Attorney General v. Tang Ying Sau
Read the full judgment text of CACC 158/1980 on BabelCite. This Court of Appeal judgment was delivered on 20 March 1980.
1. This is an appeal by way of case stated on appeal by the Attorney General against the order made on the 15th November, 1979 by the learned Magistrate sitting at Tsuen Wan whereby he dismissed an information preferred against the respondent of exceeding the speed limit contrary to section 15(1)(a) of the Road Traffic Ordinance, Cap. 220 and at the same time ordering the Crown to pay to the respondent costs in the sum of $1,500.
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CACC000158/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 158 OF 1980 -----------------
----------------- Coram: Addison, J. Date of Judgment: 20 March 1980 ----------------- JUDGMENT ----------------- 1. This is an appeal by way of case stated on appeal by the Attorney General against the order made on the 15th November, 1979 by the learned Magistrate sitting at Tsuen Wan whereby he dismissed an information preferred against the respondent of exceeding the speed limit contrary to section 15(1)(a) of the Road Traffic Ordinance, Cap. 220 and at the same time ordering the Crown to pay to the respondent costs in the sum of $1,500. 2. The offence under section 15(1)(a) of the Road Traffic Ordinance is a scheduled offence under the Fixed Penalty (Criminal Proceedings) Ordinance, Cap. 240 and this appeal concerns the interpretation of that Ordinance. 3. As Huggins, J.A. observed in Attorney General v. Chiu Kam-hung (Criminal Appeal 503/78) when speaking of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap. 240:
4. Unhappily for the respondent he has not benefited from the encouragement provided by the Ordinance to pay the penalty. 5. On the 6th March, 1979 the respondent was stopped by a police officer who alleged he had driven his motor vehicle at an excessive speed. A fixed penalty notice under section 3(1) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap. 240 (which I shall hereafter refer to as the Ordinance) was handed to the respondent then and there and he paid the prescribed penalty within 21 days. No doubt he thought that was the end of the matter. 6. On the 13th March, 1979 he was served with a notice under section 3(3) of the Ordinance requiring him to pay the fixed penalty on or before the 16th March. That notice was dated the 13th March, 1979 7. It is not in dispute that the notice issued under section 3(3) was invalid in that it contravened the express provisions of section 3(6) of the Ordinance which enacts:
8. Matters did not stop there because on the 17th April, 1979 a notice under section 4 of the Ordinance was served on him informing him that the earlier notices served under subsections (1) and (3) of section 3 had been withdrawn. It was therefore within the respondent's knowledge, or, if not, it should have been that the Commissioner of Police intended proceeding against him outside Part II of the Ordinance and by way of summons. 9. A summons was issued on the 19th June, 1979 and on his appearance in court he informed the magistrate he had already paid a fixed penalty within 21 days of the receipt of the section 3(1) notice. The magistrate adjourned the trial until the 30th July, 1979 so that counsel for the Crown could appear and argue the case before him. 10. For reasons, which are irrelevant to this appeal, Crown counsel did not appear and this led the magistrate to dismiss the summons. The Crown then applied to the magistrate to review his order of dismissal and on the 13th August 1979 the magistrate made an order reinstating the case and fixing the hearing date for the 15th September. The respondent then engaged a solicitor and the cost of his services at the trial were estimated by the magistrate as being between $1,500 and $2,000. It was argued on behalf of the respondent that he could not be prosecuted for the scheduled offence because the fixed penalty had been paid within the stipulated time. 11. The learned magistrate adjourned the trial to consider the law and on the 15th November, 1979 he upheld the contention and dismissed the summons. 12. The reason the learned magistrate made the order of dismissal is set out in the case stated. He said:
13. It is against that ruling that this appeal comes before this court. 14. Let me say at the outset that the actual question of law is a simple one which can be disposed of in short compass. However Mr. Westbrook, to whom this court is greatly indebted for his careful analysis of Part II of the Ordinance, has asked me to give some guidance on the operation of the fixed penalty procedure and I have acceded to his request. I hope therefore to be forgiven for devoting more attention to the Ordinance than the case stated properly deserves. 15. The questions of law posed for the opinion of this court are as follows:
16. It is conceded that if the answer to the first question is in the affirmative then the answer to the second question will be "No". 17. The answer to the first question turns on the interpretation of sections 3 and 4 of Cap. 240. 18. The relevant subsections are as follows: Section 3(1):
Section 3(3):
Section 3(6):
Section 3(7):
Section 3(8):
Section 4(1):
Section 4(2):
Section 4(3):
19. It is not in dispute that the fixed penalty was paid in pursuance of the notice given under section 3(1) of the Ordinance and within 21 days. 20. It is Mr. Westbrook's argument, though not material for the disposal of this appeal, that there is no time limit prescribed for the payment of a section 3(1) notice. He points out that the only provision in the Ordinance requiring payment within a specified time is subsection 6 of section 3 which refers exclusively to a section 3(3) notice. The legislature did not include in subsection 6 a reference to a section 3(1) notice and that omission, he says, was deliberate. Hence, he argues, the learned magistrate erred when he said that the fixed penalty in this case was paid within the prescribed period because there is none laid down for a section 3(1) notice. 21. I think the point Mr. Westbrook makes is a valid one. 22. Insofar as his argument assists in an understanding of Part II of the Ordinance, and only for that reason, I shall deal with it in this case stated but as I have said, it is not a vital point for the determination of this particular appeal. 23. It seems to me that the clearest way of explaining the fixed penalty legislation is by posing a number of questions and then endeavouring to answer them and this is the method I propose to adopt. 24. What is the purpose and effect of section 3(1)? 25. That subsection offers the person to whom the prescribed notice is given the opportunity to discharge any liability to conviction by payment of the fixed penalty at any place specified in the notice. 26. The subsection does not specify the time within which the payment is to be made. The only section in the Ordinance specifying the time limit for payment is section 3(6) and that relates to a section 3(3) notice.
27. The prescribed form is Form I in the Fixed Penalty (Criminal Proceedings) Regulations. That form contains above the heading "Payment Instructions", a number of Notes 28. It is headed "NOTES (Please read carefully)" 29. Notes B and C are as follows:
30. It is the Crown's contention that these Notes have no legal effect whatsoever. They have been inserted simply to provide guidance to the person served with a section 3(1) notice. 31. The prescribed Form has been drawn up pursuant the powers contained in regulation 2. That regulation derives from section 11 of the Ordinance which confers on the Governor in Council power to make regulations:
32. Does not section 11(c) cover the situation? 33. Mr. Westbrook argues that the words "specifying the manner of payment" does not extend to include the time of payment. To him the "manner of payment" means by whom it may be paid (for example by the person or motorist concerned or by his agent) and the method of payment (for example by cheque, drafts etc.). 34. In the prescribed form these specific matters are dealt with under the heading "Payment Instructions". 35. Mr. Westbrook says Note B is hardly couched in statutory language when it is headed as a "Note" followed by the words in parenthesis "please read carefully". 36. In further support of his argument that the Notes have no legal consequence he has referred this court to Note D which says:
37. This, he claims is inaccurate because section 3(3) provides that a demand note will only be sent where the Commissioner of Police is of the opinion that the person concerned "ought to be proceeded against" under the fixed penalty procedure. Certainly, Mr. Westbrook's contention in respect of Note D must be correct. 38. In developing his argument he maintained that if the legislature intended there to be a time limit for the payment of a penalty under a section 3(1) notice why was there not included in section 3(6) a reference to section 3(1)? 39. He drew my attention to the definition of the word "manner" in the Oxford English Dictionary as:
40. He also referred to the wording of section 4(1) of the Leasehold Property (Repairs) Act 1938 which, without setting it out in full, states:
and contended that if the "manner of service" includes "the time of service" why should the draftsman have found it necessary to make specific provisions for the "time" of service? 41. Mr. Wong on behalf of the respondent counters the argument by pointing out that commercial documents frequently include under the heading manner of payment the times at which instalments are to be made. 42. But what about regulation 3(1)(a) - is that of no effect? 43. Regulation 3(1)(a) provides:
