HKSAR v. POON KIN PONG

          HCMA 1191/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1191 of 2005

(ON APPEAL FROM FLCC 2526/2005)

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J U D G M E N T

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1.  The Appellant was convicted after trial on one charge of Failing to Provide Specimens of Breath for Analysis with Alcohol Concentration Likely to Exceed Prescribed Limit, contrary to sections 39C(1)(a) and (15) of the Road Traffic Ordinance, Cap. 374.  He was sentenced to a fine of HK$5,000.00 and disqualified for 12 months.  He appealled against his conviction.

Brief facts

2.  The Appellant was driving a car along Fanling highway when he was stopped by police officers.  A roadside breath test was administered at around 23:36 hours; the reading was 46 ug/100 ml, the statutory limit being 22 ug/100 ml.  Exh P.1 records the test result.

3.  Police took the Appellant first to Lok Ma Chau Police Station and asked him to blow into a machine which showed the word “defective” on the display.  The Appellant’s blow had no effect on the machine which then showed “incorrect” on the display.  It appeared that the machine was not in working order – the test was ignored.

4.  The Appellant was taken to the Sheung Shui Police Station.  There Sergeant 17605 (PW3) explained to the Appellant the procedure and what he had to do in relation to a breath test.  PW3 would tell him when he should start and when he should stop blowing.  He asked whether the Appellant understood and whether he was willing to provide a breath specimen.  The Appellant indicated that he understood and was willing.  The Appellant signed Pol 973A (Exhibit P 2) to show his agreement.  Para. 3 of the form contained the wording of the request for a breath specimen, the questions to be asked of, and the words of instruction to be given to, the person being tested.  The instruction is:

“You will take a deep breath and blow into this mouthpiece continuously until I ask you to stop.  Your specimen of breath has to be sufficient to enable the test to be carried out.”

Test 54

5.  At 00:40 hours on 22 September 2005, the Appellant blew into the machine and the result shown on the display of the machine was “weak blow”.  The result was printed out and shown to the Appellant (Exhibit P3).  PW3 in evidence said he understood “weak blow” to mean that insufficient air went into the machine, or that the person had blown intermittently into the machine.

Test 55

6.  The Appellant was asked to blow into the machine for a second time at 00:54 hours because PW3 thought perhaps he was nervous so that he could not complete the test properly.  He warned the Appellant that he might be charged with the offence of failing to provide a specimen if he did not complete the test.  The Appellant blew into the machine.  The result was “blowing not allowed”. 

Test 56

7.  A third breath test was taken at 01:04 hours, the result again was “blowing not allowed”.  PW3 gave the Appellant a last warning that if he failed to complete the breath test again, he would be charged with failing to provide a specimen of breath for analysis.

Test 57

8.  A fourth test was administered at 01:14 hours, with the same result “blowing not allowed”.  The printouts of Tests 55, 56 and 57 were produced as Exh D1.  PW3 said he had administered the later tests because he thought the Appellant might be nervous.

9.  The Appellant did not give evidence or call any witnesses.  No medical evidence supported the Appellant’s physical or mental unfitness to comply with the request for a breath specimen.  The assessment by PW3 that perhaps the Appellant was nervous was not corroborated by any observed physical signs, nor was any such complaint made to him by the Appellant.

10.  Although the facts were not in dispute there was argument about the basis for the various machine readings, and how the police should have acted in respect of each one.

11.  In her Statement of Findings the Magistrate said she was satisfied beyond reasonable doubt that all the proper procedures had been followed for Test 54 (Exh. P3)

“and that if no further breath tests had been given Exh. P3 would have stood.  Having failed that breath test PW3 decided that he would allow the Appellant to attempt the test on three further occasions.  There was no need for him to allow the Appellant the extra opportunities to take the test and in my judgment they did not invalidate the first test”.

12.  The Magistrate noted that PW3 did not fully understand the workings of the machine, in particular he did not understand fully why the reading of ‘blowing not allowed’ would appear.  She considered whether that should affect her view of the validity of Test 54 and concluded:

“The fact that PW3 did not fully understand the two circumstances in which ‘blowing not allowed’ would occur did not, in my judgment, affect the initial one (Test 54) as I was satisfied beyond all reasonable doubt that he had followed all the directions set out in Exh. P2 and that that is all that is required under the law”.

She convicted the Appellant on the basis of Test 54.

Grounds of Appeal

13.  The perfected grounds of appeal were:

Ground 1

The learned Magistrate erred in singling out Test No. 54 to determine whether the Appellant had failed to provide specimens of breath for analysis where the whole circumstances under which the Appellant had been required to provide specimens of breath by that police officer was relevant to the question of whether the Appellant had failed to provide the specimens when required to do so and should be considered, including the circumstances under which Tests 55, 56 and 57 were administered.

