HKSAR v. Tam Chun Wah

HCMA000038/2004

HCMA38/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.38 OF 2004

(ON APPEAL FROM STV 123 OF 2003)

---------------------

----------------------

Coram: Hon Gall J in Court

Date of Hearing: 3 March 2004

Date of Judgment: 3 March 2004

-----------------------

J U D G M E N T

-----------------------

1.The appellant was convicted on 28 November 2003 of driving a private vehicle on a road at a speed exceeding 50 km/h being the speed in force on that road, namely at a speed of 84 km/h. He was issued at the time with a fixed penalty ticket in the sum of $600. The magistrate fined him the sum of $600 together with an additional penalty of $600 effectively fining him $1,200 together with costs of $800.

2.The facts were that on 2 March 2003, the police mounted an anti-speed operation at Ma On Shan Road. At 10:55 a.m. the officer fired his laser gun at the vehicle driven by the appellant. The speed registered by the laser gun was 88 km/h, the distance shown was 84 metres. The speed limit at that point was 50 km/h and the weather was fine, the road was dry.

3.The officer operating the laser gun was called and testified to the conduct of tests in accordance with the instruction manual to check that the gun was functioning properly. An electronic engineer who was a service engineer relating to that particular laser gun and who was authorized by the Commissioner of Police to inspect, test, service and certify radar devices and apparatuses used in speed detection was called. The question of his bias was raised and the magistrate said this :

"Lau openly admitted he had recommended and his company had sold this model of laser gun to the HK Police Force, but despite his interest in the gun, I did not detect any bias from him. I was satisfied his evidence is balanced, unbiased and fair, and from his demeanour and evidence I found him [to be] truthful and accurate."

A complaint by the appellant that the expert was biased and had a conflict of interest was addressed by the magistrate and a specific finding was made in respect of it.

4.The appellant did not give evidence as was his right but in his address to the court in respect of the verdict and in his address to me today, he has admitted firstly he was driving the vehicle at the time of the offence. Although he does not agree that the configuration of the road was the flat and straight section described by the police officers, he accepts that it was his vehicle; he takes no issue with the fact that it was 84 metres from the laser gun when the reading was taken and admits to having exceeded the speed limit by driving at a speed of "60 something" kilometres per hour.

5.This contention removes any suggestion that it was not his vehicle or that the gun was unable to take a reading on his vehicle. I am left with various issues raised by the appellant as to the accuracy of the laser gun in these circumstances. The magistrate accepted that the gun was in a proper operating condition and was functioning accurately at the material time. The appellant argues that by virtue of a bend in the road, a slope in the road and the weight of the laser gun that the reading taken was not accurate.

6.The magistrate considered these circumstances. The magistrate also had before her the evidence of the expert and found this :

"When a vehicle traveled round a bend, or if the angle of the traveling vehicle relative to the operator was greater than 10 degrees then this would result in a reading slower than the actual speed."

Both the circumstances relate to the road having a bend and a slope.

7.The appellant in his cross-examination of the expert witness tells me he elicited an answer that in the circumstances of a slope or a bend the reading could be imprecise.

8.That answer covers the situation where a lower reading would result rather than the actual speed. That answer is consistent with the magistrate's finding. I gave an opportunity to the appellant to obtain a copy of the transcript in respect of the expert's testimony, an offer which was not taken up.

9.The only complaint by the appellant concerning the operation of the laser gun which was not specifically addressed by the magistrate was the question of whether there might have been some tremble in the holding of the camera due to its weight.

10.The fact is, however, that the magistrate accepted that the gun was properly operated and was accurate and the appellant accepts that it was directed at his car when the reading was made.

11.The decision made by the magistrate was a matter of fact and I cannot say that the magistrate has done other than to approach the evidence as she ought.

12.The appellant argues that all the photographs that he supplied were not considered by the magistrate. However it is not necessary that she should have done so given that the only issue that arose was whether or not the gun was accurate in its reading of the speed of the appellant's vehicle. With that matter I have dealt.

13.There is nothing in this appeal against conviction and the appeal is dismissed.

14.Although not specifically appealing against sentence, the appellant included in his appeal against conviction a complaint of the level of the penalty imposed.

15.The magistrate arrived at a fine of $1,200 by taking the original sum of $600 for the fixed penalty and adding to it another $600. The reason that she adopted this figure, as appears in her reasons, is a reference to section 9(1) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap. 240. That section provides that when a fixed penalty ticket has been issued and proceedings have been instituted against the person who disputes liability, the proceedings may nonetheless be avoided prior to trial by payment out of the fixed penalty together with an additional penalty equal to the amount of the fixed penalty and a prescribed sum for costs. In arriving at a fine of $1,200 the court has taken the lowest figure that the appellant having disputed liability could have paid to avoid the proceedings.

16.I cannot in all the circumstances say that a penalty of $1,200 was inappropriate. There is nothing in the appeal against sentence which is dismissed.

Representation:

Ms Lynda Shine, SGC of the Department of Justice, for HKSAR

The Appellant, in person