HKSAR v. HOLMES JOHN PALMER

HCMA 585/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 585 OF 2001

(ON APPEAL FROM SPCC 1110/2001)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy of one count of Careless Driving and a second charge of Failing to provide a Specimen of Breath being a person suspected of having committed a traffic offence. This offence was contrary to Section 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap. 374. He was convicted of both offences and now appeals against his conviction in respect of the second offence only.

2. The particulars of the offence stated that the Appellant on 19 November 2000 at lamppost S/N N2959-7, at Po Lo Che Road, Sai Kung, Kowloon, near O Long Village in Hong Kong, did without reasonable excuse fail to provide a specimen of breath for a screening breath test when required by a police officer, PC 47555 in uniform who had reasonable cause to suspect that he, driving a motor vehicle, namely a private car displaying registration mark JH4491 on a road, had committed a traffic offence while the vehicle was in motion.

3. The facts underlying the charges were that the Appellant and another driver (PW1) were driving along a one lane two-way road in opposite directions. They came to a place where there was insufficient space for their vehicles to pass each other and a dispute resulted. Later the Appellant tried to continue his journey by squeezing through the space between PW1's vehicle and the pavement. The vehicles and a lamppost were damaged and a report was made to the police.

4. PW3 was a police officer who came to the scene and after he had made enquiries he suspected an accident had occurred. Accordingly he asked for a screening breath test from both drivers. He said he spoke to the Appellant in English and demanded he do the test by reading to him the standard police form Pol. 973. The Appellant refused to do so saying: "I did not have an accident, show me what's the accident". He arrested and cautioned the Appellant who replied, "Okay" and then PW3 completed the Pol. 973 at the scene.

5. In evidence, the Appellant agreed the police arrived soon after the incident and he was asked to give a specimen of breath. He asked for what reason he was asked to provide the specimen and the police officer told him that he had had an accident. He asked the police officer to show him what accident and was told by the police officer if he refused to give a specimen of breath, he would be arrested. The Appellant said "Okay". He denied that the officer had shown him any papers at the scene.

6. In respect of the second charge, the Magistrate found the police officer was an honest and reliable witness. He considered that the Appellant had sufficiently demonstrated his refusal to provide a specimen of breath and that the intention had been made even clearer by the Appellant's own evidence that he replied "Okay" after being warned that he would be arrested if a specimen was not provided. He did not accept that the Appellant did not know what accident the police officer was referring to at the time and took the view that the Appellant asked the questions wilfully to cause trouble to the officer. He said whether or not the manner of the police officer was up to the standard required by the Appellant, he was still entitled, under the law, to demand a specimen of breath from the Appellant and the Appellant was obliged under the law to provide one. He found the Appellant had no reasonable excuse to refuse the legitimate request and convicted him of the second charge.

7. Section 39B of the Road Traffic Ordinance, Cap. 374 provides:

(1) A police officer in uniform may require a person to provide a specimen of breath for a screening breath test when a police officer has reasonable cause to suspect -

(a) that the person driving or attempting to drive or in charge of a motor vehicle on the road has alcohol in his body or has committed a traffic offence while the vehicle was in motion; or

(b) that the person has been driving or attempting to drive or been in charge of a motor vehicle on a road with alcohol in his body and that the person still has alcohol in his body; or

(c) that the person has been driving or attempting to drive or been in charge of a motor vehicle on a road and has committed a traffic offence while the vehicle was in motion.

Section 39B(2) provides:

If an accident occurs owing to the presence of the motor vehicle on any road, a police officer in uniform may require a person, whom the police officer has reasonable cause to suspect was driving or attempting to drive or in charge of the vehicle at the time of the accident, to provide a specimen of breath for a screening breath test.

Section 39B(5) provides:

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.

Section 39B(6) provides:

A person who, without reasonable excuse, fails to provide a specimen of breath when required under this section commits an offence...

8. The sole ground of appeal is that the conviction pursuant to Section 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap. 374 was wrong in law in that

(1) the Appellant was arrested for a suspected offence pursuant to Section 39B(2) of Cap. 374 and no other offence;

(2) his refusal to supply a breath specimen was in respect of that suspected offence and no other offence;

(3) yet he was charged with and convicted of the offence pursuant to Section 39B(1)(a) and (6);

(4) when he was never required to provide a breath specimen in respect of the offence under Section 39B(1)(a);

(5) and as a result the precondition for a prosecution under Section 39B(6) did not exist.

9. It was argued that Section 39B of the Road Traffic Ordinance is a piece of legislation which removes the basic right of a person not to incriminate himself and for that reason the court must interpret such legislation strictly. Section 39B sets out 5 situations in which a person may be deprived of that fundamental right, where a police officer has reasonable cause to suspect

S. 39(1)

(a) that the driver has alcohol in his body or has committed a traffic offence;

(b) the driver had alcohol in his body and still has alcohol in his body;

(c) the driver is in charge of a motor vehicle on the road and has committed a traffic offence

S. 39(2)

or an accident occurs owing to the presence of the motor vehicle on any road.

