Judgment

N.H. Chan JC

(delivering oral judgment)

1. Insofar as this revision is concerned, I shall read only the relevant parts of s 62 of the Road Traffic Ordinance, 1958:

   62.

   (1) Any appropriate authority may by order published in the Gazette provide suitable parking places for vehicles .... (3) An order under sub-s (1) may prescribe – (a) the vehicles or class of vehicles which may use such parking place and the period during which and the conditions in subject to which such parking place or stand may be used; and (b) the charge, if any, to be made for the use of such parking place. (4) Where any charge for the use of such parking place is to be made or intended to be made pursuant to any order under this section, such order shall specify –   (i) ....   (ii) .... and may further make provision in a parking place for any of the matters following: (f) the charges to be levied in respect of the use thereof and the manner of its collection; [my emphasis]

   In pursuance of the powers under the above-mentioned s 62(1) of the Road Traffic Ordinance 1958, the Municipal Councillors of the Municipality of Ipoh (hereinafter referred to as “the Municipality of Ipoh”) declaring themselves as the appropriate authority made an Order known as the Road Traffic (Attendant Parking Places) (Ipoh Municipal Council) Order, 1969 (hereinafter referred to as – “the Order”).

2. This is wrong. The Municipality of Ipoh are not empowered to call or make themselves an appropriate authority. Only the Minister for Local Government can do this; see s 58 of the Road Traffic Ordinance, 1958. There is nothing in the Order to indicate that the Municipality of Ipoh were declared an appropriate authority by the Minister and, therefore, there is nothing to suggest that there is anything for me to take judicial notice of.

3. Now I shall return to the Order. The articles in the Order which are applicable to this case are as follows:

   Article 7 Any person using a parking place during the times specified in column 4 of the First Schedule for the parking of any motor vehicles shall obey all lawful directions given to him by any parking attendant on duty at such parking place and shall pay the prescribed charge as soon as the vehicle has been parked by handing over the money to the parking attendant on duty who shall issue an official receipt there for on which shall be written the vehicle’s registration number, the amount paid and the time which the vehicle is authorised to be parked at such parking place. Article 9 No person shall park or cause or permit to be parked any motor vehicle in any parking place unless he has the receipt of the parking attendant indicating that such payment has been made. Article 10 No person shall continue to park or cause or permit to continue to be parked any motor vehicle in a parking space after expiry of the period during which such motor vehicle is authorised to be parked in such parking space as stated in the official receipt issued by the parking attendant.

4. By ss 62(3)(b) and (4)(f) of the Road Traffic Ordinance, 1958 the appropriate authority are empowered to levy a charge for the use of the parking space provided for vehicles under the Order and Article 7 is the result of a valid exercise of such power. Articles 9 and 10 are intra vires s 62(3)(a) of the Ordinance. A contravention of any one of the Articles 7, 9 and 10 of the Order would constitute an offence punishable under s 62(7) of the Road Traffic Ordinance, 1958.

5. In the instant case, the defendant, Rajamah, pleaded guilty to the following charge:

   That you, being the registered owner of motor vehicle No AJ 1255 did incur an excess charge/surcharge of $5 in respect of Advice Note No 754302 for parking the said vehicle at Space No 38 Jubilee Street/Road, Ipoh on 19 November 1977 and that you failed to pay the said excess charge/surcharge within seven days of a notice served on you on 10 October 1978 and that you thereby incurred an increased excess charge/surcharge of $10 under para 13A(2) of the Road Traffic (Attendant Parking Places) (Ipoh Municipal Council) Order, 1969 an offence punishable under para 27 of the aforesaid Order.

6. She was convicted and fined $50 in default five days imprisonment. In addition she was ordered to pay the $10 surcharge. According to the charge, the defendant as the registered owner of the motor vehicle was alleged to have incurred an increased excess charge/surcharge of $10 under article 13A(2) of the Order and therefore had committed an offence punishable under article 27 of the Order.

7. Article 13A of the Order is as follows:

   (1)	Any person who acts in contravention of para 9 or 10 of this Order shall, on being notified in writing of such contravention, pay within two days from the date of such notification and at the place specified therein – (i) an excess charge of $2 for every hour or fraction thereof during which the vehicle has been parked in a parking place without payment of the prescribed fee; (ii) a surcharge of $2 for every hour or any fraction thereof during which the vehicle has remained parked in the parking space after expiry of the authorised parking period. Provided that such excess charge or surcharge shall not exceed $5 on any one occasion in respect of that particular parking space and may be paid to the Cashier Collection Booth on the same street or Municipal Treasurer’s Department, Cooper Street, Ipoh who shall issue a receipt therefor. And provided further that if a person acts in contravention of para 9 or 10 of this Order, this paragraph shall not apply if such person pays not later than two days from the day on which such contravention has occurred, the parking attendant on duty or to the Municipal Treasurer as aforesaid the prescribed charge in respect of any period parked beyond the period stated in the official receipt issued by the parking attendant.
   (2)	A person in charge of a motor vehicle which is parked in a parking space who fails to pay the excess charge or surcharge as required by sub-para (1) of para 13A within the prescribed time shall thereafter be liable to pay in respect of that particular parking space the excess charge or surcharge which shall not exceed on any one occasion a sum of ten dollars; and failure to pay such sum within seven days thereafter shall be an offence under this Order.
   (3)	In this Order the expression ‘person in charge of a motor vehicle’ shall unless the contrary be shown within seven days of the notice be presumed to be the person in whose name the motor vehicle is registered as on the date of such notice. [my emphasis]

8. Although Articles 7, 9 and 10 are intra vires, Article 13A(1) and (2) purported to impose penalties for contravention of Articles 9 and 10 of the Order. Surely, if there has been any contravention of Article 9 or 10 or 7 of the Order then that contravention becomes an offence which is punishable under s 62(7) of the Road Traffic Ordinance, 1958 which is as follows:

   62.	(7) If any person without lawful excuse contravenes or fails to comply with an order made under this section he shall be guilty of an offence and shall be liable to a fine not exceeding one hundred dollars.

