HKSAR v. CHAN KA KIU

HCMA1231/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1231 OF 2002

(ON APPEAL FROM KTCC 6465 OF 2002)

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J U D G M E N T

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1. The appellant appeared before a magistrate at Kwun Tong Magistrates' Court facing a single charge alleging that he drove a motor vehicle with an alcohol concentration in his blood which exceeded the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap.374. He was convicted after trial, fined and disqualified from driving for one month. He now appeals against conviction saying generally that his conviction was unfair and based on unsafe and unreliable evidence.

2. The facts showed that at 3:30 a.m. on 31 July 2002, the appellant was driving a motor car along the second lane of the Kwun Tong Bypass. For reasons which were not made clear, he lost control of the car which mounted the central divider and hit a lamppost. The car was badly damaged, broken indeed into two pieces. The appellant was seriously injured and taken to hospital. A doctor at the hospital confirmed the appellant was fit to provide a blood sample and one was duly taken. Later analysis showed the sample to contain not less than 130 milligrams of alcohol per 100 millilitres of blood. The prescribed limit is 50 milligrams.

3. Mr Boyton for the appellant has pursued a number of points in his written argument but in court today concentrates on his contention that the sample of blood may have been contaminated by drugs which may have been given to the appellant by the hospital staff before the sample was taken.

4. Counsel's contention in the perfected grounds of appeal that Dr Timothy Fung took a specimen of blood is mistaken. The evidence was that nurse Chau Kit Ying took the sample. Counsel goes on to suggest that the words in the admitted facts that a specimen of blood was taken "in accordance with normal medical procedures" indicates that the blood sample would have been taken by a catheter in the appellant's arm and that a catheter might have been inserted into an area cleaned with an alcohol-based swab. This is not supported by the evidence. There may have been a catheter in the appellant's arm, the defence witness said so and the police officer could not remember, but the evidence was not that the blood sample was taken via the catheter. Mr Boyton himself at the trial put it to the prosecution witness that the blood was taken by the nurse using a syringe and the witness agreed that was the case. It was also agreed that the nurse would have used an alcohol-free swab to clean the area before the syringe was used a swab taken from a special "blood bag" provided to police officers especially for this purpose.

5. Nor can I see any basis for Mr Boyton's contention that the officer has forgotten from where a sample was taken. The evidence seems to me to be clear and unambiguous.

6. Counsel's point that his client was receiving treatment after the accident and may have been given drugs which could have affected the analysis of the sample taken from his client is, in my view, pure speculation. There was quite simply no evidence to support this statement.

7. Certainly the prosecution called no evidence about this but why would they. The prosecution do not have to negative every point an inventive counsel may come up with no matter how fanciful it may be and there was, I note, no application during the trial to exclude the evidence of the blood sample on the basis that it was tainted.

8. The point was raised in counsel's closing address during the trial at the magistrates' court and the magistrate said this :

"The Defence submits that because the Deft was in receipt of medical treatment via a drip in his right arm, anything could have entered into his bloodstream, casting doubt on the source of alcohol in the Government Chemist's analysis. However this Court has not heard any evidence that a drug or drugs which had been used prior to blood sampling could have produced the same blood analysis result, or could have affected the analysis. A court may infer, but may not speculate. In my view to cast a doubt in the way the Defence suggests is to cast a fanciful doubt, not a reasonable doubt, and this is an example of speculation which I am not permitted to do."

The learned magistrate was, with respect, entirely correct.

9. Counsel today says that the magistrate did not deal with his client's statement, and in that statement the appellant said he had consumed two or three cans before the accident. The magistrate was plainly well aware of the statement and refers to it in his Statement of Findings.

10. It fell to be considered along with the balance of all the evidence in the case and I have no doubt the magistrate did exactly that. The evidence was straightforward and overwhelming. This appeal must be dismissed.