10. If a person, without reasonable excuse, fails to provide a specimen of breath when required he commits the offence. It was submitted that the "reasonable excuse" provision would give a suspect the right to ask the officer in uniform to tell him why he was being asked for a breath specimen. It was further submitted that the Pol. 973 acknowledges this by setting out the particular reason why the suspect is being asked to provide a breath specimen. The form instructs an officer to tick one box only, which indicates that he has to identify on which of the 5 grounds the suspect is being asked to incriminate himself. Once that basis was properly identified and the warning under S. 39B(5) was given, if the suspect refused to supply a breath specimen, the refusal triggered S. 39B(6) and the offence was committed. It was submitted that the fundamental precondition for charging the Appellant was missing, because he was never given the option whether or not to supply a breath specimen in respect of the particular offence with which he was eventually charged, i.e. S. 39B(1)(a).

11. The Pol. 973 (Exhibit P1) showed that the box ticked related to S. 39B(2); the subject was driving, or in charge of a motor vehicle at the time of a traffic accident which occurred owing to the presence of the vehicle on any road.

12. The Appellant was not charged for some months after the incident and the charge was brought under S. 39B(1)(a), not S. 39B(2). The trial proceeded on that charge.

13. The Appellant argued that this was a fundamental defect which cannot be cured by this court involving Section 119(1)(g) of the Magistrates Ordinance, Cap. 227, as that provision applies only where the Magistrate could on complaint or information have found him guilty of some other offence. In this case, it is argued, the Appellant could not have been convicted of any other offence. At trial, the Magistrate would have been entitled to amend the charge, pursuant to S. 27 of the Magistrates Ordinance Cap. 227 but it is submitted this court does not have that power now.

14. The Respondent conceded that on the facts found by the Magistrate the Appellant could not have been convicted of an offence under Section 39B(1)(a) and (6), but that the Appellant could have been convicted under Section 39B(2) and (6). This court was invited to exercise its power under Section 119(1)(g) of the Magistrates Ordinance, Cap. 227 to substitute for the conviction imposed by the Magistrate, a conviction under Section 39B(2) and (6) on the ground that the Magistrate must have been satisfied of the facts which proved the Appellant guilty of the offence under Section 39B(2).

15. Alternatively, the court was invited to exercise its power under Section 119(1)(d) of the Magistrates Ordinance, to make any order to the like effect. All the parties at trial had conducted the case as if the charge had been particularised as a Section 39B(2) situation, although the Appellant was charged under Section 39B(1)(a). The Respondent contended that the Magistrate must have been satisfied of facts which proved the Appellant guilty of an offence under Section 39B(2) and (6) and that the Magistrate's findings of fact fitted that situation. The court was invited to substitute the conviction recorded by the Magistrate for one under Section 39B(2) and (6) and to pass a sentence in substitution for the sentenced passed by the Magistrate as may be warranted for that offence.

16. It is not clear why the Appellant was charged under S. 39(1)(a) when the box on the form, Pol. 973, indicated clearly that he had been warned in respect of a refusal relating to the type of situation described in S. 39B(2); it was probably an error, or a misreading of the form. The error was not noticed by anyone - it escaped the notice of the Magistrate the prosecutor and defence counsel at trial. It initially escaped the attention of those representing the Appellant on this appeal, as the point was raised only in amended perfected grounds of appeal. The trial proceeded, and was defended, as if the charge had been brought under S. 39B(2) although it appears that the conduct of the prosecution and of the defence would have been the same whichever section was used.

17. It would have been open to the prosecutor to ask that the charge be amended to reflect the correct section at any time throughout the trial. No injustice would have been caused to the Appellant by such amendment and the amendment to the particulars would be minor. The amendment would have been no more than a correction of a misdescription - the evidence would have been the same on either charge. The Magistrate would have had to consider whether or not injustice might be caused to the Appellant that could not be corrected by an adjournment, the recall of witnesses, or an award of costs.

18. The Magistrate had the power to amend under S. 27(1)(a) of the Magistrates Ordinance, Cap. 227 because the charge was defective. Section 27(4) makes it clear that the word 'amend' includes the substitution of another offence, in place of that alleged in the complaint, information or summons. That amendment should have been made if no injustice would have been caused by the amendment. The conduct of the trial would have been the same thereafter and the Appellant's exposure to penalty would have been the same also.

19. Section 119(d) of the Ordinance enables this court to make such order on an appeal as it thinks just, and by such order exercise any power that the Magistrate could have exercised. Accordingly this court can amend the charge and substitute for it a charge under S. 39B(2). I now do so and order that the charge under S. 39(1)(a) and (6) be replaced by a charge under S. 39B(2) and (6).

20. I have considered whether or not I am obliged, having made such amendment, to refer the case back to a Magistrate for a hearing de novo. However on the authority of the decision in HKSAR and Chan Pun Chung and Shum Hiu Wah HCMA 364/1999, I consider that this case comes into the category of 'exceptional circumstances' referred to in R v. Chen Ta Hoi [1986] HKLR 1189 and mentioned in Chan Pun Chung. This is a case where, had the amendment been made at trial, the course of the trial would have been identical. Accordingly I do not consider it necessary to order a re-trial and I vary the Magistrate's decision by setting aside the conviction on the second charge and substituting for it a conviction under S. 39B(2) and (6) of the Road Traffic Ordinance, Cap. 374. There was ample evidence before the Magistrate, as set out in his Statement of Findings, to establish that offence.

21. I have considered the question of penalty for the substituted conviction and am satisfied that the penalty imposed by the Magistrate is equally appropriate for a conviction under S. 39B(2) and I impose that penalty for the substituted conviction.

22. The appeal is dismissed.