HKSAR v. NG CHIN YUE WILSON AND ANOTHER

HCMA 684 of 2013

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 684 OF 2013

(On appeal from ESCC 1483 OF 2013)

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JUDGMENT

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Introduction

1.  This appeal was first heard on 14 and 15 August 2014 and, on my direction, further argued on 21 January 2015, when I reserved judgment until today.  I allow the appeal of the 1^st Appellant (“A1”) and dismiss the appeal of the 2^nd Appellant (“A2”) against both conviction and sentence.  The reasons are set out in this judgment, which I now hand down.

Background

2.  A1 was charged with:

(1) Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit;

(2) Careless Driving; and

(3) Doing an act (acts) tending and intended to pervert the course of public justice. 

3.  A2 was charged with Charge (3) only. 

4.  On 18 July 2013, A1 pleaded guilty to Charge (1) but not guilty to Charges (2) and (3).  A2 pleaded not guilty to Charge (3).  They were tried before magistrate Miss HO Wai-yang.

5.  After trial, both A1 and A2 were found guilty and convicted of all the respective charge(s) they were facing.  On Charge (3), the magistrate sentenced each of A1 and A2 to 6 months’ imprisonment.  

6.  Both appellants now appeal against conviction on Charge (3) and A2 appeals sentence as well.

The charge

7.  It is important at the outset to set out Charge (3).  The charge is for “doing an act (acts) tending and intended to pervert the course of public justice”, contrary to common law.  The particulars of offence are that A1 and A2 are charged that “on the 10^th day of November 2012, outside No. 170 Tung Lo Wan Road, in Hong Kong, you, with intent to pervert the course of public justice, did an act (acts) which had a tendency to pervert the course of public justice in that you, by tampering with the accuracy of the breathalyzer test, attempted to fabricate false evidence to mislead a judicial tribunal which might come into existence.”

The prosecution case

8.  The parties agreed some facts and the prosecution called three witnesses.  The agreed facts and their evidence can be summarised in the following paragraphs.

9.  At about 8:15 am on 10 November 2012, A1’s car (PA 3152), driven by A1 with A2 as passenger on board, collided with a truck (HR 4893) driven by PW1 at the junction of King’s Road and Tin Hau Temple Road, Hong Kong.  A report to the police was made by PW1.  PW1 noticed that A1 looked like having been drinking because his face was red.  PW2, a delivery worker on PW1’s truck, also described A1’s walk as being unsteady.  While the parties were waiting for the police to come, A1 went into a nearby 7-11 convenience shop, bought a bottle of water and drank it.

10.  At about 8:30 am, a police party arrived and made some preliminary enquiries. PW3 (PC 12786) detected alcohol smell on A1.  PW3 then called the traffic police to come to conduct a breath test.  PW3 informed A1 of the same when A2 was in the vicinity.

11.  Whilst the parties were waiting for the traffic police, A2 went into the 7-11 convenience shop and bought 4 cans of beer.  She opened one of them and fed A1 with the beer.  A1 drank one sip of beer.  PW3 immediately stopped A1 and warned him not to drink further alcohol.

12.  At 9:28 am, the traffic police arrived and a breath test was conducted on A1. The reading was 46 ug (micrograms) of alcohol in 100 millilitres of breath.  A police officer (not PW3) arrested and cautioned A1 for driving a motor vehicle with alcohol concentration above the prescribed limit.  At 10:58 am, at a police station, a breath test was conducted on A1 again.  His reading was 29 ug of alcohol in 100 millilitres of breath, which was over the statutory limit of 22 ug of alcohol in 100 millilitres of breath.

13.  As will be explained later, the breath test at 9:28 am is a screening breath test and that at 10:58 am is a breath analysis.

14.  On 15 April 2013, over 5 months after the collision, A1 and A2 were arrested respectively for the offence of doing acts tending and intended to pervert the course of public justice (Charge 3).

The defence case

15.  Neither defendant elected to give evidence, nor did they call any defence witness.  The defence case put on behalf of A1 and A2 was that they did not have the intention to pervert the course of justice.  It was also suggested that A2 was not aware of her actions since she was very drunk.