Ground 2

Having made a finding of fact that the police officer administering the breath test (PW3) did not have full working knowledge of the breathalyser machine, in particular regarding the interpretation of the results of Tests 55, 56 and 57, the learned Magistrate failed to properly evaluate how this has impacted upon whether the Appellant had a reasonable excuse for failing Test 54 given that:

(a) the finding that PW3 had gaps in his working knowledge of the breathalyser machine tends to negate and contradict a finding that PW3 had advised the Appellant on the full correct procedure before Test 54 was taken; and

(b) the procedure as outlined in Exh P 2, even if followed, was sketchy and insufficient on its own to enable the breathalyser to register a specimen for analysis.

(c) In all the circumstances, the conviction is unsafe and unsatisfactory.

Evidence

PW3’s Evidence

14.  In evidence, PW3 confirmed that he had the authority and the training to operate the machine.  He explained the procedure to the Appellant and obtained his consent.  The first test took place at 0046.  This was Test 54 – two results obtained showed the reading ‘weak blow’.  He decided to administer a second test at 0054 thinking, apparently in the absence of other indicia ‘perhaps, he was nervous’.  He gave the Appellant a verbal warning of the consequences of failing to comply.  This test resulted in the reading, ‘blowing not allowed’.

15.  At 0104 the third test was administered.  It failed as again the reading was ‘blowing not allowed’.  Again, PW3 gave the Appellant a verbal warning and made a notebook entry that he would be charged with failing to provide a breath specimen if he did not comply.  As PW3 found the Appellant was willing he demonstrated again how the test should be carried out, but the fourth test administered at 0114, also failed, as it resulted in the reading ‘blowing not allowed’.

16.  Under cross-examination, PW3 said that he had administered the three further tests thinking that the Appellant might be nervous, which may have been a possible reason for his failure to provide a breath specimen.  Counsel for the Appellant alleged that PW3 had not stressed the timing aspect sufficiently, but he denied that was the case.  He pointed out that the machine showed the word “blow”, when it was ready to start taking the breath specimen.  It was put to him that ‘blowing not allowed’ was the equivalent of a message to show that the timing of the blow was wrong. PW3’s evidence was that he did tell the Appellant about intermittent blowing, which was the same as advice about timing.

Expert Evidence

17.  Mr Fung Siu-kin, a technician of Signs International Corporation (PW4), was called as an expert on the operation of the breath analysis machine (Drager Alcotest 7110 MK III).  There was no challenge to his expertise.  PW4, through his statement and cross-examination, explained the machine as follows:

(a) For a successful reading, there has to be (i) a minimum of one litre of breath, (ii) the blow to last for at least 4.5 seconds and (iii) the speed of the blow has to be more than 4 litres per minute.

(b) “weak blow” – appears on the display if the volume of the blow is less than one litre.

(c) “short blow” – appears if the volume exceeds one litre, but does not last for 4.5 seconds.

(d) “blowing not allowed” – means breath keeps going inside the machine but with not enough flow.  It has also to do with the timing of the blow.

(e) Intermittent blows would be covered by “weak blow”.

(f) For uneven blows, if the flow of the blow is below 1.5 litres per minute, the machine will stop.

(g) If one blows and stops immediately, “weak blow” will appear.  Nothing will happen even if one blows into the machine again after one has stopped blowing.

(h) “Blowing not allowed” would appear in one of two situations:-

(i) When the machine is first switched on a self test is done.  No air would be detected by the machine, but it would think someone was blowing into the machine, i.e. air is blown into the machine when it is not ready to accept it; or

(ii) One blows into the machine, reaching a reading of 20 asterisks (20 x 0.125 ml) which marks sufficient volume of air into the machine but insufficient flow rate (the timer only starts timing when the flow sensor detects that the flow is 4 litres per minute).

(i) It is not possible for there to be air in the tube but insufficient air in the sensor chamber for the display of “blowing not allowed”.

(j) If the speed of the flow reaches 4 litres per minute, there would be a display of sufficient asterisks (though not as many as 20) and the machine would stop.

Ground 1

18.  Counsel for the Appellant argued that the Magistrate erred in relying on Test 54 only in deciding whether the Appellant had failed to provide breath specimens as required.  He submitted that if a police officer required a person to submit to more than one test, the Magistrate had to consider all the circumstances of those other tests, including the reasons particular displays appeared for any unsuccessful blow.

19.  The police were in a position to decide when a person had failed to provide a specimen and relevant factors in deciding “reasonable excuse” would include genuine effort without success, machine failure or evasive conduct.

20.  As PW3 did not know the two reasons for the appearance of ‘blowing not allowed’, he was unable to give the Appellant effective instructions as to how he might correct his technique – his instruction would be based on his belief that ‘intermittent blow’ was the problem, when it might be insufficient flow rate.  Counsel submitted that the Appellant’s failure on any future test might have resulted from PW3’s inability to instruct him correctly.

