The Attorney General v. Ko Che Lung
Read the full judgment text of CACC 559/1971 on BabelCite. This Court of Appeal judgment was delivered on 24 January 1971.
1. The advent, during recent years, of the light bus as a mode of public transport in Hong Kong, has prompted legislation as to the licensing, operation and control of such vehicles, and the constitutionality of some of that legislation has, from time to time, been challenged in the Courts. Thus in LAU Ping v. The Queen (1) the original Reg. 41B of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations, relating to the detention of light buses, was held to be
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CACC000559/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 559 OF 1971 -----------------
----------------- CRIMINAL APPEAL NO. 682 OF 1971 -----------------
----------------- Coram: Rigby, C.J., Huggins and Pickering, JJ. Date of Judgment: 24th January, 1972. ----------------- JUDGMENT ----------------- Pickering, J.: 1. The advent, during recent years, of the light bus as a mode of public transport in Hong Kong, has prompted legislation as to the licensing, operation and control of such vehicles, and the constitutionality of some of that legislation has, from time to time, been challenged in the Courts. Thus in LAU Ping v. The Queen(1) the original Reg. 41B of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations, relating to the detention of light buses, was held to be ultra vires. In The Queen v. TSANG Kwok-kuen(2), which concerned not a light bus but a private car, it was held that Reg. 17D of the Road Traffic (Registration and Licensing of Vehicles) Regulations, relating to the cancellation of the registration of vehicles in certain circumstances, was likewise ultra vires. 2. Following the decision in LAU Ping v. The Queen(1), the Road Traffic (Amendment) (No. 3) Ordinance (No. 75 of 1970) repealed s.41 of the Road Traffic (Taxis, Public Omnibuses, Public Light Buses and Public Cars) Regulations and transferred the powers regarding the detention of light buses from the area of subsidiary legislation to the confines of the principal Ordinance - the Road Traffic Ordinance (Cap. 220). This was achieved by the addition of the present Part IVA of the Ordinance which consists of s.26. The two cases which presently engage us were heard contemporaneously and involve the validity or, at the very least, the construction of this new s.26 of the principal Ordinance. 3. In all the cases which I have mentioned, this Court has had the advantage of exhaustive argument lucidly presented by counsel on both sides, and in that regard we are no less indebted to counsel on this occasion than in the two previous instances. 4. Both the cases with which we are now concerned arise by way of Case Stated and it will facilitate a more ready appreciation of the question posed to this Court, if I here set out s.26B and s.26C and part of s.26D of the existing Road Traffic Ordinance, which are as follows:-
5. It is apparent that the underlying motif of this legislation is to impose a liability, frequently vicariously, upon owners of light buses when any one of certain specified offences is proved to have been committed. The liability, which is that of suffering detention of the bus for a period of seven days, may fairly be categorized as a serious infringement upon the earning capacity, and possibly livelihood, of the owner. 6. The facts underlying the two Cases Stated to this Court are as follows:- 7. In Criminal Appeal No. 559 of 1971, the defendant was found guilty, on the 14th of May, 1971, of one of the relevant offences. Immediately after conviction and sentence, the appellant herein made application for detention of the vehilce concerned. The owner, who was not the driver and therefore not the defendant in the criminal proceedings, was not present before the Court when this application for detention was made. Despite the absence of the owner however, the actual respondent to that application (the respondent herein) was present before the Court, she having been the registered owner of the public light bus in question prior to, but not subsequently to, March 1971. There was no evidence before the learned magistrate as to who was the owner of the bus after March, 1971. 8. In support of the application for detention the appellant produced the certificates required by s.26C(4) and 26C(5) of the Road Traffic Ordinance. However, no copy of the notice required to be served pursuant to s.26C(2) thereof was before the Court and no oral evidence or other documentary evidence was adduced on behalf of the appellant in support of the application. It will be apparent that the respondent to the application, being no longer the owner of the public light bus, had no interest whatsoever in whether or not the order applied for was in fact made. 9. Before the learned magistrate it was contended on behalf of the appellant, that on the production of the required certificates issued pursuant to s.26C(4) and (5) and in the absence of "special reasons" being shown, it was mandatory for the Court to grant the application and order the detention of the vehicle. The learned magistrate however refused to make the order sought for on three grounds. 