Issues at the trial

16.  The prosecution case was basically not in dispute.  The real issues at the trial, as rightly identified by the magistrate, were as follows:

(1) whether the acts committed by A1 and A2 have the tendency to pervert the course of public justice (the “tendency issue”); and      

(2) whether A1 and A2 had the intention to pervert the course of public justice (the “intention issue”). 

Reasons for verdict

17.  After reminding herself of some fundamental legal principles like the burden and standard of proof, the requirement of considering the evidence relating to each defendant separately and independently and the good character direction as the parties agreed under section 65C of the Criminal Procedure Ordinance, Cap 228 that the appellants did not have any criminal record, the magistrate found PW1 to PW3 to be “honest and reliable” and “accepted their evidence”.  She then considered the “tendency issue” first.  She noted that, for the subject offence, “the Prosecution is not required to prove that the act will in fact pervert the course of justice” and that “the prosecution is only required to prove that the acts had such a tendency”.   She adopted the principles as enunciated in HKSAR v Egan & Ors (2010) 13 HKCFAR 314, stating that,

(a) “an act is regarded as having a tendency to pervert the course of justice if it had a tendency to cause a miscarriage of justice or a tendency towards impairing the capacity of a court or competent judicial authority to do justice” (cf Egan at para 124);  and

(b) “although the investigations made by the police are not the ‘course of justice’, if the acts carried a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from investigations, they are capable of founding the offence” (cf Egan at para 127).

18.  The magistrate considered that it was common sense that any consumption of alcohol would affect or tend to affect the reading of a breath test and that is sufficient to constitute the actus reus of the offence of perverting.  The magistrate noted that it was important to preserve the state of A1 until the breath test was administered.  The additional intake of alcohol before the breath test would render the breath test result inaccurate and unreliable.  This amounted to tampering with evidence and would affect the subsequent curial proceedings.  She found that the acts of the appellants (ie the feeding of beer to A1 by A2) were acts tending to pervert the course of justice.

19.  It is to be noted that nowhere in her detailed Statement of Findings was it mentioned whether the “breath test” she referred to was the screening breath test that took place at 9:28 am at the scene or the breath analysis that subsequently took place at 10:58 am in the police station. It seems to me that all along she was referring to the screening breath test that was described as what PW3 told A1 and “imminent”.

20.  The magistrate proceeded to consider the “intention issue”.   In relation to A1:

(a) She noted that A1, by pleading guilty to Charge (1), admitted that he had drunk alcohol before driving and, after the accident he had been notified by PW3 about the breath test. A1 voluntarily drank the beer and even assisted A2 to pour the beer into his mouth by holding her hand.  The can of beer was in plain sight.  When the drink was in A1’s mouth, he must have known that it was beer.  It is common sense that the consumption of additional alcohol would affect the accuracy of the reading of the breath test and therefore would affect the subsequent curial proceedings.

(b) She observed that A1 had already bought a bottle of water and drank it when he was waiting for the police to come.  There had been no reasonable explanation as to why he had to drink the beer notwithstanding that he was aware of the imminence of the breath test.  The only irresistible inference was that A1, by drinking the beer before the breath test, had the intention of perverting the course of justice.

21.  In relation to A2, the magistrate made the following observations and concluded that the only irresistible inference was that A2 had the intention to pervert the course of justice, namely,

(a) Having considered the CCTV tape of the convenience store (an admitted fact) and A2’s actions as depicted therein, the magistrate rejected the submission by A2’s counsel that A2 was intoxicated with alcohol and did not know what she was doing at the time.

(b) The magistrate considered all the circumstantial evidence and found that the only irresistible inference was that A2 must have known or contemplated the possibility that PW3 or the police intended to conduct a breath test on A1 and that A2 knew or contemplated the possibility of curial proceedings.

(c) The magistrate noted that there was no reasonable explanation as to why A2 had to buy the beer and feed A1 with it before the breath test was conducted.  A2 must have realized or known that her actions of feeding A1 with beer would possibly affect the reliability of the breath test, thereby tending to pervert the course of justice.   

