HKSAR v. Chiu Chi Bun

HCMA379/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 379 OF 2011

(ON APPEAL FROM TWS 17427 OF 2009)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 20 July 2011

Date of Judgment : 20 July 2011

Date of Reasons for Judgment : 30 August 2011

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REASONS FOR JUDGMENT

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1.On 12 April 2011, the appellant was convicted after trial of an offence of driving a motor car on a road in excess of the speed limit, contrary to section 41(1)(a) of the Road Traffic Ordinance, Cap. 374. It was the prosecution’s case that of 11 December 2009 he was detected driving at a speed of 133 km/h on a road where the speed limit was 80 km/h. He was fined HK$4,000 and disqualified from driving for 12 months.

The appeal

2.The appellant filed notices of appeal against conviction and sentence on 21 April 2011.  

3.On 20 July 2011 I dismissed his appeal against conviction and allowed his appeal against sentence to the extent that the period of disqualification was reduced from 12 months to 7 months.  These are my reasons for those decisions.

The prosecution case

4.The prosecution alleged that the defendant drove at a speed of 133 km/h on the Tsing Long Highway at 11:39 a.m. on 11 December 2009.  That speed was detected by police officer using a laser gun speed detector (laser gun) in a speed detection operation.  There was no issue that the defendant was the driver of that car and that the speed limit on that part of Tsing Long Highway was 80 km/h. 

5.The only issue in the trial was whether the speed recorded by the laser gun was accurate. 

6.The prosecution called 6 witnesses, namely :

(i)   PW1-PW3 — police officers who conducted the speed detection operation on 11 December 2009.

(ii)   PW4—Lau Kwai Mang, an electronics engineer employed by Best Engineering Company Limited.

(iii)   PW5—Professor Tam Wing Yim, a professor of physics at the University of Science and Technology of Hong Kong.

(iv)   PW6—Kwan Chi On (an assistant to PW5).

7.PW1 was the laser gun operator on the day in question.  He had completed a training course for the use of the type of the laser gun in question and had passed the relevant examination in 2006.  Thereafter he had used the same type of laser gun in speed detection operations once or twice a month, and had performed that duty more than 10 times at the location where the appellant was detected speeding.  On the day of the offence, he tested and checked the laser gun at the police station, and at the location, where the speed detection operation was set up as well as after the operation.  The laser gun passed all tests and checks. 

8.About an hour after the operation had started, PW1 saw the appellant’s car coming towards him, it appeared to be speeding so he checked its speed using the laser gun.  The speed was detected to be 138 km/h.  The reading of the laser gun was shown to PW2, the officer who assisted PW1 in the operation, who then noted down the reading and informed another officer further down the road to intercept the appellant’s car. 

9.The appellant was then summoned for driving at a speed of 133 km/h after 5 km/h had been deducted from the detected speed in accordance with police internal guidelines which allowed for standard deviations in readings. 

10.PW4 Mr LAU Kwai-mang is the manager of Best Engineering Company Limited, the company which supplied laser guns to the Hong Kong Police.  He was a graduate in electronic engineering and he regularly tested and examined the laser guns which his company supplied to the Hong Kong Police to make sure that they functioned properly.  He produced 3 certificates in relation to the laser gun used in the present case (exhibits P4–P6) which confirmed that the laser gun functioned properly before and after the date of the offence.  Exhibit P.4 was admitted into evidence pursuant to section 28 of the Evidence Ordinance, Cap. 8 Laws of Hong Kong.  The prosecution relied upon the certificate produced under section 28 to prove that the laser gun was working properly.  The relevant part of that section provides as follows :

“(1) A document purporting—

(a) to be a record of the testing of the accuracy, inspection and servicing of-

…

(ii) a radar device or any other apparatus specified in the document designed and used for the purpose of ascertaining the speed of a motor vehicle; or

…

shall be admitted in any criminal or civil proceedings before any court on its production without further proof.

(2) On the production of a document under subsection (1)—

(a) …

(b) the document shall be prima facie evidence of all matters contained therein.”