21.  The evidence of PW3 showed he believed that ‘blowing not allowed’ meant air was not evenly blown into the machine resulting in an insufficient sample.  This occurred when the blow was not strong enough for air to enter the machine but stayed in the cylinder.

22.  The Respondent submitted, correctly in my view, that if read in context, PW3’s answers overall showed he had the same understanding of ‘blowing not allowed’ as PW4, the expert had explained it i.e. sufficient volume but insufficient flow rate.  What was important was not PW3’s technical knowledge of why that reading appeared, but whether he had followed the proper procedure when explaining to the Appellant what he had to do.

23.  Essentially there are two questions raised by Ground 1:

a) Was the Magistrate correct in relying solely on Test 54? And

b) Did she ignore wrongly the conditions under which the other test were conducted?

24.  In his discretion, PW3 had administered three further tests to assist the Appellant.  There was no evidence to refute or contradict PW3’s account of what instructions and demonstrations he had given.  It appears that the Magistrate relied solely on Test 54 from an abundance of caution and she cannot be said to have erred in so doing. 

25.  Counsel for the Appellant alleges the Magistrate had failed to take the later tests into account, but she did evaluate them as is shown by her decision to rely on Test 54 alone.  However, there appears to be no good reason why any one of the three further tests could not have been taken into account, if she accepted PW3’s evidence that all four tests had been administered properly, in accordance with the requirements of the law and of the machine.  His inability to give a technical explanation for a particular reading would not invalidate the test result.

Ground 2

26.  GROUND 2 alleged a failure by the Magistrate to evaluate properly how PW3’s incomplete working knowledge of the machine may have meant the Appellant had a reasonable excuse for failing Test 54 because

(a) PW3’s insufficient knowledge tended to negate her finding that he had advised the Appellant properly of the procedure and

(b) the procedure in Exh. P2A was insufficient without more to enable the machine to register a specimen for analysis.

Ground 2(a)

27.  Counsel for the Appellant argued that there was no evidence about the full extent of PW3’s advice and/or demonstration prior to Test 54 and so the Magistrate was wrong to draw the inference his instructions were correct when she found he did not know fully how the machine worked.

28.  This ignores the evidence of PW3.  He gave evidence as to what had been done and was cross-examined on the basis that his instructions were inadequate.  The Magistrate however was quite satisfied that he was giving truthful evidence and felt able to rely on the evidence he had given about the administration of the test.

29.  The Magistrate relied only on test 54 in consequence of her belief that PW3’s evidence revealed an imperfect knowledge of the machine.  She was entitled to do so, although in my view she could have relied on the later tests also.  Although PW3 may not have been able to express in the same terms as the expert how the machine worked, his evidence as a whole shows there is little difference between his description of what he believed the reading meant and what the expert said.

30.  Even if his knowledge had been established as imperfect, it would not have provided the necessary reasonable excuse, as long as all the procedures had been carried out properly and the correct instructions given by PW3.  Just as a motorist can drive a car without having any knowledge of the workings of the internal combustion engine, so too an authorized operative can conduct a valid test using the breathalyser machine without having a specialist knowledge of its workings.

31.  The defence of “reasonable excuse” is provided in section 39C(15) of the Road Traffic Ordinance, Cap. 374.  What constitutes a reasonable excuse is very restrictive as the case law shows, no doubt to support the purpose for which the legislation was enacted, to keep drivers unfit to drive because of drink off the road.

32.  The Magistrate noted that the defence of reasonable excuse having been raised, it was for the prosecution to disprove it.  The defence claimed the Appellant’s nervous condition was a reasonable excuse.  Further PW3’s allegedly imperfect understanding of the workings of the Alcotest machine meant he could not give proper directions to and/or had misled the Appellant.  That too was claimed as reasonable excuse.

33.  In R v Clarke (1969) 53 Cr. App in R. 438 as confirmed in R v Lennard (1973) 57 Cr. App. R. 542, it was held that “no excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health.”  The Court of Appeal in R v Graham John (1974) 59 Cr. App. R. 75, confirmed that for an excuse to be reasonable it has to be related to the physical or mental capacity of the motorist concerned.  A religious belief that it was wrong to allow blood to be taken from him did not in law provide a reasonable excuse for that motorist to refuse to provide a blood specimen.

34.  In Dawes v Taylor [1986] RTR 81 the defendant being tested was asked to “blow into that appliance long enough and hard enough so that the lights come on and stay on”.  The defendant blew into the device but could not see the lights and did not blow at sufficient pressure to illuminate one light, or for a sufficient time to illuminate the other.  He was charged with failing, without reasonable excuse, to provide a specimen of breath.  On appeal the court found that he had not been deliberately obstructive, but that a reasonable excuse was not provided because the device was difficult to operate at the first attempt, nor because of his awkward position in the car, nor because the instructions might have been difficult to follow.

