HKSAR v. LAU HILARY HOI SHUN

HCMA 222/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 222 OF 2014

(ON APPEAL FROM KTCC 5047 OF 2013)

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J U D G M E N T

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1. This is an appeal against the conviction of the appellant by a magistrate for the offence of driving a motor vehicle with a concentration of alcohol in his breath exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap 374.

2. The concentration of alcohol in the appellant’s breath after testing was found to be 31 micrograms in 100 millilitres of breath pursuant to section 39A(1A), which by section 39A(1A)(a)(i) brought the proportion of alcohol into the “Tier 1” category.  The appellant was accordingly fined $6,000; disqualified from holding a driver’s licence for six months, or until the completion of a driver improvement course at the appellant’s own cost within the last three months of the period of licence disqualification.

3. The facts were that the appellant, while driving, was stopped by a police motorcyclist (PW1).  He was given a preliminary breath test by PW1 which he failed.  He was arrested and taken to Wong Tai Sin Police Station for an Evidential Breath Test (“EBT”).  At Wong Tai Sin Station the EBT was initially conducted by Sergeant 49413 (PW2). 

4. The testing ran into mechanical difficulties.  The appellant was twice asked to blow into the mouthpiece of the EBT machine, and on both occasions there was no result recorded as there was, unbeknownst to PW2, a twist in the hosepipe leading from the mouthpiece into the machine proper. 

5. PW2 initially thought the appellant was deliberately avoiding providing a proper sample, and it was only when PW2 himself tested the machine and another nil result was recorded, that he realised the hose connecting the mouthpiece to the machine was in fact twisted so as to obstruct the user’s breath from entering the machine.

6. That problem was remedied and subsequently a further test was conducted on the appellant and a reading was obtained on the machines display screen.  However, prior to that reading being obtained, PW2 had noticed the machine’s printer was near the end of its roll of printout paper and had placed a new roll in the machine.  But when the machine’s printer was activated the paper print-out recording the result jammed and no print out of the result of the appellant’s breath test was obtained from the machine at that stage. 

7. To open the machine and remedy the problem, a key was required which was, in accordance with traffic police procedure, kept by the duty officer of Kowloon Bay Police Station.  Sergeant Tsang Fat-wa (PW3) who was the supervisor of the use of the machine at Wong Tai Sin Station, rode on a police motorcycle to Kowloon Bay Station and then returned to Wong Tai Sin Station with the key and unjammed the machine. 

8. The earlier test results obtained by the machine in respect of the concentration of alcohol in the appellant’s breath were then printed out by the machine’s printer.  In the meantime, the appellant had been taken to Kowloon East Police Station by other members of the police team for the purpose of granting the appellant bail. 

9. So PW2 took the freshly obtained printout of the appellant’s EBT results to Kowloon East Station, found the appellant, provided him with the printout, or a copy of it, and the appellant signed another copy retained by PW2.

10. Subsequently, the appellant was convicted of the charged offence after trial.  The conviction was based on the printout of the appellant’s test results obtained from the EBT machine’s printer after the paper jam had been cleared. That printout became Exhibit P5 at trial. 

11. The grounds of appeal advanced on behalf of the appellant by Mr Carl Yuen, who appeared also at trial, are essentially that the magistrate:

(i) wrongly found PW2 and PW3 to be credible witnesses;

(ii) failed to state why she found the EBT machine printout reliable;

(iii) failed to give the appellant the benefit of doubts surrounding the breath test results of the appellant;

(iv) failed to consider whether the breath test printout was an “automatic” printout as required by the legislation.

12. Grounds (i), (ii) and (iii) can be dealt with together.  The crux of the defence case at trial and on appeal was that the appellant’s EBT results as set out in the eventually obtained printout, Exhibit P5, were unreliable as those results may have been tampered with by PW2 and/or PW3, and that the magistrate should have given the benefit of doubts created by the evidence supporting this assertion to the appellant and failed to do so.

13. Therefore, the essential criticisms before me and at trial were levelled against PW2 and PW3. 

14. The evidence of PW1 was not materially challenged, a criticism primarily being made of his not writing everything down in his witness statement or in his police notebook.  The application of common sense alone would and did result in the proper dismissal of that criticism at trial. 

15. The balance of PW1’s evidence in cross-examination was consistent with that of PW2 and PW3.  The evidence of PW4, Lai Ho‑yuen, an expert service engineer of the private company which provided the machine to the Hong Kong Police was unchallenged in any real sense and was, so far as its credibility was concerned, not criticised by Mr Yuen during this appeal.  Indeed, Mr Yuen’s approach at trial and on appeal was simply to attempt to enlist PW4’s support for the defence case. 

