Prevention and Control of Disease (Vaccine Pass) Regulation/Schedule

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Schedule

[s. 18]

Fixed Penalty

Part 1
Interpretation

1. Interpretation

In this Schedule—

Authority (當局) means a person specified under section 18(3); demand notice (繳款通知書) means a demand notice served under section 4(2) of this Schedule;

penalty notice (罰款通知書) means a penalty notice given under section 2(2) of this Schedule;

recovery order (追討令) means an order made under section 7(2) of this Schedule;

specified form (指明格式) means a form specified under section 21.

Part 2
Penalty Notice and Demand Notice

2. Authorized officer may give penalty notice

(1) This section applies if an authorized officer has reason to believe that a person is committing or has committed an offence under section 5(4).

(2) The authorized officer may give the person a penalty notice in the specified form offering the person an opportunity to discharge the person’s liability for the offence by paying the fixed penalty within 21 days after the date on which the notice is given.

(3) A penalty notice must be given by the authorized officer personally to the person.

3. No prosecution or conviction if compliance with penalty notice

(1) This section applies to a person who has been given a penalty notice in respect of an offence under section 5(4).

(2) Subject to section 6 of this Schedule, the person is not liable to be prosecuted or convicted for the offence if the person has paid the fixed penalty within 21 days after the date on which the penalty notice is given.

4. Authority may serve demand notice in case of failure to pay fixed penalty etc.

(1) This section applies if—

(a) a person—

(i) has been given a penalty notice in respect of an offence under section 5(4); and

(ii) fails to pay the fixed penalty within 21 days after the date on which the notice is given; or

(b) a person refuses to accept a penalty notice intended to be given to the person in respect of the offence.

(2) The Authority may serve on the person a demand notice in the specified form—

(a) demanding payment of the fixed penalty;

(b) informing the person that the person must notify the Authority in writing if the person wishes to dispute liability for the offence; and

(c) stating that the payment or notification must be made within 10 days after the date on which the demand notice is served.

(3) A demand notice may not be served later than—

(a) if subsection (1)(a) applies—6 months after the date on which the penalty notice is given; or

(b) if subsection (1)(b) applies—6 months after the date on which the person refuses to accept the penalty notice.

(4) A demand notice may be served by sending it by post to the person’s address.

(5) A certificate of posting in the specified form purporting to be signed by or for the Authority is admissible in evidence in any proceedings under this Regulation.

(6) Unless there is evidence to the contrary, it is presumed that—

(a) the certificate was signed by or for the Authority; and

(b) the demand notice to which the certificate relates was duly served.

5. No prosecution or conviction if compliance with demand notice

(1) This section applies to a person on whom a demand notice has been served in respect of an offence under section 5(4).

(2) Subject to section 6 of this Schedule, the person is not liable to be prosecuted or convicted for the offence if the person has paid the fixed penalty within 10 days after the date on which the demand notice is served.

6. Withdrawal of penalty notice or demand notice

(1) The Authority may withdraw a penalty notice given, or a demand notice served, in respect of an offence under section 5(4)—

(a) at any time before a recovery order is made; or

(b) at any time before any proceedings for the offence commence.

(2) If a penalty notice or demand notice is withdrawn—

(a) the Authority must serve notice of the withdrawal on the person to whom, or on whom, the penalty notice or demand notice has been given or served; and

(b) on application by the person, the Authority must refund, through the Director of Accounting Services, any amount paid for the fixed penalty.

(3) If a penalty notice or demand notice is withdrawn, proceedings for the offence may only be commenced where—

(a) the ground, or one of the grounds, on which the notice is withdrawn is that it contains incorrect information; and

(b) the incorrect information was provided by the person to whom, or on whom, the notice was given or served.

Part 3
Penalty Notice and Demand Notice

7. Recovery of fixed penalty

(1) This section applies if a person on whom a demand notice has been served—

(a) fails to pay the fixed penalty in accordance with the notice; and

(b) fails to notify the Authority in accordance with the notice that the person wishes to dispute liability for the offence.

(2) On application made in the name of the Secretary for Justice and production of the documents specified in subsection (3), a magistrate must order the person to pay, within 14 days after the date of service of notice of the order—

(a) the fixed penalty;

(b) an additional penalty equal to the amount of the fixed penalty; and

(c) $300 by way of costs.

(3) The documents are—

(a) a copy of the demand notice;

(b) a certificate of posting relating to the demand notice under section 4(5) of this Schedule; and

(c) a certificate under section 8 of this Schedule.

(4) A magistrate must cause notice of a recovery order to be served on the person against whom it is made and it may be served by sending it by post to the person’s address.

(5) An application may be made in the absence of the person and the Secretary for Justice may appoint a person or class of persons to make an application.

8. Evidentiary certificate

(1) A certificate in the specified form stating the matters in subsection (2) and purporting to be signed by or for the Authority is admissible in evidence in any proceedings under this Regulation.

(2) The matters are—

(a) that the person specified in the certificate had not, before the date of the certificate, paid the fixed penalty;

(b) that the person specified in the certificate had not, before the date of the certificate, notified the Authority that the person wished to dispute liability for the offence; and

(c) that the address specified in the certificate was, on the date specified in the certificate in relation to the address, the person’s address.

(3) Unless there is evidence to the contrary—

(a) it is presumed that the certificate was signed by or for the Authority; and

(b) the certificate is evidence of the facts stated in it.

9. Consequences of compliance with recovery order or failure to do so

(1) This section applies to a person against whom a recovery order is made.