10. First, the application was refused because no copy of the notice of prosecution and of intended application (required under s.26C(1) and (2)) was produced to the Court and the learned magistrate considered that in the absence of such production he could not be satisfied that the notice served was in fact a valid notice. 11. The second reason for refusing to make an order of detention was that the application was premature in that notice of the intended application had been made before a finding of guilt by the Court. 12. The third ground of refusal was that it was clear to the Court that the person who would be affected by the making of the detention order, that is the person who, as from March 1971 had become the registered owner of the vehicle, had not been served with the notice of intended application and thus had been given no opportunity whatsoever of putting his case to the Court, that is to say, no opportunity of advancing any "special reasons". 13. In the second case before us, Criminal Appeal No. 682 of 1971, the defendant (who, like the defendant in Criminal Appeal No. 559 of 1971, was merely the driver, and not the owner, of the public light bus,) was convicted of an offence rendering the vehicle liable to detention. This defendant had been summoned to appear before the Court on the 3rd of June 1971 and the respondent in that case (the registered owner) had been served with notice of intended prosecution and of the fact that should such prosecution on that date prove successful, it was the intention to apply for a detention order in respect of the vehicle. In the event, however, on the 3rd of June the defendant pleaded not guilty and the summons against him was set down for hearing on the 10th of June, no further notification being given to the registered owner that application for detention of the vehicle would be, or might well be, made on the 10th of June. The owner was not in fact present in Court when the application for a detention order was made on the 10th of June. 14. Such is a very brief history of the recent challenges to the validity of certain of the provisions of our road traffic legislation, of the origins of the section now under consideration, of the facts leading to the refusal of detention orders in these two cases and of the reasons for such refusal. 15. The questions of law which arise before this Court under the first of these two appeals, that is, No. 559 of 1971 are:-
16. The question of law which arises before this Court in the second case, Criminal Appeal No. 682 of 1971, is: Whether, in order to satisfy the provisions of s.26C of the Road Traffic Ordinance, the prosecution have to show that they have given to the registered owner, notice of the actual date on which the application for detention will be made, or whether it is sufficient for them to specify only the original return date of the summons as the date when the registered owner is to appear if he wishes to be heard, and then leave the owner to find out for himself the actual date of the making of the application? 17. Any consideration of the first question posed, that is, should the Court entertain an application for detention where no copy of the notice of intended application is furnished to the Court, necessarily involves careful scrutiny of the scope of the presumption contained in s.28C 4(i), (ii) and (iii). The object of these presumptions would appear to be to obviate the necessity for evidence to the effect that a valid notice of prosecution and of intended application for detention, has been served and the presumptions are of two kinds, rebuttable and irrebuttable; thus sub-s.4(i) provides that upon its production, the appropriate certificate shall be presumed to be signed by a police officer "until the contrary is proved", and is clearly rebuttable; sub-s. 4(ii) and (iii) however, imposing the respective presumptions that the notice was duly served and that it contains the particulars required by sub-s.(3) express those presumptions to be conclusive, and are irrebuttable. 18. The combined effect of these three presumptions is, therefore, that in the absence of any challenge to the signature upon the certificate, the Court is in possession of a document presumed to be signed by a police officer and which gives the name of the person to whom a notice under the section was addressed, the date of that notice and the registration number of the vehicle involved, the certificate stating, at the same time, the mode of service of the notice which notice is presumed conclusively to have been duly served and to have contained details of the registration number of the vehicle, the offence alleged to have been committed and the Court at which and the date when, the registered owner should appear if he wishes to be heard. 19. Clearly, such a certificate tightly circumscribes the magistrate's powers of enquiry. As Mr. Jackson-Lipkin has pointed out, in a case in which, to the magistrate's knowledge, the certificate specified the wrong bus, the wrong offence, the wrong court and the wrong date of hearing, he would be powerless to intervene on behalf of the hapless owner. The Legislature has gone very far in not merely restricting, but denying, to registered owners the protection which would otherwise have been afforded them by means of judicial enquiry. 