Re Leung Kwong Cheung

HCMP000093/1994

Published by direction

of the Judge

1994, MP No. 93

Photocopying of this Headnote

is not allowed

HEADNOTE

Judicial Review - not available if alternative remedy unless exceptional circumstances - no determination by magistrate - appeal proper procedure.

1994, MP No.93

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon Bewley J. in Chambers

Date of hearing: 31 January 1994

Date of judgment: 31 January 1994

Date of handing down of reasons: 16 February 1994

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REASONS FOR DECISION

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1. On 31st January 1994 I refused the applicant leave to apply for judicial review and I now give my reasons.

2. The applicant had received a fixed penalty notice alleging that he had been driving in Kwai Chung Road on 10th September 1992 in excess of the speed limit by more than 15kph but not by more than 30kph. He did not pay the penalty because he believed the police had mistaken 50kph for 70kph as the effective speed limit at the material time. He notified the Commissioner of Police accordingly and in due course received a summons. Later however he changed his mind and, before the case was heard, paid the penalty and costs.

3. On 23rd April 1993 the Commissioner of Transport issued a summons alleging that the applicant had incurred three driving offence points for speeding and that, as he had incurred a total of 15 points, he was liable to be disqualified. Alarmed by the summons, the applicant made enquiries at the Transport Department and was allegedly informed that the speed limit in force at the material time and place was 70kph. If that is the case, the applicant's alleged speed of 82kph was insufficiently fast to earn three driving offence points since it is not more than 15kph greater than 70kph. The police however have stated in a letter to the applicant's solicitors that the speed limit at that time and place was 50kph.

4. When the applicant first appeared before the magistrate on 4th June he raised this point. The case was adjourned several times until 18th October when the applicant's solicitors submitted unsuccessfully that he was entitled to raise the issue of the speed limit as a defence at the hearing of the summons. Alternatively he invited the magistrate to exercise his discretion not to disqualify under the proviso to s.8(3) of the Road Traffic (Driving-offence Points) Ordinance, Cap.375.

5. It is convenient here to set out the relevant sections of this ordinance :

S.2.

(2) For the purposes of this Ordinance, a person becomes liable to a fixed penalty when -

(a) he pays the fixed penalty in accordance with a notice served on him under section 3(1) or (3) of the Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240);

(b) he is ordered to pay penalties under section 3A of that Ordinance;

(c) he has notified the Commissioner of Police that he wishes to dispute liability in accordance with a notice served under section 3(3) of that Ordinance but subsequently pays the fixed penalty, the additional penalty and costs in accordance with section 9 of that Ordinance; or

(d) his liability to a fixed penalty revives under section 4B.

S.4 (1) Subject to section 6(2), where a person -

(a) is convicted of a scheduled offence; or

(b) becomes liable to a fixed penalty in respect of a scheduled offence, he shall incur the appropriate number of points in respect of that offence.

(2) The appropriate number of points in respect of each scheduled offence is that set out opposite that offence in the Schedule.

(3) The Legislative Council may, by resolution, amend the Schedule.

S.8 (1) Subject to sections 4A, 5 and 6, where 15 or more points have been incurred by a person in respect of offences which were committed within a period of 2 years of each other, he shall be liable to be disqualified from holding or obtaining a driving licence in accordance with this section.

(2) Where the circumstances mentioned in subsection (1) arise in relation to any person, the Commissioner shall apply to a magistrate by way of complaint for the issue of a summons and a summons may be issued specifying the date of the commission of, and the number of points incurred in respect of, each offence mentioned in subsection (1).

(3) Upon the hearing of the summons and upon being satisfied that the circumstances set out in subsection (1) apply to the person on whom the summons was served, the magistrate shall order him to be disqualified from holding or obtaining a driving licence -

(a) for a period of 3 months from the date of the order if no previous disqualification has been imposed on him under this Ordinance; and

(b) for a period of 6 months from the date of the order if any previous disqualification has been imposed on him under this Ordinance,

unless the magistrate is satisfied, having regard to all the circumstances not excluded by subsection (4), that there are grounds to order a shorter period of disqualification or not to order him to be disqualified.

(4) No account shall be taken under subsection (3) of -

(a) any circumstances that are alleged to make the offence not a serious one;

(b) hardship, other than exceptional hardship; or

(c) any circumstances which, within 2 years immediately preceding the issue of the summons under subsection (2), have been taken into account under subsection (3) in ordering a shorter period of disqualification or not ordering a disqualification.

