HKSAR v. YU CHUI KAN

HCMA760/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.760 OF 1999

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J U D G M E N T

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1. The Appellant was charged with speeding in that on 13 September 1998 at Kwun Tong Bypass near lamp-post No.8690, he did drive a taxi displaying registration No.GT5987 on a road at a speed exceeding 70 kilometres per hour, being the speed limit in force on that road, namely at a speed of 87 kilometres per hour, contrary to section 41(1)(a) of the Road Traffic Ordinance, Cap.374.

2. The speed of the taxi driven by the Appellant was taken by a laser gun handled by police officers. The speed was not recorded save that it was shown on the device itself which was read by a police officer and recorded by another police officer on a Laser Gun Operator and Assistance Sheet, being exhibit P1 produced at the trial.

3. The Magistrate did not accept the evidence of the Appellant who told him that at the material time, he drove his taxi at a speed of less than 50 kilometres per hour because he said he had been informed by the taxi station that there was speed checking on that stretch of road and he had noticed the existence of the speed checking system at about 12:35 a.m.

4. In the Statement of Findings, after stating that he accepted the evidence of PW1, PW2 and PW3, considering them being honest and reliable witnesses, the Magistrate had this to say :-

"I have considered the Defendant's evidence. I do not find him honest or reliable. I rejected his evidence. I find it incredible that he would drive his taxi at a speed of less than 50 kmh on a road where the speed limit was 70 kmh in order not to exceed the speed limited, a really prudent driver can always drive his vehicle at a reasonable speed and check the speedometer to comply with the speed limit. Furthermore, I do not believe the Defendant's evidence that he saw photos taken at the detection post at about 12:35 a.m. because Laser Gun operated not on taking photos as evidence and the first operation to detect exceeding speed by PW1 was at 12:42 a.m."

5. Mr Ma on behalf of the Appellant raised two grounds of appeal, both relating to the reasons that the Magistrate stated for rejecting the evidence of the Appellant. Mr Ma pointed out that there was no evidence that the Appellant knew that the speed limit on the stretch of road concerned was 70 kmh which was the basis for the Magistrate to comment that it was unreasonable for the Appellant to travel at below 50 kmh. The matter arose close to the end of the trial. The Appellant gave evidence and when the then Counsel for him had no re-examination, the Court asked him a question as to why despite the speed limit on the road being 70 kilometers, he travelled at less than 50 kilometres. The Appellant answered that he thought it was not necessary to travel at a higher speed and when his Counsel re-examined him on the same matter, he said he did not want to go too fast. Nowhere is there in evidence that he accepted that he knew that the speed limit was 70 kilometres per hour. I am of the view, therefore, that the Magistrate's comment on the Appellant's being unreasonable for driving at 50 kmh based on the speed limit of 70 kmh is not entirely proper.

6. The second reason given by the Magistrate for rejecting the Appellant's evidence was on the Appellant's evidence of noticing the existence of the speed checking system at 12:35 a.m. The Magistrate's reasoning was based on two things. First, the Appellant using the term "photos were taken" and second, the timing of the Appellant's noticing the existence of the speed checking system. As has been pointed out by Mr Ma, "photos being taken" is a usual term used by drivers in Hong Kong to describe the speed detection system. It does not necessarily mean that there were in fact photographs taken. Without necessarily deciding on this point, I must say that in the circumstances of all the evidence before the Magistrate, when every witness was talking about a laser gun being used for detecting speed, the term "photos were taken" was apparently used synonymously with speed checking. Moreover, the Magistrate did not believe the Appellant that he could have noticed the existence of the speed detection system at 12:35 a.m. because apparently the Magistrate relied on exhibit P1 to say that the speed detection system was only first operated at 00:42 hours. Relying on exhibit P1 for this purpose was not correct because, according to the police evidence and as found by the Magistrate himself, the two police officers operating the system commenced their operation at 00:30 hours and it was at 00:42 hours that they recorded the first speeding car. Taking that into account, it was unfair to comment that the Appellant would not have seen the operation of the speed detection system at 12:35 a.m.

7. Although I accept what Mr Chan, for HKSAR, said in regard to the Magistrate's finding that he did not expressly state that he rejected the evidence of the Appellant for the two above-mentioned reasons, I must say that those were the only two reasons that he gave in the same passage where he said he rejected the Appellant's evidence. Had he not rejected his evidence or had he not relied on these two stated reasons, one would not have known whether he would have accepted the Appellant's evidence. At least, one can be certain that he would have looked at the Appellant's evidence in an entirely different light. In the circumstances, I am afraid that I feel uneasy about the conviction which was at least partially based on the rejection of the Appellant's evidence by the Magistrate for apparently erroneous reasons.

8. In the circumstances, I allow the appeal and set aside the sentence.