Wong Shui-kee v. Attorney General

HCMP000579/1979

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Coram: Roberts, C.J. and Li,J.

Date of Judgment: 6 November 1979

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JUDGMENT

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Roberts, C.J.:

1. This is an application for an order of certiorari, to remove and quash two summonses issued in the Causeway Bay Magistracy, and for an order or declaration that the issuing of the two summonses was ultra vires.

2. The applicant, Mr. Wong Shui-kee, was charged with driving a vehicle without carrying a driving licence and with failing to conform with a "No Stopping" sign.

3. According to the appellant, he was originally informed by a police officer that fixed penalty notices in relation to these two matters would be issued against him under Cap. 240 the Fixed Penalty (Criminal Proceedings) Ordinance. At a later stage, however, he received instead the two summonses, which are the subject to this motion, instead of fixed penalty notices.

4. The applicant has submitted that the enactment of Cap. 240, which provides a method of discharging liability for conviction for any of the offences listed in the Schedule to that Ordinance, has in its effect fettered the discretion which the Commissioner of Police might otherwise have in deciding whether or not to issue a summons for an offence under the Road Traffic Ordinance.

5. The applicant emphasized what he described as the intention of Cap. 240, which was to reduce inconvenience to members of the public and the pressure on the courts in dealing with traffic offences, by providing a simplified machinery for dealing with traffic infringements. As to this there is really no dispute.

6. He further argues that, because this procedure has been provided, it is the duty of the Commissioner of Police or his delegate to reach a conscious decision in each individual case as to whether Cap. 240 should be used or whether a summons should be issued. Also, that from this duty flows an obligation on the Commissioner to give reasons, if so required, to any member of the public for his decision to issue a summons rather than to use the provisions of Cap. 240.

7. Following from this, it was said that this court would have power to examine the reasons given by the Commissioner and to decide whether they were proper ones and to require him to give reasons if he had failed to do so.

8. We were referred to various authorities which establish that it is open to the courts, in some circumstances, to interfere with the decisions of administrative bodies, even where these decisions on the face of them are exercises of discretion, if the statutory provisions concerned can be said to confer some kind of privilege or right to the member of the public. That situation does not arise here.

9. Counsel for the applicant was unable to draw our attention to any case which suggests that the court has power to interfere with the exercise of the discretion of a law enforcement office when he decides whether or not to prosecute, or whether some other procedure described by law should be followed.

10. Our conclusion is that there is nothing in the Fixed Penalty (Criminal Proceedings) Ordinance which in any way fetters the discretion of the Commissioner to decide how an alleged traffic offence should be dealt with. It is for him to reach a conclusion as to whether the usual system of issuing a summons should be followed or whether resort should be had to the more stream-lined procedure of Cap. 240.

11. We regard Cap. 240 as providing an alternative of proceeding which is in no sense an exclusive one. Thus the Commissioner of Police is not obliged to give any reasons nor his decision to issue a summons rather than to proceed under Cap. 240.

12. It is not necessary for us to go further and consider whether the provisions of section 3 of Cap. 240 are discretionary or mandatory. If it had been, we would have little difficulty in deciding that in section 3(1) "may" means "may".

13. In the result therefore we refuse the order of certiorari and the declaration which are sought. We make no order as to costs.

Representation:

Patrick Chan (Raymond Tang & Co.) for Applicant

C.W. Reid for the Crown/Respondent