HKSAR v. FAN STEPHANIE WINNIE

HCMA 240/2019

[2019] HKCFI 2682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 240 OF 2019

(ON APPEAL FROM STCC NO 4744 OF 2017)

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R U L I N G

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Introduction

1.  On 20 September 2019, this court handed down a judgment (“the Judgment”) allowing the case stated appeal by the Prosecution against the Applicant’s acquittal of one charge of “driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit”[1], setting aside the acquittal and order that the case be remitted to the Magistrate for him to convict and sentence the Applicant of the charge accordingly. 

2.  Then, on 27 September 2019, the Applicant by a Notice of Motion applies to this court for a certificate under s32(2), Hong Kong Court of Final Appeal Ordinance, Cap 484 for the points of law which the Applicant says are of great and general importance. 

3.  The parties have agreed that the application be dealt with on papers.  Written submissions have since been received from them. I now deal with the application as follows.

Points of law sought to be certified

4.  The points of law that the Applicant is seeking certification are as follows:

(a)   Whether account should be taken of evidence of a general nature about inherent margin of error of an “approved breath analysing instrument” under section 39F of the Road Traffic Ordinance, Cap 374 and Schedule 1 of the Road Traffic (Breath Analysing Instruments, Screening Devices and Pre-screening Devices) Notice, Cap. 374 (the “Notice”) in the Court’s assessment of the reliability and/or accuracy of a reading obtained by such an instrument.

(b)  Whether the principle enunciated in the majority decision of R v Moreau [1979] 1 SCR 261 (“Moreau”) that, in the context of an instrument approved by law, the Court ought not to admit evidence of general nature challenging the reliability and/or accuracy of such an instrument should be applied in Hong Kong.

(2)  What are the proper limits on the exception to the hearsay rule as endorsed in Leung Chi Kin v The Queen [19700] HKLRD 25 (as applied in The Queen v Wan Pui Hay [1994] 2 HKCLR 47) in respect of expert evidence on calibration(s) conducted via use of dry gas on an “approved breath analysing instrument”, when the reliability and/or accuracy of such an instrument is in issue.

Consideration

The test

5.  There is no dispute that the test for certification is:

(a)  whether there are points of law of great and general importance involved; and

(b)  whether such points of law are reasonably arguable.

See: Lee Kin Pong v HKSAR[2]; and HKSAR v Fong Kwok Shan Christine[3].

As to Question (1)

6.  The two limbs, (a) & (b) of this question, are really about the applicability to Hong Kong of that part of the judgment in R v Moreau[4], a majority decision of the Canadian Supreme Court, that in dealing with a challenge to a reading given by an instrument used in a driver’s breath test, whether special consideration should be given to the status of that instrument as one having been approved by the legislature, so that evidence of a general nature about the inherent margin of error due to its  design should not be taken into account by the court.

7.  Although I agree that the point is of great and general important in that R v Moreau has not adopted in Hong Kong before, I do not agree that any of the two limbs is reasonable arguable:

(a)  as explained in the Judgment, the applicability of R v Moreau are clearly supported by the similarity between the respective legislative schemes and provisions of Canadian and Hong Kong, a similar approach adopted by the English Courts and also the legislative history in Hong Kong: see §§51-55 of the Judgment;

(b)  as regards the Respondent’s reference to “concern about the accuracy of the breath testing equipment”, that statement is, with respect, taken out of context.  The passage in that Legco Brief for the Bills Committee On Road Traffic (Amendment) Bill 2010 reads:

“7. Under section 9A of the RO, a person with the proportion of alcohol in his breath, blood, or urine exceeding the prescribed limit, regardless of the alcohol level, is liable to the same maximum penalties terms of fine, imprisonment and minimum driving disqualification period. At present, an option is provided for a person whose breath analysis result is no more than 37mcg of alcohol per 100ml of breath to replace his breath specimen by a specimen of blood or urine. This provision was introduced in 1995 when drink driving legislation was first introduced to alleviate concerns as to the accuracy of the breath testing equipment.”

Similarly, what was said in Legco debate on 8 December 2010 by the Secretary for Transport and Housing was this:

“This option was provided in 1995 when the drink driving legislation was first introduced to alleviate concern about the accuracy of the breath testing equipment. Nowadays, the breath testing equipment has proved to be reliable and able to provide accurate results.”

