HKSAR v. Yeung Che Kong Raymond Ralph

HCMA 345/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 345 OF 2006

(ON APPEAL FROM KTCC 6157/2005)

____________

BETWEEN

____________

Before: Deputy High Court Judge Wright in Court

Date of Hearing: 21 June 2006

Date of Judgment: 21 June 2006

_______________

J U D G M E N T

_______________

1.You appeal your conviction on three charges relating to motoring offences.  The first charge related to the driving of a motor vehicle at an excessive speed - 64 km per hour in an area where the speed limit was 50 km per hour: the second, to driving whilst disqualified: the third, to using a motor vehicle without third-party insurance.

2.You did not and do not dispute that you were the driver of the motor vehicle in question; as a fact, you drove at 64 km per hour at the time; you were disqualified from driving at that time; the motor vehicle was not covered by third-party insurance.

3.The defence in respect of the first charge related to the description of the place where the offence occurred.  The charge refers to “near lamp post EB8515-5, Clearwater Bay Road, Kowloon”.  You claim that, in fact, the name of the road at that point is Hiram’s Highway.

4.Based on the evidence of PC 50208 the magistrate found that the exact location of the offence was on a single lane flyover leading from Hiram’s Highway to Clearwater Bay Road.  PC 50208 drew a sketch, Exh. P2.  It is clear from his evidence and that sketch that you had travelled along the flyover leading from Hiram’s Highway and were travelling on that portion of the flyover which merges into Clearwater Bay Road.  PC 50208 described this section of road as the “downslope” which was part of Clearwater Bay Road.  He correctly disagreed with your suggestion that a map, Exh. D1, which you produced shows the whole of the flyover to bear the name Hiram’s Highway. 

5.The magistrate was entitled to accept the evidence of PC 50208 and to find that, at the point where the offence occurred, the road is named Clearwater Bay Road.

6.The name of the road is, in any event, not an essential element of the offence.  The locality was sufficiently identified by reference to the lamppost.  You did not dispute at any time the physical locality of the offence - simply its nomenclature and the speed limit.

7.Moreover, the unequivocal evidence of PC 50208 was that at the commencement of the flyover in Hiram’s Highway there was both a road sign indicating a 50 km per hour speed limit as well as a marking on the road surface to the same effect.  He testified that, behind him the speed limit increased to 70 km per hour but added that at the point where he had recorded the speed of your motor vehicle, the speed limit remained 50 km per hour.  In other words, your motor vehicle had not yet reached the higher speed zone.  The magistrate was entitled to accept that evidence, too.

8.It was suggested to PC 50208 that the speed limit at that point where the speed was measured was, as a matter of fact, 70 km per hour.  This suggestion was made based upon a printout which you assert came from a website which shows speed limits on defined portions of roadway in Hong Kong.  That document, whatever its genesis, does not assist you for it refers to sections of roads other than that on which you were travelling: it makes it abundantly clear that the junction of Hiram’s Highway and Clearwater Bay Road itself, which incorporates the flyover where this offence occurred, is not subject to the increased limit.

9.The magistrate accepted the evidence of the prosecution witnesses.  You elected not to give evidence on your own behalf.  The magistrate was quite right to have found that the prosecution had proved that the offence occurred in Clearwater Bay Road where the speed limit was 50 km per hour.

10.In respect of the second and third charges you say that because you had not committed the first offence the police were not entitled to stop you: as a result the evidence which was obtained consequent upon your being stopped should not be admitted in support of the two charges.  That proposition is bad in law: see R v KURUMA [1955] AC 197 as followed in R v SANG [1979] 2 All ER 46.  It is well settled that provided evidence is relevant to the commission of an offence the method by which it has been obtained does not adversely affect its admissibility: there are certain exceptions to this general proposition, of course, but none applies in the instant matter.

11.The Magistrate was quite right when he said that even had he rejected the evidence of the second prosecution witness and acquitted you on the first charge, he would not have been persuaded by your argument that he should exclude the evidence on the second and third charges as improperly obtained.

12.Today, you say that you were misled into the belief that as a mistake existed in the location in the charge, the prosecution would be unable to substantiate it with evidence so that you did not bother to call any witnesses.  I do not accept that.  You knew full well that you intended to place the name of the location of the offence as well as the applicable speed limit in issue and had plainly prepared yourself to do just that.  The whole basis of your prepared defence was predicated on the correctness or otherwise of the name of the road at that point.  You ask that the appeal be allowed and a retrial ordered so that you are able to call witnesses.

13.There is no justification for allowing this appeal.  You were correctly convicted.  The appeal is dismissed and the magistrate’s orders confirmed.  Your bail is revoked and you are to be taken into custody to serve your sentence.

Ms Mary Sin, SADPP of Department of Justice, for the Respondent

The Appellant, in person