POON CHI HUNG WILLIAM v. HKSAR

FAMC No. 5 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 5 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 929 OF 2000)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This applicant seeks leave to appeal to the Court of Final Appeal against a decision of the High Court affirming his conviction on a fixed penalty summons for driving in excess of the speed limit.

2. The prosecution's evidence consisted of the reading produced by a laser speed detection system showing that he was driving at 65 kph in a 50 kph zone.

3. Was that system reliable? That was the issue. It was an issue of fact which the Magistrate resolved against the applicant. The Judge found no flaw in how the Magistrate resolved that issue.

4. Dissatisfied with the resolution of that issue against him, the applicant complains of substantial and grave injustice. He seeks leave to appeal to the Court of Final Appeal on that ground.

5. The question for this Committee, therefore, is whether it is reasonably arguable that there has been to the applicant's disadvantage some departure from accepted norms which departure was so serious as to constitute a substantial and grave injustice.

6. The Magistrate was the primary tribunal of fact who received all the evidence at first-hand.

7. As we see it, the Magistrate approached the issue of fact and the evidence thereon in the normal manner, and came to a conclusion properly open to him on the evidence. In going about deciding what evidence he could properly accept and what evidence he could properly reject, he did nothing out of the ordinary.

8. As for the applicant's attempt to adduce fresh evidence, we are not persuaded that it would be appropriate to permit fresh evidence.

9. There is no basis for the grant of leave to appeal to the Court of Final Appeal. This application is accordingly dismissed.