9. The appropriate authority, in this case, the Municipality of Ipoh, have no power under ss 62(3)(b) and (4)(f) to provide for punishment or to impose penalties for any contravention of any order made under s 62 and neither have they the power to create offences.

10. In Ward v James, (1965) 2 WLR 455 a rule which purported to state that a “discretion” given to a court by the parent Act should be “absolute” was declared ultra vires. Per Lord Denning MR at page 464, “s 6 of the Act of 1933 speaks of ‘discretion’ simply. The rule adds the word ‘absolute’ to the statute, and, in adding, alters it. That it has no right to do. In my opinion, therefore, the word ‘absolute’ either adds nothing, or, if it adds something, it is ultra vires. It can be ignored.”

11. Article 13A(1) and (2) cannot repeal, extend, alter or contradict express provisions in s 62 on which the article derived its authority. The express provisions I am referring to are sub-ss (3), (6), (4)(f) and (7). For the same reasons, Article 27 of the order is also invalid because it contradicts and is inconsistent with s 62(7). In fact Article 27 provides for a punishment in excess of that provided in s 62(7). In such a situation the courts can declare the Articles i.e., 13(A)(1) and (2), and 27, void.

12. There is nothing in s 23(b) of the Interpretation and General Clauses Ordinance, 1948, which derogates from anything I have just said. Section 23(b) is as follows:

    23.

    When an Act of Parliament or Enactment confers power on any authority to make subsidiary legislation, the following provisions shall, unless the contrary intention appears, have effect with reference to the making and operation of such subsidiary legislation .... (b) there may be annexed to the breach of any subsidiary legislation such penalty not exceeding one thousand dollars, or such term of imprisonment of either description got exceeding six months, or both, as the authority making the subsidiary legislation may think fit. [my emphasis]

13. Section 62(7) is clear beyond a peradventure that any contravention of an order made under s 62 shall be punished under the sub-section. There could be no other punishment or penalty, otherwise, s 62(7) would be otiose. It is therefore illegal for the Municipality of Ipoh to collect the excess charge/surcharge under the invalid articles 13A(1) and (2). Those who have paid such excess charge/surcharge are entitled to ask for a refund.

14. Articles 13A(3) and 24 of the order are also ultra vires.

15. Section 62(3)(b) and (4)(f) only empowered the appropriate authority to levy charges in respect of the use of a parking space and the manner of its collection. These words cannot be taken to mean that the said authority have the power to alter existing law by creating a presumption that the registered owner of a motor vehicle is deemed to be in article 13A(3), the person in charge of a motor vehicle, and in article 24, the person liable if the actual driver is not traced. There is here a complete non sequitur.

16. I cannot do better than echo the words of Lord Atkin in Liversidge v Anderson (1942) AC 206, 245. “I know of only one authority which might justify this method of construction”: – “But ‘glory’ doesnt’ mean ‘a nice knockdown argument.’” Alice objected. “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Hump Dumpty, “which is to be master – that’s all.” (Through the Looking Glass, Ch vi). The Municipality of Ipoh are not to be masters. Articles 13A(3) and 24 are clear examples of exceeding the authority granted in the parent Act, in the instant case, ss 62(3)(b) and (4)(f) of the Road Traffic Ordinance, 1958 and the courts will not hesitate to strike down any subordinate legislation which is ultra vires: Re Grosvenor Hotel, London (No 2) (1965) 1Ch 1210. “It follows, therefore, that RSC O.24, r 15 if and in so far as it purports to alter the law, is ultra vires.” per Salmon LJ, at page, 1262. And at page 1243, per Lord Dunning MR., “What then are the powers of the Rule Committee? They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land.”

17. Borrowing the words of Salmon LJ, it follows, therefore, that articles 13A(3) and 24, in so far as it purports to alter the law is ultra vires.

18. In the result, I would therefore quash the conviction and set aside the sentence and I order that the fine and surcharge which have been paid by the defendant to be refunded to her.

19. Perhaps at this juncture, a few words of advice may not be inappropriate. The Municipality of Ipoh can still deal with infringements of Articles 7, 9 and 10 of the Order. The proper thing to do is for offenders to be prosecuted under s 62(7) or to have the offence compounded under the amended section 147 of the Road Traffic Ordinance, 1958.

20. Conviction quashed, sentence set aside.

Cases

Ward v James [1965] 2 WLR 455

Liversidge v Anderson [1942] AC 206

Re Grosvenor Hotel, London (No 2) [1965] 1 Ch 1210

Representations

L.H. Lee (DPP) for the Public Prosecutor.

Notes:-

This decision is also reported at [1980] 1 MLJ 241.