HKSAR v. Preston, Neil

HCMA 296/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 296 OF 2014

(ON APPEAL FROM KCM 870 OF 2014)

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J U D G M E N T

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1.This is an appeal against the refusal of the magistrate to rescind an order that had been made under section 3(3) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap 240.

2.The facts giving rise to the case were these, that on 12 October 2013, the appellant drove in excess of the speed limit by 15 kilometres an hour or less.  A notice dated 13 December 2013 was served on him by post, requiring him to pay the fixed penalty, which is $320, or to notify the police that he wished to dispute liability within 21 days. The appellant only paid on 5 January; the 21 days ran out on 3 January.

3.The demand notice was dated 13 December 2013.  The 21 days runs from the date on the demand notice under the Ordinance and not from the date when it arrived in the appellant’s post-box.  13 December was a Friday and it has been common ground between respondent and appellant in this court that the post would arrive maybe the next day but, for certain, within two days.  However, it is also common ground that there is no delivery of post on a Sunday, so it seems to me right to proceed on the basis that the demand notice would not arrive at the appellant’s address until Monday, the 16th.

4.The appellant tells me - and I have no reason to disbelieve it, he is a palpably honest man - that the mail delivery at his address comes after he leaves for work at 7 to 7.30 in the morning; it comes at about 11.  So I shall proceed on the basis that the demand notice then lay in his mailbox from some time after he had gone to work on Monday, 16 December. It is thus the case that when he returned on the evening after work on the Monday, there would have been an opportunity to look in his post-box and find the demand notice.  Likewise when he went out on the Tuesday morning.  On the Tuesday morning, he went to work but from work, he then, with his wife, went to stay with relations in a distant part of Hong Kong and he did not go home until 22 December.

5.On 22 December, he arrived home at about 11 in the evening and he did not check his mailbox then.  Early on the morning of 23 December, he was leaving for a preplanned Christmas holiday in Thailand which he left for early in the morning on the 23rd.  He went past his mailbox then, he describes, laden with his luggage, waiting for a taxi and the like. He did not look then in his mailbox.  If he had, he would have found the demand notice.

6.He then went to Thailand and came back on 3 January, arriving home just before midnight and it was at midnight on 3 January that the demand notice expired, by which time he should have made his payment.  He found the notice that night.  He did check then in his mailbox and, as a result, not having a computer at home to do it, he used his computer at work on the Monday morning to, electronically, over the internet, pay the fixed penalty of $320.

7.He had written a letter explaining the circumstances of the alleged speeding offence.  It is referred to as his mitigation letter.  I have not actually seen the contents of it but that does not matter.  What did matter is that he hoped that that may result in them not proceeding with the case.  He volunteered to the magistrate that, in fact, in response to that letter, he received a telephone call from a police officer, saying they would have to proceed, though he never had a formal reply to that and that was some time in November was his evidence.  I do not have a set date for that but certainly, in his submissions, he says that he thought there would be a response within a week or two, but certainly several weeks went by before the date when the demand notice was actually posted to him which was 13 December. The relevance of it is that the appellant was not on what he called “high alert” for such communicatios in December.

8.The law is that in circumstances 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 quash the order for the additional penalty and the costs which had been made in this case. 

9.The respondent argues two things:  firstly, that because Mr Preston had notice just within the 21 days of the demand period, that he cannot therefore avail himself of section 3 B, the contents of which I just read out, 3B of the Fixed Penalty (Criminal Proceedings) Ordinance.  That is a submission that I reject.  It seems to me that one has to read into subsection (1) of section 3B the words “has not come to the personal notice of the person in time to pay the demand”.  Otherwise, the section would work illogically. 

10.Let me demonstrate why I think that is so.  If it had been the case that a man receiving a notice in these circumstances went on holiday and was away for the whole time of the 21-day demand period, then without doubt the magistrate would be satisfied that the additional penalty and costs should be set aside because it would have been demonstrated that it had not come to his notice within the period and there had been no neglect because the man was on holiday.  Supposing he arrives home, as was the case here, in the last hour of the demand period where there is not really time, reasonably, to pay the fixed penalty.  If that were the case, then it seems to me that the drafters of this legislation would not have precluded that man from the benefit of section 3B(1). 

11.Accordingly, the first point taken by the respondent, based on the fact that the appellant’s case was that he had an hour at the end of the period in which to respond to the notice, is not, in my judgment, a good one.

12.The second point that the respondent takes is that there was a failure to prove a lack of neglect and that was really the live issue before the magistrate.  I have set out the history of the moments, or the opportunities, that the appellant had to find the notice in his mailbox and the appellant, attractively, makes the submission that, these days, most important matters are dealt with over the internet and he says, certainly, that is the way he organises his life and that his mailbox is something of less than primary importance when it comes to communicating with the world, describing mostly his mailbox being full of circulars and things of that nature, and he says, whilst it may have been prudent to have looked in those windows of opportunity when he walked past his mailbox, he says that it was not anything as strong as neglect for him to fail to do so. 

13.In my judgment, it is a borderline case.  The burden is on the appellant to satisfy the magistrate on the balance of probabilities and it is a very fine balance here.  But doing the best I can - and I do not criticise the magistrate for having another view - my view is that it falls just short of being neglect in the circumstances described by the appellant.  And I stress that he is clearly an honest man and I accept the facts upon which he relies.  So in my judgment, I think he has, albeit by a whisker, discharged the burden upon him of establishing that the notice did not come to his personal knowledge, without neglect, in time to pay it. 

14.That is my finding and therefore he will win the case.  He has told me that he has paid the fixed penalty and obviously he is happy that that payment remain in place and what he wins today is the return of the additional penalty of $320 plus the costs that he was ordered to pay of $440.  So as a result of my allowing the appeal in his case, I shall order the return of the $760 to him. 

Mr Gary Leung, Public Prosecutor of the Department of Justice, for the respondent

Appellant appeared in person