11.Professor Tam Wing Yam (“Professor Tam”) (PW5) gave evidence as an expert in the operation of laser guns in Hong Kong. His expertise was not challenged.  His report was produced in evidence and the contents adopted.  He said that since February 2007, a half-yearly maintenance and checking protocol has been in place for all laser guns used by the Hong Kong Police, so that every laser gun is not only subjected to the usual maintenance by PW4’s company but is also subjected to regular checking for performance and accuracy in the laser gun testing laboratory at the Hong Kong University of Science and Technology (HKUST).  Professor Tam described the tests that were performed on all laser guns, including the laser gun used in the instant case.  All of the laser guns used by the Hong Kong Police had passed those tests. 

12.PW6 was Professor Tam’s assistant.  He gave evidence about the tests that he had assisted Professor Tam perform on the laser gun used in the instant case before and after the date of the offence.  

The defence case

13.The appellant did not give evidence but called Dr Eric Lim as an expert in the field of testing and calibration of scientific instruments.  Dr Lim’s report was produced in evidence and the contents adopted as part of his evidence.  He had never conducted any systemic tests on the accuracy of (speed detection) laser guns.  He was not an expert in the field of the operation of laser guns and was not put forward as such. Dr Lim had conducted some tests using a laser gun of a different model on stationary and moving motor cars but in circumstances where he did not know the speed of that vehicle. 

14.The thrust of Dr Lim’s evidence was to attempt to cast doubt both generally and specifically upon the processes whereby speed detection laser guns were tested and verified generally and used specifically in the instant case. 

15.Dr Lim’s evidence was outlined by the magistrate.  In his oral reasons for verdict delivered on 12 April 2011 he said :

“ Shortly started, DW1 gave evidence to the effect that :

(1) The testing and operation of the subject laser gun could have been deficient with resultant ‘measurement errors’. One example of this was given as possible rocking of the laser gun on the tripod, resulting in a ‘slip effect’;

(2) The scope alignment test referred to in the prosecution evidence was possibly not effective, the test not having been done at the offence location but elsewhere;

(3) The manual recording of data from the laser gun would be better done by the data transfer system within the laser gun; and

(4) The operating and testing and checking processes addressed in the prosecution evidence were inadequate and, in particular, the standard of calibration for the laser gun was not up to as high a standard as it could be.”

16.The magistrate considered but rejected these criticisms.  He accepted the evidence of the prosecution witnesses and convicted the appellant. 

Appeal against conviction

17.The appellant’s sole ground of appeal is that “the magistrate failed to give adequate reasons for his decision”.  In a written submission filed in support of this ground of appeal and supplemented orally before me it is said that the magistrate specifically did not give adequate reasons for not accepting Dr Lim’s evidence. 

Discussion

18.Contrary to what is alleged in the appellant’s ground of appeal,  I am satisfied that the magistrate did give sufficient and cogent reasons for rejecting Dr Lim’s evidence. 

19.The magistrate determined that much of Dr Lim’s evidence, insofar as this case was concerned, was outside the area of his expertise and by reason of this the weight to be attached to it was significantly diminished. 

20.Having succinctly summarized the evidence of Dr Lim the magistrate said this :

“ With due respect to DW1, it is to be said that much of his evidence was outside the area of his accepted expertise.

Where his evidence related directly to laser gun operation, I gave it much reduced weight. As to his evidence of the standard of the calibration falling below other international standards, such as ISO 17025 and the relationship of that standard to the ‘old’ and ‘new’ speed simulators tests, it is to be noted DW1 acknowledges the adoption or not of the ISO standards by laboratories is a purely voluntary matter with no sanction against those who elect not to.

DW1 has no knowledge of any laboratory being so accredited as to the testing of laser guns, and there is no internationally recognised method for testing the accuracy of laser guns.

Of course that issue, in the context of this case, is not whether or not other ‘standards’ such as ISO 17025, which may be an application elsewhere, need to be application in Hong Kong too. Rather, the issue whether or not the court is satisfied to the required standard that accuracy of the subject laser gun is assured from standards and testing and checking procedures the evidence shows to have applied here.

…

I note that I find DW1, Dr Lim to have been an honest witness also. It is, however, the case that I give little weight to the evidence he gave outside his area of established expertise. Also, I am in disagreement with the conclusions he would have the court draw from the evidence he did give within his area of expertise.