6. The Fixed Penalty (Criminal Proceedings) Ordinance, Cap.240 provides inter alia :

S.3 Fixed penalty

(1) If a police officer has reason to believe that a person is committing or has committed a scheduled offence, he may give that person a notice in the prescribed form offering that person an opportunity to discharge any liability to conviction for that offence by payment of the fixed penalty therefor at any place specified in the notice.

S.9. Payment of fixed penalty after issue of summons

(1) Notwithstanding that proceedings have been instituted against a person who has notified the Commissioner of Police that he wishes to dispute liability, the defendant may pay the fixed penalty together with an additional penalty equal to the amount of the fixed penalty in accordance with subsection (2) and, if at the same time the defendant also pays to the court the sum of $125 by way of costs, the proceedings shall thereupon terminate.

7. On 18th October the magistrate, having rejected the defence submission, did not however go on to make his adjudication on the summons. He adjourned to 17th January 1994 "for defence to sort out matter with Police" according to his record.

8. Correspondence with the Transport Department and the police took place and on 8th December the First Clerk of North Kowloon Magistracy wrote to the applicant's solicitors informing them that "the application for review by defence on 18th October, 1993 has been refused by the Court and the case has been adjourned to 17th January, 1994 only for the defence to sort out their argument with the Police. If you like, case can be brought forward anytime and the Court would hear and determine the matter right away." That letter is misleading because there had still been no order or determination on the summons. The only decision that the magistrate had made was his refusal to admit the defence evidence. The summons is still pending before the magistrate because on 13th January 1994 notice of application for leave to apply for judicial review was filed and the 17th January hearing was again adjourned.

9. At an inter partes hearing ordered by Liu J. Mr Lam, for the applicant, repeated the submissions that he had made to the magistrate. He sought an order of mandamus requiring the magistrate to hear the applicant's defence, namely that the fixed penalty notice was vitiated by an error of law and therefore invalid and void; as no legal consequence could flow therefrom, the purported three point penalty was also invalid despite the fact that the applicant had paid the penalty.

10. Mr Logan, for the magistrate, did not dispute that the applicant was entitled to raise the speed limit issue as a defence to the summons but submitted that these proceedings were misconceived on the grounds, first, that the magistrate had reached no decision as to disqualification and, second, that, when he had done so, the proper route for the applicant to challenge his decision was by way of appeal.

11. Mr Lam relied on R. v. Reading Crown Court, Ex parte Hutchinson & Another [1987] WLR 1062, in which the Divisional Court granted judicial review by way of mandamus to quash decisions by justices, and on appeal the Crown Court, that they had no jurisdiction to determine the question of the validity of certain bylaws. This case however is unhelpful because the only way in which the Crown Court's decision could be challenged was by judicial review. In Hong Kong an appeal lies from the Magistrate's Court to this Court.

12. The English Court of Appeal held in R. v. Chief Constable of the Mersyside Police, Ex parte Calveley and Others [1986] QB 424 that, save in exceptional circumstances, judicial review jurisdiction would not normally be exercised where there was an alternative remedy by way of appeal. It instanced delay amounting to abuse of process, the speed of the alternative procedure, and whether the matter depended on some particular or technical knowledge available to the appellate body, as factors to be taken into account in considering whether the circumstances are exceptional.

13. There are no exceptional circumstances in this case. If the applicant should be aggrieved by the magistrate's decision, his remedy lies in an appeal to this Court. Mr Lam submits that there is no specific statutory provision obliging the Court to suspend a disqualification order pending appeal.

That may be so, but in the unlikely event of the magistrate refusing to suspend - the period is only three months - I cannot conceive that a judge of this Court, to whom application may be made on filing Notice of Appeal, would take the same course. However, as I have said, the magistrate has only indicated that he was not prepared to entertain the defence. There is nothing to prevent counsel renewing his application at the adjourned hearing.

14. Should he again be unsuccessful and should the magistrate fail to exercise his discretion under s.8(3) in favour of the applicant, it will be open to the applicant to seek a review of his decision or to appeal to this Court. He will no doubt remind the magistrate that, although by virtue of s.9 of Cap.240 the fixed penalty proceedings are terminated on payment of the relevant sum, the magistrate must still be satisfied under s.8(1) of Cap.375 that the 15 points have in fact been incurred before he disqualifies under s.8(3). The answer to that question seems to depend on the speed limit at the time and place.

15. For these reasons leave was refused. Mr Logan made no application for costs and I therefore made no order.

Representation:

Mr D.P. Logan, S.C.C., for the magistrate

Mr Lam Shun Chiu, inst'd. by M/s Daniel Wong & Partners, for the applicant