Case Document

100%

CACC000057/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 57 OF 1979

-----------------

Between
	The Attorney General	Appellant
	AND
	YEUNG Sit-fong	Respondent

-----------------

Coram: O' Connor, J.

Date of Judgment: 7 February 1979

-----------------

JUDGMENT

-----------------

1. This is an appeal by the Attorney General by way of case stated against the decision of a magistrate. The respondent had been charged before the learned magistrate, that being the driver of a motor vehicle she committed the offence of failing to stop for pedestrians on a zebra crossing and had failed to pay the fixed penalty in accordance with a notice served on her under section 3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, Chapter 240. The facts giving rise to the case stated are set forth by the learned magistrate as follows:

"	Upon the hearing of the information which commenced on 27th November 1978 evidence was given by Police Constable 17319 to the effect that at about 1.35 p.m. on the 2nd June 1978 he observed a private car driven by the respondent travelling westwards along Tai Hang Tung Road, that this motor vehicle failed to give procedence to pedestrians who were crossing a pedestrian crossing, outside Block 5 of the Tai Hang Tung Estate, that after stopping the motor vehicle and obtaining the respondent's driving licence, he gave her a notice in Form 1 in the Schedule to the Fixed Penalty (Criminal Proceedings) Regulations (Chapter 240) (hereinafter referred to as the Regulations) and that he filled in all the necessary parti-culars on that part of the said notice before the heading therein "List of Offences and Fixed Penalty" by writing such particulars on a form retained for police record purposes and that such particulars were transmitted through the medium of carbon paper on to the appropriate part of the said notice given to the respondent.
	Evidence was also given that a notice under section 3(3) of the Ordinance and in accordance with Form 2 in the Schedule of the Regulations requiring payment of a fixed penalty within 21 days after the date of the notice had been served on the respondent pursuant to the requirements of section 3 of the Ordinance and that the respondent had failed to pay the said fixed penalty in accordance with such notice."

2. The learned magistrate himself took the point and held that the Form 1 Notice served on the respondent was invalid as it was a carbon copy and not the original notice. He held further that the giving of a carbon copy of the Form 1 Notice to the respondent rendered invalid all the sub-sequent proceedings and accordingly he dismissed the information. The questions of law posed in the case stated are:

"	1st	-	Whether I was correct in law holding that a notice in Form 1 in the Schedule to the Regulations where the necessary particulars on that part of the said notice before the heading therein "List of Offences and Fixed Penalty" were transmitted through the medium of carbon paper on to the said notice is not a valid notice for the purposes of the Ordinance.
	2nd	-	Whether I was correct in law holding that the Commissioner of Police is not empowered to proceed under section 3(3) of the Ordinance where an invalid or defective notice has been given to a person under section 3(1) of the Ordinance."

3. The appellant says that the fundamental error of the magistrate was to refer to the top document as an "original" and the other as a "copy". In Durston v. Mercuri 1969 V.R. 507 at 512 Menhennitt J. said:

"In the present case I am concerned with a document which is a carbon copy of the original and contains everything that was in the original including the signature, thus it is in one sense an original. The same hand using the same pen produced at the same time the writing on both the original and the carbon copy. In the case of the original the writing was left by the ink from the pen; in the case of the carbon copy it was left by the carbon from the carbon paper. But the words written were both produced by the same writing. In these circumstances I am disposed to think that a carbon copy of a document which is a complete copy in every respect including the signature, is for all purposes equivalent to the original and is admissible in evidence as prime evidence of the contents of the original. This is the view of the law that has been taken in New Zealand and in the United States. In Buckley v. Macken 1961 NZLR 46 McGregor J. in the Supreme Court of New Zealand held that carbon copies of invoices and of a receipt are admissible as primary and not secondary evidence of the contents of the original. After referring to what Lord Ellen borough said in Colling v. Treweek (1827) 2 B & C 394; 108 ER 497 as to con-temporary counterparts being both originals, McGregor J. said at page 48 'It would seem to me that the carbon copies of invoices and the duplicate carbon receipt are admissible without notice to pro-duce under this exception.' In International Harvester Co v. Elfstrom 101 Min. 263; 112 N.W. 252 (part of the judgment of which is set out in Wigmore In Evidence 3rd Edition Vol. 4 page 448 para. 1234) Elliott J. decided that a carbon copy of a contract on which the signature was reproduced by the carbon paper was admissible in evidence and he contrasted the position of letter press copies of writings and duplicate writings. He pointed out that letter press copies are produced by a distinct and subsequent act. As to carbon copies His Honour said:- 'But all the numbers of a writing which result from the completion of the legal act of the parties, though aided by mechanical devices or chemical agencies, meet the require-ments of originals. If the reproduction is complete, there is no practical reason why all the products of a single act of writing the contract and affixing a signature thereto should not be regarded as of equal and equivalent value. In this instance the same stroke of the pen produced both signatures. The argu-ment that the recognition of those instruments as duplicates would encourage fraudulent practices does not touch the principle involved."

In Lynes v. International Trade Developer Inc. 1922 N.P.D. 301 it was held that where a contract was signed in triplicate, the signatures on two of the documents being made by carbon impressions of the signature on the third, all were originals. A report of that case is not available but it is referred to in Hoffman 'South African Law of Evidence' 2nd Edition page 278.

