The Queen v. Chan Yu Nam
Read the full judgment text of HCMA 48/1987 on BabelCite. This High Court CFI judgment.
1. We are much indebted to Mr. Lugar-Mawson Assistant Crown Prosecutor, who presented to us a well drawn and detailed written submission, which has been very useful to us in the preparation of this judgment.
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IN THE COURT OF APPEAL 1987 No.48 BETWEEN THE QUEEN AND CHAN YU-NAM ------------------------ Coram: Roberts, C.J., Power & Barnes, JJ. Date of Hearing: 27th March, 1987 Date of Judgment: 10th April, 1987 ------------------------ J U D G M E N T ------------------------ Roberts, C.J.- Preliminary 1. We are much indebted to Mr. Lugar-Mawson Assistant Crown Prosecutor, who presented to us a well drawn and detailed written submission, which has been very useful to us in the preparation of this judgment. Background to the case 2. The appellant, CHAN Yu-nam, was alleged to have committed the following three driving offences, which were the subject of fixed penalty notices, issued under the Fixed Penalty (Criminal Proceedings) Ordinance (“Cap. 240”) –
3. The appellant failed to pay the fixed penalty sums demanded by the three notices or to dispute liability. Proceedings were therefore taken against him
4. These proceedings took place, as is provided for by sections 3A and 7 of Cap. 240, in the absence of the appellant. 5. The appellant failed to pay any of the sums ordered to be paid by the Magistrate and was arrested for non payment, before being released on bail and taken before a Special Magistrate on 29th October. 6. On this occasion, the Special Magistrate ordered him to pay the outstanding amounts of $500 on each of the three fixed penalty claims, plus an additional $100 costs, making a total of $1,800 for the three offences. 7. The applicant applied for a review, which was conducted by a Magistrate on 9th December, 1986. 8. At that hearing the appellant submitted to the Magistrate that he had not received any of the fixed penalty or additional penalty notices, because they had been sent to an old address, and that they had not been brought to his attention until his arrest in October 1986. 9. Although the appellant informed the Magistrate that he had submitted to the Transport Department an application for a licence dated 23rd May, 1985, which contained a new address, he did not produce a copy of that application form. 10. The Magistrate, in the absence of such evidence to support the appellant’s story, dismissed his explanation and found that the appellant was not to be believed. The therefore refused to review the Special Magistrate’s decision and dismissed the application. 11. The appellant appealed from that decision to a Judge of the High Court under section 113 of the Magistrates Ordinance. 12. When the matter came before Addision, J. on 12th February, 1987, he directed that the appeal be reserved for consideration by this Court under section 118(1)(d) of the agistrates Ordinance (Cap.227). Matters for consideration 13. Addison, J. identified the following questions as being fit for consideration by this Court –
14. To answer these questions, we have to consider the following matters –
Grounds of Appeal 15. With our leave, the appellant, who was not represented, produced before us a certified copy, provided by the Transport Department, of his application for a new driving licence, dated 23rd May, 1985. 16. This copy showed that on 23rd May, 1985, the appellant informed the Transport Department that his current address was No.23 Staunton Street, Basement. 17. However, an examination of the fixed penalty notices showed that they had all been addressed to the appellant at 85 Connaught Road, West, an address which the appellant said he had left in 1984. 18. It is conceded by the Crown that the three fixed penalty notices were all issued subsequently to the date on which the appellant had notified the Transport Department that his proper address was now 23 Staunton Street. 19. Each of the three fixed penalty notices describe the appellant as the driver. A fixed penalty notice is properly served under Cap.240 if it is sent to the registered address of the driver. 20. By section 2 of Cap.240, the registered address means, in relation to a driver of a motor vehicle, the address which appears in respect of the driver in the record of driving licences which is kept by the Commissioner in accordance with regulations made under the Road Traffic Ordinance. 21. It appears, therefore, as if there was an error in the Register maintained by the Commissioner, which should have been rectified in May 1985, so as to include the Staunton Street address of the appellant. Nevertheless, this was not done and, by virtue of the provisions of Cap.240, the fixed penalty notices were properly served. 22. However, it was open to the appellant to seek, on review under section 3B of Cap.240, a rescission of an order made against him under section 3A, on the ground that the fixed penalty notice issued under section 3(3) “has not come to the personal notice of the person to whom it is addressed without any neglect by that person”. 23. It would thus have been open to the Magistrate on 9th December, to rescind the previous penalties imposed, if he had accepted the explanation of the appellant. 24. This we are sure he would have done, if he had been possessed of the additional evidence, which was not available to him, but was presented to us, with our leave. 25. We are satisfied that the appellant was not served with the fixed penalty notices, that they did not come to his personal notice and that this was not due to any neglect on his part. Accordingly, the orders for payment of the fixed and additional penalties and costs will be quashed, and the sums paid by the appellant shall be returned to him accordingly. Costs of fixed penalty proceedings 26. Section 3A of Cap.240 empowers a Magistrate to order a person on whom a fixed penalty notice has been served to pay the fixed penalty and an additional penalty equal to the amount thereof. 27. This section does not, however, deal in terms with any award of costs. 28. Mr. Lugar-Mawson drew to our attention five sections in Cap.240 in which there are specific powers conferred upon a Magistrate to order the defendant to pay costs –
29. Although there are several specific references to costs in Cap.240, there is nowhere in it any provision which seeks to exclude the general provisions of Cap.227. 30. Indeed, there are indications to the contrary. When section 9A of Cap.240 refers to “in addition to any other penalty and costs”, it must assume that there is a power elsewhere to award such costs. A power of this nature cannot be found in Cp.240 save in other specified circumstances. 31. Section 10(1)(a) refers to “any costs ordered to be paid under the Magistrates Ordinances”, which necessarily assumes that the power to award costs under that Ordinance remains. 32. A number of other sections in Cap.240 also imply that, where applicable, the Magistrates Ordinance applies to fixed penalty proceedings –
33. In our judgment there is nothing in Cap.240 which could reasonably be said to oust the general provisions of Cap.227, save insofar as these are specifically excluded, as we think they would be in relation to sections 9(1) and 10(5) which provide for a specified rate of costs to be awarded. Cap. 227 34. It is necessary, on the ssumption that Cap.227 applies to proceedings under Cap.240, to re-examine section 69 of Cap.227, which deals with the award or costs. 35. Section 69 reads as follows –
36. Is an order under section 3A(1) of Cap.240 a “summary conviction or order made by a Magistrate”, for the purposes of section 69? 37. We do not think that it is necessary to express any view on the question as to whether or not an order to pay a fixed penalty under section 3A of Cap.240 can properly be described as a “summary conviction” since, whatever the answer to that question may be, there is no doubt in our minds that such an order is any “order” for the purpose of section 69(1) of Cap.227. 38. We thus reach the conclusion, without difficulty, that Cap.240 does not set out a code of its own and that the general power of Magistrate to order costs under section 69 of Cap.227 is applicable to fixed penalty proceedings, save only to the extent to which specific provision of a different nature is made under Cap.240. 39. It follows that, since we regard the general power in section 69 as applicable, it is open to a Magistrate to award costs on the making of any order in an application for a review of proceedings under section 3B of Cap.240. 40. The answers to the questions posed by Addision, J. are –
CHAN Yu-nam – in person. Mr. G.J. Lugar-Mawson, Sen. Asst. Crown Prosecutor, for Respondent |