HKSAR v. HOOD RICHARD TAYLOR

HCMA 285/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 285 OF 2013

(ON APPEAL FROM STCC 1027 OF 2013)

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R E A S O N S   F O R   J U D G M E N T

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BACKGROUND

1.  On 26 March 2013, the Appellant, while legally represented, pleaded guilty before the trial magistrate to a charge of “failing to provide breath specimen by a person suspected of having alcohol in his body”, contrary to section 39B(1)(b) and (6) of the Road Traffic Ordinance, Cap 374 (hereinafter “the RTO”).  Upon conviction, he was fined HK$5,000 and was disqualified from driving for 2 years.  In addition, the Appellant was ordered to complete a driving improvement course.

2.  On 5 April 2013, the Appellant filed a notice of appeal against sentence.  On 29 June 2013, the Appellant applied to appeal against conviction out of time.  The application to appeal out of time was granted by Tong J on 5 July 2013.

3.  At this hearing, the Appellant sought to adduce additional evidence which included the relevant “Drink Driving Procedure Form” (hereinafter “the Form”); the “Notice to Persons in Police Custody” issued to him at the time; the witness statements of two police officers (PW1 and PW2); the Appellant’s two affirmations dated 28 June 2013 and 13 November 2013 respectively; and the correspondence between the Appellant’s solicitors and Shatin Magistrates’ Courts as well as the Registrar of the High Court.  Having heard submissions from both parties and having considered this case, I allowed the additional evidence to be adduced.

4.  At the end of the hearing, I agreed that the Appellant’s earlier plea should be treated as a nullity.  The conviction was therefore quashed with the sentence set aside.  I also ordered the matter to be remitted to the Magistrates’ Courts for re-trial before another magistrate.

5.  These are my reasons for allowing the appeal.

THE RELEVANT EVENTS

6.  The parties did not dispute that in the small hours of 20 January 2013, the Appellant was stopped by the police at a roadblock while he was driving a private car.  The Appellant was asked to have a pre-screening breath test to which the Appellant agreed.  However, the test failed.  In view of this, the Appellant was asked to provide a specimen of breath for test purposes.

7.  It was not disputed that the Appellant did not so provide the specimen.  However, at this hearing, the Appellant complained that he could not communicate with the police officers at the scene and did not understand what they said.  He claimed that no one had ever given him any warning, which was required under the RTO, about the failure to provide the specimen.  The Respondent, on the other hand, denied that such was the case.  I would later turn to the Appellant’s affirmations and the statements of the police officers on this matter.

8.  Afterwards, the Appellant was arrested and taken back to the police station.  There, a Senior Inspector of Police (hereinafter “SIP”) read the prescribed warning to the Appellant.  A note was put down in the Form about this event and it reads,

“At 0245 hours SIP YUNG read para 3 above to AP twice and AP refused to sign. AP confirmed he did not want SBT and had no reason to refuse.” (signed).

9.  The Respondent accepted at this hearing that the handwriting and the signature were those of SIP Yung.

10.  Paragraph 3 which appeared immediately before SIP Yung’s note and to which SIP Yung made reference reads,

“I require you to provide me with a specimen of breath for a Screening Breath Test which I am empowered to so require under Section 39B of the Road Traffic Ordinance, Cap 374. I must warn you that a failure to provide the specimen may render you liable to prosecution. Are there any reasons that would make it difficult or impossible for you to provide the specimen of breath?”

11.  This paragraph was pre-printed on the Form.  To its right, there was the printed column “Signature of the Subject” next to which was hand-written these words “拒絕簽名 (meaning refused to sign) SPC 5235”, followed by “0118 hs” and then “2013.1.20”.

12.  Mr Arthur Wong for the Appellant submitted that the Form supported the Appellant’s claim that he was unable to communicate with the police and that no warning was given to the Appellant by the police at the scene.  Mr Wong’s argument was that if Senior Police Constable 5235 (hereinafter “SPC 5235”) had already warned the Appellant at the roadblock at 0111 hours which was the time stated in the Amended Brief Facts, there was simply no need for SIP Yung to warn the Appellant again at 0245 hours.

13.  In the Appellant’s affirmation, he said that it was at the police station where he first clearly heard the warning.  The Appellant then asked SIP Yung why he had been denied his access to lawyers to which no response or explanation was given.  At about 3:00 am, the Appellant’s legal representatives arrived at the police station.  The Appellant said he immediately complained to them that he could not communicate with the police.  According to the Appellant, a member of his legal team spoke to the police and requested on the Appellant’s behalf that a breath specimen be taken from the Appellant.  The request was turned down by the police with no reason provided.

14.  Subsequently, the Appellant was charged with the present offence.  The Appellant said he had mentioned the communication problem to his then lawyer.  To ease his concern, the Appellant’s lawyer had amended the Brief Facts by adding at the bottom of page 2,

“At 02:45 hours, SIP Yung advised Deft (sic) to take a screening test and Deft refused to sign. Deft did not want to sign and had no reason to. At 03:00 hours, the Solicitor and Counsel instructed by Deft attended the Police Station and the Deft on advice agreed to give a screening test despite the request from the Deft and also failed to provide any reasons.”

15.  The Appellant was told that this amendment was accepted by the prosecution.  In fact, this typewritten addition could still be found on the Amended Brief Facts although it had been crossed out with black lines.

16.  On 26 March 2013, the Appellant pleaded guilty to the charge as advised by his lawyer.  He also admitted the Amended Brief Facts.  However, the Appellant claimed that as he was upset with the proceedings, he did not realize that the addition made by his lawyer was missing when the facts were read out in court.  It was only when he later reviewed the documents while preparing for his appeal against sentence that he noticed the deletion.  In any event, it was evident from the transcript of the proceedings (page 20 of the Appeal Bundle) that, at the time of mitigation, the Appellant’s then lawyer did mention, inter alia, these matters to the magistrate :

(1) the Appellant’s communication problem with the police;

(2) the warning by SIP Yung at the police station; and

(3) the request, which was turned down, made on the Appellant’s behalf at the police station by his legal representatives about the provision of the specimen.

THE AMENDED BRIEF FACTS

17.  The Amended Brief Facts was a 2-page document.

18.  The upper half of the first page stated the police reference number; the offence; the time/date; the particulars of the defendant; police witness and exhibits.  There was no dispute that whatever was written on this part of the document, such was never read out as part of the brief facts to the Appellant in the course of the proceedings.

19.  The part which was read out and in respect of which the Appellant admitted was :

“At 0045 hours on 2013-01-20, a Police Snap Check was mounted at Sai Sha Road (Shatin Bound) near Lamppost EB7676, Ma On Shan NT with PW1 and PW2 being the crewmembers.

At 0102 hours the same day, a Private Car bearing registration number DY 6618 was stopped at the snap check. PW1 approached to find Deft being the driver. PW1, who is a trained Random Breath Test operator, conducted a Pre-screening Breath Test against Deft with a pre-screening breath device. The result was fail.

In view of the test result, Deft was suspected of having been driving a motor vehicle on a road with alcohol in his body, and still having alcohol in his body. At 0106 hours the same day, PW1, who is a trained Screening Breath Test device operator, required Deft to provide a specimen of breath for screening breath test. In the meantime, he started to fill out and read over the content of the Drink Driving Procedure Form Part I (Exh 1) to Deft.

At 0111 hours the dame day, after PW1 read over Section 3 of Exh 1 (Request for Screening Breath Test) to Deft, Deft replied that he refuses to do the breath test and will not sign on anything.

At 0120 hours the same day, PW1 filled out and read over Section 6 of Exh 1 (Arrest Action) to Deft and declared arrest on Deft for the offence.

At 0134 hours the same day, Deft was taken back to Ma On Shan Police Station.

On 2013-03-18, Deft was formally charged with the offence.”

THE RELEVANT STATUTORY PROVISIONS

20.  Section 39B of the RTO reads,

“(1) A police officer in uniform may require any of the following persons to provide a specimen of breath for a screening breath test-

(a) a person who is driving or attempting to drive, or is in charge of, a motor vehicle on a road;

(b) a person whom the police officer has reasonable cause to suspect of-

(i) having been driving or attempting to drive, or been in charge of, a motor vehicle on a road with alcohol in his body, and still having alcohol in his body; or

(ii) having been driving or attempting to drive, or been in charge of, a motor vehicle on a road, and having committed a traffic offence while the vehicle was in motion.

