THE QUEEN v. OR HIN-SUN

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BETWEEN

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J U D G M E N T

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1. This is an appeal from a Magistrates Court in respect of the conviction of the appellant of driving a motor vehicle while under the influence of alcohol. The particulars of offence alleged that the appellant on the 4th day of June 1988 at Chatham Road near Austin Road in Kowloon, did drive a motor vehicle, namely a private car, bearing the registration mark DJ 6630, on a road while he was "under the influence of drink or drug to such an extent as to be incapable of having proper control of the said motor vehicle."

2. There were three witnesses for the prosecution. PW1 was PC14882 Wong Yoon-shin of the Traffic Division, who around 2326 hours received instruction to go to the scene of an accident at the place referred to in the charge. He arrived there at about 2336 hours where he saw the private car in question hanging over the railing of Chatham Road.

3. In relation to the appellant's condition at the time he said :-

"I saw a Chinese Male. Asked him if he was a driver. He is in Court. Defendant then replied 'Yes' - gave me his driving licence and identity card. I asked him how, the accident took place - He said he did not know how the vehicle had mounted on it. I asked him if he was the owner of the vehicle. He could only tell me his name. He replied that he was the owner and could say nothing else. He seemed to be about to fall down. He had difficulty in standing. He kept on begging me not to charge him. He uttered some nonsensical words which I could not understand. I could smell the air of alcohol. I asked him for the key of his vehicle and he gave it to me. So I told him to sit on the road, not to walk around. He did so, then got up. I told him to sit down, but he did get up."

4. He described how another police officer, PC 23602, arrived at the scene and shortly after that he himself left the scene. He helped PC 23602 take measurements and draw the sketch. PC 23602 took the appellant back to the police station.

5. He was cross-examined and gave further evidence about the appellant at the scene as follows :-

"Defendant was standing next to vehicle when I arrived. One could get out of driver's door - was possible. When I saw defendant he was in the northbound carriageway. Produce his licence and identity card from his wallet. Did utter nonsensical words - police constable for 7 years - many motor accidents - not seen people in shock after accident.

Once I have come across accident in which large container threw across carriageway. Defendant seemed to be drunk, rather confused. Couldn't say how accident happened - if he could tell me so many things he should be considered normal. He could produce keys from his pocket. Most must have taken them from ignition got out the car and hen produced them but I don't know that. He wasn't taken to hospital, but to police station. I stayed to look after vehicle."

6. PC 23602, LIU Chee Hing, gave evidence that he arrived at the scene at 11:35 p.m. and saw private car offside front overhanging the railing. He saw PWl and the appellant. He testified :-

"Defendant was talking to PW1 - walked to defendant and asked him if he was the owner and driver of vehicle. He replied `Yes '. That's all I said. I noticed he walked about - sometimes he sat down; sometimes he got up. His hands were moving around, throwing them about. He walked on unsteady steps. I could smell alcohol from his mouth. I informed my inspector who arrived at the scene."

Later he said :-

"Defendant arrested by me - cautioned him - we called police vehicle to take him to Yaumatei Police Station - then we asked him if he agreed to go the hospital to see doctor. He agreed - then taken to Queen Elizabeth Hospital. I went too."

7. In cross-examination his evidence is recorded as follows :-

"Only one conversation; - 'Are you the owner?' `Yes'. `Are you the driver?' 'Yes'. Face to face then and I walked away. Conversation lasted few minutes. That's when I smelled alcohol."'

8. The 3rd and final witness for the prosecution is Dr Lam of Queen Elizabeth Hospital, whose qualifications are recorded as MECHB 1985 University of Hong Kong.

9. On the 5th June he examined the appellant at 1:30 a.m. and he testified :-

"The patient refused to be seen or touched by me. I usually asked the suspect for consent in this type of case. He did not understand my questions. He was also saying a lot of things that were irrelevant to my questions. I could only observe him without touching him, in the cubicle. His eyes were very congested; a lot of redness visible; strong to smell of alcohol; he continued to talk a lot, I can't remember exactly what. I made a clinical diagnosis of 'drunk’ - he was admitted to medical ward."