4. The above decisions arose in the context of the law of evidence and are illuminating as to the nature of full carbon duplicates. However the questions posed for answer in the case stated arise in the context of procedural or perhaps substantive law, not the law of evidence. The notice served on the respondent was made by the use of carbon paper. The fact that the writing on it was transmitted by carbon paper has no significance as between the parties. As between the parties the original document is the one that passed between them. It takes its originality from being the actual piece of paper that was served by one on the other. The fact that it is or might be a copy of something not served on respondent is immaterial. There is reference in Phipson on Evidence 11th Edition, page 743 para. 1689 footnote 51 to a decision of Judge Woodfall, Westminster County Court, The Times April 27 1912 page 4 where he held that if the copy of a letter be the document sent, this, and not the letter will be the original. In McDonald v. Hanks, 52 Tex. Civ. App. 140; 113 S.W. 604 at 609 (1908) the report of which is not available but which is noted at McCormick Evidence' 2nd Edition page 566 para. 235 footnote 56, the Court said.

"If a writer desiring to preserve a copy of a letter writes at the same time two copies exactly alike, one of which he proposes to send and the other to keep, it is a matter of indifference which copy he sends, but the one sent becomes the original and the other a copy, no matter by what force of evidence it is shown to be an absolutely accurate copy."

5. Another approach to the matter is to consider the history of service of documents. This is conveniently set out in the judgment of Sholl J. in Davidson v. McCarten 1953 V.L.R. 697 at 701 - 703 wherein he refers to R.v. Chandler (1811) 14 East 267; 104 E.R. 603. Before the eighteenth century it was the practice to require personal service of a justice's summons, but in that century a number of statutes were passed providing for service by leaving the summons at the defendant's last or most usual place of abode. One such statute was 32 Geo. 2.C.17. which provided that a summons left at a defendant's house should be deemed good and sufficient service. In R.v. Chandler a copy of the summons was left at defendant's house with one of his servants. The point was taken that the service was bad as only a copy was served instead of the original. Lord Ellenborough C.J. dealt with the point in the following words:

"Where notices are delivered to a party, or left at his house or usual place of residence it is the constant practice to deliver or leave a copy; and this Act only substitutes the leaving of that which would otherwise have been personally delivered to the party. The whole purpose of the Act is answered by this."

For the above reasons I answer no to the first question. The learned magistrate suggested a number of ways in which difficulties could arise if the notice given to the defendant was a carbon copy, these included possible illegibility of the carbon copy and a blank duplicate because the carbon copy had been incorrectly inserted. Of course a blank duplicate would be no notice at all, and illegibility in the carbon copy may be such as to render the notice invalid. It seems to me that from a practical point of view it would be advisable if the notice served were the top copy or what the learned magistrate would no doubt refer to, albeit incorrectly, as the 'original'.

6. As I have answered the first question no, the second question does not arise. However as Crown Counsel has pressed me to indicate my view, I do so. The learned magistrate at one point in the case stated enpresses the view that the giving of a valid notice under section 3(1) is a pre-condition to any subsequent criminal proceedings within the provisions of the Ordinance, at another point he recognises that this is not so but indicates that service of a notice under section 3(3) does not validate a defective notice issued under section 3(1). The terms of section 3 in so far as they are relevant read as follows:

"	S.3	(1) -	If a police officer has reason to believe that a person is committing or has committed a scheduled offence, he may give that person a notice in the prescribed form offering that person an opportunity to discharge any liability to conviction for that offence by payment of the fixed penalty therefor at any place specified in the notice;
		(2) -	A notice under subsection (1) shall be given by the police police officer concerned:

	(a)	by delivering it personally to that person; or
	(b)	by fixing it to the vehicle used or involved in the commission of the offence.

(3) -

Subject to subsection (4), where the Commissioner of Police is of the opinion that a person alleged to be guilty of a scheduled offence ought to be proceeded against under this Part in respect thereof, he shall, as soon as practical after the commission of the offence and whether or not a notice has been given under sub-section (1), serve on that person a notice demanding payment of the fixed penalty."

7. It appears clear to me that subsection (1) is providing that a police officer "may" give a notice under that subsection "offering" the opportunity to discharge the offender's liability. He is not obliged to do so. However if he decides to do so, the manner of his so doing is laid down in subsection (2) which provides that in the event that he decides to give a notice he "shall" do so in one or other of the ways set out in subsection (2). What is provided for in subsection (3) is the procedure where the Commissioner of Police forms the opinion that proceedings ought to be taken in respect of an alleged offence. The procedure in those circumstances is that he "shall" serve a notice under subsection (3) "demanding" payment of the fixed penalty and he "shall" serve such a notice "whether or not a notice has been given under subsection (1)." In my opinion the serving of a notice under subsection (1) is not a condition precedent to the service of a notice under subsection (3). It is because a sub-section (1) notice is not a condition precedent to the serving of a subsection (3) notice, that the following words appear on p. 2 of the prescribed notice under sub-section (3):

	"Please note:
	A notice under section 3(1) of the Ordinance number may already have been served on you in this case. If you have paid the Fixed Penalty specified by that notice, you should ignore this demand."

8. The validity of a notice issued under subsection (3) is in no way dependent on or affected by whether a good, bad or indeed any notice has been issued under subsection (1). I consider the answer to the second question is no.

9. The respondent has already had to appear in Court three times in connec-tion with this incident. The Crown does not press for the matter to be sent back to the magistrate for him to continue hearing it in the light of the answers I have given. Accordingly I made no further order in the matter and the acquittal will not be set aside. In the light of all the circumstances and the course of proceedings in the magistrate's court I consider that to be the just way of disposing of the matter, see observations of Lord Denning in D.P.P. v. Head 42 Cr. App. R. 98 at 131.