Tang Tong v. The Queen

Case No.CACC 377/1971

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000377/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 377 OF 1971

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BETWEEN
	TANG TONG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.

Date of Judgment: 31st July, 1971.

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JUDGMENT

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1. This is an appeal against a conviction under s.29 of the Road Traffic Ordinance of being the registered owner of a vehicle and failing to give information as to the identity of the driver when lawfully required to do so.

2. There was evidence that a vehicle registered in the name of the Appellant was driven past traffic lights which were against it. There was then evidence that a police officer posted a Notice addressed to the Appellant at his registered address. That Notice requiring him within fourteen days to give the name, address and driving licence number of the person who was driving the vehicle at the material time. The officer received no reply and the Notice had not been returned by the day of the trial - some seven months later. None of this evidence was challenged.

3. The Appellant gave evidence that he did not receive the Notice and that the first he knew of the matter was when he received the summons. The summons was handed to him by a fellow inmate on the same floor.

4. At the time he convicted the Appellant, the learned Magistrate recorded a brief judgment, the substance of which is as follows:

"	The prosecution have proved delivery of Pol. 292 which is deemed, by s.8 of the Interpretation and General Clauses to have been effected unless the contrary is proved. The defence is the simplest imaginable - a bare denial of receipt. Is this proof to the contrary?
	I am satisfied that if the original 292 had not been delivered at the address stated it would have been returned by the Postal Authorities so marked to the Police and there is evidence that it was not so returned.
	The Section 8 of Interpretation and General Clauses clearly throws an onus on the defendant and the meagre evidence he my opinion to rebut the presumption.
	I make finding of guilty and convict."

His Statement of Findings subsequently prepared in accordance with s.114B of the Magistrates Ordinance summarises the evidence and then states:-

"I found that:

	(a)	A form Pol. 292 was sent to the appellant by recorded delivery to him at the address stated in the register of vehicles as being his address.
	(b)	That no reply thereto was received from the appellant.
	(c)	That the original form 292 was not returned by the Postal Authorities to the Police.
	(d)	That the evidence of the appellant was insufficient to rebut the presumption of service under Section 8 of the Interpretation and General Clauses Ordinance, Cap. 1.

I found the appellant guilty and convicted him."

Paragraph (b) of this Statement is not strictly speaking a finding at all but is either an assessment of the weight of the evidence of the Appellant or, as the Appellant contends, a ruling that in law a mere denial can never be sufficient to rebut the presumption of service under s.8 of the Interpretation and General Clauses Ordinance.

5. The original grounds of appeal consisted of the totally inadequate assertion that there was no evidence or no sufficient evidence whereon to found the conviction, no particulars being given. But notice of the following additional grounds was subsequently filed:

"(1)		The learned magistrate erred in assuming that 'if the original 292 had not been delivered at the address stated, it would have been returned by the postal authorities so marked to the police, and there is evidence that it was not so returned'.
(2)		The learned magistrate misinterpreted s.8 of the Interpretation and General Clauses Ordinance by saying that it is insufficient rebuttal of presumption of delivery by the defendant when he testified on oath that he had 'never seen it before today, never received such a thing. First thing I know of this matter when I received summons asking me to come to court'.
(3)		By putting the last question in cross-examination to the defendant: 'You did but did not bother to reply', the prosecution failed to call either the postman or any postal officer to prove delivery of the disputed letter."

Ground (3) is incomprehensible. There is no obligation upon the prosecution to call anyone from the Post Office. It seems that objection is taken to the fact that it should even have been suggested to the Appellant in cross-examination that he had received the Notice, but I can see no justification for such objection.

6. Ground (2) alleges misinterpretation of s.8 of the Interpretation and General Clauses Ordinance and this has been taken to mean that the learned Magistrate treated the section as raising an irrebuttable presumption. Counsel for the Appellant has limited his argument on this ground to the contention that the Magistrate directed himself that the section raises a presumption which cannot be rebutted by a mere denial of receipt.

7. I think counsel for the Crown concedes that if the learned Magistrate was purporting to rule that as a matter of law a mere denial of receipt cannot rebut a presumption under s.8 the conviction cannot be supported. I do not agree with counsel for the Appellant that there is nothing more that an alleged recipient can do than make a simple denial and it may be that a simple denial will rarely carry much weight, but if it is believed on a balance of probabilities the presumption of service is rebutted. The question is whether there is any reason to believe that the learned Magistrate was treating the matter as one of law. To say that the evidence was "insufficient" was ambiguous, but it is for the Appellant to show that the Magistrate was in error and I find nothing in the original judgment or in the Statement of Findings to suggest that he was in error. On the contrary, the inclusion of paragraph (d) in the Statement of Findings as a finding of fact is some indication that the learned Magistrate meant that he did not believe the Appellant's evidence that he had not received the notice.

8. The presumption of notice not having been rebutted, it matters not whether the learned Magistrate was justified in saying that the Notice would have been returned by the Postal Authorities if not delivered.

9. The appeal must be dismissed.

31st July, 1971.

Representation: