HKSAR v. CHONG CHUNG HING

HCMA 606/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 606 OF 2002

(ON APPEAL FROM ESV 100/2000)

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REASON FOR JUDGMENT

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1. The Appellant was convicted after trial of the driving in excess of the speed limit of 50 kilometres per hour, contrary to section 41(1)(a) of the Road Traffic Ordinance, Cap. 374. His appeal against conviction was dismissed and herebelow are the reasons for the dismissal of his appeal.

2. The Appellant was driving his vehicle at the material time and place of the offence on a road with a speed limit of 50 kilometres per hour, when his vehicle was detected by the laser gun to be travelling at a speed of 62 kilometres per hour.

3. At his trial, the Appellant disputed the general accuracy of the type of laser gun used and specifically the accuracy of that particular laser gun 8677 at the material time. He also challenged the reliability of the evidence of the 2 police officers who operated the laser gun in question.

4. The prosecution at the trial relied on Exhibit P2, a certificate issued by the manufacturer that the laser gun in question had been tested and found to be accurate and functionings properly. They also relied on the testimony of PW3, Professor Tam of the HKUST who, after testing this type of laser gun (i.e. LT120-20), concluded that the "built-in error detection system function according to the specifications of the manufacturer" and that "the gun has a slight tendency towards smaller values in favours of the driver...". Professor Tam's expertise was accepted by the court and his tests also revealed that the greatest margin of error of P6 (the laser gun used at the material time) was "only once in fifty-eight tests, amounting to a frequency of less than 1.7%", and that the margin of error is a maximum of 6.93 kilometres per hour.

5. The Defence called Dr Yung as their expert but the learned Magistrate did not find his conclusions of much assistance as the learned Magistrate observed that "He proceeded (erroneously) on the basis that the gun operator was untrained in the use of the gun".

6. As for the reliability of PW1 and PW2, the learned Magistrate in paragraph 12 of the Statement of Findings had noted that PW1 was qualified in 1995 to operate this type of laser guns and had tested P6 according to the manufacturer's recommendations prior to commencing his duty on the material day. And that after PW1 had detected and recorded the speed of the Appellant's vehicle he had shown it to PW2 who confirmed it.

7. The Appellant's grounds of appeal relate to the learned Magistrate's findings that:

(a)	Dr Yung's testimony was of no assistance and therefore did not give it any weight;
(b)	the prosecution need only prove 1 kilometre or more in excess of the speed limit;
(c)	had failed to deal with the Defendant's submission that this offence was against Art 11(2)(a) of the Bill of Rights;
(d)	had failed to deal with the fact that another type of laser gun "Ultralite" had been withdrawn from use;
(e)	had failed to address the matter of PW1 not using a tripod for his laser gun; and
(f)	had failed to deal with the matter of PW1's fatigue.

8. I fail to understand much of the Appellant's submissions and I find that there is no merit in this appeal at all.

9. The Appellant, being a practising solicitor, must well know that an appeal hearing is not a retrial and that the learned Magistrate has an absolute discretion based on sound and proper reasons to accept or reject the evidence before him.

10. The learned Magistrate very properly and I might add very patiently dissected the evidence and concluded that he accepted the evidence of Professor Tam and rejected Dr Yung's evidence.

11. I do not find that the Appellant's argument about Article 11 of the Bill of Rights to apply in this case by any stretch of the imaginations.

12. The non-use of "Ultralite" is not relevant to this case and the learned Magistrate was right not to deal with it and the non-use of the tripod was clearly a matter that PW1 had explained to the court's satisfaction.

13. I should also note here for the benefit of the Appellant that the learned Magistrate does not have to deal with each and every point raised in the trial. He only need to mention the salient points in his Statement of Findings and therefore the Appellant's complaint that he had failed to consider the matter of PW1's "tiredness" is of no consequence as PW1 in his evidence had dismissed this as having affected the laser gun reading because the P6, the laser gun, has an "error" warning if it is unduly affected by external factors or interference.

14. I, therefore, find no merit whatsoever in this appeal and the appeal is dismissed.

Costs

15. The Respondent had applied for costs under Section 13 of the Costs in Criminal Cases Ordinance, Cap. 492 as this appeal had no merit whatsoever. The Appellant, in opposing the application, reiterated that his appeal had merit as the learned Magistrate had not properly addressed the evidence of the expert witness for the Defence, Dr Lui.

16. As this court has observed in the reasons above, the learned Magistrate in his unassailable Statement of Finds had set out very carefully and clearly why he rejected the evidence of Dr Yung. This court agrees with the respondent that there is no merit whatsoever in these grounds of appeal.

17. I, therefore, order that the costs of this appeal be to the Respondent, to be taxed if not agreed.