10. Under cross-examination, he denied that his clinical diagnosis was based on the appellant's refusal to be examined. He admitted that the no blood tests, urine because these require consent. There were no physical tests. It was his understanding later on that the appellant had been involved in an accident.

11. He was questioned on what his clinical diagnosis was based and he replied "Strong alcohol smell, eyes and behaviour of patient."

12. He denied that the symptoms he described were consistent with shock.With the answer "of course not", but he added that the words "of course not" related to the smell of alcohol and eyes but that a patient in shock may well talk inconsequentially.

13. That was the Crown Case and at that stage the magistrate rejected a no case to answer. Mr Mumford, who appears for the appellant on this appeal, does not criticize the magistrate for that though he submits that if that was all the evidence there was, the magistrate could well have found that he wasn't satisfied beyond reasonable doubt.

14. The defendant himself gave evidence and called one witness.

15. It was his own evidence that he was the M anaging Director of a textile company and the owner of DJ 6630. On the 4th of June he went to a farewell dinner at Tak Hing Restaurant in Tsimshashui East in a group of 4. The couple who were about to leave Hong Kong don't drink, and of the other two persons present, one was himself who had one beer and the other was a person called Alan Yip who had 2 beers. The appellant testified that he hadnt drunk anything before going to the restaurant. They had all left together. He had driven there and left the car in the parking service there. He went on :-

"Went down to Ground Floor level and got car from parking service, at front of building. Friends still with me - drove off forwards, don't know name of road. Drove to Cheung Wan Road to go back home. I can drive. At junction, a short distance from restaurant, 2 km, I went right when traffic lights showed green. A vehicle suddenly cut in front of me from my left. Running along the fast lane, it was on Austin Road, turning left into Chatham Road. The vehicle came from the same direction as me. I draw a plan showing my direction in black and direction of other vehicle in red.

He cut into the fast lane very quickly to go into Chatham Road. I had to avoid it - I swerved and it brushed and I mounted the railing on the right. My speed was very slow, less than 20 miles per hour. I accelerated in Chatham Road - vehicle mounted kerb. Don't remember anything else because on the following day when I woke up my head back and body were painful due to the shock. My vehicle finished up as shown in my sketch. I agree position shown on police sketch. Remember impact was very serious. The next day I remember waking up in hospital - about 6:00 a.m. 5th June."

And later :-

"Don't remember anything about producing keys, licence, or talking to police. Some on head, chest, arms and back. When I woke up - had hit in accident, front right hand side, and centre of chest."

16. In cross-examination he insisted that he only had one beer. It was bought at the beginning of the meal and he drank it slowly. In so far as the accident was concerned, he testified :-

"The car cut from my left front and I had to swerve to the right to miss it. I swerved, rather than braked, because I was trying to avoid collision. If I had braked, I wouldn't have avoided collision, can't stop at once. Railing was on my right. If I swerved right I would miss the car, because it was going fast. If I didn't swerve to right collision would have happened. Rail was about 2 feet away. Remember nothing after accident. I was not under influence of drink."

17. The appellant called as his witness the 4th member of the group who attended the farewell dinner, namely Alan Yip. Alan Yip testified that they sat down sometime after 8:30 p.m. and left at about 11:00 p.m. He confirmed that he ordered 2 cans for himself and one for the appellant and that the appellant had nothing other than that can.

18. So far as the appellant's control of a vehicle is concerned, he said :-

"I saw the defendant take his car and drove-off - nothing unusual in his driving. Not concerned about his sobriety. He should have been alright. If I had been concerned, I would hive taken away his key and driven him myself. From what I saw he wasn't affected by alcohol."

19. In cross-examination he admitted that he had known the appellant for many years but that they were not close friends. They had been to dinner together, but rarely. On such occasion the appellant normally drank beer. Normally drinks one or two glasses. Just one can that evening. Nothing else. He went on to say that if he tool, keys to drive the appellant home, he would have got a taxi to drive his American friends away. They were at a hotel:

20. It was not suggested to Alan Yip that he was lying to protect his friend. Indeed the cross-examination of him appears to have been perfunctory to say the least.

