HKSAR v. HU MIN CHENG

HCMA 1085/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1085 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of speeding at the speed of 81 kilometres per hour when the speed limit of the locus in quo was 50 kilometres per hour.

2. In his Findings, the Magistrate had this to say :

"..... I accepted the evidence of the prosecution witnesses and rejected that of the appellant. I was of the view that the natural reaction of a driver, when told by a police office that he was travelling at a speed almost 20 kilometres faster than its real speed, would be to make it very clear to that officer that there had been a mistake in the speed check process. The appellant said nothing and I was satisfied that the reason for that was his knowledge or belief that he had been or may have been travelling at 81 kilometers per hour.

7. I was satisfied beyond a reasonable doubt and found as facts proven that:-

(a) the appellant was the driver of a goods van registration number HH5110 at the material time and place;

(b) the prescribed speed limit at the material location was 50 kilometres per hour;

(c) the appellant drove his vehicle at a speed of 81 kilometres per hour, being a speed which exceeded the speed limit in force on that road."

3. Mr Lee on behalf of the Appellant challenged that the Magistrate misdirected himself in allowing the Appellant's right to remain silent at the time of his being stopped by the police as a basis for the conclusion as to the Appellant's knowledge or belief that he was, or might have been, travelling at 81 kph as alleged by the police. Mr Lee referred me to R v Hung Wai Hung [1990] 1 HKLR 431. In that case which was an application for leave to appeal before the Court of Appeal, the applicant had been stopped in his car by the police; and in the car the police found a black plastic bag, the contents of which were subsequently analysed to be salts of esters of morphine. Upon the police's discovery of what was in the bag, the applicant was told that he was under arrest upon suspicion that he had dangerous drugs in his possession for the purpose of unlawful trafficking. At this point, and when later cautioned, the applicant made no response. At trial, the defence was that the plastic bag had been left in the applicant's car by another person. The judge, when directing the jury, commented that the natural human reaction and natural human response was to tell the police that the bag in the car had been left there by somebody else and was not the applicant's. The judge went further to say that it was quite true that when a person was arrested by the police, he had a constitutional right not to say anything, but this did not prohibit him from considering what must be considered as natural human reaction and natural human response. It was held by the Court of Appeal that the judge's remarks were not fair comment, despite his reference to the applicant's constitutional rights, upon the applicant's failure to disclose the defence upon arrest.

4. The silence of a defendant, when he was arrested or when he was asked questions by the police, cannot be used to add credibility or weight to the evidence of prosecution witnesses (see R v Hubbard [1991] Crim LR 449).

5. In the circumstances of this case, it is difficult to judge how the misdirection by the Magistrate to himself had operated in his mind and I am afraid that the only way to have justice seen to be done is to hold that the decision reached by the Magistrate of the speed in which the Appellant was travelling is unsafe and unsatisfactory.

6. There is, however, an admission by the Appellant before the Magistrate on oath that he was travelling at 63 to 64 kilometres per hour. In the circumstances, I am of the view that the conviction and the sentence based on the speed of 81 kilometres per hour must be varied. The conviction of speeding is varied to the speed of 63 kilometres per hour, and the sentence should only be a fixed penalty of $320. The additional penalty of $450 and the costs of $2,000 be set aside.