XI. Fixed penalty for public cleanliness and obstruction offences
The Fixed Penalty (Public Cleanliness and Obstruction) Ordinance (Cap. 570) provides a fixed penalty system for certain public cleanliness, littering, obstruction and related offences. Instead of being prosecuted in court, a person who receives a fixed penalty notice may settle the matter by paying the fixed penalty within the required time.
What offences are covered?
The Ordinance applies to “scheduled offences” listed in Schedule 1. These include offences relating to littering, spitting, dog fouling, marine littering, unlawful depositing of waste, obstruction of public places, unlawful shopfront extension, and unauthorised display of bills or posters.
The fixed penalties include:
Offence | Fixed penalty |
| Unlawful shopfront extension under section 86F of the Public Health and Municipal Services Ordinance (Cap. 132) | $6,000 |
| Display of bills or posters without permission under section 104A(2) of the Public Health and Municipal Services Ordinance (Cap. 132) | $3,000 |
| Depositing litter or waste in public places under section 4(1) of the Public Cleansing and Prevention of Nuisances Regulation (Cap. 132BK) | $3,000 |
| Spitting in public places under section 8A(1) of the Public Cleansing and Prevention of Nuisances Regulation (Cap. 132BK) | $3,000 |
| Fouling of street by dog faeces under section 13(1)(a) of the Public Cleansing and Prevention of Nuisances Regulation (Cap. 132BK) | $3,000 |
| Obstruction of public places under section 4A of the Summary Offences Ordinance (Cap. 228) | $6,000 |
| Unlawful depositing of waste under section 16A(1) of the Waste Disposal Ordinance (Cap. 354) | $6,000 |
Who may issue a fixed penalty notice?
If a public officer has reason to believe that a person is committing, or has committed, a scheduled offence, the officer may issue a fixed penalty notice to that person.
The relevant public officers depend on the offence. They may include, for example, police officers, officers of the Food and Environmental Hygiene Department, Environmental Protection Department officers, Housing Department officers, Leisure and Cultural Services Department officers, Agriculture, Fisheries and Conservation Department officers, and Marine Department officers.
The notice must be given personally to the person concerned. However, the Ordinance states that the fixed penalty procedure is not invalid merely because there has been a failure to comply with the personal service requirement.
What happens after receiving a fixed penalty notice?
A person who receives a fixed penalty notice may discharge liability for the offence by paying the full fixed penalty within 21 days beginning on the date the notice is given.
If the full fixed penalty is paid within that period, the person will not be liable to be prosecuted or convicted for the scheduled offence specified in the notice, subject to the Ordinance’s provisions on withdrawal of notices.
What happens if the fixed penalty is not paid within 21 days?
If the fixed penalty is not paid within the 21-day period, the relevant Authority must serve a further notice on the person. This notice will:
- demand payment of the fixed penalty;
- inform the person that he may dispute liability by notifying the Authority in writing; and
- state that payment, or the written notification disputing liability, must be made within 10 days beginning on the date of the notice.
This further notice may be sent by post to the person’s address. It cannot be served 6 months after the date of the original fixed penalty notice.
How can a person dispute liability?
A person who wishes to dispute liability must notify the Authority in writing within the 10-day period stated in the further notice.
If the person disputes liability, court proceedings may be taken. A summons may then be served in accordance with the Magistrates Ordinance (Cap. 227).
If the person later appears before a magistrate and offers no defence, or offers a defence that is frivolous or vexatious, the magistrate must impose an additional penalty equal to the amount of the fixed penalty, in addition to any other penalty and costs.
Can a person pay after a summons has been issued?
Even after proceedings have started, a person who previously disputed liability may terminate the proceedings by paying:
- the fixed penalty;
- an additional penalty equal to the fixed penalty; and
- $500 costs.
Payment must be made at a magistracy not less than 2 days before the date specified in the summons for appearance.
What if the person does not pay and does not dispute liability?
If the person neither pays the fixed penalty nor gives written notice disputing liability, the Authority may apply to a magistrate. The application may be made in the person’s absence.
The magistrate must order the person to pay:
- the fixed penalty;
- an additional penalty equal to the fixed penalty; and
- $300 costs.
The amount must be paid within 14 days from the date of service of notice of the order.
If the person pays the full amount ordered, he will not be prosecuted or convicted for the scheduled offence.
What if the magistrate’s order is not paid?
If a person fails to pay the fixed penalty, additional penalty and costs ordered by the magistrate, the person is treated as having failed to pay a sum adjudged to be paid by a conviction under the Magistrates Ordinance, and may be liable to imprisonment under that Ordinance.
In addition, if a person ordered to pay a penalty fails to pay within 1 month from the date of the order, an application may be made for distress and sale of the person’s goods and chattels to recover the penalty and costs.
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