3. Review hearing against court order to pay fixed penalty, additional penalty, and costs
If the demand in Form 2 (a Notice Demanding Payment of Fixed Penalty) (the “Notice”) has not been met by you on time by paying the fixed penalty, a magistrate will order you to: (1) pay the fixed penalty; (2) an additional penalty equal to the amount of the fixed penalty; and(3) costs.
However, this court order may be rescinded, i.e. cancelled by the magistrate. At law, depending on the nature of the traffic contravention, this mechanism is provided for in section 3B of the Fixed Penalty (Criminal Proceedings) Ordinance (Cap. 240) and section 16A of the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237). Similar mechanisms can be found in section 10 of the Fixed Penalty (Smoking Offences) Ordinance (Cap. 600) for smoking offences and section 10 of the for Fixed Penalty (Public Cleanliness and Obstruction) Ordinance (Cap. 570) for littering offences.
To have the court order rescinded by the magistrate, you have to first apply to the magistrate in writing, attend the review hearing as scheduled by the magistrate, and then testify in the witness box that: (1) the Notice has not come to your personal notice, and (2) you are not in neglect.
At the review hearing, you, as the applicant (if you continue to apply), will need to testify and explain the circumstances of why you have not received the Notice before the payment deadline, and why you are not in neglect in not receiving the Notice. The circumstances for not receiving the Notice can vary a lot, usually because of the late, wrong, or even missing delivery of the letters. Here are some examples:
(1) A letter in Hong Kong will usually, but not always, arrive within a few days after it was sent. However, when it arrives, the deadline for payment may have passed already. This may or may not be your neglect. For example, it maybe your neglect if you received the letter on time but you didn’t check your mailbox regularly or was too busy at work and forgot to pay.In contrast, it may not be your neglect if you are out of Hong Kong for some time so that you were not able to check your mailbox and there was no one who could help deal with the letters.
(2) It is the responsibility of the recipient of the letters to have a safe and secure mailbox, such as by having a locked mailbox. If the mailbox is left unrepaired for some time, it could be said that you are in neglect. Worse still, if there is no mailbox and the letters are merely left idle on the floor or at the iron gate at the whim of the post officers, then it would appear that you are in neglect.
(3) It is the responsibility of the recipient of the letters to provide a correct correspondence address. If the address provided by you is inaccurate or even incorrect, any delay or non-receipt of letters may be inevitable. This is likely to be your neglect because you should notify the Transport Department within 72 hours after you have changed your address (for example, you have moved out).
(4) If you have past experience of not receiving letters that you are expecting to receive, it is prudent to check with the caretaker or management office of the building to see whether there were letters misdirected to your neighbours. If you do nothing in this situation, then it may be your neglect. Nonetheless, it may be too much required of you if you have to use another address or to rent a post box at the post office just for the purpose of receiving the Notice.
After you testified and if the magistrate is satisfied that (1) you do not have notice of the Notice and (2) this is not due to your neglect, the magistrate will rescind the order. It means that you can either (a) pay the fixed penalty without the need to pay any additional penalty and costs, or (b) dispute the liability for the fixed penalty offence.
In contrast, if the magistrate is not so satisfied, the court order will remain in force, meaning that you have to pay the fixed penalty, an additional penalty, and costs.