R. v. TO YAT MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.385 OF 1996

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J U D G M E N T

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1. The appellant was convicted on 9th June 1995 on one charge of driving in excess of the speed limit. The facts alleged by the prosecution were that on 9th June 1995 at about 7:03 p.m., a Radar Detection Unit was set up on Aberdeen Praya Road and that by the automatic operation of the camera attached to the Radar Detecting Unit, a car driven by the appellant was timed at a speed of 73 kph in an area of the road where the speed limit is restricted to 50 kph.

2. The first matter raised by the appellant was that the officer who gave evidence as to the operation of the radar machine ought not to have given evidence of an expert nature because he was the officer attached to the police and part of the unit comprising the investigation of this offence. He referred to me The Queen v. Kai Tai Construction Engineering Company Limited, Mag. App. No.1123 of 1995 where Duffy J. was of the view that the magistrate ought to have dismissed a case where a Labour Department Officer was an expert.

3. That pronouncement is not binding upon me and I am satisfied that any person with the required expertise may given evidence in a criminal matter and that the question of the association between that person and the investigation team or the prosecution generally would be a matter which goes to his credit in the exercise of his expert opinion rather than the admissibility of the evidence as a whole.

4. I have carefully considered the evidence of Yeung Kai Chi, Sergeant 8746 and do not find it to be expert in nature. An expert, when he gives evidence, is distinct from an ordinary witness in as much as an expert is permitted to give his opinion on matters of fact in addition to describing those matters of fact. In the evidence of Yeung Kai Chi, there are no matters of opinion. What he has testified to, throughout his evidence, is what he saw and what he has seen on other occasions in the operation of the machine. He does not, at any point, give his opinion as to what conclusions might be drawn from any factual matter. I do not therefore categorise his evidence as expert testimony as well as ruling that he is permitted to give evidence as an expert and that his association with the prosecution only goes to his credit.

5. The second matter raised by Mr To is that the second witness misled the magistrate by saying that the licence plate of the vehicle in the photograph is visible through a magnifying glass. It is apparent from page 8 of the transcript that the learned magistrate as well as the prosecutor and the defendant at that time inspected the photograph with the use of a magnifying glass provided by the witness. The magistrate in his Statement of Findings, at p.27, says :

"An enlargement of the photograph taken by the radar machine was produced under a certificate of accurate processing. It shows a Volvo Car in the offside lane. The registration number is not clear to the naked eye but PW1 testified, and I accepted, that he had examined it through a magnifying glass and that it was EE2694."

It is clear that the magistrate directed his minds specifically to the issue as to whether or not the number plate was visible through the magnifying glass used at that time in court and accepted from his own use of the magnifying glass and the photograph that the number was EE2694. The magistrate could not have been said to have been misled by the witness.

6. Also of the identity of the vehicle is confirmed by the evidence of PW2, an auxiliary constable Mr Dhillon, who testified to having been told over the radio of the number of the vehicle which he was to stop. I cannot see how the appellant could have been prejudiced in any way even if, with the magnifying glass produced by the appellant in Court today, there is some difficulty in observing the number of the vehicle in the photograph.

7. The third matter raised by the appellant is that the plastic overlay used by the officer to show the width of the beam and its angle across the road and thereby the car which had triggered the photograph is a hearsay document or a piece of evidence in as much as it was provided by the manufacturer and he is not in a position to cross-examine the manufacturer concerning that piece of equipment.

8. It is quite evident that the overlay is part of the equipment supplied by the manufacturer. It forms part of the radar equipment as provided to the police force and the radar equipment had been checked for accuracy on two occasions, on 7th April and later on 13th June. This offence was said to have been committed on 9th June. Therefore, on either side, at short intervals of the offence, the machine including the overlay was tested for accuracy and certified as being accurate. That certificate was one which the magistrate was entitled to rely upon and there can be nothing in this ground of appeal.

9. However, even if that were not so, the officer went on a course in 1987 for the use of this machine and had been using it in and about the territory of Hong Kong since then. He was in a position to say that having set the machine up at the angle of 22( to the roadway which was the specified angle, that it was his observation that a speeding car always appeared at the same point in relation to the radar detection equipment. The magistrate accepted that evidence and that being so, there is evidence independent of the overlay confirming that that is the position or the position at which the car EE2694 was seen on the photograph is the position in which a speeding car triggers the camera.

10. The next matter was that the police ought to have checked the identity card of the appellant as well as his driving licence to establish his identity. The appellant was stopped, his driving licence was taken and his address was taken. A subsequent search of the motor vehicle number was done at the Transport Department and the certificate of identity registered address was provided to the prosecution and to the court. The address and the driving licence number and the identity of the appellant was confirmed in that certificate and when a summons was sent to him through the post in respect of this matter, he presented himself in answer to that summons. I am satisfied that there is evidence beyond doubt of his identity.

11. The last matter is that the court in which this matter was heard was generally used as a juvenile court and at the outside was a notice prohibiting access to that court without the permission of the magistrate. The appellant argued that this was a breach of Article 10 of the Hong Kong Bill of Rights in as much as he was denied a public hearing in fact by that notice.

12. It is quite apparent from the nature of the trial that this was a trial in open court and Mr To fairly concedes that he was not prejudiced. I cannot see that the notice outside the court has led to any infringement of his rights although I would expect the practice of having such a notice outside a court not being used for a Juvenile Court to stop.

13. The appeal against conviction is dismissed.