Grounds of appeal

22.  Two grounds are set out in A1’s Perfected Grounds of Appeal:

(1) the magistrate erred in finding that the taking of a single sip of beer in the circumstances of this case was sufficient in law to amount to an act of tending and intended to pervert the course of public justice.

(2) the magistrate erred in finding that A1 had the necessary criminal intent (mens rea) to commit the offence.

23.  Apart from the general contention that the conviction was unsafe and unsatisfactory, A2’s counsel set out 5 grounds under the Perfected Grounds of Appeal against conviction:

(1) The acts complained of were incapable of perverting the course of justice and hence had no tendency to pervert.

(2) There was no evidence that taking one sip of beer would affect or tend to affect the reading/accuracy/reliability of the breath test.

(3) The acts complained of did not tamper with the accuracy of the breathalyzer test as opposed to the evidential value of the test.

(4) The acts complained of did not have the tendency to pervert and they would at most affect the investigation which was not a part of the course of justice.

(5) The magistrate erred in finding that A2 had the intention to pervert the course of justice.

Relevant legal principles

24.  The appellants’ and the respondent’s counsel refer me to the same authorities for the elements of the subject offence of perverting the course of public justice.  In HKSAR v Egan & Ors (2010) 13 HKCFAR 314, at 361-363,  Ribeiro PJ stated:

‘122. The starting-point is the frequently cited statement of Pollock B in R v Vreones that the common law offence of attempting to pervert the course of justice “… is the doing of some act which has a tendency and is intended to pervert the administration of public justice.”

123. Although the offence is referred to as an “attempt”, it is a substantive offence.  The provisions of s. 159G of the Crimes Ordinance dealing with the inchoate offence of attempt are therefore not relevant.  However, like the inchoate offence, the crime of attempting to pervert the course of justice is committed whether or not the act proves effective in interfering with the course of justice. The doing of the act with the stated tendency, coupled with an intention to pervert the course of justice constitutes the complete offence.

124. Conduct has a tendency to pervert the course of justice if it has a tendency to cause a miscarriage of justice or, put another way, a tendency towards “impairing (or preventing the exercise) the capacity of a court or competent judicial authority to do justice”.

125. A conspiracy to pervert the course of justice is an agreement to do an act which has a tendency to pervert the course of justice, intending that the agreed act should have the effect.  Where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the alleged conspirators intended that the act agreed upon should be performed. But where the act does not have such a manifest tendency, it is necessary to prove the specific intent of perverting the course of justice on the part of the alleged conspirators.

126. For an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings.  A conspiracy to effect some other unlawfulness but which has no tendency to cause a miscarriage of justice in curial proceedings, is not a conspiracy to pervert the course of justice.  It is unnecessary for such proceedings to have been instituted at the time of the acts in question but the relevant acts must “have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible …”  And the accused must know of or contemplate the possible institution of such curial proceedings and realise that the proposed conduct has the manifest or intended tendency to pervert the course of justice in relation thereto.  It matters not that the relevant law enforcement agency has not itself considered bringing proceedings at the time of the accused’s act or agreement in question.

127. Investigations by law enforcement agencies do not themselves form part of “the course of justice” (an expression synonymous with “the administration of justice”) so that acts which hinder or interfere with their investigations are not sufficient in themselves to constitute a perversion of the course of justice.  However, if such acts of interference carry a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from the investigations, they are capable of founding the offence.’

(Emphasis added.)

25.  In HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539,  Ribeiro PJ, at 553-554, usefully summarised the required actus reus and mens rea of the offence:

‘30. An attempt to pervert the course of justice is “the doing of some act which has a tendency and is intended to pervert the administration of public justice.” The actus reus is thus the doing of the act with the prohibited tendency and the mens rea is the intention to pervert the course of justice.

31. With regard to the actus reus generally, the following propositions may be stated:

(a) Although it is called an “attempt”, it is a substantive offence. But like an inchoate offence, it is committed even where the act with the prohibited tendency does not actually result in interference with the course of justice.

(b) A person's conduct has a tendency to pervert the course of justice if it has a tendency towards “impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice”.