21.In his written reasons for verdict dated 27 May 2011 the magistrate emphasized that his conclusion that the evidence of DW1 was outside his field of expertise and the reduced weight he gave to it was directed specifically to the criticism DW1 made of the evidence of the prosecution witnesses and the reliability of the laser gun both on this occasion and generally.  He said :

“11. My decision of 12^th April further notes … ‘Also I am in disagreement with the conclusions (DW1) would have the court draw from the evidence he did give within his area of expertise.’ In my view the opinions expressed by DW1, referred to in my decision thus, ‘(1) the testing and operation of the subject laser gun could have been deficient with resultant “measurement errors.” One example of this was given as possible rocking of the laser gun on the tripod, resulting in a “slip effect.”’ and ‘(2) the Scope Alignment Test referred to in the prosecution evidence was possibly not effective, the test not having been done at the offence location but elsewhere,’ were simply not supported by the evidence. To the contrary, the evidence as to the maintenance, testing and operation of the subject laser gun given, which I accepted, gave no basis for concern as to the results obtained. As to ‘(3) the manual recording of data from the laser gun would be better done by the data transfer within the laser gun,’ I accepted as accurate and reliable, the evidence of PWs 1 and 2 as to the ‘manual recording.’ The opinion that some other recording system could have been used did not detract from my acceptance of the accuracy and reliability of the recording system that was used. Similarly, as to ‘(4) the operating and testing and checking processes addressed in the prosecution evidence were inadequate and, in particular, the standard of calibration for the laser gun was not up to as high a standard as it could be.’ The opinions of ‘inadequacy’ were simply not supported by the evidence I accepted, which evidence led me to find as recorded in my decision of 12^th April, in particular the concluding paragraphs thereof.”

22.It is apparent that notwithstanding the industry of DW1 in the preparation of his report and conclusions the magistrate found, as he was entitled to, that his evidence did not cast doubt on the reliability of the laser gun on this occasion and generally.  Hence the certificate stood. 

23.The magistrate said :

“ The prosecution relied also on a certificate pursuant to section 28 of the Evidence Ordinance, Cap. 8. By that section, the contents of a certificate is prima facie evidence of matters contained therein. That certificate, Exhibit P4, states that on 22 July 2009 and 23 February 2010, that is before and after the date of the alleged offending, that the supplier, PW4, checked the subject laser gun, found that it was functioning properly and that the test results were accurate.

Having considered the evidence, I conclude the defence has not, on the balance of probability, establishes the contents of the certificate were inaccurate. I draw the inference that the subject laser gun was operating normally between the two dates of inspection in the certificate.

I am satisfied from the evidence I accept that it has been proven to the required standard that the defendant was the driver of the subject car at the material time; that the laser gun used by PW1 was performing accurately and reliably; the laser gun was checked and used competently and in keeping with established procedures by PW1 and that the laser gun obtained a reading of 138 kilometres per hour, that being a correct assessment of the speed of the car.”

24.The magistrate was satisfied as to the reliability maintenance, testing and operation of the laser gun in question.  He found no basis for concern as to the result of the laser gun speed detection.  I agree with that conclusion. 

25.It is apparent that the magistrate was fully alert to the extent of and the nature of Dr Lim’s evidence in the end result he found it wanting.  The appeal against was therefore be dismissed. 

Sentence

26.The applicant was driving 45 km/h in excess of an 80 km/h speed limit zone.  I am satisfied that a disqualification period of 12 months was in the circumstances appropriate in the present case.  However on the day the appellant was convicted he had already been disqualified from driving in consequence of an earlier hearing relating to an offence of speeding on another occasion.  On 23 November 2010 at the Fanling Magistrates’ Court he was convicted after trial and fined $600.  His licence was cancelled and he was disqualified for a period of 9 months.  That offence occurred on 7 August 2010. 

27.That earlier conviction was quashed on 29 June 2011.  When he was sentenced for this conviction on 12 April 2011 he was then serving that earlier period of disqualification.  He had already served 5 months of that period of disqualification.  I am satisfied, and the prosecution agrees that an allowance should now be made to reflect the fact that that conviction has been quashed and this sentence including the period of disqualification set aside. 

28.The appeal against the sentence is allowed to the extent that the disqualification period is reduced from 12 months to 7 months to take into account the 5 months of suspension the appellant had already served.  

Ms Peggy Lo, SPP of the Department of Justice, for the Respondent

The appellant in person, present