HKSAR v. POON CHI WING

HCMA584/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 584 OF 2002

(ON APPEAL FROM TMCC 496 OF 2002)

----------------------------

----------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted on 24 May 2002 by Mr Eddie Yip, sitting at Tuen Mun Magistracy of the offence of failing to provide a specimen of breath by a person suspected of having alcohol in his body, contrary to sections 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap. 374. The particulars of the charge are that the appellant on 24 January 2002 inside Pat Heung Police Station, without reasonable excuse, failed to provide a specimen of breath for a screening breath test when required by a police officer in uniform who had reasonable cause to suspect that he drove a motor vehicle, namely a light goods vehicle on a road when he had alcohol in his body.

2. On 30 January 2003, I allowed the appeal against conviction and quashed the sentence of a fine of $2,000 plus a disqualification from driving for 12 months. I also ordered a re-trial of the charge before another magistrate. I said then that I would give my reasons for allowing the appeal on a later date. That I now do.

3. The appeal was allowed because, in my view, a material irregularity had occurred during the trial. What had happened was the appellant was late in arriving in court, and because the magistrate did not accept his explanation for being late, his bail was revoked and he was kept in custody.

4. The prosecution, as part of their case, was relying on the evidence of one Chan Lap Chi who was their expert witness on the breathalyser in question. The witness has said in his statement that after the breathalyser in question was returned to Traffic Headquarters, he checked the unit and found it was working properly. This evidence was necessary because it was the prosecution's contention that the breathalyser was working properly and on the day in question on the two occasions when the appellant attempted to blow into the breathalyser, he intentionally did not blow into it even though the breathalyser was working properly.

5. The prosecution, during the trial, proposed that the statement of Chan Lap Chi should be read under section 65B of the Criminal Procedure Ordinance. The appellant was acting in person and it was quite clear that the evidence of this expert would have been challenged. After the statement in English was translated to the appellant during an adjournment, the appellant sought a three-week adjournment so that he could consult his own expert and consult a lawyer. The magistrate granted the three-week adjournment but remanded the appellant in custody for the three weeks.

6. When the appellant realized that he would get his adjournment but only at the cost of his having to remain in custody, he then, and in my view, obviously most reluctantly agreed to the statement of Chan Lap Chi being read under section 65B.

7. In my view, this was a material irregularity that the appellant was granted an adjournment so that he could have sought advice on the proposed evidence of this expert only at the high cost to the appellant of having to remain in custody. In my view, this expert witness should have been called as a witness in which case all these difficulties would not have arisen. Because of this material irregularity, I allowed the appeal and ordered a retrial of the charge.