In Re Cheung Man Kwong

HCAL000054/1998

HCAL 54/1998

H E A D N O T E

Review by magistrate - Fixed Penalty (Criminal Proceedings) Ordinance - 14 days after the earliest date on which the decision came to the personal notice of the person affected, not 14 days after the decision -

Obita : (1) Despite S.104(4) of the Magistrate Ordinance, application for review under S. 104 can be dismissed without a hearing in open court if the application is clearly out of time. It goes to the jurisdiction of the Court and not the merit of the application.

(2) Magistrate has no inherent jurisdiction to extend time of review.

HCAL 54/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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Coram: The Hon. Mr. Justice Yeung in Court

Date of Hearing: 27 October 1998

Date of Handing Down of Judgment: 6 November 1998

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J U D G M E N T

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1. On 31 October 1997, the applicant Cheung Man Kwong was issued with a summons under Section 8 of the Road Traffic (Driving Offence Points) Ordinance, Chapter 375. It was alleged that the applicant, between 16 January 1995 and 27 December 1996 had incurred a total of 15 points for 5 traffic offences convicted on 21 April, 1995, 11 August 1995, 11 June 1996, 14 November 1996 and 8 July 1997 respectively.

2. In respect of the conviction on 21 April 1995, the applicant contended that he had no knowledge of it. On 19 June 1998, the applicant, through his solicitor, wrote to San Po Kong Magistracy asking for a review of the conviction.

3. The application was dismissed by the Special Magistrate of San Po Kong Magistracy without a hearing.

4. The applicant now applies for a certiorari to quash the decision of the learned magistrate on the basis that his application for a review of the conviction should not be dismissed without him being granted the chance to be heard in open court, leave having been granted by Sear J. on 10 August 1998.

5. It is the contention of the applicant that the learned magistrate had failed to take into account the statutory provisions under Section 104 (4A) of the Magistrates Ordinance and to have any regard to open justice and due process of law.

6. Section 104 of the Magistrate Ordinance provides:-

(1) Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter.......................

(4) It shall be lawful for the magistrate to grant the application for a review at any time provided that the application for the review shall have been duly made in accordance with the provisions of subsection (1) and (2).

(4A) A magistrate shall not reject an application for a review without giving the applicant or his counsel an opportunity to make representations to him in open court.

7. Mr. Wu, on behalf of the applicant submits that a magistrate has the inherent jurisdiction to extend time for review and the applicant must be allowed the chance to make representation in open court. With respect, such observation is wrong. A magistrate's power is governed by the Magistrates Ordinance which does not allow a magistrate any inherent jurisdiction to extend time to review.

"However, there was another reason why the magistrate had no power to review the conviction of his own motion, namely that the power of review was exercisable only within 14 days of the decision sought to be reviewed." per Huggins, Ag. C.J. in A.G. v. Leung Hung-hang Review App. 19 of 1983 (Addison's Criminal Digest 1981-1985 para. 475)

8. Miss Mahomed suggests that subsection 4A should be read in conjunction with subsection 4. As the applicant's application was made outside the 14 days periods, it was not an application duly made in accordance with the provisions of subsection (1) and hence subsection 4A has no application.

9. This is a powerful argument even though the plain wording of subsection 4A may not support such a view. If a magistrate clearly has no power to review a decision under section 104 of the Magistrates Ordinance as the application is out of time, it will be superfluous and a waste of time to hear any representations in open court. The matter goes to the jurisdiction of the court and not the merit of the application.

10. It is, in my view open to a magistrate to decline jurisdiction without an hearing in open court on an application to review under section 104 of the Magistrates Ordinance if the application is clearly out of time. Such decline of jurisdiction is not the same as the rejection of an application under subsection (4A) on the merits of the application.

11. The general power of a magistrate to review a decision under section 104 can only be exercised within 14 days after the determination. There are, however other statutory provisions whereby a magistrate may be able to review a decision after the 14 days period.

12. The conviction in question is a conviction under Fixed Penalty (Criminal Proceedings) Ordinance, Chapter 240 which provides for a separate review proceedings. The review proceedings under section 3B of the Ordinance can extend the period of review beyond 14 days after the determination.

13. Section 3B of Fixed Penalty (Criminal Proceedings) Ordinance provides:-

"(1) Where a magistrate is satisfied that the notice mentioned in section 3(3) has not come to the personal notice of the person to whom it is addressed without any neglect by that person, the magistrate may, on an application of which reasonable notice has been given to the Commissioner of Police, rescind the order made under section 3A(1) and-

(a) if that person wishes to dispute liability for the offence, give leave to that effect; and

(b) if he does not wish to dispute liability-

(i) order him to pay the fixed penalty within 21 days of the order; and

(ii) order that, if he fails to pay that fixed penalty within that period, he shall be liable to pay immediately that fixed penalty together with an additional penalty equal to the amount of the fixed penalty.

