HKSAR v. LAM KING SING

DCCC 190/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 190 OF 2015

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Reasons for Verdict
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Charges

1. The Defendant pleads denies the following 3 charges:

(1) Dangerous driving (1^st Charge);

(2) Driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit (2^nd Charge);

(3) Driving an unlicensed vehicle (3^rd Charge).

Defence stance

2. This case concerns a single incident of driving.  The prosecution is put to strict proof that the Defendant was the driver of the car at the time of the respective offences, and as a driver, he drove an unlicensed car dangerously with alcohol concentration in blood exceeding the prescribed limit. 

Prosecution case

Account given by eye-witnesses

3. At about 0659 h on 28/7/2014, the weather was fine, the traffic volume medium, the road surface dry and in good repair[1]. A private car, ST 5635, (“the Car”) travelling on the slow lane of northbound Tai Po Road suddenly crossed the lane and bumped into the nearside rear of PW1’s (SZETO Wan-shing’s) taxi, LA 8039, which was travelling on the fast lane of northbound Tai Po Road.  The location was near the junction of Fuk Wa Street.  The Car did not stop after the collision but proceeded along northbound Tai Po Road.  PW1 memorised the registration mark of the Car and gave chase.  I shall refer to this as “the First Collision”. 

4. The Car went past a traffic light in red at the junction with Shek Kip Mei Street.  It went past another traffic light in red, which was at the junction with Nam Cheong Street.  When it reached the junction with Nam Cheong Street, its offside front hit, almost head-on, the offside front of a taxi, KL 4335 driven by PW2 (CHENG Ying-ki).  KL 4335 with a passenger PW3 (KWOK Wut-ho) [2] on board had just gone through a traffic light in green from Nam Cheong Street to turn into Tai Po Road.  The driver of the Car was apparently at fault for jumping the traffic light in red on northbound Tai Po Road[3].  

5. The first taxi, LA 8039, arrived at the junction of Nam Cheong Street a brief moment later and stopped behind the yellow grid near the junction[4]. PW1 saw the 2 cars stop still after the collision though he did not see how they had collided.  The offside front of the Car was seriously damaged.  The Car was stuck with KL 4335 at the junction after the collision.  I shall refer to this as “the Second Collision”. 

6. PW4 (LEUNG Wai-kuen) was the driver of a light goods vehicle, bearing registration marks HT 6687, on the adjacent lane of KL 4335 on Nam Cheong Street.  After the Second Collision, he stopped his vehicle and went up to PW2 to complain that a jack from the boot of KL 4335 had hit the offside body of HT 6687. 

7. PW1 saw the Driver come out of the Car from the driver’s door and walk against the direction of the traffic of Tai Po Road towards a Shell petrol station[5]. There was not much traffic as it was early in the morning.  PW5 (LI Kam-ha) was sitting by the pedestrian pavement in the vicinity of Wong Chuk Street and Fuk Wa Street.  She was doing nothing in particular.  A man (whom she later pointed out to the police as the Defendant) walked up to her and lay down on the road.  He offered $100 to her if she would call the police for him.  He told her that he was hit in a traffic collision on Tai Po Road.  She did not take his money but dialed 999 for him.  She asked him to talk to the police by himself.  After he had talked to the police on her phone, he continued to lie down on the ground.  He also closed his eyes.  She walked up to Tai Po Road to see if there was a traffic collision.  The police soon arrived.  She identified the Defendant and recounted her encounter to the police.  

8. The police also made enquiries from PW1 – PW4 on Tai Po Road.  PW6 (SPC 1854) conducted a breath test on each of PW1, PW2, and PW4 with no alcohol indicated.  PW7 (PC 7469) saw the Defendant’s face and the right orbit both red with a smell of alcohol in his breath.  PW8 (PC 9767) walked along Tai Po Road with the junction of Nam Cheong Street against the traffic up to the junction of Fuk Wa Street to see if there were other traffic collisions at around that time.  There was none. 

9. PW8 took photos of northbound Tai Po Road and each of the 4 vehicles at the scene.[6] He also drew 2 sketch plans of the scene.  The first one was of the stretch of northbound Tai Po Road with the junction of Fuk Wa Street up to the junction of Nam Cheong Street.[7]  The second one was of the junction of Tai Po Road and Nam Cheong Street with the stopping positions of all 4 vehicles indicated.[8] 

10. At 0747 h, when asked to provide a breath test by PW7, the Defendant said:

I am (a) pedestrian, was hit by a car. I did not drive a car. I feel unwell. Make an arrangement for me to go to hospital.

11. At 0748 h, PW7 arrested him for failing to provide a breath test.  After being cautioned, he remained silent[9]. PW7 recorded the encounter on the form accordingly.  The Defendant was sent to Caritas Medical Centre in Sham Shui Po.