21. In giving his verdict straightaway at the conclusion of the evidence, the magistrate recorded a short judgment in the following terms :-

"I have considered the evidence in this case, and of course, I have to decide the case on the evidence before me. I have a doctor, who diagnosed that defendant was drunk. I have an accident, very much out of the ordinary, in which the defendant's s description of what took place suggested that something was preventing him from avoiding an accident; the situation which he faced is so commonplace that most drivers avoid it every time they drive at a busy time, with nothing more than slight annoyance. Yet this defendant swerved violently into railings and caused extensive damage to his car. I am satisified so that I am sure that he was under the influence of drink to such an extent that he was incapable of having proper control of his vehicle and I find the case proved."

22. In a more detailed Statement of Findings the magistrate recounts the main points of the evidence of the respective witnesses, he then said :-

"It was the Crown's submission that the accident, being unexplained, was a piece of evidence for which, a jury could conclude that the driver of the vehicle was incapable of having proper control of his vehicle. A driver in control of his vehicle does not normally strike forcibly a metal railing set in concrete in the centre of a modern wide 7 lane highway. The reason for his lack of control was to be found in the fact that he was drunk, as confirmed by the doctor's findings.

The defence attacked the doctor's findings, on the basis that no blood or urine tests had been carried out. A suggestion of shock being the cause of the evident physical symptom, which had been put to the police witnesses, was not put specifically to the doctor, so I asked him about it. His response was, emphatic, and I accepted it, that shock could not have been the cause.

The defence further submitted that there was no evidence of the appellant's inability to have proper control of the vehicle. I rejected this submission, and accepted that the unexplained accident provided such evidence."

23. The magistrate then summarised the evidence of the appellant and his witness Alan Yip and finally said in respect of their contention that the appellant had only had one drink :-

"I did not accept the evidence of either the appellant or Mr Yip on this point; it was quite inconsistent with the observations of the doctor and the two police officers."

24. With regard to the appellant's description of the accident, he said :-

"I was not impressed with the appellant's description of the accident. He was perhaps incautious in, turning right when a vehicle coming from the opposite direction was intending to turn the same way. His description of why thereafter he had to drive into the railing sounded exactly like a description of a driver affected by alcohol who could not deal with an ordinary problem. It is not uncommon in Hong Kong for vehicles to cut across the front of other vehicles in the course of changing lanes. The impeded driver either decelerates, or brakes and decelerates, and the, problem is solved. The appellant did not brake. He claimed that to have done so would not have avoided, a collision. Instead, he swerved into the railing with the consequence already observed.

On balance. I was prepared to accept that the appellant was inconvenienced by another driver. Having heard his description of how he dealt with that situation, I was satisfied beyond any reasonable doubt that he was drunk to such an extent that he was incapable of having proper control of his vehicle."

25. He then set out the findings of fact in accordance with the prosecution evidence saying :-

"The only 2 matters contested related to the doctor's diagnosis of 'drunk'. Although this is disputed, the doctor gave his evidence compellingly, and was not shaken in cross-examination. He impressed he as a careful and accurate witness and I accepted his evidence."

26. He also accepted the defence evidence of the meal at the restaurant save for the amount of drink the appellant had consumed. He said :-

"I found that he was not telling the truth about that, and that he must have drunk considerably more, either before or during the meal, to bring him to the condition observed by the police officers and particularly, by the doctor. I found that the appellant had not taken any drink after the accident, there was no suggestion that he had, and indeed, no opportunity for him to have done so after the arrival of the police at the scene."

So far as the accident is concerned, he said :-

"I found that the accident occurred broadly as described by the appellant; that he was inconvenienced by another driver; and that because he was drunk, he could not deal with the situation.."

He finally concluded, by saying :-

"My consideration of the whole of the evidence made me satisfied beyond reasonable doubt that the appellant was under the influence of drink to such an extent that he was incapable of having proper control of his vehicle."

27. Mr Mumford maintains that there are 2 elements in an offence such as this :-

1. The amount of alcohol taken and,

2. The erratic driving or unexplained accident indicating inability to control the vehicle properly.

28. He accepts that at the end of the Crown case, the evidence of the appellant's condition and the unexplained accident was sufficient to raise a prima facie case on this charge. He therefore abandons ground 1 in the appellant's Notice of Appeal.

