in the summons was the Applicant’s registered address at the Transport Department; (ii) he is the only staff of the Applicant; (iii) the Applicant did receive the Notice; (iv) he paid for the fine of $320 but he could not remember when; (v) he did not have the proof to show the payment.

4. In accordance with the case of Chong Cho Hoi, whether or not the Applicant had contravened the substantive offence is not the reason for applying for a review hearing, nor is it relevant.

5. The Applicant failed to prove that it did not receive or had no notice of the Notice (see the cases of Chan Man Wo and Yip Mou Kei).  I therefore dismissed the application for review.”

3.Although that was not stated in terms, there can be no doubt that the Special Magistrate felt sure that the fixed penalty had not been paid.  The circumstances warrant such a view of the facts.  At the hearing before me, the Appellant’s rerepresentative, Mr Massink, told me that it is possible that the fixed penalty ticket had not been paid because he had many other tickets; and in fact, he more or less accepted that that fixed penalty ticket had not been paid. 

4.In all the circumstances, there is no proper basis for reversing the Special Magistrate’s dismissal of the application for a review.

5.Accordingly, this appeal is dismissed.

Mr Charles Lee, Senior Public Prosecutor (Ag) of the Department of Justice, for the Respondent

The Appellant appeared in person, engaging Mr Ronald Massink as its company representative