20. Wide as the net has been cast however, does it enmesh the judicial process completely? Is all enquiry denied? I think not; for whilst it is to be presumed conclusively that the notice was duly served and contained the particulars required by sub-s.C(3), there is no presumption as to the contents of the notice, that is, no presumption that the notice was both (a) one of prosecution and (b) one of intended application for detention. If either or both of these matters are omitted, the notice is not of the type described and is invalid. With the greatest respect to the careful argument of Mr. Caird in this regard, it is of no avail to say that because s.26C(4) (ii) and (iii) speak of "The notice" that phrase must refer to a valid notice of the type contemplated by s.26C(1). As I see it that argument begs the question. Undoubtedly the reference in sub-s. (4) (ii) and (iii) is intended to refer to a notice under s.26C(1) but whether that notice is a valid notice or not is a question of fact or of mixed fact and law which, in the absence of any presumption, it is for the Court to determine. 21. There can be no question of any implied presumption as to the validity of the notice. The Legislature has been at pains to spell out presumptions disadvantageous to registered owners and expressio unius est exclusio alterius. This is a maxim which Lopes L.J., in Colquhoun v. Brooks(3), said "ought not to be applied where its application ...... leads to inconsistency or injustice." In that case the application of the maxim to the situation of personal representatives endeavouring to recover, on behalf of the estate of a deceased tenant, rents paid in excess of the standard rent, would clearly have resulted in the greatest injustice. As I apprehend it, the application of the maxim to our present problem leads to neither inconsistency nor injustice. As the learned magistrate observes in his Case Stated, the "notice" is of the utmost importance to the respondent to the application, being a document which initiates proceedings which may result in the deprivation of his property - and that through no direct fault of his own. We can never lose sight of the fact that what is involved here is what I chose to describe in The Queen v. TSANG Kwok-kuen(2) as "a disability, a disadvantage, a detriment, a sanction" penal in character; so far from the maxim I have quoted leading to injustice in these circumstances, it tends to justice as supporting the last slender thread of judicial scrutiny left to a registered owner. 22. The construction which Mr. Jackson-Lipkin urges is, I conceive, equally well supported by the maxim Expressum Facit Cessare Tacitum which I have always understood to mean that where there is express mention of certain things, anything of the same class, not mentioned, is excluded; so that where the Legislature applies presumptions to certain sub-sections of a section, those presumptions are not, as a matter of construction, to be applied to sub-sections not mentioned - in this case sub-s. (1) of s.26C. In other words there is, as a matter of construction, no presumption as to the validity of the notice served, a matter upon which it is for the Court to pronounce. 23. In parenthesis, I would not go so far as did Mr. Jackson-Lipkin in argument when he observed that it was for the magistrate, in addition to satisfying himself that the notice served was in fact a notice of prosecution and intended application, also so to ensure that it had been served "not less than seven days prior to the making of the application" as required by s.26C(1). As it seems to me, the presumption of due service contained in sub-s.(4)(ii) must extend to include this requirement. 24. If however the presumptions do not, as a strict matter of construction, extend to the validity of the notice served, is it open to the Court to supply the deficiency, to shade in the unfinished portions of the picture? I cannot think that it is. 25. It is well-settled canon of interpretation that a casus omissus may not be supplied, that is, that the courts may not extend a statute to meet a case for which provision has not been made. A fairly recent judicial refusal to supply an omission arose in Fisher v. Bell(4) where a flick knife was exposed but not, in the words of the statute, "offered" for sale. It was held that there was no offence and that it was not for the Court to supply the omission. 26. In Mersey Docks v. Henderson(5) Lord Halsbury said:-
and in Crawford v. Spooner(6), the Judicial Committee said:-
27. These words were quoted with approval by Lord Uthwatt in the House of Lords in the more modern case of Lord Howard de Walden v. I.R.C.(7). Still more recently, in R. v. Wimbledon Justices ex parte Derwent(8), Lord Goddard C.J. expressed the same principle thus:-
28. A bold contrary view having been expressed by Denning L.J. in the Court of Appeal in Magor and St. Mellons R.D.C. v. Newport Corporation(9), his views were dealt with thus by Lord Simonds in the House of Lords:-
and later:-
29. Finally in R. v. Oakes(11), Parker L.J. (as he then was) said:-