12. At about 0840 h – 0905 h, PW7 requested the Defendant to have a blood test for alcohol in Caritas Medical Centre and recorded the encounter on the form accordingly[10].

13. At 0850 h on the same day, a specimen of blood was taken from the Defendant’s body by the medical practitioner for analysis of alcohol concentration.  It transpired that there was not less than 253 milligrams of alcohol in 100 millilitres of blood[11]. This exceeded the prescribed legal limit of 50 milligrams of alcohol in 100 millilitres of blood. 

14. Except for the damage to the body work caused by the collision, the Car did not have any mechanical defects[12].

15. The fingerprint expert found the Defendant’s left palm print on the steering wheel of the Car[13]. As at 0000 h on 28/7/2014, the Defendant was the registered owner of the Car[14]. The Car’s licence had expired on 10/6/2014[15]. Therefore it was an unlicensed vehicle when being driven on the road on 28/7/2014. 

16. The Defendant suffered the following injuries[16]:

(1) Head injury, contusion, right eye subconjunctival haemorrhage, recommended for 5 days’ sick leave by Caritas Medical Centre from 28/7/2014 to 1/8/2014 ;

(2) Head injury/contusion, recommended for 4 days’ sick leave by Dr. Wong & Associates from 2/8/2014 to 5/8/2014;

(3) Head injury/contusion, recommended for 6 days’ sick leave by Dr. Wong & Associates from 6/8/2014 to 11/8/2014;

(4) Chest injury, recommended for 6 days’ sick leave by Dr. Wong & Associates from 15/8/2014 to 20/8/2014 ;

(5) Chest wall injury, recommended for 6 days’ sick leave by Dr. Wong & Associates from 21/8/2014 to 26/8/2014.[17]

Admissions by the Defendant

17. On the same date, PC 9767 (PW8) prepared a form, Pol. 571, Notice Requiring Identification of Driver in respect of the Second Collision.  I shall refer to it as “the Form” before it was filled out by the Defendant.  He was told of the resident doctor’s instructions through the nurse that the Defendant was not fit to give a statement to the police.  Ten minutes later, at 1100 h, he served it on the Defendant.  He told the Defendant that the Form could be filled out and submitted to the police within the next 21 days.  The Defendant received the Form and filled it out at once.  In PP8, he identified himself as the driver of the Car at the time of the Second Collision.  He said that PP8 was ready for PW8’s collection.  Therefore, PW8 collected it there and then. 

18. The defence objects to the admissibility of this completed document on various grounds.  I shall refer to it in this completed state as “PP8”.  The grounds (which I hereby endeavour to outline) are as follow[18]:

(1) He was too drunk to think or understand the factual and legal ramifications of the Form;

(2) He had a vague memory of what happened during the course of filling out the Form;

(3) He was too tired and not feeling comfortable at that time;

(4) Despite PW8’s knowledge that the Defendant was not fit for the task of filling out the Form, PW8 still served the Form on the Defendant and, which is more important, that he insisted that the Defendant fill out the Form there and then;

(5) Despite PW8’s knowledge on 28/7/2014 that the Defendant was not fit for the task of filling out the Form, when PW8 interviewed the Defendant on 11/9/2014 PW8 did not prepare a new Form for the Defendant to complete again;

(6) The Defendant’s act of ticking the box on the Form to identify himself as the driver was not accurate or voluntary;

(7) PW7 or PW8 had privately overwritten or added lines on the Defendant’s scribbles on the Form to make the scribbles legible.

19. PW7 and PW8 give evidence on this special issue of admissibility of PP8.  They deny that they had taken any unfair advantage of the apparently drunken or unfit state of the Defendant.  They also deny putting their own handwriting onto the Form at any stage except for PW8’s own signature[19] as the issue of the Form for the Commissioner of Police.  Before serving the Form on the Defendant, PW8 was aware of the resident doctor’s instructions through the nurse that the Defendant was not fit to give a statement to the police.  He served the Form on the Defendant but advised him of the right to submit the Form upon completion within 21 days after 28/7/2014.  He collected PP8 from the Defendant there and then because the Defendant told him that the Form was completed and he could collect it there and then. 

20. The Defendant elects not to give evidence or call witnesses on the special issue.  I find PW7 and PW8 honest and reliable witnesses.  I find it proved beyond reasonable doubt that:

(1) the police had not taken any unfair advantage of the Defendant in their handling of him in respect of PP8 or at any other stages;

(2) the police had not used any threat, violence, or inducement on him to make him provide the answers in PP8;

(3) PW8 had advised the Defendant of his right to fill out and submit the Form within the next 21 days;

(4) PW8 collected PP8 there and then because the Defendant had told him that it was completed and ready for collection there and then.

