Inaccurate Hong Kong police speed guns still being used

Laser guns’ margin of error is too great and allowance for this too narrow, but police will continue to prosecute motorists, while lawyers say there is no appeal for drivers after paying the fixed penalty

PUBLISHED : Saturday, 12 November, 2016, 5:31am
UPDATED : Thursday, 24 November, 2016, 5:23pm

Tens of thousands of motorists in Hong Kong are penalised each year for speeding, and among the equipment used by police to prosecute them are laser guns whose accuracy was found more than 2½ years ago to be unreliable.

An expert who tested the laser speed guns told police in 2014 that their allowance was too narrow and needed to be increased in fairness to motorists, the Post has learned. Police have continued to use them, however, without making the findings public or increasing the margin of error – known as the “technical allowance” (TA). Instead, police have undertaken a lengthy internal review of all such equipment, and are expected to shortly increase the TA, according to the expert.

Although motorists are still being fined and losing licence points based on the disputed TA, a source familiar with police policy says an interim approach has been adopted. Police will apply a more generous TA and drop or amend prosecutions if motorists in borderline cases challenge their penalties, the source says.

The controversy dates back to 2013, when local traffic police implemented a TA of 3km/h for its laser guns – meaning a motorist must be registered at 4km/h or more above the speed limit to be prosecuted. Previously the TA had been 5km/h.

In April 2014, Professor Tam Wing-yim of University of Science and Technology tested US-made UltraLyte and other laser guns as part of a process to ensure equipment used to prosecute speeding motorists is accurate and fit for purpose. His tests found that the margin of error for the speed guns was up to 7km/h – more than double the existing 3km/h TA and significantly more than the manufacturer’s claimed accuracy of within 2km/h.

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Because only a handful of cases in the tests showed the higher levels of discrepancy above 5km/h, however, Tam recommended to police that the TA be increased to 5km/h.

In the months that followed, his findings were checked in overseas tests. Sources say they found the inaccurate readings were caused not by the laser guns but the software used to adapt them for Hong Kong use.

In an unreported case in September 2014, Tam was summoned as a defence witness for a driver who denied an offence of speeding by more than 15km/h – which would have led to a fine of HK$450 and three penalty points. The motorist’s car had been detected by an UltraLyte laser gun driving at 99 km/h on a road with an 80 km/h speed limit, and prosecuted using the 3km/h TA for driving at 96km/h – 16km/h above the limit.

Tam testified that the existing TA was too rigid, according to his tests, and the offence was reduced to driving in excess of 15km/h or less – bearing a fine of HK$320 and no penalty points.

Since Tam’s report and the court case, an interim measure has been introduced by police whereby the 3km/h TA is enforced but, if challenged by the motorist, can be extended to 5km/h and dropped or varied before going to court, sources say.

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Tam told the Post he believes police are planning to increase the TA to 5km/h but are trying to introduce a uniform allowance covering all laser guns and speed cameras.

“I believe the police force is working on it and I don’t know why it is dragging on so long,” he says. “My understanding is sooner or later they will change the 3km/h to 5km/h.

“They want to not just look at the laser gun alone. They want to compare it with other devices [such as speed cameras] too and they want a standard for all the devices, so I believe they are struggling on this issue.”

Tam says his tests covered not only UltraLyte but other laser guns used by local police and his conclusion was that the TA for all should be increased to 5km/h. UltraLyte did not respond to emails requesting comment.

The force declined to say how many UltraLyte and other speed guns are in use and how many offenders have been prosecuted using them in the past 31 months. However, in 2014, the total number of speeding cases detected by laser guns was in excess of 70,000, or nearly 200 a day, according to sources.

A police statement issued to the Post says the force does not keep official statistics on speeding offences by detection equipment, but there were 224,414 overall speeding cases in 2015, and 151,721 from January to September 2016.

The statement confirms: “The Traffic Branch Headquarters has been reviewing the level of Technical Allowance adopted for different speed detection equipment. This is an ongoing and complex review and the Department of Justice is still in the process of reviewing the situation before legal advice can be offered.”

Meanwhile, motorists can dispute penalties, the statement says. “Drivers who disagree with the issuing of the fixed penalty tickets have the right to complain against the issuance of the tickets and to dispute their liability in court.

“Before instituting any criminal proceedings against such drivers on the basis of the fixed penalty tickets issued, the police have an established mechanism to review the issuance of the tickets.”

“Before instituting any criminal proceedings against such drivers on the basis of the fixed penalty tickets issued, the police will review the issuance of the tickets. Under no circumstances are cases dropped just because the driver challenges the Technical Allowance.”

However, a senior official involved in the review, speaking on condition of anonymity, says: “If an individual wishes to complain against it they have got a right to, and we review every case on a case by case basis. We may add a further allowance to it but we won’t stop the prosecution.”

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The Department of Justice was asked in 2014 for guidance on the police approach but has yet to provide a response, the official says.

“The legal advice is still pending. It is quite a technical area but we are seeking legal advice and until we get that advice we are not going to change the approach we have at the moment.”

In challenges to the accuracy of laser guns dating back to 2002, Hong Kong government lawyers advised police that motorists cannot retrospectively challenge speeding penalties.

As soon as they pay their fines, they are effectively admitting liability and accepting they were speeding, police have been told. Their current approach is based upon that advice.

“Any driver who doesn’t challenge a ticket in court is admitting his guilt and any driver who pays a fine is guilty – that is the idea that has been adopted even by the Department of Justice,” says another source familiar with the policy.

“No one can go back to the police retrospectively and challenge it. But of course the problem is that the public have a rightful expectation that all equipment used by the police is accurate, and they base decisions on whether to pay or dispute the ticket on that trust. If they knew it might not be accurate, more people would dispute their speeding tickets.”

Lawyer Michael Lyon, who specialises in defending speeding offences in Britain, says the Hong Kong police approach violates the principle of fairness and could still be legally challenged.

“It is important authorities convey any discrepancies [in the equipment] to the public,” he says. “The public are entitled to assume the equipment police are using is accurate. They have to have faith that whatever equipment is being used is reliable.”

One of the complicating factors in the Hong Kong case, Lyon argues, is that if the TA was increased to 5km/h because of the software issue, the laser guns might no longer be viable.

“That is too large a discrepancy for them to be fit for purpose,” he says. “That kind of margin of error is just too great.”

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Hong Kong police, meanwhile, stress that they will continue to direct their laser guns at motorists while their review continues and while legal advice is drawn up, because of the importance of confronting the menace of speeding.

In their statement, they stress: “Tackling speeding is a priority for traffic policing under the Commissioner of Police’s Operational Priorities and Selected Traffic Enforcement Priorities.

“In 2015, there were more than 16,000 traffic accidents cases in Hong Kong in which over 20,000 persons were injured, including 122 persons killed and 2,703 seriously injured on Hong Kong’s roads.

“Speeding is one of the major contributory factors for traffic accidents and hence, it is one of the priority offences targeted.”