(2)....................................................

(3) an application under subsection (1) shall be made within 14 days of the date which the magistrate is satisfied is the earliest date on which the order mentioned in section 3A(1) came to the personal notice of the person to whom that order relates."

14. There are similar provisions under Fixed Penalty (Traffic Contraventions) Ordinance, Chapter 237.

15. Such provisions extend the period of review from 14 days after the decision to 14 days after the earliest date on which the decision in question came to the personal notice of the person affected.

16. When the learned magistrate dismissed the applicant's application for a review without a hearing, he was probably under the impression that he had no power to entertain such an application as the application was made much later than 14 days after his decision. In that regard, the learned magistrate erred.

17. The power to review under the Fixed Penalty (Criminal Proceedings) Ordinance and the Fixed Penalty (Traffic Contraventions) Ordinance can be exercised not 14 days after the decision, but 14 days after the decision was first known to the person affected.

18. Miss Mahomed argues that the summons dated 31 October 1997 can be a valid notice of the order under subsection 3A of the Fixed Penalty (Criminal Proceedings) Ordinance. The applicant must have personal notice of such an order shortly after 31 October 1997 and in any event not later than 29 December 1997 when the applicant appeared in court represented by counsel at the hearing of the summons.

19. Miss Mahomed suggests that when the applicant wrote to the San Po Kong Magistracy on 19 June 1998 asking for a review of the order dated 21 April 1995, he was again out of time and the learned magistrate did not have jurisdiction to entertain such an application.

20. I do not agree with Miss Mahomed's suggestion. The order that must come to the personal notice of the applicant is an order made under section 3A of the Fixed Penalty (Criminal Proceedings) Ordinance. It is an order by the magistrate ordering the applicant to pay the fixed penalty together with an additional penalty equal to the amount of the fixed penalty, within 14 days of being served with the notice of the order. Under subsection 2, "the magistrate shall cause notice of the order to be served on the person to whom the order relates."

21. Indeed in the standard form notice of order, apart from the amount of fixed penalty, the additional penalty, the costs and the time for payment, it includes the details of the offence allegedly committed. It also mentions that notice under section 3(3) of the Ordinance has been served and the fixed penalty has not been paid and that there has been no notice to dispute liability for the offence.

22. The summons dated 31 October 1997 only mention the offence code, the date of the commission of the offence, the date of conviction/becoming liable to fixed penalty and the driving offence points incurred. It is only a complaint made by the Commissioner for Transport.

23. It is at least arguable that such summons cannot constitute an order under section 3A of the Fixed Penalty (Criminal Proceedings) Ordinance.

24. The aforesaid matters can only be properly dealt with in a hearing in open court and the applicant must be allowed to make representation and if necessary give evidence.

25. With respect, the learned magistrate, on the application by the applicant to review, should conduct a hearing to enquire as to when the applicant had personal notice of the order dated 21 April 1995. If he is satisfied that the application is within time he should then proceed with the review in accordance with Section 3B of the Fixed Penalty (Criminal Proceedings) Ordinance.

26. In the affirmation of Kwong Kwok Yau filed on behalf of the respondent, it was pointed out that in respect of the conviction on 21 April 1995 against the applicant, due notice had been served on him and he had in fact paid the required sums on 4 May 1995.

27. Such matters may be highly relevant as to when the applicant first had personal notice of the order. It may also be relevant, if the applicant's contention is that he did not receive the notice from the Commissioner of Police under S. 3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, as to whether there was neglect on his part.

28. But I am not concerned with the merits of the applicant's review application nor its likely outcome. I am only concerned with the decision making process, whether there had been irregularity.

29. As Lord Evershed put it in Ridge v. Baldwin [1964] A.C. 40 at p. 96,

"I do observe again that this is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached, and in particularly in such a case as the present the need for giving to the party dismissed an opportunity for putting his case."

30. It was wrong for the learned magistrate to dismiss the applicant's review application on paper. This judicial review application must be allowed.

31. The decision of the learned magistrate dated 23 June 1998 dismissing the applicant's application is hereby quashed. The learned magistrate is directed to grant the applicant an oral hearing in open court in accordance with Section 3B of the Fixed Penalty (Criminal Proceedings) Ordinance.

32. Having considered the nature of the application and the way in which it was brought, I make an order nisi that there will be no order as to costs. The order nisi will be made absolute 14 days after the handing down of this judgment.

Representation:

Mr. Paul K.N. Wu instructed by M/s. Andrew Chan & Co. for Applicant

Miss Yasmin Mahomed, S.G.C. for Respondent