Sin Yiu-kong v. The Queen
Read the full judgment text of CACC 416/1979 on BabelCite. This Court of Appeal judgment was delivered on 25 May 1979 before Leonard, J..
Criminal law – sentencing – traffic offence – picking up passengers in restricted zone – fixed penalty notices – relevance of paid notices – disqualification – proportionality – professional driver – appeal against sentence – Roads and Signs Regulations reg. 18B(2) – Fixed Penalty (Criminal Proceedings) Ordinance s.3(8) – Road Traffic Ordinance Cap. 220 – magistrate erred in considering paid fixed penalty notices as evidence of prior offending – payment extinguishes liability to prosecution and does not constitute admission of guilt – disqualification excessive for minor offence without obstruction – fine reduced from $400 to $200 – disqualification discharged
Legal issues: Relevance of paid fixed penalty notices in sentencing · Proportionality of disqualification for minor traffic offence
Outcome: Appeal allowed; disqualification order discharged; fine reduced from $400 to $200.
Cited by 9 cases
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CACC000416/1979
----------------- Coram: Leonard, J. Date of Judgment: 25 May 1979 ----------------- JUDGMENT ----------------- 1. This is an appeal against sentence. The appellant pleaded guilty to the offence of "picking up passengers in a restricted zone" contrary to regulation 18B(2) of the Roads and Signs Regulations made under the Road Traffic Ordinance Cap. 220 and was fined $400 and disqualified for three months. 2. He was driving a public light bus one afternoon in Pak Hoi Street near Nathan Road in Kowloon and he stopped to pick up a passenger. There was a traffic sign there indicating that he should not. A police constable fortunately saw him and according to his report
It was no doubt all very impersonal for, according to his somewhat clinically worded report,
a rather odd word to have used. The constable returned to his station and, there, he made this information, together with the name, sex, address and driving licence number of the appellant and the registration number, licence disc number, make and colour of the public light bus, available to a computer. Unlike the elephantine computer the appellant's memory was fallible. He forgot about Pol. 570 ticket S/N KD0016576(4) for the contravention of Code No. 58. The computer did not. It prepared an information for a summons alleging the offence in question "for which no fixed penalty has been paid on demand in accordance with Notice No. KD0016576(4) dated 13th October 1978 under section 3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance" and even a summons for the signature of the magistrate which called on the appellant in the name of Her Majesty to present himself in court on the 23rd March 1979 informing him at the same time that the he could discharge liability for the offence by "presenting this summons at the court specified up to 72 hours before the time set for hearing and pay the fixed penalty of $100 plus $25 fixed costs." He did not even remember to take this course but did remember to present himself in court on the 23rd March 1978. He pleaded guilty. 3. Even there, he found, the computer had forestalled him. It had prepared a "conv. sum." by which term I take it to have meant a "summary of previous convictions". If so, it erred. There is far more in this document than a "conv. sum." True there is a record of convictions; the appellant had been convicted three times for careless driving in 1977 (the negligence must have been slight in each case for the largest fine imposed was $150) and he had been convicted once for the very offence which he now faced and once for speeding but it was also contained a record of the appellant having acquired a considerable number of what are miscalled "citations". I say "miscalled" because he had not been cited or summoned. He had received fixed penalty notices, thirteen of them alleging (but not proving) this same offence! He had paid them. He had, as Mr. Llewellyn ably pointed out, in respect of each of those incidents made a bargain sanctioned by the Legislature. By reason of his having paid the full amount of the fixed penalty he had ceased to be liable to be prosecuted (much less convicted) for the offence specified in the notice [Sec. 3(8) of the Fixed Penalty (Criminal Proceedings) Ordinance]. The essence of the statutory offer, as I see it, is, that, if it is accepted by payment, that is the end of the matter unless the notice is withdrawn; the Crown avoids the trouble of prosecuting and the person who has received the notice and paid in accordance with its terms ceases to be liable to be prosecuted. If he ceases to be liable to be prosecuted for an offence the fact that a police officer had had reason to believe that he had committed it is irrelevant. True, under section 4 of the Ordinance the Commissioner of Police has power to withdraw the notice after it has been served and any sum that has been paid under it must be returned but only (I regret to note) if the payer so demands. So the bargain is somewhat one-sided. (Presumably the labours of the alert computer in keeping a record of previous fixed penalties need not be entirely in vain for it can advise the Commissioner when the number of fixed penalty tickets already issued to an individual becomes excessive so that he may withdraw the one under consideration.) If the Commissioner does not withdraw the notice and the person involved does not pay it in time but does pay it with fixed costs of $25 in accordance with section 9 of the Ordinance "the proceedings shall thereupon terminate". (See section 9). 4. All this persuades me that all served with such a notice are, in default of its withdrawal, entitled by payment of the amount stipulated to regard the matter as closed and as closed for all purposes. If payment is not made the matter is at large and the discretion of the magistrate as to penalty is unfettered save by his judicial discretion. It follows in my view that he should not have had had his attention drawn to, the "citations" or taken them into account. These certainly do not show that the appellant has "offended against the traffic laws" as the learned magistrate thought. At worst, they show that a police officer "has had reason to believe" he has so offended. The learned magistrate complains that
That may be, but the element is introduced by the legislation. To say
begs the question "What particular offences?" By payment of a fixed penalty a driver admits nothing. Indeed there is nothing which he could admit for he has not been charged with anything. There is no question of the driver avoiding a conviction by "a quirk of procedure". If he refuses to pay the fixed penalty he will be charged. The computer will see to that. But he may plead not guilty and the Crown may fail in the obligation, incurred by his plea of not guilty, of proving his guilt beyond reasonable doubt. I therefore hold that the learned magistrate was wrong to take them into account. 5. I should in any event hold that, even taking them into account, the learned magistrate was wrong in imposing a period of disqualification. For by so doing he was sentencing "for the record" rather than "for the offence". The offence of stopping to pick up a single passenger is scarcely one which merits disqualification no matter what the record, unless serious obstruction is caused to other traffic. None was. No specific penalty is provided for the offence. It therefore attracts, in common with all offences against these regulations, as a maximum penalty a fine of $1,000 and imprisonment for six months for a second offence under regulation 20 of the Road Traffic (Roads and Signs) Regulations and disqualification (under section 23 of the Ordinance which applies to all regulations). But this maximum bears no relation to the "tariff" for offences of this nature. Disqualification is a very serious penalty to impose on a professional driver. It deprives him of his livelihood. It may impel him towards behaviour even more antisocial than is driving a mini-bus. Even a fine of $400 seems to me to be manifestly excessive for stopping to pick up a passenger unless obstruction is caused. 6. Having regard to the known previous convictions of the appellant I consider that a fine of $200 would have been proper. 7. I allow the appeal, discharge the order of disqualification and reduce the fine imposed to that figure.
Representation: Mr. Llewellyn of Hampton, Winter & Glynn for Appellant Mr. Longley,c.c. for Crown/Respondent |
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