HKSAR v. SHAM WAI MAN WALKER

HCMA 373/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 373 OF 1999

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J U D G M E N T

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1. The Appellant was convicted on 15th March 1999 by Mr Andrew Chan, sitting in Shatin Magistracy, 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 that road, namely at the speed of 66 kilometres per hour. The alleged offence occurred on 12th August 1998. He was fined $900 and ordered to pay $500 costs. It is against that conviction that he now appeals.

2. The main ground of appeal is that PW2, Mr Lau Kwai Mang, who was called by the prosecution to be the expert witness, did not establish himself as an expert, and in giving his evidence had relied upon hearsay evidence which, it is contended, the Magistrate was wrong to have accepted.

3. Mr Lau was a Director of a Hong Kong company which imports and services the particular model of laser gun used by the police on the day in question. The company is owned by himself and members of his family, and so Mr Lam, for the Appellant, contends that this witness who was being put forward as an expert witness, was not an impartial witness and was obviously somebody who was biased in favour of the product that he dealt in.

4. Apart from that, Mr Lam contends that inasmuch as the witness himself had not conducted tests to check the reliability of the laser gun, he was relying upon the manufacturer's specifications that the margin error of the laser gun in question was only plus or minus two kilometres per hour.

5. Mr Tam, for the prosecution, submits that the offence is committed once a person drives in excess of 50 kilometres per hour and that it does not matter what exact speed he was doing, and that even though it was averred that the Appellant was driving at 66 kilometres per hour, it was not incumbent upon the prosecution to have to prove that precise speed.

6. Mr Tam relies primarily on s.28 of the Evidence Ordinance which states that a person who is authorised to sign a certificate, which was the certificate produced in evidence as Exhibit P3, shall be presumed under the section to have been a person authorised by the appropriate public officer to sign the certificate and that it was signed at the time and place specified. In addition, under s.28(2), it shall be presumed that the facts stated in the document relating to the testing of the accuracy, inspection and servicing of the speedometer of the vehicle specified therein, or the radar or weighing device or any other apparatus specified therein, are true. And in s.28(2)(b), it is stated that the document - the certificate - shall be prima facie evidence of all matters contained therein.

7. Mr Tam then draws my attention to the contents of Exhibit P3 which says, on the face of it, that the certificate was signed by Mr Lau, the expert, and that he was a person authorised by the Commissioner of Police to certify as to the testing of the accuracy, inspection and servicing of the radar device or apparatus designed and used for the purpose of ascertaining the speed of a motor vehicle. It further stated that on 25th July 1998, at the given address, Mr Lau checked the unit LTI 20-20 with the Serial No. 8816, and found the equipment to be functioning properly and the test result was accurate within the manufacturer's specifications. It also stated that on 23rd January 1999, at the same address, Mr Lau checked the same unit and again found the equipment to be functioning properly and the test result was accurate within the manufacturer's specifications. It also said that the said model, LTI 20-20, was a device or apparatus designed and used for the purpose of ascertaining the speed of a motor vehicle.

8. Mr Lam accepts that the certificate is prima facie evidence of the contents stated therein, but still contends that when it is stated that the equipment was found to be functioning properly and the test result was accurate "within the manufacturer's specifications" :

a) that it is not clear what is meant by "within the manufacturer's specifications"; and

b) if that meant that the margin of error was plus or minus two kilometres per hour, then it meant that the expert was still having to rely on the manufacturer's specifications and was not in fact relying upon the result of a test that he had done himself.

9. The laser gun in question was on the day in question manned by police officer PC49877, who gave evidence before the Magistrate as PW1. He gave evidence that before he actually used the laser gun, he had tested it in accordance with the instructions in the manual issued by the manufacturer. In accordance with what was stated in the manual, after he tested the laser gun, he found that it showed the figure '8888' which was said to show that the laser gun was functioning normally. He also testified that if the laser gun was not functioning normally, then it would have shown other figures other than '8888' which, according to the manual of instructions, would have been a sign that the laser gun was not functioning properly.

10. PW2, the expert, in accordance with the certificate that he signed, gave evidence and also produced two maintenance reports which were marked as P1 and P2, which showed that on the two days in question mentioned in the certificate, he had conducted six tests of the laser gun in question and found that the laser gun passed all the six tests on both occasions. The tests included a zero velocity test which was criticised by Mr Lam as a test which used a static object and was therefore unreliable. The expert evidence was, therefore, to the effect that after the test, he found the unit to be functioning properly and the test result was "accurate within the manufacturer's specifications".