35.  The court held that for a person to provide a specimen of breath when required to do so, the information had to be given properly to him, he had to be capable of comprehending it and he had to be capable of performing the physical act.  As no evidence suggested that the defendant was physically unable to provide a specimen or to understand what was being required of him the appeal failed.

36.  DPP v Thomas [1996] RTR 293, held that there is no obligation upon a police officer to warn a motorist who has been required to provide specimens of breath for analysis that he must provide those specimens within the three minutes the machine allows for the completion of its testing cycle.  Such failure to warn did not constitute a reasonable excuse.

37.  Counsel for the Appellant contended that unless PW3 had expert knowledge of the workings of the machine, he was not able to give proper instructions to the Appellant.  In my view it would be unreasonable to expect authorised operatives to have expert knowledge of the workings of the machine.  All that reasonably can be required of them is that they know how to operate it; how to give proper instructions to a suspect and how to read the display correctly.

38.  The evidence about the procedures followed came from PW3 who explained how he carried out the tests and what resulted.  He was cross-examined at length and was unshaken.  The Magistrate was entitled to accept his evidence.  She was sure the proper procedures had been followed.  The defence of reasonable excuse was before her and she was aware of the relevant principles.  The Magistrate did not err in concluding the Appellant had no reasonable excuse either from supposed nervousness, or from PW3’s lack of expert knowledge, for his failure to provide a breath specimen.

Ground 2(b)

39.  This sub-ground complained of the alleged inadequacies of the existing standard procedure for the administration of the breath test.  Counsel for the Appellant submitted it was too broad an instruction and that more detailed instructions should be given according to the particular reading displayed, so as to enable the person tested to make any necessary refinements or adjustments to his blowing technique.

40.  Such inadequacies, it was submitted, meant the Appellant had no chance of meeting the requirements of the machine and thus, he must have a reasonable excuse for failing to provide a breath specimen.  A test carried out resulting in the reading “weak blow”, would require different instructions from those needed for readings of “short blow”, or “blowing not allowed”. Counsel did not suggest the form of such instructions or say what further should be done by a testing officer.

41.  The present instruction is clear and any person instructed by an officer in the manner prescribed by Pol 973 and as described by PW3, would know what to do.  The Appellant may have been, or, at least appeared to be, nervous about providing a breath specimen, but there is any number of reasons for his failure to do so, which would be known only to him.  His nervousness was only a supposition on PW3’s part; no evidence was called which showed that was, or might be, the case.

42.  The present instruction is simple:  the motorist is told to take a deep breath and blow continuously into the tube starting and stopping when told.  Further tests required similar instruction and/or a demonstration of what had to be done.  The instruction is easily understood and, if followed, would result in sufficient volume and flow of breath for analysis.  More complex instructions would require the police to give elaborate technical explanations of volume, capacity, flow rate etc. and would make the test unworkable. 

43.  The Appellant, an adult in his 40s, who had had a Driving Licence for 20 years must have been able to comprehend the instructions given.  For some reason, or reasons, he was not blowing into the tube hard enough and/or long enough.  Why that was so was known only to him.  Whether he was nervous is irrelevant.  All he had to do was follow the instructions.  Although PW3 did not have to conduct any test after Test 54, in his discretion, he allowed 3 further tests which gave the Appellant ample opportunity to comply.

44.  I find there was no obligation on the officer to do more than follow carefully the procedures laid down.  The instruction was clear, simple and easily understood by anyone who was not suffering some disability of mind or body that might prevent such understanding.  The present procedure ensures uniformity and consistency of testing as far as possible.

45.  Some situation may arise in future which justifies a change in the present instructions, but this procedure has been followed for a long time with good reason – its simplicity.  The interaction between a suspect and the machine should be interfered with as little as possible.  Any requirement that a police officer should adjust instructions to suit particular readings is undesirable, as it could lead to accusations of unequal treatment amongst these tested, or allegations of unfair evidence gathering.  Too much would depend on an individual officer’s ability to compose and articulate appropriate instructions.

46.  The arguments advanced on appeal, in essence, were before the Magistrate at trial and considered by her.  She chose to rely on the result of Test 54 alone, thus giving the Appellant the benefit of her doubts about PW3’s understanding of the workings of the machine.  By ignoring the results of Tests 55, 56 and 57 she demonstrated that she had evaluated the evidence relating to those tests, albeit an evaluation which may have been unduly strict.  The Magistrate assessed and rejected the defence of reasonable excuse.  She accepted PW3’s evidence relating to the procedures followed.

47.  The grounds of appeal have not been established, nor has it been demonstrated that the testing procedure should be changed.  There is no basis for disturbing this conviction.  Accordingly the appeal is dismissed.