Gordon Baker v. The Queen

CACC000267/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 267 OF 1975

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Coram: McMullin J. in Court.

Date of Judgment: 21st May, 1975.

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JUDGMENT

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1. In this case the appellant appeals against an order awarding costs in the sum of $200 against him arising from his failure to pay a fine imposed upon him as a result of his conviction upon a minor traffic offence.

2. It is a case of a kind somewhat difficult to deal with upon appeal since, as Mr. Stapp rightly observes, matters of temperament and personality have complicated a comparatively simple event. The appellant was charged with speeding before Mr. Wane at Central Magistracy. He pleaded guilty and was fined $50 on the 7th of March this year. There is no doubt that on that date he did try to pay the fine. He waited at the Shroff's Office for about 20 minutes and, his number not having been called he left without paying the fine. No further attempt to pay the fine was made for another 5 days by which time, by what I am informed is the usual procedure in such cases, a warrant had been prepared for issue under s. 101(a) of the Magistrates Ordinance. On the 12th of March the appellant once again presented himself at the Shroff's Office and attempted to pay the fine. Because the warrant had been prepared, though not yet signed, the clerk felt it necessary to consult the magistrate before accepting the fine. The magistrate, Mr. Flannery, took the view that no good ground for delay in payment had been shown and he instructed the clerk that the warrant should issue the intention presumably being that the appellant should appear in answer thereto in the usual way to explain his default. The warrant was issued and bail in the sum of $100 was granted the matter being set down for hearing before Mr. Barrington-Jones on the 15th of March.

3. On that date he appeared and made an explanation which included the matters so far described but without explaining why, in the 5 days subsequent to his first attempt to pay, he had not personally or by post or by messenger tenderec the fine or made any verbal or written representations concerning it. Mr. Barrington-Jones adjourned the matter to make further inquiries from the magistrate who had previously dealt with the matter. It would seem that by this time both the magistrates who had thus far dealt with the question of payment of the fine had formed the impression that the appellant's attitude was wanting in respect of the court and its procedures and no doubt that is why Mr. Barrington-Jones adjourned the case for inquiry instead of dealing with the question of the default at once. It must however be noted in fairness to the appellant that on the 15th of March he is recorded as having apologised to the court for the inconvenience caused.

4. Subsequently it was arranged that Mr. Wane would deal with the matter together with other miscellaneous matters which were in a special list for 9.30 a. m. on the 22nd of March. On that date the appellant, who was due to appear as a prosecuting officer at Causeway Bay at 10.00 a.m., appeared before Mr. Wane and requested that his case be dealt with first. The magistrate took the view that since there were several other cases involving non officials and non-Europeans with priority in the list it would be unseemly to accord the appellant precedence. the appellant quit the court before his case was taken and went to Causeway bay and was not present when his case was called at about 10 minutes past 10. A message was conveyed to him that he would have until 11.00 a.m. to appear and he did so. There is no doubt that he was in the wrong in absenting himself while under warrant without the court's permission, whatever view he took of the magistrate's refusal to take his case first. Mr. Sparrow who appeared on his behalf before me informed me that his client had only done so to arrange for a substitute prosecutor and that he had been unable to do so by telephone. Even so it was incumbent upon him to inform the court of his difficulty and ask for permission to leave.

5. It seems clear from what I have on the record before me and from what Mr. Sparrow has said that by this time the appellant felt that he had been treated with unnecessary rigour on the ground that he was a police officer while the magistrates who had thus far dealt with him believed on the contrary that he had tended to presume upon that status. At all events, when he reappeared before Mr. Wane at 11.00 a.m. the latter, who was understandably expecting some show of contrition, appears to have found him argumentative although once again the record of the proceedings discloses that an apology was offered. Having heard the explanation offered in respect of non payment of the fine the learned magistrate made the order for payment of costs.

6. Such matters very much matters of first impression and it is unlikely that three experienced magistrates were wholly mistaken in believing that the attitude of the appellant had from the outset displayed some degree of pique rather than a due acknowledgement of the fact that he was, formally at least, in contempt of the court imposing the fine. The delay of 5 days in paying the fine, subsequent to his first attempt to do so remained unexplained throughout the several hearings in the lower court and indeed has not been explained even now. For all that however, I think it was unfortunate that, as matters fell out, three different magistrates became involved in this affair. I think it was because of that that the inquiry into the failure to pay the fine was not pursued to finalty on the 15th of March. That was because on that date Mr. Barrington-Jones, who was unaware of the reason for the refusal to accept the fine on the 12th, felt it necessary to adjourn for further inquiry. In the result there may have some excuse for the appellant's feeling that his case was receiving unusual treatment. That impression may have been fortified by the fact that he was told in general terms that his case would be taken at 9.30 a.m. on the 22nd of March and may thereby have been led to believe that the time for the commencement of the special list. There was also the fact that although it was never suggested that he was refusing to pay the fine the warrant procedure under s. 101(a) was at once resorted to rather than the procedure under s. 101(b) whereby a summons may be issued in the first instance. I am told that the warrant procedure is the usual procedure when fines are not paid but one would think that where an intention to pay has at least been evinced the less peremptory method would seem more reasonable in the first instance. I feel these may all have been factors which conditioned the attitude of which the Bench appears to have disapproved throughout its dealings with the appellant. They do not of course excuse any want of courtesy or any display of animus since the primary fault was that of the appellant in failing for so long a period to make any attempt to pay his fine. In the result however I think that the order for costs while justified was unduly punitive and would have been more merely nominal had the case been finally dealt with on the 15th of March. Accordingly I will set aside that order and for it substitute an order for payment of $20 only.

Representation:

Mr. Sparrow (Raymond Tang &Co.) for appellant.

Mr. Stapp, C.C. for the Crown/respondent.