30. Whilst all these cases illustrate the reluctance of the Courts to paint in forgotten details on the legislative canvas there are other cases in which omissions have been supplied by the Courts. Examples of them are to be found in Maxwell on the Interpretation of Statutes** and they appear to call for two comments. The first is that there are no modern cases amongst them, all but one being nineteenth century cases and it is likely that even they were becoming anachronistic in their own day for as early as 1840, Lord Brougham in Gwynne v. Burnell(12), was saying:-
31. The second comment on this group of cases is that Maxwell is careful to introduce them with the qualification that the provision of an unintended omission may be undertaken by the Courts "at least in enactments which are construed beneficially, as distinguished from strictly."(a). The same author subsequently(b) gives instances of refusal to supply omissions in penal acts and remarks(c) that possibly if the statutes, in these cases, had been remedial, the omission would have been supplied - a remark treated with considerable reserve by the learned author of Craies on Statute Law(d). The 12th Edition of Maxwell adds little to the discussion, though again emphasising,(e) that omissions will not readily be supplied in a penal Act. 32. I conclude, therefore, that as a matter of construction, the far-reaching presumptions contained in s.26C(4)(ii) and (iii) of the Road Traffic Ordinance do not extend to the form and validity of the notice contemplated by s.26C(1) thereof; and if the presumptions were intended so to extend, it is not for the Courts to supply the omission. The Legislature has not gone so far as to bar the magistrate from satisfying himself as to the validity of the notice of prosecution and intended application for detention and, unless and until the Legislature so extends the very drastic restrictions already imposed upon the judicial function, the magistrate is under a duty so to enquire. My answer to the first question posed in Criminal Appeal No. 559 of 1971 is therefore, "No". 33. The second question raised in this same case is whether the Court has jurisdiction to entertain an application pursuant to s.26B of the Ordinance when the notice issued pursuant to s.26C has been issued and served prior to a finding of guilt by the Court. The logical starting-place for an enquiry into this question, as indeed in relation to all the questions put to us, is in the legislation itself. Reference to s. 26B of the Ordinance shows that there are three sets of circumstances (those contained in sub-s. (1)(a)(b) and (c) thereof) in which it is mandatory for the prosecution to apply to the Court for a detention order in respect of the light bus involved. In each of the three cases however, the prerequisite to any such application is a finding of guilt; for in each case the reference is to a "person" (or an "owner") who "has been" found guilty of an offence. This is the plain and ordinary construction to be put upon the words of the Ordinance. Is there any warrant for disturbing that construction so as to legitimate what we are told is the practice of sending out notices of "intended" application before the summons or information has been heard and innocence or guilt determined? Mr. Caird rests that practice upon morality and convenience arguing that if the registered owner is made aware of a pending prosecution, he can take steps to see that his driver has the requisite time off to attend the court, can advise the driver and, if necessary, obtain legal advice for him; in short, he can acquaint himself with the circumstances at an early stage and thus be in a position to attempt to guide the criminal proceedings to an acquittal, or, failing that, prepare himself to meet the intended application for detention of his vehicle. It is without offence to Mr. Caird, who shares the unease with which all lawyers regard legislation of this type, that I observe that it is good to be assured that morality enters into these Draconia devices designed vicariously to ensure the penalisation of owners in whom there may rest no guilt whatever; but morality and convenience cannot be called in aid to ignore the plain language of the statute. Nor does the argument avail the Crown that s.26C(3)(b) is to the effect that the notice shall specify the offence which is "alleged" to have been committed. Against that argument can be set the fact that s.26C(1) refers to a notice of "the prosecution" and of "the intended application." Had the notice been meant to refer to a forthcoming prosecution, nothing would have been easier than to say so. The adjective "intended" was deliberately inserted before "application" and could just as simply have been employed to describe the prosecution if that was what was meant. The plain language of s.26...(illegible) points to the fact that the notice, in so far as it relates to the prosecution, refers to a completed and successful prosecution; for, as I apprehend it, a notice of intended application cannot be said to convey a true "intention" at a time when the essential prerequisite for the making of the application, a finding of guilt, remains a matter of doubt, the determination of which is quite outside the control of the Commissioner of Transport who issues the notice. 34. The classic exposition of the meaning of "intention" was given by Asquith L.J. in the case of Cunliffe v. Goodman(13). That exposition was described by Birkett L.J. in Reohorn v. Barry Corporation(14) as "another illustration of the clearness of that learned Lord's mind and of his mastery of the English tongue and his great powers of exposition". Lord Asquith's exposition was adopted not only by the Court of Appeal in the Reohorn case, but also by Buckley J. in Wine Shippers (London) Limited v. Bath House Syndicate Limited(15), and by the House of Lords in Betty's Cafes Limited v. Phillips Furnishing Stores Limited(16) as well as by the Court of Appeal in Fleet Electrical Limited v. Jacey Investments Limited(23). 35. In Cunliffe v. Goodman(13), Asquith L.J. put the matter thus:-