(c) The tendency must involve impairing the administration of justice in curial proceedings.  Conduct with a tendency to result in unlawfulness which does not interfere with curial proceedings does not constitute the offence.

32. The following propositions may be stated in respect of the mens rea of the offence:

(a) To prove that a defendant intended to pervert the course of justice, it is necessary to prove that he knew that his conduct would have or that he intended it to have a tendency to pervert the course of justice in relation to the curial proceedings in question.

(b) Where his conduct has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act.  But where the act does not manifestly have the prohibited tendency, it is necessary to prove the abovementioned specific intent on the defendant's part.’

Tendency to pervert – the actus reus

26.  The grounds of appeal relied upon by A1 and A2 could be conveniently summarized into two aspects, which are basically related to the two elements of the subject offence, namely (a) the tendency to pervert and (b) the intention to pervert.    The first element is covered by A1’s Ground (1) and A2’s Grounds (1), (2), (3) and (4).

27.  On this matter, the magistrate had the following considerations and conclusions:

‘34. Firstly, the Prosecution is not required to prove that the act will in fact pervert the course of justice. The Prosecution is only required to prove that the acts had such a tendency.

35. The Court of Final Appeal case of HKSAR v Egan & Ors [2010] 5 HKC 180 is clear in that an act is regarded as having a tendency to pervert the course of justice if it had a tendency to cause a miscarriage of justice or a tendency towards impairing the capacity of a court or competent judicial authority to do justice.

36. Although the investigations made by the police are not the “course of justice”, if the acts carried a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from investigations, they were capable of founding the offence.

37. It is common sense that any consumption of alcohol will affect or tend to affect the reading of a breath test. It does not matter how much it affects it. The mere fact that it will affect or tend to affect the reading of a breath test is sufficient to constitute the actus reus of the offence.

38. Secondly, in the present circumstances, PW3 had intended to take a breath test from the 1st Appellant. The results of the breath test are important in determining what and whether any subsequent charges will be laid against the 1st Appellant. No doubt, it is important to preserve the state of the 1st Appellant until the breath test is administered. Any additional intake of alcohol before the breath test was administered will render the subsequent reading to be inaccurate and unreliable. Moreover, the additional intake of alcohol, in essence, amounts to tampering with evidence and will no doubt affect the subsequent curial proceedings.

39. I therefore did not accept the submissions of Counsel and found that the acts were acts tending to pervert the course of justice.’

28.  From the outset, I agree with the statement of the law made by the magistrate in paragraphs 34, 35 and 36 of her Statement of Findings and accept the submission of Mr Edmond Lee, Senior Assistant Director of Public Prosecution, for the respondent, in support.  He submits that the crux of the “tendency issue” is not whether one sip of beer would affect the breathalyzer’s reading or the accuracy/reliability of the breath test.  The object of the intended perversion does not have to be achieved for the offence of perverting to be made out.  A court in determining whether there was a tendency to pervert must look at whether the acts complained of were of such a nature that they could possibly pervert the course of justice.  “The crime of attempting to pervert the course of justice is committed whether or not the act proves effective in interfering with the course of justice”, see Egan para 123 cited above.  “It is committed even where the act with the prohibited tendency does not actually result in interference with the course of justice”, see Wong Chi Wai, para 31(a) cited above.  It is a matter of possibility rather than that of a certainty, see HKSAR v Chau Fu Kau [2000] 2 HKC 154, at 156I and 157B.  The above suffices to deal with A1’s Ground (1), and A2’s Grounds (2) and (4).

29.  I also agree with Mr Lee’s submission that there is a discernible link between the acts of A1 and A2 in the course of the police investigations and the possible curial proceedings.   He relies on the observation of Ribeiro PJ at para 127 in Egan and submits that if an accused’s acts of interference carry a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from the investigations, they are capable of founding the offence.  I accept that there is a sufficient link between the screening breath test with the subsequent breath analysis of A1’s specimens of breath and the eventual criminal proceedings brought before the magistrate.