44. In my view Note B in Form I has been inserted for the guidance of the person who wishes to pay the fixed penalty. Should he not comply with that advice he infringes no legal requirement. Note B is, in other words permissive and not obligatory. 45. How then is the Commissioner to collect payment of the fixed penalty? 46. The answer to this is that he must comply with section 3(3) of the Ordinance and serve a notice demanding payment. It is that notice under section 3(3) which gives rise to the obligation to pay. 47. Such a demand notice must be served on the person concerned within one month of the commission of the offence and must require payment of the fixed penalty within 21 days after the date of the notice. A departure from these requirements makes the notice invalid. 48. Once served, no further proceedings can be taken against the person concerned until the expiry of 21 days after the date of the notice. Proceedings are thus held in abeyance during that period. 49. If the fixed penalty has previously been paid under the section 3(1) notice or is made within the time specified in the section 3(3) notice no more remains to be done and, by section 3(8) the person concerned is not liable to prosecution for the scheduled offence unless the notice is withdrawn. If he is proceeded against, section 3(8) provides a statutory defence, subject to section 4.
50. The simple answer to this is "Yes". This is implicit from s. 3(8) and s.5. The Commissioner may institute proceedings after the expiry of the 21 days by issuing a summons. There will thus be two documents in circulation: one will be the fixed penalty notice under section 3(3) and the other will be the summons. 51. It is the co-existence of these two documents which indicates that the Commissioner of Police is not withdrawing the Fixed Penalty Proceedings from the reach of the motorist. By issuing the summons he is, in effect, causing the motorist to make his election either to pay the fixed penalty in accordance with section 9 or fight the case in court. Once the Commissioner commences proceedings under Part II he cannot thereafter under section 4 withdraw the notices served under section 3(1) or section 3(3). In fact there is no purpose in his doing so. 52. The person concerned can put an end to the prosecution for the scheduled offence by complying with section 9 of the Ordinance. 53. He must, at the same time as producing the summons, pay the fixed penalty to the court not less than 72 hours before the time specified in the summons for his appearance and pay $25 costs.
54. Subject to the Commissioner not exercising his right to withdraw the notice under section 4, he may either:
55. In my opinion he has such a discretion. He may refuse a late payment by virtue of sections 5 and 9 of the Ordinance, quite apart from the whole tenor of the legislation. The bargain made with the motorist served with a section 3(3) notice is that, subject to section 4, the Commissioner will not decline to accept a payment made within 21 days. That is the offer. 56. The motorist who does not meet this requirement makes a counteroffer which the Commissioner may or may not accept. He may accept it because there is nothing that I can see in the legislation which compels him to commence proceedings. 57. Mr. Westbrook has argued that the effect of the Commissioner accepting a late payment is to allow the motorist to bring himself within subsection 8 of section 3 which, he points out, does not differentiate between a payment made before or after 21 days. It is counsel's submission that the motorist would be in exactly the same position as a motorist who, after 21 days, pays under a section 3(1) notice where no time is legally stipulated for payment. 58. This point, which does not fall for determination in the case stated, seems to me to be academic for if the Commissioner accepts a late payment and does not commence proceedings the circumstances for invoking section 3(8) do not arise. What would happen if he accepted a late payment and thereafter commenced proceedings without withdrawing the fixed penalty notice would, I imagine, depend on the magistrate being satisfied he had accepted a late payment and that would be difficult to imagine especially as I am informed that the Commissioner rigidly commences proceedings when payment is made out of time.
59. This is unlikely to happen in practice because under section 3(4) a section 3(3) notice must be served within one month of the commission of the offence. In my opinion, if a section 3(3) notice has not been served, the motorist may avail himself of section 3(8) because there is no time limit for the payment of a section 3(1) notice. 60. On his receiving a section 3(3) notice he will be a person who "has paid the full amount of the fixed penalty shown in the notice".