36. It is true that in the present case there is only one "fence" to be surmounted, that of the finding of guilt, but the taking of that fence is wholly outside the control of the Commissioner of Transport and, in my view, he cannot be said to form an "intention" of applying for the detention of any particular vehicle until that event, outside his control, has taken place. At the best his "intention" can only be a conditional intention and the Ordinance does not provide for a notice of conditional intention. As I see it, the notice may not be served until after a finding of guilt. 37. Morcover I consider there is validity in Mr. Jackson-Lipkin's argument that the phrase, "an offence which is 'alleged' to have been committed", means alleged as against the owner. If the construction which I have placed upon s.26B is correct, there is no longer any question of the offence being alleged to have been committed as against the driver; that issue has been determined by a finding of his guilt. It is, I think, perfectly permissible for an owner to a dispute a finding of guilt despite the fact of conviction of the driver. It is notorious that drivers, and especially professional drivers, sometimes plead guilty to an offence rather than spend considerable time in Court as a result of adjournments and the actual hearing of the case; and it is not difficult to conceive of a case in which a driver charged with, for example, going through a red traffic-light on a route which he traverses almost daily, might say to himself, "Well I sometimes do go through red lights and although I was not stopped I must have been observed", and plead guilty to the charge. If subsequently the owner could demonstrate that that particular vehicle was off the road on the date in question, it might be impossible, the period for review of the decision and that for appeal having expired, for the magistrate to set aside his conviction - yet he might be completely satisfied that no offence of a nature which would cause him to contemplate detention of the vehicle, had in fact been committed. Support for this view is to be found in the case of Sky King Restaurant Limited v. Central Enterprises Limited(17). 38. For these reasons, my answer to the second question put to this Court in Criminal Appeal No. 559 of 1971 would likewise be "No" since such a notice does not comply with the statutory requirements. 39. The third question arising under Criminal Appeal 559 of 1971 is, is the Court bound to make an order for detention when it appears to the Court that the person to be affected by the order has not been served with a notice of prosecution and intended application for detention, and has received no notification of his right to appear and submit to the Court special reasons for not making such an order. 40. This again, is a matter of interpretation. By s.26C(1), the notice of intended application for detention is required to be served upon the person who, at the date of issue of such notice, is the registered owner. Section 26A defines a "registered owner" as "an owner of a light bus registered in accordance with the regulations". The definition is ambiguous as to whether it is the owner or the bus who, or which, must be registered in accordance with the regulations, and interpretation is not assisted by the fact that Reg. 6 of the Road Traffic (Registration and Licensing) of Vehicles) Regulations provides for registration of both. Relying upon the contiguity of the reference to registration to the word "bus" I take the definition to mean the owner of a light bus which bus is registered in accordance with the regulations. 41. The "owner" is defined in s.2 of the Ordinance as
42. It follows that the notice may be served upon the individual who, at the date of its issue, is either:-
