HKSAR v. SUNG SZE YAT, KENNETH

HCMA772/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.772 OF 2001

(ON APPEAL FROM ESCC 993 OF 2001)

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J U D G M E N T

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1. The appellant, Sung Sze Yat, Kenneth, was convicted by a magistrate sitting in the Eastern Magistracy of one charge of failing to provide a specimen of breath for a screening breath test, contrary to section 39B(6) of the Road Traffic Ordinance, Cap.374 ("the Ordinance"). He was fined $5,000. The magistrate ordered that he be disqualified from driving all classes of vehicles for six months. The appellant now appeals against his conviction.

2. It was the prosecution's case that at about 7:10 a.m. on 25 November 2000, one Madam Leung who appeared at the trial as the 1st prosecution witness was driving a private light bus along Kennedy Road eastbound. The appellant was driving a private car headed in the opposite direction. As the appellant was negotiating a left bend outside no.64 Kennedy Road, he lost control of his vehicle and collided into the light bus. The 2nd prosecution witness, a Mr Pang witnessed the accident and told the court that he saw the two police officers, who appeared at the trial as the 3rd and 4th prosecution witnesses, arriving at the scene shortly afterwards. Mr Pang also saw the appellant shaking his head on a number of occasions when speaking with the police. The 4th prosecution witness PC 48840 told the court that he warned the appellant that he might be prosecuted if he failed to provide a specimen breath. When he asked the appellant whether he had any reason making it difficult or impossible for him to provide a specimen, the appellant did not reply. On asking whether the appellant understood what the police had said, the appellant again did not reply. The appellant appeared to him to be reluctant to cooperate.

3. The appellant elected to give evidence. His testimony was that he was never warned of the consequence of his refusal to provide a breath specimen by the police. He suggested to the police that he preferred to go to the hospital to have a urine test but the police did not respond to that request.

4. The magistrate found that the prosecution witnesses were truthful and accepted their testimony. He rejected the version of the events as related by the appellant. He found that the warning was duly given by the 4th prosecution witness and the appellant had refused to supply a breath specimen.

5. It is common ground that the requirement to warn the driver under section 39(B) of the Ordinance is mandatory and that a failure to give such warning is a defence to a charge brought under section 39B(6) of the Ordinance upon which the appellant's conviction is founded.

6. Mr Mullick who did not appear in the court below, contended on behalf of the appellant that the evidence before the magistrate was such that the prosecution could not prove beyond reasonable doubt that a warning under section 39B(1) of the Ordinance had been given by the police. The magistrate had failed to take sufficient consideration of the inconsistencies and inaccuracies in the evidence adduced by the prosecution witnesses and in particular the 4th prosecution witness PC 48840 and the 2nd prosecution witness Mr Pang. It was submitted before this court that the evidence could not have supported the magistrate's findings.

7. In his oral reasons, the magistrate found that :

"... PW4 has carried out the procedure required of him and had warned the defendant about the legal consequences of failing to provide a breath specimen. ..."

This is repeated in his written Statement of Findings where in the last paragraph at page 7, the magistrate said :

" I found the facts were as described by PW4. I was satisfied beyond reasonable doubt that Prosecution had proved their case, and I convicted Appellant accordingly."

8. It would be useful to note that in the examination-in-chief of PC 48840, he confirmed that he made an initial enquiry when he was about to conduct a breath test on the appellant. Mr Mullick also submitted that the Police Form No.793 which was produced at the trial as a defence exhibit casts doubt on the accuracy on the account of the witness. It showed, at the very least, that the appellant was not entirely aware of the consequence of failure to provide a breath specimen. The appellant would not have filled in the form as he did had he been warned by PC 48840.

9. There is no mandatory requirement to complete section 4(d) of Police Form No.973. The form only sets out the procedures for conducting a screening breath test and to provide a procedural guidance for officers in the field. In my view, nothing turns on this document. The evidence of PC 48840 was such that not only had he warned the appellant of the consequences of failure to provide a breath specimen, he had in fact repeated his warning to him on more than one occasion. Moreover, the 2nd prosecution witness saw the appellant shaking his head in the course of his conversation with the police officer. This piece of evidence must have supported the prosecution's assertion through PC 48840 that the appellant had refused to give a specimen breath after being warned.

10. The magistrate rejected the account of the appellant on the basis that he was not a truthful witness. The apparent inconsistencies between the evidence of the 2nd prosecution witness and PC 48840 were drawn to the attention of the magistrate at the trial by defence counsel and were dealt with by the magistrate. There was ample evidence for the magistrate to conclude that PC 48840 had given the appellant the requisite warning and that the appellant, in full knowledge of the consequences of failure to provide breath specimens when so requested, refused to provide a specimen as required. The conviction was neither unsafe nor unsatisfactory. For the reasons given, the appeal against conviction is dismissed.