16. However, it was alleged as to PW2 and PW3 by Mr Yuen that by obtaining the key to the machine when the paper jam occurred and gaining access to it, PW2 and PW3, or one of them, had the opportunity to interfere with the machine’s readings and had done so.  Whilst this was never put so bluntly during the cross-examination of either of them, it should have been as it formed the underlying thrust of counsel’s submissions. 

17. Various other aspects of PW2 and PW3’s evidence were also subjected to lengthy cross-examination in an attempt to undermine their credibility and, thereby, to undermine the reliability of the printout, Exhibit P5, as to the results of the breath test produced by the EBT machine. 

18. These other aspects of their evidence and the cross‑examination of them were dealt with by the magistrate.  She regarded them as unfounded.  In her view, and it is a view of the evidence I share, these relatively minor criticisms were mostly assertions made in cross-examination as to improper treatment of the appellant.  None of these allegations in cross-examination were agreed to by either PW2 or PW3, and the appellant not giving evidence there was quite simply no evidence whatsoever to support the assertions as to improper conduct by either PW1 or PW2.

19. Most of these allegations of improper conduct were procedural criticisms of PW2’s and PW3’s dealings with the appellant.  It was, for example, said that at one stage PW3 had decided, given the problems with the EBT machine, to take the appellant to another police station to use the EBT machine there, but had, after the appellant had been taken out of the EBT room and into the corridor of Wong Tai Sin Station, changed his mind and appellant was returned to the EBT room. 

20. A complaint was made that the police had refused to provide to the defence a copy of the CCTV recording of that corridor at the time the appellant supposedly had been taken out into it so as to establish the appellant had, in fact, been taken out of the EBT room. 

21. PW3 agreed such a request for the CCTV recording had been made and that no CCTV recording had been provided to the defence.  But that was simply because, as the request had been made during the trial some six months or more after the appellant was subjected to the EBT at Wong Tai Sin Station, the CCTV recording had already been routinely “wiped”.  The recordings were only kept for two months.  The relevance of whether or not the appellant had gone into the corridor of Wong Tai Sin Station was said to have been “credit”.  In my view, this was of somewhat ethereal relevance to any aspect of PW2 and PW3’s credit, and the magistrate was right to ignore it as an issue.

22. Other criticisms of how PW2, particularly, had dealt with the appellant were of even of lesser import.  And it is fair to say that all of these matters resulted in nothing except perhaps a distraction from the real issue; the reliability of Exhibit P5. 

23. The determinative evidence in that regard was provided by PW4, the expert service engineer for the EBT machine, and other documentary evidence, which taken both together were compelling in establishing the prosecution case.

24. So far as PW4 was concerned he was adamant that the EBT machine results could not be tampered with, and that once a successful test had taken place (regardless of whether the machine’s inbuilt printer was working or not) those results would not be able to be altered.  The following evidence was given by PW4 as to the operation of the EBT machine:

“Q. May I ask when you retrieved the result with the sample no. 28 and 29, as far as you know, can the results returned be overwritten?

A. Probably not.

Q. What means by probably?

A. If the result of the sample is successful, it will be stored in it and cannot be altered.

Q. That means the results were stored in the internal memory of the machine?

A. Correct.

Q. And cannot be altered by anyone?

A. Correct.

Q. One can only print out the results?

A. Correct.

Q. But not make amendments to it?

A. Correct.”

and later,

“Q. Correct me if I’m wrong, since samples were taken by the machine and the calculations had already been done by the machine, the printing of the result is the last stage of the whole EBT process whether or not the printout could be printed out, it will not affect the measurement and the calculation by the machine?

A. Correct.”

and later again,

“Q. So the sample number is generated by the machine?

A. Correct.

Q. And it cannot be altered by both the operator or the supervisor?

A. Correct.

Q. And the same applies to the record reference number?

A. Correct.”

25. PW4 had therefore stated clearly on a number of occasions that once a sample was analysed by the machine that result was stored in the memory of the machine and could not be tampered with so far as its printing out was concerned.  Nor could one sample number or reference number be substituted or changed. 

26. PW4’s evidence was effectively unchallenged in this regard and rightly was accepted by the magistrate and was, by itself, sufficient to dispose of the allegation of tampering.  But it was overwhelmingly reinforced by another aspect of the evidence.  That was this: attached to the machine was, in addition to the internal printer which had caused the mechanical problems, an external printer.  That external printer had been put in place by PW4 who had, as part of his duties as the engineer responsible for the installation of these machines at various police stations, provided them with an external printer, in addition to the internal printer with which they were also equipped.  That external printer had operated without problem during the testing of the appellant’s breath sample and had contemporaneously printed out information on a police form nominated Pol 967 and headed “Personal Data” (Exhibit P7). 

27. That printout was, in terms of the information provided, including that relating to the concentration of alcohol in the appellant’s breath, identical to the information later obtained from the internal printer of the machine once its paper jam was cleared.  In that regard, the evidence was,

“Q. If a situation if the internal printer doesn’t work, will that affect the printing by the external printer?