(1A) Subsection (1)(a) does not apply to a person if, immediately before the police officer requires him to provide the specimen of breath-

(a) the person has, at the request of the police officer, provided a specimen of breath to be tested by an approved pre-screening device; and

(b) the test does not indicate that the proportion of alcohol in the person's breath reaches such a level that it would be reasonable to suspect that such proportion is likely to exceed the prescribed limit.

(2) …

(3) A police officer in uniform may require a person to provide a specimen at or near the place where the requirement is made under subsection (1).

(4) …

(5) A police officer shall warn a person at the time of requiring a specimen for a screening breath test under this section that a failure to provide it may render him liable to prosecution.

(6) A person who, without reasonable excuse, fails to provide a specimen of breath when required under this section commits an offence and is liable-

(a) on conviction on indictment to a fine at level 4 and to imprisonment for 3 years; and

(b) on summary conviction on a first offence to a fine at level 3 and to imprisonment for 6 months and on a second or subsequent conviction or on a conviction subsequent to a conviction under section 39, 39A or 39C to a fine at level 4 and to imprisonment for 12 months.

(7) If a court or magistrate convicts a person of an offence under subsection (6), the court or magistrate shall order that the person be disqualified in accordance with subsection (7A) or (7B) unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

(8) …

(9) A police officer in uniform may arrest a person without warrant if-

(a) as a result of a screening breath test he has reasonable cause to suspect that the proportion of alcohol in that person's breath exceeds the prescribed limit; or

(b) the person has failed to provide a specimen of breath for a screening breath test when required to do so under this section.”

THE GROUNDS OF APPEAL

21.  The following grounds of appeal were raised in respect of the Appellant’s conviction :

(1) the Appellant’s plea of guilty was a nullity in that

(a) the Amended Brief Facts in respect of which the Appellant admitted did not support the offence charged as there was no reference in the facts as to the police officer being in uniform and there was no reference as to the prescribed warning being given as stipulated under section 39B of the RTO.  The registration mark of the car stated in the facts was also different from the one particularized in the charge;

(b) the plea did not result from a deliberate and informed decision, and/or was tendered by misrepresentation and/or under a fundamental mistake;

(2) the Appellant’s plea was equivocal as the Appellant had submitted during the mitigation stage that he could not communicate with the police and that he had requested to provide a specimen at the police station.  In addition, it was apparent that the defence of “reasonable excuse” under section 39B(6) was made out during the mitigation stage; and

(3) the conviction was unsafe and unsatisfactory.

22.  In respect of the appeal against sentence, the Appellant argued that in the circumstances of this case, the sentence was manifestly excessive and that there were special reasons for the Appellant to be disqualified for a shorter period of time or not be disqualified.

GROUND (1) : THE PLEA TO BE TREATED AS A NULLITY

23.  In HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125, the Court of Appeal pointed out that, pursuant to section 113(1) of the Magistrates Ordinance, Cap 227, a person convicted of an offence by his own plea of guilty could not generally appeal against that conviction unless the guilty plea is vitiated by the lack of voluntary intent or by mistake of a fundamental nature.

24.  The Court of Appeal then listed a number of situations under which an unequivocal guilty plea might be rendered a nullity :

(1) the facts admitted by the defendant did not amount to the offence with which he was charged;

(2) the admitted facts were equivocal as to guilt;

(3) the plea was tendered to a charge which was defective on its face or invalid or unclear;

(4) the plea was tendered involuntarily, e.g. induced by duress or misrepresentation or was not an exercise of free choice;

(5) the plea was induced by fraud or made under a fundamental mistake; or

(6) the plea did not result from a deliberate and informed decision.

25.  In this case, both parties agreed that apart from the failure to give the specimen, the essential elements of the charge include these : the request was made by a police officer in uniform and a warning as to the consequences of the failure was given to the person at the time.

