HKSAR v. TO CHUN YUEN

HCMA504/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.504 OF 2002

(ON APPEAL FROM TWS 16338 OF 2001)

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

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

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

J U D G M E N T

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

1. The appellant was convicted of the offence of driving a private car on a road at a speed exceeding 50 kilometres per hour which was the speed limit in force on a road in the New Territories, namely at a speed of 104 kilometres per hour. He was convicted on 30 April 2002 by Ms Amanda Chan sitting at Tsuen Wan Magistracy and after conviction he was fined $2,000 and disqualified from driving for six months.

2. The evidence relied upon by the prosecution was mainly that of a police officer who operated a laser gun which was aimed at the appellant's car and then activated and as a result, the laser gun showed a reading of 109 kilometres per hour. It also showed a measured distance of 130 metres which was the distance the car travelled from the time that the laser gun was activated until the reading was obtained. The appellant now appeals against his conviction.

3. At the hearing of the appeal, senior counsel for the appellant did not allege or rely upon the allegation that the laser gun was defective on the day in question or that the reading obtained by that laser gun on that day was in any way incorrect. The operator's manual was produced at the hearing of the appeal and in the manual the following procedure was recommended :

"(1) Aim the gun at the license plate area of the target vehicle.

(2) Pull the trigger.

(3) Keep the gun sighted on the target vehicle for approximately 1/3 second until a beep is heard which indicates the speed has been recorded..."

4. The police officer's evidence was that on the day in question he saw the appellant's car driving towards where he was standing and when he first saw the car it was at the position of a lamp-post which, from the officer's estimation, was 160 metres away from him. There was no evidence from him or from any other witness that that distance had in fact been measured and so it was only an estimation by the officer. The officer said that the distance was only approximately 160 metres. The only point made by the appellant is this : based upon some mathematical calculations which I must confess I do not understand completely, the appellant's counsel submits that if the distance in question was 150 metres then the speed recorded would have been 31.31 kilometres per hour and if the distance was 170 metres, the speed would have been 62.62 kilometres per hour. The speed recorded of 109 kilometres or to bring it within the mathematical calculations produced, 109.6 kilometres per hour would have been recorded if the distance in question was 200 metres. These calculations also relied upon the time that the officer took from the moment he first observed the car until the time he pulled the trigger of the laser gun. Between those two actions, according to the officer, he had to speak on a walkie-talkie to his colleague who was responsible for stopping the car and what he said to his colleague was : "Partner, there is a car coming, very fast." The officer's estimation of the time taken to do all those things was two seconds and the calculations were based upon the time lapse of 2.3 seconds. Therefore, what the appellant is saying is that when he was recorded by the laser gun as driving at 104 kilometres per hour, he would have been first spotted by the police officer at a distance of 196.4 metres. In other words, to round off the figures the appellant submits that the speed recorded should have been based upon a distance of 190 metres and not 160 metres. Therefore, it is said that the magistrate erred in her finding that the appellant's motor vehicle could have been travelling at 109 kilometres per hour, and the magistrate ought to have found that the vehicle could not have been travelling at a speed exceeding 50 kilometres per hour.

5. The respondent's reply is that what happened before the trigger of the laser gun was pulled is not important. Counsel submits that there was no evidence that the operator of the gun made a mistake in the operation of the gun. He submits that the appellant's argument is based on the assumption that the distance in question namely 160 metres was in fact the distance between the lamp-post and the position where the officer was standing. The respondent submits that if the assumption by the appellant is incorrect then the appellant's theory cannot stand.

6. I agree with the submissions by the respondent. It is clear that the distance of 160 metres was simply an estimate made by the officer as he was standing at the position where he was and looking at the lamp-post. There is no evidence that he had even been to the lamp-post in question or that he had traversed on foot the distance from the lamp-post to his eventual position. The officer in his evidence made it quite clear that the distance of 160 metres was merely an estimate. There is no allegation by the appellant that the laser gun was not operating normally at the time it recorded the distance that the appellant's car was driving and there is no allegation that the police officer in operating the laser gun at the material time, had made a mistake or had done anything which caused the reading of the laser gun to be inaccurate. If it is alleged that the laser gun was not working properly at the time, then there is an evidential burden on the appellant to show that. Professor Cross in his book on Evidence, 7th edn, at page 126 says :

"Although it is common enough to speak of a presumption that mechanical instruments were in working order as a means of indicating the fact that an evidential burden is borne by the party denying that this was the case, it can hardly be said that any basic fact is involved."

The learned author was there discussing presumptions arising without any basic facts.

7. Accordingly, I find that the appellant has not shown that this conviction is unsafe or unsatisfactory or has shown that there is any lurking doubt about the safety of the conviction and therefore the appeal is dismissed.