29. So far as the 2nd ground is concerned, he has submitted amended Grounds of Appeal against conviction as follows :-

"(i) The Learned Magistrate failed to consider the defence evidence adequately.

(ii) The Learned Magistrate erred in rejecting the evidence of the defendant and of the witness Mr Alan Yip (that the defendant had drunk only one can of beer) on the grounds that it was inconsistent with the evidence of prosecution witness.

(iii) The Learned Magistrate failed to consider the evidence of the said Mr Yip when, making his Findings of fact.

(iv) The learned Magistrate erred in holding that, granted that another car had interfered with the defendant’s car, all the defendant had to do was to slow his car, and therefore that colliding with the railings showed that the defendant was incapable of controlling his car."

30. Grounds (ii), (iii) & (iv) are really specific complaints under ground (i) he says.

31. He argues that quite apart from anything else, the appeal ought to be allowed on ground (ii) above because one really can't reject defence evidence only because it is inconsistent with prosecution evidence. One has to look at the defence evidence to see whether it is credible or not.

32. He emphasizes on ground (iii) that the appellant's witness wasn't mentioned at all in the magistrate's findings of fact which indicated that the magistrate's decision was a foregone conclusion.

33. Ground (iv) is based on the magistrate making unjustified assumptions based on hypothetical situations. Once it is accepted that there was interference by another vehicle, it is difficult to say, he says, "you should have done something else, because you didn't do something else, you couldn't control the car."

34. Mr Mumford analyses the evidence suggesting that what happened at the scene only gives rise to suspicion and is not a clear case of driving while under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle. So far as Dr Lam's evidence is concerned he suggests that his opinion is only based on a clinical diagnosis (i.e. a bedside identification of a disease by investigation of its symptoms) and that the only sypmtoms were red eyes, smell of alcohol and inconsequential answers to questions of which the latter could be consistent with shock. He argues that the smell of alcohol is subjective and that if one starts off with the idea a person is drunk, one finds what one expects to find. The important thing is that it is only the appellant's eyes and the smell of alcohol which could be related exclusively to drunkenness and not shock. Neither of the police officers described the smell of alcohol as being strong, he says. By no means is the case for the crown so overwhelming that one need not bother with the defence case. He points out that not only did the appellant testify that he had only one beer, but that is supported by an independant witness who is not a close friend of the appellant. It was never put to Alan Yip, that he was telling lies. He submits there must be a doubt because the appellant could have been badly shaken in the accident.

35. Mr Mumford attacks the magistrates findings at the close of the case pointing out that there is no mention of Alan Yip's evidence at all, and that the magistrate having accepted interference by another vehicle, assumed that it wasn't a serious, interference, an assumption that wasn't warranted on the evidence. He also attacks the Statement of Findings for similar reasons. In particular he attacks the Magistrates Statement :-

"The appellant's account of the meal was supported by his witness Alan Yip who told me that he had brought the drink throughout the evening. The appellant had only had one car of beer in the course of it. I did not accept the evidence of either the appellant or Mr Yip on this point; it was quite inconsistent with the, observations of the doctor and the two police officers."

36. He argues that the magistrate should have considered the credibility of the appellant and Alan Yip and not dismissed their evidence just because it was inconsistent with the observations of the prosecution witness. There was nothing to show that they were not credible. Indeed, the Magistrate had accepted the appellant's evidence of interference by another car. He argues that there was no justification for the magistrate's comment on the appellant's description of the accident that the appellant was "perhaps, incautious in turning right when a vehicle was coming from the opposite direction, was intending to turn the same way". He tales exception to the magistrate basing his decision upon what an impeded driver would do or not do in a situation which was not uncommon in Hong Kong, submitting that it is begging the question. It is all a question of degree. The magistrate did not give the appellant a fair crack of the whip, he says.

37. He refers to the judgment of the Privy Council in NG Chun Pui & others v. Lee Chuen Tat & Another [1988]2 H.K.L.R. 425 on the doctrine of res ipsa loquitur.