26.  In the Statement of Findings, the magistrate stated this,

“9. I accepted that the police in question must be in uniform and there must be a statutory warning.

…

11. In the admitted facts, there was an exhibit list :- …

12. Section 3 of exhibit 1 was a standard form of Pol 973 (Drink Driving Procedure Form part 1) of which contain a warning to the Appellant that ‘if he failed to provide the specimen may render him liable to Prosecution.’

13. PW1 had read to him of the ‘warning’ section and he replied he refused to sign.

14. In the mitigation, his counsel also referred to a warning issued by an Inspector. Surely, his counsel must aware of the statutory requirement to give warning to the Appellant about his failure to give a specimen for breath test.

15. One has to bear in mind that this was not a case for trial, the Appellant pleaded guilty to the charge.  The summary of facts only stated the facts succinctly of the offence.  Detail of the facts such as ‘police in uniform’ were contained in the witness statement.”

27.  Pausing here, I should mention that I had examined the witness statements of both police officers (referred to as PW1 and PW2 in the Amended Brief Facts).  There was no mentioning by any of the officers about SPC 5235 being on duty in uniform on that day.  Therefore, the magistrate was incorrect when stating that such a “fact” was contained in the witness statement.

28.  Further, although the magistrate referred to “exhibit 1” as a “standard form”, there is no dispute between the parties that the form in question had never been produced before the magistrate.  As I have set out above, in this case, Section 3 of the Form did not only contain the pre-printed words but also the handwritten part by SIP Yung. 

29.  Before me, while accepting that “a police officer in uniform” is an essential element of the offence, Ms Samantha Chiu, Senior Public Prosecutor, for the Respondent sought to argue that as the first half of the “Amended Brief Facts” referred to SPC 5235 as “of STU E&C T NTS”, when the facts were read in context and “in the absence of any contrary evidence, it goes without saying that he, as a traffic police officer in due execution of his duty at a roadblock, must be in uniform at that time.”

30.  In reply to the questions raised by this court, Ms Chiu, however, accepted that the first half of the document had never been read out in court and had, therefore, never been admitted by the Appellant.  In any event, I do not believe that the Appellant could be taken to understand what “STU E&C T NTS” stood for even if such was read out in court, not to mention the alleged “hidden fact” that the SPC was in uniform at the time in question.  Put it in another way, there was no mentioning of this essential ingredient of the offence anywhere in the Amended Brief Facts.

31.  In respect of the prescribed warning, the part of the Amended Brief Facts which purportedly dealt with it was “At 0111 hours the same day, after PW1 read over Section 3 of Exh 1 (Request for Screening Breath Test) to Deft, Deft replied that he refuses to do the breath test and will not sign on anything.”

32.  Ms Chiu skillfully submitted that although the prescribed warning was not spelled out word for word in the facts, there was direct reference to the Form which contained it.  Ms Chiu also argued that as the Amended Brief Facts and the exhibits had all been served on the defence before plea was taken, the defence was well informed of the nature of the offence charged and its underlying facts.  In other words, Ms Chiu urged this court to take the view that the documents and the facts must have been fully explained to the Appellant by his lawyers before he decided to plead guilty, and therefore, the part about “Section 3 of Exh 1” must have been explained to the Appellant by reference to the full text of that Section which contained the warning.

33.  As I have set out above, in this case, Section 3 of Exhibit 1, the Form, did not only contain the pre-printed warning but the hand-written part by SIP Yung. Therefore, I am not sure whether Ms Chiu asked the court to infer that only the pre-printed warning had been explained to the Appellant or the hand-written part as well.  If the latter case, then it is not sure what reliance, if any, was placed by the prosecution on the warning given by SIP Yung and its significance as to the basis which was said to support the charge.  In other words, I am not sure if the prosecution was saying that although SPC 5235 might not have properly administered the prescribed warning to the Appellant at the scene, such had already been remedied by SIP Yung at the police station where the warning was read out to the Appellant “twice”.  Further, I do not know whether “twice” meant “twice” and if so, why it was necessary to read it twice to the Appellant, or whether “twice” meant “the second time”.

