Chan Siu Wai v. HKSAR

FAMC000004/2002

FAMC No. 4 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 2002 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 378 OF 2001)

_______________

_______________

Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 25 April 2002

Date of Determination: 25 April 2002

_________________________

D E T E R M I N A T I O N

_________________________

Mr Justice Chan PJ :

1.The applicant was convicted after trial before a magistrate of driving in excess of speed limit, contrary to s.41(1)(a) of the Road Traffic Ordinance, Cap. 374.

2.While the applicant was driving on a highway in the Castle Peak District, a team of police officers, using a speed gun, recorded that he was travelling at 157 kph when the speed limit was only 80 kph. His defence was that he was aware that there were regular speed checks in the vicinity and hence he had consciously kept a lookout and maintained his speed at 80 kph at the relevant time. He did not know why the officers picked him and he had an argument with them. This was denied by the officers.

3.The magistrate accepted the evidence of the officers and convicted the applicant. His appeal was dismissed by the Court of First Instance. Having failed to obtain a certificate there, he now applies for leave to appeal to the Court of Final Appeal. He relies on both limbs in s.32(2) of the Court of Final Appeal Ordinance, Cap 484.

4.On the evidence before him, the magistrate was entitled to come to the decision which he did. We do not think the magistrate had applied the wrong burden of proof or standard of proof. Nor do we think the magistrate or the Court of First Instance had failed to analyse the evidence in this case. A tribunal of fact is entitled to and indeed obliged to consider all the evidence, from both the prosecution and the defence, before coming to a conclusion on the facts. This was what the lower courts did. We do not see any injustice in this case.

5.We cannot see any point of law of great and general importance arising in this case.

6.Both the application for leave to appeal and the application for extension of time to do so are dismissed.

Representation:

Mr Simon S M YIP instructed by Messrs Raymond Chu & Co. for the Applicant

Mr Simon M F TAM of the Department of Justice for the Respondent