43. It will be apparent that in the case of (b) at least, the owner need not necessarily be the person who has paid the purchase price of the vehicle and is thus its owner in the popular sense of that word. The legislation sets up a situation in which the person with the financial stake in the vehicle need not be served with a notice of intended application for detention. Whether this result was foreseen or not, I do not know. That it is unjust, goes without saying. But it has been achieved, not by what, in The Queen v. TSANG Kwok-kuen(2), I termed "a stretching of statutory authorization in favour of executive expediency," but by the sovereign act of the Legislature which may, by apt words expressly dispense with the need for notice or a hearing although on the face of it such be requisite, and may permit enforcement powers against property to be exercised ex parte. (See Cheetham v. Mayor of Manchester(18)). 44. Any such abrogation of the Common Law principle that no man shall be deprived of his property without first being given an opportunity of being heard, must however be couched in express terms. So grave an interference with a fundamental human right is not a matter to be lightly inferred and in cases of doubt it is the duty of the Courts to scrutinise assiduously the language which, it is claimed, deleteriously affects the subject's common law rights. That this present case is one of doubt is, I think, patent; for the end-result, whereby it would appear to be sufficient to serve notice of intended application for detention upon the driver, the custodian of the vehicle, without any notice to the "owner" in the popular sense, is only arrived at by reference to two definition sections. Section 26C(1) provides that the notice shall be served on the person who, at the date of issue of such notice, is the "registered owner". It is then necessary to refer to s.26A to ascertain the meaning of a "registered owner" and from that sub-section one must turn to s.2 of the Ordinance to discover the meaning of an "owner". Only then does it become apparent that in certain circumstances there would appear to be no need to serve the person who owns the vehicle with any notice of intended application for its detention. 45. This is far from constituting express language and the suspicion must arise that the result was arrived at almost by accident. Inasmuch as the Ordinance is careful to make provision for service of notice of the intended application for detention and contemplates a right of objection, I cannot conceive that it was the desire of the legislature that such service should be effected upon somebody other than the person who owns the vehicle. In my view the legislation requires amendment because it cannot, almost unwittingly, deprive the subject of his common law rights. If that is what is intended, let it be stated in entirely unequivocal terms. If it is not intended, let the legislation not appear to arrive at that result by a devious route. 46. It will be well to bring some of the foregoing into focus in relation to the facts of this case. I have already said that the respondent to the application for detention in this case was no longer the registered owner of the vehicle at the date of the hearing. There was no evidence as to who owned the vehicle at that date: but the learned magistrate was uncomfortably aware of the presence, in the background of an unascertained owner who had no notice of the proceedings and no opportunity of advancing any "special reasons" as to why the vehicle should not be detained. This knowledge was one of the reasons which prompted the learned magistrate to refuse to make the order sought. 47. What then is the position of an owner, identified or unidentified, who has become the true owner of the vehicle after the date of the issue of the notice of intended application for detention? He is debarred by s.26D(2)(d) from putting forward as a "special reason "for the non-detention of the bus, the fact that he has acquired the vehicle since the commission of the offence. But it is to be observed that that is as far as the restriction goes and again, expressio unius est exclusio alterius. It is still open to him to put forward other "special reasons" as for example the triviality of the offence committed. But how is such an owner to put forward these reasons, unless he has had notice of the proceedings? As the legislation stands, it seems to me that it is no more open for the Court to order detention as against a subsequent true owner whom the Court knows never to have been served, than it is so to order when, for example, the mere driver and custodian of the vehicle, is opposed to the continuing true owner, has been served. 48. If it be argued that the Commissioner may not know who the true owner is, let the legislation expressly provide for that contingency. 49. My answer to the third question put to us in Criminal Appeal 559 of 1971, is again, "No". 50. The fourth question with which we have to deal, arises out of Criminal Appeal No. 682 of 1971 and is:- whether, in order to satisfy the provisions of s.26C of the Road Traffic Ordinance, the prosecution have to show that they have given to the registered owner, notice of the actual date on which the application for detention will be made, or whether it is sufficient for them to specify only the original return date for the summons as the date when the registered owner is to appear if he wishes to be heard, and then leave the owner to find out for himself the actual date of the making of the application. 