HKSAR v. Chaudhry, Iftikhar Ahmed
Read the full judgment text of HCMA 331/2021 on BabelCite. This High Court CFI judgment was delivered on 8 February 2022.
1. On 21 June 2021, the appellant appeared before Mr Pang Leung Ting, Magistrate for trial (“the Third Magistrate”), at which time the Court found it had no jurisdiction to hear the matter and made an Order setting aside a decision of the Second Magistrate and substituting the original conviction and penalty made by the First Magistrate.
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HCMA 331/2021 [2022] HKCFI 422 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 331 OF 2021 (ON APPEAL FROM STV 500019 OF 2020) ________________
________________ Before: Hon Campbell-Moffat J in Court Date of Hearing: 8 February 2022 Date of Judgment: 8 February 2022 ____________________ JUDGMENT ____________________ NB: With the greatest respect to all of the Magistrates who dealt with this matter, for ease of reference I will refer to them as the First, Second and Third Magistrates. 1.On 21 June 2021, the appellant appeared before Mr Pang Leung Ting, Magistrate for trial (“the Third Magistrate”), at which time the Court found it had no jurisdiction to hear the matter and made an Order setting aside a decision of the Second Magistrate and substituting the original conviction and penalty made by the First Magistrate. 2.By reason of his Notice of Appeal dated 28 June 2021, the appellant now appeals against that Order on the grounds that he wishes to dispute liability and have a trial. Facts of the Case 3.The underlying offence took place on 7 September 2020, on which day the appellant was driving his motor vehicle registration number UB3331 when he jumped a red light. He was stopped immediately at the scene by a police officer and informed of his offence. He refused to accept a fixed penalty ticket. 4.On 25 September 2020, the appellant was sent a ‘Notice Demanding Payment of Fixed Penalty’ (“the Notice”), to the appellant’s registered address in accordance with s3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap 240 (“the FP(CP)O”). The appellant returned the signed slip indicating he wished to dispute liability. That was acknowledged by the police on 18 November 2020. 5.On 28 December 2020, the police applied to the Shatin Magistrates’ Courts for a summons to be issued against the appellant. On 29 December 2020, that summons was sent to the appellant’s registered address requiring his attendance at court on 21 January 2021. 6.On 21 January 2021, the appellant did not appear. Being satisfied that the summons had been duly served upon the appellant, the Magistrate (‘the First Magistrate”) entered a conviction against the Appellant and ordered him to pay a fine of $1,700 within one month. The appellant did not pay within the stipulated time frame, which was 21 February 2021, but did pay in full on 1 March 2021. 7.In the interim, on 3 February 2021, the Judiciary received an application for review under s3B of the FP(CP)O. The appellant was notified by way of letter dated 4 February, that the review was listed for 18 March 2021, before a different Magistrate (“the Second Magistrate”). The hearing on 18 March was adjourned through no fault of the appellant to 25 March 2021. On 25 March 2021, the appellant attended and submitted that he had not received the summons under STV 500019/2020 dated 29 December 2020 (“the Summons”). Whilst there had been a Certificate of Posting provided for the purposes of the hearing before the First Magistrate on 21 January 2021, there was no proof of service before the Second Magistrate. That having been said, the address registered with the Transport Department was correct and the appellant accepted he had received the police correspondence i.e. the Notice and acknowledgment of 18 November 2020, but not the Summons. He could not explain why. As proof of service was not available, the Second Magistrate set aside the conviction order and adjourned the case for trial. 8.The trial was set down for 21 June 2021. At that time, the Third Magistrate was of the view he had no jurisdiction to hear the matter. He found that the order to set aside the conviction by the Second Magistrate was null and void and the conviction entered by the First Magistrate was valid. He then made the appropriate consequential orders. Reasons for Order 9.The Third Magistrate took the view that the first set of proceedings on 21 January 2021 had been dealt with properly. The conviction against the appellant was good for all purposes and noted that the resulting fine had been paid, albeit irregularly. In his view that was the end of the matter and he had no jurisdiction to hear the proceedings before him. In doing so, he took into account the decision of Deputy High Court Judge Johnny Chan, as he then was, in HCMA 322/2016, in which the Judge made it clear that a review under s3B of the FP(CP)O can only be available where the appellant proves i) he did not receive the Notice and ii) the reason he did not receive the Notice was not because of his own fault, neglect or negligence[1]. He noted that this should have disposed of the matter before the Second Magistrate[2]. The Third Magistrate went on to consider a number of peripheral issues which this Court does not need to deal with on