21. So I rule in PP8 and mark it P8. 

The defence case on the general issue

22. The Defendant elects not to give evidence or call witnesses. 

My findings

Closing submissions

23. The prosecution has no submissions.  The defence has put in its full closing submissions in writing. 

Credibility and reliability of prosecution witnesses’ evidence

24. I find all prosecution witnesses’ evidence credible and reliable. 

Implications of P8

25. In P8, the Defendant admitted that he himself was the driver of the Car in the Second Collision.  Defence counsel has devoted her entire submissions to challenging the weight to be placed on this admission. In my view, the drunkenness of the Defendant at that juncture as borne out by the medical evidence of overwhelming excess of alcohol in his body suggests that this admission may not be reliable. 

Circumstantial evidence

26. PW1 saw a male alight from the driver’s door of the Car soon after the Second Collision and walk against the direction of traffic on northbound Tai Po Road.  PW5 saw the Defendant at a side street of a few blocks at a walking distance from northbound Tai Po Road at around the same juncture.  The Defendant told her that he had been hit in a traffic collision and asked her to assist him to call the police.  The police found his left palm print on the steering wheel of the Car.  The Transport Department record showed that he was the owner at that time. 

27. I consider the question as to whether the prosecution has the duty to disprove that someone else was driving the Car that morning. The relevant legal principles are stated in Archbold Criminal Pleading and Practice 2015 para. 4-446 as follows:

Evidential burden (the burden of adducing evidence fit for consideration by the jury)

The authorities support the following propositions.

The burden is upon the prosecution of adducing evidence upon which, if it is accepted and not contradicted, a reasonable jury may convict.

The judge should only leave an issue to a jury which upon the evidence in the case is an issue fit to be left to them: Walker v. R. [1974] 1 W.L.R. 1090 at 1096A, PC, followed in R. v. Bonnick , 66 Cr.App.R. 266, CA.

In practice, this question only arises where the issue, if determined in favour of the accused, would excuse him from liability to conviction of the crime charged, e.g. self-defence, automatism, duress, loss of control (in murder), drunkenness, etc. It is sometimes said that on such issues the evidential burden is upon the defence to adduce evidence, by cross-examining witnesses or calling witnesses, upon which a reasonable jury might determine the issue in the accused’s favour. This is too restrictive, because the evidence may come from a prosecution witness or a co-defendant in chief or in other ways: see Bullard v. R. [1957] A.C. 635, PC.

Where such an issue does arise upon the evidence called by any party to the case, the judge must leave it to the jury, whether it has been mentioned by the defence or not: Palmer v. R. [1971] A.C. 814, PC. In R. v. Bonnick, ante, the court observed that the question of whether there was sufficient evidence to raise an issue fit to be left to a jury was one for the trial judge to answer by applying common sense to the evidence. The issue should be left to the jury when there was evidence sufficient to raise a prima facie case, if accepted. Further, it is clear that there might be evidence of self-defence or loss of control (formerly provocation) even though a defendant asserted that he was not present: ibid.; …, and R. v. Williams (W. A.) …

The judge must make it plain to the jury that upon such issues, once they are left to the jury, the legal burden of proof remains throughout upon the prosecution (with the exceptions mentioned, ante, § 4-445): see R. v. Wheeler , 52 Cr.App.R. 28, CA, and R. v. Abraham , 57 Cr.App.R. 799 at 803, CA … It is better to avoid referring to the “defence” of duress, self-defence, etc., being raised, as this may lead the jury to think that the legal burden of proof has shifted to the defence.

28. There is no suggestion by the defence or a scintilla of evidence[20] emerged from either the prosecution or the defence to the effect that the Car had been driven by someone else at the time of the First or the Second Collision.  The prosecution has no duty to disprove or contradict anything neither raised by the defence nor emerged in the evidence.  I find it the irresistible inference that the Defendant was the driver of the Car both at the First and the Second Collisions. 

Aspects of the Defendant’s dangerous driving

29. Section 36 of Road Traffic Ordinance, Cap. 374, provides as follows:

(4) A person is to be regarded as driving dangerously …if-

(a) the way he drives falls far below what would be expected of a competentand careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

…

(7) For the purposes of subsection …(4) …, in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including-

…

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

30. The Defendant was found to have alcohol in his blood over the prescribed limit by 4 times.  This indicated that he was very drunk at the time of driving.  The irresistible inference is that when he was driving the Car that morning it was obvious to him and he was aware that he was under the adverse influence of alcohol.  According to section 36(7)(c), this way of driving amounts to dangerous driving at law as it had fallen far below what was expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  

Conclusion

31. The alcohol in his blood had exceeded the prescribed limit by 4 times in the course of his dangerous driving of an unlicensed car. The prosecution has proved the ingredients of all 3 charges beyond reasonable doubt.  He is convicted as charged.