38. The description of the accident in that case was not dissimilar to that in the present case and is set out the judgment as follows:-

"On the afternoon of 28th February 1982, a coach owned by the 2nd defendant and driven by the 1st defendant left the westbound carriageway of Castle Peak Road, crossed the grass central reservation between the carriageways and collided with a public light bus being driven in the opposite direction in the near side lane of the eastbound carriageway ......

The plaintiffs called no oral evidence and relied upon the fact of the, accident as evidence of negligence or, as the judge put it, the doctrine of res ipsa loquitur. There can be no doubt that the plaintiffs were justified in taking this course. In ordinary circumstances if a well-maintained coach is being properly driven it will not cross the central reservation of a dual carriageway and collide with on-coming traffic in the other carriageway. In the absence of any explanation of the behaviour of the coach the proper inference to be drawn is that it was not being driven with the standard of care required by the law and that the driver was therefore negligent. If the defendants had called no evidence the plaintiffs would undoubtedly have been entitled to judgment.

The defendants however did call evidence and gave an explanation of the circumstance that caused 1st defendant to lose control of the coach. This evidence was given both by the driver of the coach, the 1st defendant, and a passenger sitting in the front of the coach. Their evidence corresponded closely with the contemporary accounts that both of them had given to the police. The judge accepted their evidence and made the following findings of fact :

`The evidence led by the defendant shows clearly that the coach was proceeding along a straight stretch of the road possibly a little in excess of the speed limit of 40 mph. But the speed of the coach was not alleged to be one of the elements of negligence and I am not particularly concerned with that. The coach was travelling in the fast or outer lane and in that lane there was other traffic about two coach lengths ahead of it. In the inner lane there was a vehicle about 10 to 20 ft. ahead and between that vehicle and the coach there was a blue car travelling a little faster than the coach. Suddenly that blue car which did not subsequently stop and has not been traced, cut into the fast lane some 6 - 8 feet ahead of the coach. That was clearly a very dangerous manoeuvre and the 1st defendant reacted to it by braking and swerving a little to his right. The coach then skidded across the central reservation, as I have said, colliding with the public light bus.'

The judge however was of the view that, despite those findings of fact, because the plaintiffs had originally relied upon the doctrine of res ipsa loquitur, the burden of disproving negligence remained upon the defendants and they have failed to discharge it."

39. Later at p.429 the judgment comments on the Court of Appeal's rejection of the judge's approach as follows :-

"The Court of Appeal rightly rejected the judge's approach and appreciated that once the 1st defendant's explanation of the accident was accepted his driving had to be judged in the light of the emergency in which he had been placed by the driver of the untraced blue car. There was nothing to criticise in the driving of the 1st defendant before the emergency arose and when the emergency arose the Court of Appeal said :-

'At the time he was attempting to extricate himself, his coach and his passengers from a situation which appeared to him - and we would interpose that the judge obviously accepted him as a truthful man - as a situation of extreme danger. The consequences of his action were in fact unfortunate, but that should not be laid at his door. He did what any careful driver would instinctively have done in the circumstances, and we are satisfied that he acted with the alertness, skill and judgment which could reasonably have been expected. Even if he did react slightly more than he should have done, slightly more than was strictly necessary, we are not satisfied that a lesser reaction would not have produced much the same result.’

This approach by the Court of Appeal to the facts of this case cannot be faulted."

40. That was of course a civil case where the judge had to decide on the basis of "a balance of probabilities". Thus, says Mr Mumford, the "agony of the moment" principle is a real live principle. If it is recognised in the civil law, then a fortiori it should be recognised by the criminal law. One cannot just say "Oh well it was not too dangerous, you should have been able to avoid it". He submits that there was no foundation for that on the facts of this case since the magistrate had accepted the appellant's evidence of interference by another vehicle.

41. Mr Halley for the respondent supports the conviction saying that it was simply a question for the Magistrate on credibility. The Magistrate, he says, was generous to accept the appellant's evidence of interference by another car. There was no need for another vehicle to cut into the outer lane because there were two lanes going towards the flyover. The magistrate was not prepared to accept the evidence of the appellant and his witness that the appellant only had one drink, because of the evidence of the doctor, and the two police officers whom he found to be truthful. He points out that PW1 had said :

"I asked him how the accident took place, he said he did not know how the vehicle had mounted on it."

