MAGISTRACY APPEAL NO. 725 OF 2011
1.On 30November 2011 I dismissed the appellant’s appeal. These are my reasons.
2.The appellant was alleged to have been the driver of a vehicle which exceeded the speed limit on 13 February 2009 at New Hiram’s Highway, N.T. A fixed penalty ticket was issued after the owner of the vehicle apparently nominated the appellant as the driver on that day. No issue arose from this in the appeal. The owner of the vehicle was a friend of the appellant.
3.On 23 April 2009, a Notice Demanding Payment of the Fixed Penalty also dated the same date (“the Notice”) was served under s.3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap.240 (“the Ordinance”) by posting it to the appellant’s registered address.
4.The appellant failed to pay the fixed penalty or dispute liability within the prescribed time.
5.On 9 June 2009, pursuant to s.3A(1) of the Ordinance, the Commissioner of Police made an ex parte application to the court for an order that the appellant, pay the fixed penalty of $320 together with an additional penalty of $320 and costs in the sum of $440. An order in terms was made on 10 July 2009 (“the Order”).
6.The appellant failed to pay the sum ordered and was alerted to the fact that he was liable to be arrested.
7.On 17 August 2011 the appellant sought a review of the Order under s.3B of the Ordinance which provides, inter alia:
“(1) Where a magistrate is satisfied that the notice mentioned in section 3(3) has not come to the personal notice of the person to whom it is addressed without any neglect by that person, the magistrate may, on an application of which reasonable notice has been given to the Commissioner of Police, rescind the order made under section 3A(1) and—
(a) if that person wishes to dispute liability for the offence, give leave to that effect; or
(b) if he does not wish to dispute liability—
(i) order him to pay the fixed penalty within 21 days of the order; and
…”
That review was conducted on 3 October 2011. In the course of the review, the appellant claimed that he had never received the Notice because it was sent to his old address. The magistrate was satisfied that the appellant was negligent in failing to give to the Transport Department an address where it was likely that he would receive mail. She therefore refused to rescind the Order.
8.This was the appellant’s appeal from that decision.
9.When a magistrate considers an application for a review under s.3B of the Ordinance, it is incumbent upon the applicant seeking a rescission of an order for payment made under s.3A(1) to satisfy the court (on the balance of probabilities) that the notice had not been received by him and that he was not negligent.
10.In the instant case the magistrate proceeded on the basis that the notice to pay the fixed penalty ticket and the subsequent order to pay that fixed penalty, plus the additional penalty and costs had not been received by the appellant.
11.The issue was whether the appellant had been negligent.
12.At the review hearing the appellant submitted that he had not received the Notice because it had been sent to an old address, i.e. “24, 12th St., Hong Lok Yuen, Tai Po, NT” (“the Hong Lok Yuen address”) at which he had not lived since around 2004 or 2005.
13.In the course of that hearing the prosecution put in evidence a Full Driving Licence Renewal Notice cum Application Form which bore the appellant’s signature and was served on the Transport Department in October 2008 (Exh. P1). That document showed that the appellant’s address at that time in the record of the Transport Department was still the Hong Lok Yuen address. It is to be noted that the reverse of that document contained provision for the person submitting it to notify a change of address. An examination of Exh. P1 shows that this part of the form had not been completed. Thus there was no notification to the Transport Department that the address on the face of the document was incorrect.
14.By s.2 of the Ordinance, 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 for Transport in accordance with the regulations made under the Road Traffic Ordinance, Cap.374—i.e. in this case and at that time the Hong Lok Yuen address.
15.It appears clear to me as it was the magistrate that the appellant had omitted to provide his current address to the Transport Department, in which case it cannot be said that there was no negligence on his part. After all the application form for the renewal of driving licence is clear and unambiguous. In discussion before me the appellant accepted that this must have been the case and that he was at fault.
16.Without objection from the appellant the appeal was dismissed.