MA 929/2000
Speeding/Reliability of laser gun/Certificate prima facie evidence of
regularity/Acceptance of expert evidence/ Relevance of possible margin of
error
超速駕駛 - 雷射槍的可靠程度 - 證明書是證明操作正常的表面證據 - 接納專家證據 - 可
能出現的誤差幅度是相關考慮因素
The Appellant appealed against his conviction on a fixed penalty
summons. The information showed that he drove a private car registration No.
HH 3XX6, on a road at a speed exceeding 50 kilometres per hour, being the speed
limit in force on that road, namely, at a speed of 65 kilometres per hour. That was
an offence contrary to s 41(1)(a) of the Road Traffic Ordinance, Cap 374.
There was no dispute that the Appellant was driving the car on the road
in question at the material time, nor that he was intercepted and given a fixed
penalty notice. The only issue before the magistrate was whether he drove at a
speed exceeding the speed limit and he noted that the burden rested on the
prosecution to prove beyond reasonable doubt that the Appellant did drive at a
speed exceeding 50 kmh.
The chief attack on appeal was as to the reliability and accuracy of the
laser speed detection system, that being LT 120-20 (serial no. 7859), which was
the equipment used by the police officer, PW2, to detect the speed of the car.
An independent expert, an Associate Professor of HKUST, was called by the
prosecution to give evidence about tests and examinations he had carried out on
the laser gun in question and on other laser guns of the same model and to give
his opinion on the accuracy and reliability of the laser gun.
Having admitted the witness as an expert, the magistrate concluded that
the laser gun was reliable and accurate when used on normal vehicles on the
road without flat or reflective surfaces. He also found that the laser gun
functioned as it was required to and that it could measure speed accurately
within the specified error margin.
He was satisfied that apart from the general accuracy of the laser gun
technique, the particular gun was working accurately at the material time when
the Appellant’s vehicle was shot by the gun. He was satisfied as well that the
laser gun operator was both a competent operator and a credible witness.
The magistrate also admitted into evidence a certificate under s 28 of the
Evidence Ordinance, Cap 8, which stated that on 24 January 1998 and 1 August
1998, namely, before and after the date of the offence, the manufacturer checked
the laser gun, found it was functioning properly and that the test results were
accurate. The contents of such a certificate stood as prima facie evidence of the
matters contained therein.
On appeal
Held :
(1) Having heard the expert’s evidence, the magistrate concluded that the
laser gun, radar and VASCAR systems were all accurate reliable speed detectors;
(2) The magistrate considered the expert evidence and concluded that at its
highest it could be said that the laser gun might be subject to interference by a
mobile telephone, but in that case the laser gun would produce an error message,
namely, no reading at all, rather than a wrong reading. The evidence at trial
showed that when the gun was shot at the Appellant’s vehicle, no error
message had appeared on the screen of the laser gun and there was no evidence
to suggest that the laser gun was subjected to interference at the time the speed
of the Appellant’s car was detected;
(3) The magistrate considered the curriculum vitae of the expert and
assessed his knowledge and admitted him as an expert for designing tests on the
laser gun and for commenting on its accuracy and reliability. He specifically
found that he was an independent witness, unrelated to the vendor of the laser
gun. It was for the magistrate to decide whether or not to accept the witness as
an expert;
(4) On the evidence the magistrate was satisfied that the operator of the laser
gun, who had attended a training course and regularly used it, was experienced
in using the gun. There was nothing to show that his finding was in any way
unreasonable, and an appellate court was not in a position to interfere;
(5) In HKSAR v Sham Wai-man, Walker MA 373/99, it was held that the
prosecution could rely on a certificate produced under s 28 of the Evidence
Ordinance, Cap 8. The magistrate found that the certificate was prima facie
evidence of the facts stated in it, and that the defence had not, on the balance of
probability, established that the contents of the certificate were inaccurate. He
accordingly drew the inference that the laser gun was operating normally
between the two dates of inspection in the certificate;
(6) The magistrate noted that for the purposes of this offence he had only to
be satisfied that the Appellant was exceeding the speed limit by 1 kilometre an
hour. He also noted that the Appellant had exceeded the speed limit by 19 kmh,
and he heard cogent evidence about the accuracy and reliability of the laser gun.
For the offence not to have been committed, the margin of error would need to
be at least 19 kilometres. That was relevant: Penny v Nicholas [1950] 2 All ER 89
followed;
(7) The magistrate dealt with the case correctly. He assessed the accuracy of
the laser gun procedure and was satisfied on that matter. He satisfied himself as
to the competence of the laser gun operator. He concluded that the Appellant
was guilty of speeding.
Result – Appeal dismissed.
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