11. I take the view that the phrase "within the manufacturer's specifications" must have included the specification that the margin of error was plus or minus two kilometres per hour. Therefore, my view is that the expert's evidence was that after the test, he was satisfied that the margin error was plus or minus two kilometres per hour.

12. The gravamen of the offence is that the speed at which the car was driven exceeded 50 kilometres per hour. If the offence had not been committed, then it would have meant that the error margin must have been at least 19 kilometres because what the reading on that day showed was that the car had been going at 70 kilometres per hour, and if it had gone even at 51 kilometres per hour, the offence would have been committed. As to the allegation that the speed was 66 kilometres, according to Mr Tam, it was police administrative procedure to give an allowance of four kilometres where the excessive speed is not in excess of 100 kilometres per hour.

13. Mr Tam also relies upon the English case of Penny v. Nicholas [1950] 2 AER 89 which was to the effect that even if there was no admissible evidence that the speedometer in that case had been tested and found to be working properly by other officers, the Justices were still entitled to act upon the evidence of the police witness who testified that the reading on the speedometer of the car showed a speed in excess of the permitted speed. It was accepted by the Court that the evidence of the other police officers who tested the speedometer should have been given, and in this case it was not, and therefore there was no admissible evidence of the speedometer being reliable. Nevertheless, it was stated by the Court that the Justices were entitled to rely upon the evidence of the one witness who gave evidence. What was said there by Lord Goddard CJ at page 92 A-B was in relation to the margin of error :

" The question in the present case is whether, if evidence is given that a mechanical device, such as a watch or speedometer, recorded a particular speed or a particular time, that recording is prima facie evidence on which the court can act. In a particular case the court might refuse to act on it, but here counsel for the respondent called our attention to the fact that the difference is very great. The offence is driving at a speed exceeding thirty miles an hour, and the evidence is that the speedometer showed that the appellant was exceeding that speed by ten miles an hour. It would be a very considerable error if the speedometer was as much out as that."

14. That comment is, in my view, apposite to the facts that we have in this particular case which I have already referred to, i.e. for the offence not to have been committed, the margin of error would need to be at least 19 kilometers.

15. In addition, Mr Tam relies upon the case of Kent v. Stamps [1982] RTR 273 where, despite a reading on an electronic device which showed the defendant's speed to have been excessive, the defendant was acquitted because he gave evidence before the Justices that his actual speed could not have been as shown on the metre used by the police because he had just rounded a bend and the road was on a slight upward gradient. The Justices had used their local knowledge of the area and accepted the defendant's evidence and dismissed the information. The appeal by the prosecutor to the Divisional Court was dismissed.

16. The other case relied on by Mr Tam, Burton v Gilbert [1984] RTR 162, was also a case where the excessive speed was recorded by the police using a hand-held speed meter which showed the vehicle speed as 55 miles an hour. The defendant gave evidence that he believed that his speed had been about 30 miles per hour, and that as he had been about to turn, it was extremely unlikely that his speed would have been any greater. The Justices concluded that the defendant was telling the truth and dismissed the information. The prosecutor appealed and the appeal was allowed on the basis that "in the absence of any evidence which indicated that the particular speed meter was not of sufficient quality or necessarily conflicted with the evidence afforded by the meter, the Justices erred in law in concluding that evidence of a reading shown by the meter was insufficient corroboration of the speed of the defendant's vehicle for them to be sure of the defendant's guilt".

17. In the instant appeal, it is clear that s.28 of the Evidence Ordinance says that the contents of the certificate shall be presumed to be true until the contrary is proved. The Appellant did not give evidence nor did he call any witnesses. In the absence of evidence by him that he was not travelling at the speed alleged, and in the absence of evidence that the laser gun in question was not functioning properly, I am of the view that the learned Magistrate was quite entitled to rely upon the certificate and the contents therein to convict the Appellant of the offence.

18. Mr Lam presented a total of seven grounds of appeal but they all, in effect, alleged that the expert should not have been allowed to give evidence and in any case his evidence should not have been accepted because he was relying upon hearsay evidence.

19. I have found that the expert was called not to try to prove the offence but to explain to the Court how the laser gun worked, and I have found that the prosecution were entitled to rely upon the certificate in accordance with s.28 of the Evidence Ordinance.

20. For these reasons, the appeal is dismissed.