51. The practical difficulty in regard to this question arises from the fact that when a driver pleads not guilty to a summons, the hearing rarely or never takes place immediately; in the ordinary, and perfectly proper, course of events the hearing is adjourned to a subsequent date and if for any reason the owner is not present in court on the original return date - and, as will be seen, the particulars required to be stated in the notice to the owner are not so complete as necessarily to render his absence a matter of culpability - he will be unaware of the fresh date. In other cases it transpires that the owner has been served with notice of the summons and of the intended application for detention of the vehicle, but there is a failure to serve the summons upon the driver so that it is impossible to set down any date of hearing and when the summons, with an amended return date, is eventually served upon the driver no notification of the amended return date is given to the owner. 52. Mr. Caird, for the Crown, argues that if the notice is required to issue before prosecution (and in my view it is not) the Crown cannot insert the actual date of intended application for detention being unaware whether the driver will plead guilty or not guilty, in which latter event an adjourned date of hearing would be fixed; all that is intended, counsel urges, is that an owner can attend court and then find out on which date the actual application for detention will be made. Mr. Caird submits that on the interpretation of s.26C(3)(c) there is nothing to show that any other date than the return date of the summons is contemplated. Finally, with conviction but not without distaste for the argument, Mr. Caird says that the presumption contained in s.26C(4)(iii) applies so that it is to be conclusively presumed under s.26C(3)(c) that the Court at which, and the date when, the registered owner should appear if he wishes to be heard, were duly contained in the notice of intended application. 53. Mr. Jackson-Lipkin, for the respondent, argues that under. s.20(1) of the Magistrates Ordinance, Cap. 227, there is provision for the adjournment of the hearing of any complaint or information to "a certain time and place to be ...... appointed and stated in the presence and hearing of the party or parties, or their respective counsel,". There is nothing in that sub-section or in the Road Traffic Ordinance to give the magistrate power to adjourn the application for detention of the vehicle but, counsel argues, it would be nonsense to say that a magistrate has no such power because otherwise the Crown would, immediately upon the plea of not guilty and before the hearing of the case, have to make an application for the detention of the vehicle - an application which cannot be made until there is a finding of guilt on the part of the driver. The power to adjourn, counsel's argument continues, must, in accordance with Fitzgerald's case(19), involve the power to defer or postpone since he cannot adjourn something not yet started and that power to defer or postpone must be the same power as that to postpone the hearing of the summons, that is to say, "to a time and place to be then appointed and stated in the presence and hearing of the party or parties", which must mean in the presence of the owner as well as the driver. If the owner is not there, counsel adds, some notice of the new hearing date ought in justice and in fairness be served upon him. In this connection counsel quoted the case of R. v. County of London Quarter Sessions Appeals Committee. Ex parte Rossi(20) where Lord Denning, referring to s.3(1) of the Summary Jurisdiction (Appeals) Act, 1933 said:-
54. Counsel further quoted the case of R. v. LAU Ping(1) for the proposition, upon the authority of this Court, that no man should be deprived of his property without first being given an opportunity of being heard. The rub here, as I see it, is that in LAU Ping's case this proposition was qualified in the judgment of the learned Chief Justice by the phrase "in the absence of any express provision in the statute itself". In the present case there is a conclusive presumption in s.26C(4)(iii) that the Court at which, and the date when, the registered owner should appear if he wishes to be heard, were specified in the notice of intended application. The phrase "if he wishes to be heard" can only apply to the question of detention since the owner, unless he be also the driver, would have no right of audience upon the summons. The owner would thus appear to be caught by the presumption as to the Court at which and the date when he should appear to put forward any "special reasons" as to why his vehicle should not be detained. 55. Does the presumption however go far enough? It is to be observed that, although the Court and the date are conclusively presumed to have been specified in the notice, the time at which the application is to be made is not so presumed to have been conveyed to the owner. It is a matter of common knowledge that the courts sit both in the mornings and in the afternoons; there would appear to be no particular reason why an owner should assume that his case will be heard either in the one or in the other and it would be an imposition to cast the burden of any such assumption upon him so that, appearing at 2.30 p.m., he could be told that an order for the detention of his vehicle had been made at 10.00 a.m. Again, in this connection it is not impossible that even where the notice states a time for the intended application, that time is incorrectly stated and this is a possibility which, so far as the Court is concerned, is compounded by the fact that the notices are not sent out by the Court itself but by the Commissioner of Transport. Having