42. Mr Halley submits that given what the doctor said and given what the police officers said, it follows as night follows day, that the appellant would not have been capable of having proper control of his car.

43. With regard to the contention that the magistrate failed to refer to Mr Yip's evidence, he points out that he did refer to Mr Yip's evidence in the passage complained of when he said that the evidence of the appellant and Mr Yip was inconsistent with the observation of the doctor and the 2 police officers.He had dealt properly with the credibility of the doctor when he said :-

"The only matters that were contested related to the doctor’s diagnosis of 'drunk'. Although this was disputed, the doctor gave his evidence compellingly, and was not shaken in cross-examination. He impressed me as a careful and accurate witness and I accept his evidence."

44. He rejected the evidence of the appellant and his witness having considered credibility. Mr Halley refers to a passage in Vol. I of Wilkinson's Road Traffic Offences, 13th Edn. at p.229 :-

"The evidence of a doctor, police surgeon or not, should be treated as that, of a professional man giving independant expert evidence with no other desire than to assist the Court unless the doctor himself shows that he ought not be (R. v. Nowell[1948]1 All E.R. 794; R v Lanfear [1968]l All E.R. 683)."

45. He concedes that the magistrate's, rejection of the defence evidence because it is "inconsistent" with the prosecution evidence is badly phrased, but contends that the magistrate was clearly talking about credibility. The only completely independant witness was the doctor.

46. He submits that Ng Chun Pui's case doesn't help the appellant because the driver in that case wasn't affected by any degree of alcohol. The danger also appeared to be greater.

47. He relies on another passage in Wilkinson at p.316 :-

"It is emphasized again that reckless and careless driving are questions of fact, and decisions of the High Court will generally be of little value because it is the facts of the particular case before the magistrates which must be considered."

48. He submits, that it can't be said that the magistrate reached the conclusion which no reasonable tribunal could have reached and that his decision was based on common sense.

49. It is important to see how the magistrate reached his decision. It would appear to me that he didn't base his decision on the evidence of alcohol alone. His decision appears to have been based on what he describes in his short judgment at the conclusion of the case as an "accident, very much out of the ordinary in which the defendant's description of what took place suggested that something prevented him from avoiding an accident."

50. In his statement of Findings, he also said that he rejected the defendant's contention and held that the unexplained accident provided evidence of the appellant's inability to have proper control of his vehicle and later he said :-

"On balance, I am prepared to accept that the appellant was inconvenienced by another driver. Having heard his description and how he dealt with that situation, I was satisfied beyond reasonable doubt that he was drunk to such extent that he was incapable of having proper control of his vehicle."

51. All this shows that he was only satisfied beyond reasonable doubt as the extent of the drunkenness by the appellant's reaction to the "inconvenience". However, the appellant's evidence went further than merely describing an "inconvenience" it was to the effect that he was the victim of a very dangerous piece driving by the other driver who cut in very quickly and that braking would not have avoided a collision and that the other vehicle brushed his vehicle. If he hadn't swerved to the right, the collision would have happened. He was only travelling at less than 20 m.p.h.

52. Having accepted that there was another vehicle on the road which led to the appellant mounting the railing, the magistrate was really bound to consider the details of that incident as related by the appellant and not to base his decision on assumptions based on hypothetical situations of what other drivers do in Hong Kong which were not in evidence.

53. He made no reference to Alan Yip's evidence that there was nothing unusual in the appellant's driving when he last saw him drive off.

54. Had he based his decision concerning the appellant's inability to drive on the evidence of the police officer that the appellant had said at the scene that he did not know how the vehicle had mounted the rail, and had kept on begging the police officer not to charge him and had not given the explanation he had given in Court, I do not think his judgment could have been disturbed. But having accepted the appellant's explanation in Court that another vehicle had interfered with his, driving, he was bound to consider the explanation as it was put.

55. He did not do so in my view, he should not have made assumptions inconsistent with that explanation to justify his decision that the appellant was incapable of controlling his vehicle.

56. For these reasons the appeal is allowed and the conviction set aside.