61. Provided the section 3(3) notice has not been withdrawn under section 4 the motorist may utilise the provisions of section 9. It is otherwise if the fixed penalty notice is withdrawn. 62. How is a fixed penalty notice withdrawn? 63. The answer is to be found in section 4 of the Ordinance. The Commissioner may, at any time before the commencement of proceedings withdraw the fixed penalty notice given under section 3(1) or served under section 3(3) but it is obligatory he first informs the person upon whom the notice was served that it has been withdrawn by serving him with a notice to that effect.
64. The answer again is yes, but he may not institute criminal proceedings before the expiry of the 21 day period. Such is the result of section 3(7) and section 4(1). 65. If the fixed penalty has been paid either under section 3(1) or section 3(3) then the person concerned has the obligation to seek a refund from the Director of Accounting Services.
66. Section 4(3) specifically provides that the withdrawal of a notice under section 3(1) or section 3(3) shall not be a bar to any proceedings in respect of the scheduled offence specified in the notice. 67. If the motorist has paid the fixed penalty in pursuance of a notice under either section 3(1) or section 3(3) then he may be prosecuted and he cannot successfully argue that his earlier payment of the fixed penalty exempts him from prosecution. All that is left to him is to seek a refund of the fixed penalty under section 4(2). 68. Once a motorist receives written notification under section 4 of the withdrawal of the fixed penalty notice he will realize that the Commissioner of Police intends to prosecute him. This is an election made available to the Commissioner under Part II of the Ordinance.
69. The matter can be rectified by the Commissioner of Police serving a notice of withdrawal under section 4. He is not obliged thereafter to prosecute. The notice of withdrawal entitles the motorist to claim a refund. 70. But isn't it unfair for the Commissioner to prosecute after a fixed penalty has been paid? 71. The courts are not concerned with what is fair or unfair. The duty upon the court is to apply the law which confers upon the Commissioner an election whether to proceed under Part II of the Ordinance or proceed by way of criminal prosecution and this is unaffected by the question whether or not the person concerned has paid the fixed penalty and whether he did so under a section 3(1) or under a section 3(3) notice.
72. Under a section 3(1) notice the beat constable will not know whether the person to whom he hands a notice has any other traffic offences to his discredit. 73. The Commissioner may take the view that the motorist has all too frequently been committing the scheduled offence and should be taken before the court. On the other hand the offence may be one which, by law, a particular penalty is to be imposed for a second or subsequent offence. The decision to prosecute a scheduled offence is in the absolute discretion of the Commissioner of Police.
74. Fairness is not a matter for the courts to consider once the court is satisfied the legislature has conferred a statutory power. 75. The case stated - what is the answer? 76. With respect to the learned magistrate it is difficult to see how he reached his conclusion that the payment of the fixed penalty by the respondent pursuant to the service of a section 3(1) notice upon him put an end to any possible future prosecution in view of the cumulative effect of s. 3(7) and s.4(3). There is nothing in the Ordinance to say that a prosecution cannot ...(illegible) once the penalty is paid. What is prohibited under the Ordinance is the commencement of criminal proceedings where a fixed penalty notice is served under section 3(3) and only then the bar is limited to a period of 21 days after the date of the notice. Effectively to withdraw the notice the Commissioner of Police must follow the procedure set out in section 4 and a court is entitled to enquire whether that procedure has been strictly complied with. 77. As to the second question posed, the right of a magistrate to award costs is set out in section 69 of the Magistrates Ordinance, Cap. 227. 78. The relevant part of that section reads:
79. Had the learned magistrate realized that criminal proceedings against the respondent were permissible it is impossible to see how he could have been satisfied those proceedings ought not to have been instituted or pursued against the respondent. 80. The answer to the questions posed are: 1. Yes. 2. No. 81. The case is to go back to the magistrate's court for the trial to proceed.
Representation: Mr. Simon Westbrook, Counsel for Appellant Mr. David Wong (Wong, Hui & Souza) for Respondent |