A. No.

Q. Whether or not the printout slip can be printed by the internal printer, it does not, No.1, affect the result measured by the machine?

A. Correct.

Q. No. 2, it will not affect the printout printed by the external printer, which is Pol. 967?

A. Correct.”

28. In my view, that disposes of any suggestion that the results of Exhibit P5 may have been tampered with or were made unreliable by the initial failure of the internal printer to printout the appellant’s test results.

29. I should, however, deal with one further matter in this regard.  Mr Yuen relied also on the fact that the mouthpiece hose of the machine was twisted when the appellant was first tested leading the machine to return a “nil” result.  His argument was that breathing into the hose while it was obstructed may have resulted in a build-up of alcohol in the hose so as to lead to an enhanced alcohol reading when the machine later made a successful test of the appellant’s breath. 

30. That argument fell away when regarded in the context of other evidence that, firstly, the machine had a self-cleaning operation which removed potentially tainted air around its sensor.  And, secondly, that PW2 had tested the machine on himself immediately after the hose was untwisted and had returned a result of zero concentration of alcohol in his breath establishing, plainly, that the blockage had been cleared and that no accumulated alcohol in the hose had skewed the results obtained from the appellant.  There was no merit in this complaint.

31. One final criticism launched by Mr Yuen was that the printout of results (Exhibit P5) which was eventually produced by the machine was darker in tone than the earlier printouts which were generated before the new roll of paper was placed in the machine.  This suggests, said Mr Yuen, that someone may have replaced the ink cartridge, and yet neither PW2 nor PW3 mentioned this in their evidence.

32. The simple answer to this complaint is that they, PW2 and PW3, were not asked about it, and the reality is that it is a meaningless and irrelevant point given that the contents of Exhibit P5 were supported by the contemporaneous printout of the same information on the external printer, and also by the evidence of PW4 set out above. 

33. In short, the criticisms of the procedures and circumstances of the appellant’s breath test fail to undermine the credibility of either PW2 or PW3, and nor did they reveal any material unreliability in the results obtained or evidenced in Exhibit P5.  The magistrate’s findings in this regard were an effective statement as to why she had no doubt that the printout of the appellant’s test result (Exhibit P5) was reliable.  Her conclusions in that regard were as follows:

“According to PW4, the analyzing process is done automatically once the breath sample is accepted. The measured values will first be stored in the memory of the Machine and cannot be altered. The date, time, sample numbers and the recorded reference numbers, once assigned, cannot be altered too.

Having considered all the circumstances of this case, I accept his evidence that the accuracy of the analysis will not be affected by the state of the sample hose or the paper jam issue of the internal printer. Apparently, it is free from external manipulation once the analysis is completed.

According to PW4 after the analysis is done, printing command from the machine will be sent to both the internal and external printers.

On the basis of the fact that the measurement process is automatic after breath samples are successfully collected; the test results in the prescribed format are stored in the machine, and that the printing command will be sent to internal and external printers after the analysis is completed, I consider the printing of P5 was merely the physical presentation of the data set, i.e. the last step of the process.  I therefore rule P5 was a statement automatically produced by the Machine.”

34. The remaining ground of appeal can be dealt with briefly and follows on from the above excerpt of the magistrate’s findings.  It was asserted the magistrate failed to properly consider that the legislation requires that the printout regarding the breath test results had to be an “automatic” printout.  Mr Yuen asserts that by reason of the paper jam and the replacement of the paper roll the eventual printout (Exhibit P5) was not an “automatic” printout as required by section 39C(3)(a) of the Road Traffic Ordinance, Cap 374.  That subsection reads, so far as it was relied upon by Mr Yuen, as follows:

“(3) Evidence of the proportion of alcohol in a specimen of breath, blood or urine may be given by the production of a document which purports to be either-

(a) A statement automatically produced by the approved breath analysing instrument by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by an approved operator (which may but need not be contained in the same document as the statement) certifying that the statement relates to a specimen provided by the accused at the date and time shown in the statement”.

35. Exhibit P5 was produced by the machine from its retained memory of the results of the appellant’s breath test.  That memory was of information transferred to Exhibit P5 by the machine’s internal printer when the paper jam was cleared.  That transfer was automatic, in my view, in the sense the machine itself performed this work. 

36. The magistrate found this to be so and she was plainly right to do so.  There is absolutely no merit in this final ground of appeal, and it matters little that the internal printer’s paper jam meant there was a delay in obtaining the printout, Exhibit P5.

37. Contrary to Mr Yuen’s assertion in his perfected grounds of appeal, there is no requirement in section 39C(3)(a) that the printout is immediately produced.  The appeal against conviction is dismissed.