34.  Whatever the Respondent’s position was regarding the above issues, I do not consider it appropriate to go behind a set of facts and speculate as to what had been explained to a defendant when the facts were unclear as to the presence of all the essential elements of the offence charged.  Suffice to say that, in a case where a defendant pleads guilty, the court normally acts upon a defendant’s plea as well as the facts which are read in open court and which the defendant admits.  It is the duty of the prosecution to ensure that the true facts of the case which the prosecution says are supportive of the charge are placed before the court.  The court should not embark upon an exercise to discern for the prosecution what, other than the Brief Facts, are the documents which could support the charge and to then speculate as to whether the contents of such documents or such parts of the documents had been explained to the defendant.

35.  From what I have set out above, it is obvious that, in this case, the set of Amended Brief Facts was not of the standard which is expected for the purposes of court proceedings.  The Summary of Facts is an important document.  Its importance is the same irrespective of the venue of trial and the seriousness of the offence charged.  It is a summary of the prosecution’s allegations against a defendant, which allegations the prosecution is prepared to call witnesses or to adduce evidence to prove.

36.  When a defendant admits the facts, the summary forms the basis upon which the court is to convict the defendant after satisfying that the facts support the charge and that the defendant has voluntarily entered a guilty plea.  Therefore, the Summary of Facts should be prepared with care and with attention to the essential elements of the offence charged.  The summary should set out the facts which are said to support these elements.

37.  To say the least, the imprecision and ambiguities found in the Amended Brief Facts in this case are highly unsatisfactory and are to be avoided in future cases.

38.  In the circumstances, I accept Mr Wong’s submission that the Amended Brief Facts did not support the charge in that the matter concerning “a police officer in uniform” was never mentioned in the facts. As recorded above, the witness statements of the two police officers did not specifically mention this.  However, in the statement of SPC 5235, he did mention about his driving a police motorcycle on that day and it might be that an inference could be drawn about him being in uniform at that time.  Nonetheless, as this matter was never included in the facts and had never been read out in court, the Appellant could not have been taken to have accepted this.  As a result, this remains an unproved ingredient of the offence.

39.  In respect of the “prescribed warning”, I have already set out the difficulties concerning the Form in this case.  On the other hand, I take note of the fact that the Appellant was legally represented when he tendered his guilty plea.  However, as there was no evidence before me as to what advice was given to the Appellant by his then lawyer as to the importance of the prescribed warning and what the lawyer’s instructions were, it would be inappropriate for me to examine the Appellant’s claim of not having been warned at the scene.  Similarly, as there was no evidence before me as to why SIP Yung had to read the warning “twice” to the Appellant back at the police station, it would not be appropriate for me to examine this matter and its significance, if any.

40.  However, since the Respondent accepted that “a police officer in uniform” is an essential element and given that such was missing in the facts, I am of the view that the facts admitted by the Appellant did not support the charge.

41.  Insofar as the part about the car registration number is concerned, it is a non-starter.  While it is highly unsatisfactory that the prosecution had made that error, clearly, the Appellant had not misunderstood the charge nor the fact about him being the driver of the vehicle bearing registration number DY 6618 on that day.  In other words, it could not be said that the Appellant entered a guilty plea because of any fundamental mistake or that the error had the effect of vitiating his plea.

THE OTHER GROUNDS OF APPEAL

42.  For the reasons set out above, the Appellant’s guilty plea should be treated as a nullity and Ground (1)(a) was made out.  Since this finding was sufficient to dispose of the appeal, it would not be necessary for me to deal with the other grounds here.  Moreover, as mentioned above, before I could decide whether there are any merits in respect of the other grounds of appeal, I would need to examine the related matters but such evidence was not placed before me at this hearing.

CONCLUSION

43.  At the end of the hearing, I therefore allowed the appeal.  The Appellant’s guilty plea should be treated as a nullity with the conviction quashed and the sentence set aside. I also ordered the matter to be remitted to the Magistrates’ Courts for re-trial before another magistrate.

44.  Mr Wong applied for the costs of this appeal to which application the Respondent did not object. I granted the application for costs, to be taxed if not agreed.

(Anthea Pang) Judge of the Court of First Instance of the High Court