Therefore, the “concern” expressed was about the situation prior to, but not after, the 1995 enactment. In fact, the implementation of the current 3-tier penalty system[5] introduced in 2010 to a large extent premised on the reliability and precision of the instrument used. That is to say that in order to effectively implement the 3-tier system, the requirement for reliability and accuracy of the instrument used could only be at least as demanding as before, if not more so.  Should the legislature have any reservation about the instrument being not up to the new and more demanding task, it would no doubt have replaced the instrument with another model. However, that did not happen.  To the contrary, the instrument has remained as an “approved” device ever since 1995.  This shows clearly that the legislature has no issue about the reliability and accuracy of the instrument; and

(c)  the fact that R v Moreau was a majority of 3 to 2 is not in itself a sufficient reason to say that the point is reasonable arguable.  I note that although the majority judgment in R v Moreau has been the law of Canada for the last 40 years.  the Applicant has not been able to cite even one case authority or one academic view which casts doubt on its correctness.  On the other hand, as pointed out by the Respondent, it has been consistently applied by Canadian courts: see e.g., R v Crosthwait[6] and R v Bourque[7].

As to Question (2)

8.  This has been discussed in §§64-65 of the Judgment and the law is also settled: see Archbold Hong Kong 2019, at §11-12 where it is said:

“Once the primary facts on which the opinion is based are proved, the expert is entitled to draw on the work of others in his or her field of experience as part of the process of arriving at a conclusion: R v Abadom, (1983) 76 Cr App R 48, CA; and see R v Somers, (1964) 48 Cr App R 11, CCA (doctor entitled to refresh memory from publication of British Medical Association giving current knowledge on the breakdown of alcohol by the body).

In the The Queen v Wan Pui-Hay [1994] 2 HKCLR 47 at 48-49, CA and R v Leung Chi-kin [1970] HKLR 25, FC, the Hong Kong Court of Appeal has accepted the rule in Abadom:

“[T]he law recognises exceptions to the hearsay rule and one of those exceptions applies to expert witnesses who are entitled to express opinions based on information, published or unpublished and usually in written form, received from other experts.  Medical textbooks constitute a prime example.  The relevant information must be of a type generally and reasonably relied upon and falling for evaluation within the relevant field of expertise.”

Expert evidence about the average daily dosage of cocaine was admissible and the expert was entitled to base their opinion on a variety of sources.  The Court held that the trial judge was correct in placing reliance on this piece of evidence: HKSAR v Yeung Chi Keung (unrep., CACC 355/2006, [2007] HKEC 847), at [12], CA.”

9.  Besides, as pointed out by the Respondent, in The Queen v Yip Wai Por[8], Silke VIP referred to Wan Pui Hay’s case and said:

“15. ... Briefly in Wan the Government Chemist had as was said by Kempsten, J.A., in giving the judgment of the Court implicitly relied on the assurance of a third party not called to give evidence. The definitive tests upon which both his Certificate and his oral testimony was based involved comparison with a standard substance provided by the United States Pharmacopoeia warranted to constitute tetrahydrocannabinol. The Court held that the Government Chemist was perfectly entitled to place reliance on the word of others and which led up to his issuance of his Certificate.

16.       Here, it suggested that which was said in the passage to which we have made reference was of different category. There was no direct evidence as to the actual control sample on its nature but, with respect, the technical staff of the Government Chemist must be taken, until the contrary is proved, to be acting under his supervision and direction and the issue of the Certificate is and remains prima facie evidence of matters contained in it.

17.       Normally any prima facie evidence would have to be upset by other evidence though, of course, we accept that matters can emerge from the Prosecution case itself which are sufficient to rebut it.  Weight remains for the trial judge.  Here, the Government Chemist was entitled to rely is satisfied and the fact of the existence of the Certificate indicates that he was, upon his subordinates work.  The Court was entitled to rely on his evidence as to that which took place unless it was shown to the Court specifically in this particular case that the matters relied upon by the Government Chemist were unsound.  Of that there was no such evidence.”

10.  In the present case, the expert (PW1) could not be expected to prepare or to test the dry gas he was to use.  Just like a nurse who takes temperatures with a thermometer has to depend on its manufacturer for its accuracy, PW1 had to depend on the information provided by the manufacturer of the concentration of the dry gas.  There is simply no evidence whatsoever to suggest that the concentration of the dry gas used was other than that as stated by the manufacturer. 

11.  Based on the above, the point is also not reasonably arguable.  I note that the Applicant has not referred this court to any case authorities to show the otherwise. 

Conclusion

12.  With respect, none of the points for which certification is sought is reasonably arguable.  Therefore, the Applicant’s application is dismissed.