appeal. Grounds of Appeal against Order 10.There are no perfected grounds of appeal. The Defence Case on Appeal 11.The appellant submitted that he had used his younger brothers address for the purposes of his fleet of vehicles but that his brother was in Pakistan at the relevant time. He could not explain why he did not receive the summons. He did not assert that he had made any efforts to recover his mail. Analysis 12.Two issues arose in this matter. Firstly, the issue of the fixed penalty notice under s3 of the FP(CP)O and whether the appellant had any right of review in all the circumstances of the case. Secondly, the issue of a summons for the offence by the Shatin Magistrates’ Courts and whether the powers of the Court were properly exercised by the First Magistrate. The former issue appears to have gained a significance in proceedings which was misplaced. Fixed Penalty Procedure 13.Section 3 of the FP(CP)O reads:
14.The officer in question witnessed the appellant running a red light. He therefore had reason to believe that the appellant had committed an offence[3]. He immediately apprehended the appellant and sought to serve a fixed penalty notice[4]. By reason of the refusal of the appellant to accept personal service by the officer under s3(2)(a) of the FP(CP)O, he was properly served in compliance with s3(5) when the Notice was sent to his registered address. This was the address submitted to the Transport Department and accepted by the appellant as the address used by him. He availed himself of the opportunity to inform the Commissioner of Police that he was disputing liability under s3(6) of the Ordinance and accordingly, the Commissioner of Police sought proceedings to be commenced under s3(3). The Summons 15.The summons was issued on 29 December 2020. It was sent to the same address to which all other correspondence had been sent and all other correspondence had been received by the appellant. He has no explanation for why he did not receive the summons dated 29 December 2020 informing him that he had to attend the Shatin Magistrates’ Courts on 21 January 2021. In the normal course of events, service of a summons by post under s8(2)(a)(ii) of the Magistrates Ordinance (“the MO”) is deemed not to have taken place under s8(2)(b), if the person does not appear at the time and place specified in the summons and it ‘shall’ be served by hand. However, s5(1) and (2) of the FP(CP)O overrides that requirement. 16.Section 5 of the FP(CP)O states;
17.For the purpose of proceedings under the FP(CP)O service was therefore good. Proceedings upon Summons in the Absence of the Defendant 18.Where a person who is the subject of a summons fails to appear, s6 of the FP(CP)O states:
19.The First Magistrate had the power to deal with the appellant in his absence. In order to do so he was required to ensure good service under the FP(CP)O, which he did. He then heard and determined the case in accordance with s6(1) and entered a conviction against the appellant with a fine of $1,700 to be paid within a month. Review under s3B 20.On 18 March 2021, and after having paid his fine, the appellant came before the Second Magistrate and sought to review the decision of the First Magistrate. The matter was adjourned to 25 March 2021, at which time, the Second Magistrate made two errors. Firstly he appears to have considered the hearing to be a review under s3B of the FP(CP)O and secondly he appears to have reviewed the procedure in respect of service of the Summons, without apparent recourse to s5 of the FP(CP)O. 21.Section 3B of the FP(CP)O states:
22.There was no issue as to the procedure adopted under the FP(CP)O at the point in time when a summons was issued against the appellant under STV 500019/2020. The appellant had received notice of the Fixed Penalty and he had replied to confirm that he was disputing it. As a consequence, s3B of the Ordinance was never applicable. Nevertheless, s5 of the FP(CP)O was applicable insofar as it applied to the service of a summons arising out of the FP(CP)O. The Second Magistrate erred in not applying that section and, as a consequence, applied the wrong test. Having done so he erroneously set aside the original determination of the First magistrate and adjourned the matter for trial. Conclusion 23.The Third magistrate was alive to the issues at hand and dealt with the case in a proper manner. With respect to the Second Magistrate, the determination of the First Magistrate should never have been set aside and the only recourse of the Third Magistrate was to re‑instate that conviction and the fine, which had, in any event been paid and not subsequently repaid. 24.This appeal is dismissed. A considerable amount of judicial time and effort has been expended on a matter which should not have been entertained after 21 January 2021. Whilst the appellant may have misunderstood his rights as a result of the second hearing and orders of the Second Magistrate, I am sure that the Third Magistrate more than amply explained the situation to the appellant and his appeal to this Court was wholly misguided and without merit. 25.No order as to costs.
Ms Peggy Lee, PP of the Department of Justice, for the respondent. The appellant appeared in person. | ||||||||||||||||||
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