HKSAR v. LAU KWOK FAI BERNARD

(Translation)

HCMA 155/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 155 OF 2006

(ON APPEAL FROM KCV NO. 171 OF 2005)

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J U D G M E N T

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1. The appellant was convicted after trial of one count of “speeding”, contrary to section 41(1)(a) of the Road Traffic Ordinance, Cap. 374.  He was fined $450 and an additional $450, making a total of $900.  He now appeals against conviction.

Particulars of offence

2. The summons alleged that the appellant:

           … on 26 March 2005 at 5:40 pm at New Hiram’s Highway near Lamp Post No. AAE 5669 did drive a private car displaying registration mark GY6986 on a road at a speed of 66 kilometres per hour, which exceeded 50 kilometres per hour being the speed limit then in force on that road.

Prosecution case

3. PW2 is a police officer.  At the material time, he was monitoring the speed of vehicles passing the relevant section of the road with the help of a laser gun.  He found that the appellant was driving at 70 km/h, which exceeded the speed limit of 50 km/h in that section of the road.  The summons stated that the appellant was driving at 66 km/h merely because the police normally deduct 4 km/h from laser gun readings.

4. PW2 also said that the allowance for the “lowest enforcement level” on that day was as much as 14 kilometres.  In other words, the police would take no action against vehicles travelling under 63 km/h.  On the other hand, vehicles travelling in excess of 64 km/h (50 km/h plus an allowance of 14 km/h) would be issued penalty tickets.

5. PW1 is an expert from a laser gun factory.  He said that the laser gun in question has “an allowance of plus and minus 2 kilometres”.  I understand this to mean that if the laser gun detects that the speed of a vehicle is “x” km/h, then its actual speed could be anything from “x + 2” km/h being the highest to “x – 2” km/h being the lowest.

Defence case

6. The appellant elected not to give evidence but raised the following argument.

7. He pointed out that the Traffic Procedures Manual (or TPM in short) [Defence Exhibit D1], an internal document with which the Police Force must comply, clearly states that the lowest enforcement level of a section of a road with a speed limit of 50 km/h is 57 km/h, because it is doubtful whether the laser gun is inherently reliable.  On this basis, given that the laser gun detected that he was driving at 70 km/h, he contended that 7 kilometres instead of 4 kilometres should have been deducted, and hence 63 km/h instead of 66 km/h should have been stated as the offending speed in the summons.

Ground of appeal

8. The appellant submitted at the appeal hearing that his ground of appeal is no different from his defence at trial.  He also said that he had written to the Police Force informing them that he would plead guilty immediately if the offending speed on the summons was changed to 63 km/h, but his request had not been acceded to.

Analysis

9.  The relevant paragraphs in the TPM provide as follows:

2.  The following guidelines should be observed:-

(a) An allowance is made for the accuracy of speed enforcement equipment and therefore when any roadside speed detection devices are used the minimum enforcement level at which they are set to detect speeding vehicle is:-

These are the minimum levels of enforcement and RCs/SSPs T have the authority to set higher enforcement levels.

…

(c) A technical allowance is given when reporting speeding whatever means is used; RADAR; LASER; VASCAR; PROVIDA; etc; to establish the offence.  The following deductions are made from the detected speed to establish the reported speed.

10. Obviously, two allowances are involved here, and they both relate to the impossibility of requiring speed-detecting devices to achieve 100% accuracy.

11. The first allowance is the “lowest enforcement level” mentioned in paragraph 2(a).  It means that on a section of a road with a speed limit of 50 km/h, the police should only take action when the speed of a vehicle reaches 57 km/h.  Similarly, on a road with a speed limit of 110 km/h, the police will intervene only if a vehicle is travelling at as fast as 116 km/h.  Furthermore, some senior police officers are authorized to set higher “lowest enforcement levels”.

12. The other allowance is the “technical allowance” mentioned in paragraph 2(c).  It means that the reading of the relevant device is not final and an allowance of a specified number of kilometres should be given.  For example, if the speed detected is 100 km/h or less, an allowance of 4 km/h should be given, which means 66 km/h should be used as the basis of determining the penalty.

13. The above explanation is apparent from the express wording of the TPM.  Furthermore, it fully corroborates PW2’s evidence.  He was referring to nothing but the provision in paragraph 2(a) when he said that prosecution would follow only if a vehicle was travelling in excess of 64 km/h.  In issuing the penalty ticket, he also followed the provision in paragraph 2(c) and deducted 4 kilometres from the 70 kilometres detected.

14. It also has to be pointed out that the upward and downward adjustments under paragraphs 2(a) and 2(c) have in effect provided two allowances, which go far more than making up for what PW1 described as the slight deviation of plus and minus 2 kilometres produced by the laser gun.  This is absolutely fair to anyone being prosecuted.

15. It is true that the magistrate’s written judgment in the present case is complicated and not easy to understand.  The magistrate also erred in saying that the provision in paragraph 2(a) did not concern the accuracy of the speed-detecting device.  However, he did make a correct finding in relation to the difference between paragraphs 2(a) and 2(b).

16. On the other hand, the appellant’s attitude is beyond comprehension.  From trial to appeal, he has all along been misleading himself and wasting public funds.  Had he not assured me that his interpretation of the TPM was based on a genuine misunderstanding of the TPM, I would certainly have ordered him to pay costs of this case.

Judgment

17. The appeal is dismissed.