HKSAR v. Lau Ying Yu Sunny

HCMA001019/2002

HCMA1019/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1019 OF 2002

(ON APPEAL FROM STV 75 OF 2002)

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Coram: Deputy High Court Judge Line in Court

Date of Hearing: 20 November 2002

Date of Judgment: 20 November 2002

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J U D G M E N T

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1.This is an appeal against conviction for speeding, contrary to section 41(a) of the Road Traffic Ordinance, Cap.374.

2.The prosecution case was that this appellant, Mr Lau, was doing 66 km/hr in an area where he should have only been doing 50 km/hr.

3.There is no dispute that Mr Lau was the driver of the vehicle in question at the time. There is no dispute that there is a 50 km/hr restriction sign on the road in question, which was the Tsing Kwai Highway. The speed was detected by the use of a laser gun. There were the usual certificates as to its functioning before the magistrate and its maintenance, and the officer gave evidence in the magistrates' court that he had been trained in the use of the laser gun. None of those things are difficult to believe or countenance. He also said that the gun was functioning normally that day. If it had not been functioning normally, I have no doubt that the officer would not have used it. To be fair to Mr Lau, he has not really suggested that the laser gun was inaccurate and limited himself to some comments about its use.

4.The sole question in the case is this : where was his motor vehicle at the time that the laser gun was pointed at it and operated? Was the vehicle before the 50 km sign or was it after it? That is the issue in the case.

5.Before the magistrate, the officers gave evidence. They said they set themselves up some 400 metres beyond the 50 km sign. The operator of the laser gun told the magistrate that when it was operated the car had passed the sign and was some 250 metres past it.

6.The appellant says that he had seen the sign, that he was slowing down and that, given his speed and the way he controlled his vehicle, it must have been the case that he was some 20 to 30 metres before the sign when the laser gun was operated because it was his intention to slow down to 50 km and to comply with the sign and that was how he was controlling his vehicle.

7.The magistrate accepted that the officers who gave evidence were accurate and she decided to act on their evidence having seen and heard them. She described the appellant's evidence and demeanour as being unreliable. Of course the magistrate was in the better position : she saw and heard the witnesses. In effect in this appeal, she is my eyes and my ears and I can see nothing in the evidence before me that would make me doubt her assessment of those important matters.

8.When it comes to it, it seems to me that common sense is the best guide here. It seems to me that in the absence of some cogent reasons to the contrary, no policeman is going to start operating his speed trap to trap cars outside the limit. It would be an extraordinary mistake to make and it would be an extraordinary thing to do deliberately. On the other hand, motorists, who wish to comply with the speed limits, will try and act accordingly, but it is really a matter of inference, on the appellant's case, as to when the laser gun was actually operated. What I am saying is that the room for mistake on the prosecution evidence is very very small. It is much larger on the appellant's case.

9.Accordingly, in those circumstances, whilst I do not doubt the good faith of Mr Lau, I can see no reason at all to interfere with the conviction that was recorded by the magistrate and I confirm her order.

Representation:

Mr Gavin Shiu, Acting Senior Assistant Director of Public Prosecution of Department of Justice, for HKSAR

Appellant in person