regard to this issue of the time of the hearing I do not consider that the presumption to which I have referred binds the owner so tightly as to render him impotent to protest the completeness of the particulars supplied to him. 56. That being so, the issue is thrown open and as a matter of natural justice, described by Lord Morris in Wiseman v. Borneman(21) as "only fair play in action," an owner is entitled, if he is for any reason not present upon the plea day, to notice of the actual date upon which the application for detention will be made. The emasculation of the Audi alteram partem rule, merely one facet - though a highly important one - of the concept of natural justice, which took place in the English Courts in the forties and fifties of this century, under the pressure and after-math of war, has been replaced by a ready recognition and revitalisation of the maxim. A wealth of cases in which the rule has been held to apply, between 1960 and 1967, is quoted in S.A. de Smith's "Judicial Review of Administrative Action"(22). There is no reason for this community to stand aside from the mainstream of judicial determination of this elementary aspect of natural justice. 57. The situation contemplated by this final question posed to us, is of course, one which would not arise if notice of application for detention were not served until after a finding of guilt on the part of the driver as, in my view, it should not be. 58. My answer to the question posed in Criminal Appeal No. 682 of 1971 would be "Yes". 59. In summary therefore my answers to the three questions posed in Criminal Appeal No. 559 of 1971 would be, in each case, "No" and to that posed in Criminal Appeal No. 682 of 1971, "Yes". Representation: B.T. Caird C.C. for Appellant Jackson-Lipkin (Philip K.H. Wong) assigned for respondent. (1) (1970) H.K.L.R. 343. (2) Cr. App. No. 189 of 1971. (3) (1889) 21 Q.B.D. 52 @ 65 (4) (1961) 1 Q.B. 394 (5) (1888) 13 A.C. 595 @ 602 (6) (1846) 6 Moore P.C. 1 @ 9 (7) (1948) 2 All E.R. 825 at 830 (8) (1953) 1 Q.B. 380 (9) (1952) A.C. 189 (10) (1949) 2 K.B. 481, 498-9 (11) (1959) 2 ...(illegible) 350 ** 11th Edn. pp. 241 to 243 (12) (1840) 7 C1. & F. 572 at 696 (a) at p.241 (b) at p.264 (c) at p.265 (d) 6th Edn. p.111, note 14 (e) at p.243 (13) 1950 2 K.B.D. 237 @ 253 (14) 1956 1 W.L.R. 845 @ 852 (15) 1960 1 W.L.R. 613 @ 617 (16) 1959 A.C. 20 (17) Civil Appeal No. 5 of 1971. (18) (1875) L.R. 10 C.P. 249 (19) 1869 L.R. 5 Q.B. 10. (20) 1956 1 Q.B.D. 682. (21) 1969 3 W.L.R. at p.711. (22) 2nd Edtn. pp. 159 and 160 and footnotes thereto. (23) 1956 1 W.L.R. 1027 @ 1033 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 559 OF 1971 -----------------
----------------- Coram: Rigby, C.J., Huggins and Pickering, JJ. Date of Judgment: 24 January 1971 ----------------- JUDGMENT ----------------- Huggins, J.: I entirely agree and have little to add. The "notice of the prosecution and of the intended application" which it was sought in each of these cases to uphold contained what appeared to me such a manifest untruth that I began to question my own understanding of the word "intended". It was as a result of my researches on this point that I referred counsel to Cunliffe v. Goodman(1), which Pickering, J. has already cited. Lord Justice Asquith there expressed in most felicitous language what I should nevertheless have thought was patently obvious. A simple "notice of the prosecution" could doubtless be given before, during or after the hearing of the charge, but a "notice of the intended application" cannot be given at a time when the person giving the notice is incapable of forming an intention to make an application. It follows that a combined "notice of the prosecution and of the intended application" cannot be given until the condition precedent for the forming of the intention to apply has been fulfilled. It is common ground that the section contemplates only one notice. We have been assured that what was done was done with the best of motives, but the best of motives cannot excuse a falsehood in any case and certainly not where the result is to cause the inconvenience which must necessarily flow from the premature issue of a notice of this kind. The question which arises in the Attorney General v. HO Seat-gine appears to me to be answered by our decision on the second question in the Attorney General v. KO Che-lung, to which I have just been referring: if a notice of the prosecution and of the intended application cannot be issued until the prosecution has been concluded with a finding of guilty, it cannot be sufficient that the notice should give only the return date of the summons by which the prosecution is instituted. Representation: (1) 1950 2 K.B. 237. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 559 OF 1971 -----------------
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----------------- Coram: Rigby, C.J., Huggins & Pickering, JJ. Date of Judgment: 24th January, 1972. ----------------- JUDGMENT ----------------- Rigby, C.J.: I have had the advantage of reading the careful and lengthy judgment delivered by my brother Pickering, J. I am in complete agreement with it and, in the circumstances, see no advantage in delivering the judgment I had myself prepared. Representation: |