(2) If the person has complied with the recovery order, the person is not liable to be prosecuted or convicted for the offence to which the order relates.

(3) If the person fails to comply with the recovery order, the person—

(a) is to be regarded, for the purposes of section 68 of the Magistrates Ordinance (Cap. 227), as having failed to pay the sum adjudged to be paid by a conviction; and

(b) is liable to be imprisoned under that section.

10. Application for review of recovery order

(1) A person against whom a recovery order is made may apply to a magistrate for review of the order.

(2) An application must be made within 14 days after the date on which the recovery order first came to the personal notice of the applicant.

(3) The applicant must give reasonable notice of the application to the Authority.

(4) An application may be made in person or by counsel or solicitor.

(5) For securing the attendance of witnesses and generally for conducting the proceedings, the magistrate has all the powers of a magistrate hearing a complaint under the Magistrates Ordinance (Cap. 227).

11. Outcome of review

(1) On application under section 10 of this Schedule, a magistrate may rescind a recovery order if satisfied that the demand notice did not come to the personal notice of the applicant without any fault of the applicant.

(2) If the magistrate rescinds a recovery order, and the applicant wishes to dispute liability for the offence to which the order relates, the magistrate must give leave to that effect.

(3) If the magistrate rescinds a recovery order, and the applicant does not wish to dispute liability for the offence to which the order relates, the magistrate—

(a) must order the applicant to pay the fixed penalty within 10 days after the date of an order made under this paragraph; and

(b) must order that, if the applicant fails to pay the fixed penalty within that period, the applicant must immediately pay—

(i) the fixed penalty;

(ii) an additional penalty equal to the amount of the fixed penalty; and

(iii) $300 by way of costs.

(4) Despite section 26 of the Magistrates Ordinance (Cap. 227), if a magistrate gives leave under subsection (2), proceedings may be commenced within 6 months after the date on which the magistrate gives the leave.

(5) If the applicant fails to comply with the order under subsection (3)(b), the applicant—

(a) is to be regarded, for the purposes of section 68 of the Magistrates Ordinance (Cap. 227), as having failed to pay the sum adjudged to be paid by a conviction; and

(b) is liable to be imprisoned under that section.

(6) If the applicant has complied with the order under subsection (3)(a) or (b), the applicant is not liable to be prosecuted or convicted for the offence to which the order relates.

Part 4
Proceedings if Person Disputes Liability

12. Dispute of liability for offence

(1) This section applies if—

(a) a person has notified the Authority in accordance with a demand notice that the person wishes to dispute liability for an offence under section 5(4); or

(b) a person has been given leave under section 11(2) of this Schedule to dispute liability for an offence under section 5(4).

(2) A summons issued in any proceedings against the person for the offence may be served on the person in accordance with section 8 of the Magistrates Ordinance (Cap. 227).

(3) If—

(a) in consequence of the notification or leave, the person appears in any proceedings in answer to a summons; and

(b) the person is convicted of the offence after having offered no defence or a defence that is frivolous or vexatious,

the magistrate before whom the proceedings are heard must, in addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty.

(4) Any proceedings commenced against a person falling within subsection (1)(a) must terminate if the person pays in accordance with subsection (5)—

(a) the fixed penalty;

(b) an additional penalty equal to the amount of the fixed penalty; and

(c) $500 by way of costs.

(5) Payment under subsection (4) must be made at any magistrates’ court not less than 2 days before the day specified in the summons for the person’s appearance, and the summons must be produced at the time of the payment.

(6) Neither a Saturday nor a public holiday may be included in the computation of the 2 days’ period mentioned in subsection (5).

Part 5
General Provisions for Proceedings

13. Power to rescind order on application by Authority

At any time, a magistrate may for good cause, on application by the Authority, rescind—

(a) an order for the payment of the fixed penalty; and

(b) any other order made under this Schedule in the same proceedings.

Wendy LEUNG
Clerk to the Executive Council

COUNCIL CHAMBER
8 February 2022

Explanatory Note

The object of this Regulation is to introduce a mechanism for restricting a person who has not been vaccinated against the coronavirus disease 2019 (COVID-19) from entering or remaining on certain premises or boarding or remaining on certain public transport carriers.

2. Part 1 prescribes the commencement date and contains the definitions used in the Regulation.

3. Part 2 empowers the Secretary for Food and Health (Secretary) to issue a direction (vaccine pass direction) in relation to certain premises or public transport carriers. Specifically, that Part—

(a) empowers the Secretary to specify what conditions must be met in relation to a particular type of vaccine before a person who has been administered with that type of vaccine is regarded for the purposes of the vaccine pass direction as having been vaccinated in the specified manner for entering, boarding or remaining on certain premises or public transport carriers (section 4);

(b) imposes certain requirements on any person entering, boarding or remaining on certain premises or public transport carriers (section 5);

(c) provides for certain offences in relation to the failure to comply with the requirements under subparagraph (b) (sections 5(4) and 7(2)); and

(d) confers certain powers on authorized officers and the persons in charge of certain premises or public transport carriers to enforce a vaccine pass direction (sections 8 and 9).

4. Part 3 confers general enforcement powers on authorized officers and provides for offences for obstructing authorized officers.

5. Part 4 provides for miscellaneous matters such as the requirements for a medical exemption certificate, the specification of form of documents and the expiry of the Regulation.

6. The Schedule provides for fixed penalty in respect of the offence for not having been vaccinated in the specified manner when entering or remaining on the premises, or boarding or remaining on the public transport carriers, in relation to which the vaccine pass direction applies.