HKSAR v. WONG WANG CHOW

HCMA 585/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 585 OF 2003

(ON APPEAL FROM NKCC 2152/2003)

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J U D G M E N T

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1. The Appellant was convicted after trial of 1 charge of failing to provide specimen of breath by a person suspected of driving at the time of accident, contrary to section 39B(2) and (6) of the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong. He appealed against his conviction and I had allowed the appeal. I now give my reasons.

Facts

2. A collision occurred at the exit of a carpark when the Appellant had failed to stop in time and his car had hit the rear of PW1's car. After a police officer attended the scene and noticed that the Appellant smelt of alcohol he called for assistance to conduct a breath screening test on the Appellant.

3. PW4, an authorised and approved operator of the breathalyser device, then conducted the breath screening test on the Appellant.

4. The learned Magistrate accepted that the device was working properly.

5. PW4 had demonstrated the procedure to the Appellant but after giving the Appellant 5 chances to blow into the device, the result of all 5 tests was "blowing too short".

6. As a result, the Appellant was arrested.

7. PW4's evidence was that the duration of the Appellant's breathing was too short i.e. he did not breathe continuously. The Appellant never told him that he was experiencing any difficulties nor did he detect any medical reason for the Appellant's failure. PW4 said that to get a successful result one has to breathe continuously for 4-10 seconds and the volume of air required was about 6 litres.

8. PW4 had denied that the Appellant had told him he had hurt his chest the previous day in a soccer game.

9. PW5, an inspector of police, was with PW4 and corroborated him.

10. PW6, a police officer, gave evidence that he had participated in a soccer match with the Appellant the day before the breathalyser and he had found the Appellant lying on the edge of the pitch complaining that he had been hit in the chest and had difficulty breathing, and he had to help the Appellant up and he found the Appellant was unsteady on his feet. Later that night he saw the Appellant at a banquet and he said the Appellant had returned to his office to work before the banquet.

11. The Appellant gave evidence that he had been hit on the chest the day before the accident and had told PW4 about it but PW4 had told him that it was not a disease and he could take the test. Appellant also said that he was found to be a hepatitis B carrier in 1997 and doctor had told him to avoid alcohol so he only had 1 glass of beer at the banquet. The Appellant said he could not blow properly because every time he took a deep breath to blow, his chest hurt.

Findings

12. The learned Magistrate found that he believed PW4 and that the device was working properly. He did not believe the Appellant that at the time of the test he could not provide sufficient specimen because of his chest injury. Thus he found the Appellant guilty.

Grounds of Appeal

13. Mr Tse, Counsel for the Appellant, argued that the learned Magistrate had failed to properly consider the evidence of PW4, PW5 and PW7 who had said in evidence that the Appellant had tried his best to blow and was co-operative.

14. It is also submitted that the once the defence of reasonable excuse is raised it is for the prosecution to negative it. (See Rowland v Thorpe [1970] 3 AER 195.

Conclusion

15. The learned Magistrate was entitled to find that he did not believe the Defence evidence and to accept the evidence of the prosecution witnesses. When he was considering the evidence he must have been well aware of what the witnesses had said regarding the question of whether in their opinion the Appellant had tried his best to blow into the device. The learned Magistrate was entitled to ignore their evidence on this as it is a question that is for him to decide, as he had indicated to counsel (see page 51 of the Appeal Bundle, letter E-I).

16. What is of concern to me is whether the learned Magistrate was aware that once the issue of reasonable excuse is raised it is for the prosecution to negative it.

17. The learned Magistrate in his Statement of Findings (page 18 of the Appeal Bundle) said:

"I do not accept that at the time of the test the Appellant had such chest pain that he could not provide sufficient specimen of breath for the screening test on a full 5 occasions. He had never mentioned this to PW4 or PW5 and I accept this to be the case.

... The Appellant's inability to provide a sufficient breath was not due to the injures he had received some 15 hours earlier or that he had difficulty in breathing. ...

... PW4 had on each and every occasion told the Appellant to breathe continuously through the mouth piece until he (PW4) told him to stop. The Appellant did not comply. I am satisfied beyond a reasonable doubt that the Appellant in the circumstances had no reasonable excuse, for not supplying a sufficient specimen of breath for the test ..."

18. Nowhere in the learned Magistrate's Statement of Findings or in his oral verdict did the learned Magistrate consider whether the prosecution had negatived reasonable excuse.

19. It is also pertinent to note that the learned Magistrate may have been led astray by the defence lawyer who submitted that the defence needed "to establish the reasonable excuse but the standard is only on a balance of probabilities, a lower standard than that of reasonable doubt", thus implying that it is for the defence to prove and not for the prosecution to negative.

20. In any event, if the learned Magistrate had gone on to consider whether the prosecution had managed to negative reasonable excuse, it would then have been incumbent on him to deal with the evidence of PW4, 5 and 7 when they said that in their opinion the Appellant had tried his best. The Magistrate did not do so.

21. I am therefore left with a doubt that had the learned Magistrate properly considered the onus of negativing reasonable excuse whether he would have still arrived at the same verdict.

22. In the circumstances, the conviction is unsafe and unsatisfactory and the appeal is allowed and the conviction quashed. Sentence set aside. Fine to be refunded, if paid.