30.  Regarding A2’s Ground (1) and Ground (3), which rely on the effect of section 39C(12) of the Road Traffic Ordinance, Cap 374 (“the Ordinance”), A2’s arguments are as follows:

‘19. The act complained of by the Prosecution was the provision of beer by the 2nd Appellant to the 1st Appellant.

20. The trial magistrate’s reasons for finding such acts as tending to pervert the course of justice is that it was “common sense” that any consumption of alcohol will affect or tend to affect the reading of a breath test, and that additional intake of alcohol before the breath test was administered will render the subsequent reading inaccurate and unreliable.

21. However, the trial magistrate has failed to state any reasons why (assuming such consumption does affect the accuracy of the breath test) and how this would have the effect of perverting justice, or cause a miscarriage of justice, or impair the capacity of the court to do justice. The failure to identify the link between the accuracy or otherwise of the breath test and the integrity of the curial process itself is telling and will be dealt with in more detail in discussion of Grounds 3 and 4. In relation to the 1st Ground, this failure highlights the fact that there could have been no tendency to pervert the course of justice.

21. Section 39C(12) of the Road Traffic Ordinance provides:

‘Evidence of the proportion of alcohol in a specimen of breath, blood or urine provided by the accused shall be evidence that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than that in the specimen.’ (emphasis supplied)

22. The provision is therefore conclusive. No matter what the result of the breath, blood or urine test administered under s. 39C, that result shall be taken to be the level of alcohol in the accused’s breath, blood or urine at the time of the alleged offence. In other words, the consumption of alcohol between the time of the alleged offence and the time of the test could not in any way benefit any accused. At most, it would make his position worse, since the effect (if any) of the consumption of alcohol is disregarded by statute.

23. Another aspect of this provision is that there is simply no question of affecting the accuracy or reliability of a subsequent breath, blood or urine test. The police and prosecuting authorities would be fully justified by statute in adopting the breath, blood or urine test as the conclusive figure of the proportion of alcohol of the accused at the time of the alleged offence.

24. The consumption of alcohol prior to the breath test would therefore not have any tendency to pervert the course of justice.’

31.  It is to be noted that these arguments were never mentioned at the trial, and indeed s39C(12) was never referred to, and therefore the magistrate had no opportunity to deal with them. 

32.  Mr Lee, on the other hand, submits that the breath specimen to be provided by A1, depending on the result, was apparently intended to be used by the police to prove the allegation that A1 was at the time of the accident driving a motor vehicle with the proportion of alcohol in his breath exceeding the prescribed limit contrary to s39A(1) of the Road Traffic Ordinance, Cap 374 (“the Ordinance”).  As it is provided by s39C(12) that the evidence of the proportion of alcohol in a specimen of breath provided by the accused shall be evidence that the proportion of alcohol in the accused’s breath at the time of the alleged offence was not less than that in the specimen, Mr Lee submits that A1’s breath alcohol content should not be interfered with after the occurrence of traffic accident and before the breath test; otherwise the additional alcohol intake would render the result of the breath test inaccurate/unreliable and could therefore frustrate the possible curial proceedings against A1 under s39A(1) of the Ordinance, namely, driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit.  Put it simply, A1 and A2 were tampering with evidence.  Had A1 and A2 not been stopped by the police, their conduct, namely further consumption of alcohol after the driving would possibly have led to the frustration of curial proceedings in relation to A1 (ie the prosecution of A1 for driving with the proportion of alcohol in his breath exceeding the prescribed limit) when the accuracy/reliability of the breath test had been affected.  As such, where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act – see Wong Chi Wai at para 32(b).

33.  Mr Lee submits that A2’s argument that there could have been no tendency to pervert the course of justice because of the operation of s39C(12) of the Ordinance is misconceived.  The fact that s39C(12) allows the police or the prosecution to produce the result of the breath (or blood or urine) test as “evidence” of the proportion of alcohol in the accused’s breath (or blood or urine) at the time of the alleged offence does not mean it is conclusive in the matter.  It is still open to an accused to adduce evidence of post-offence alcohol consumption (ie further alcohol consumed after the driving but before the test) to raise the issue or raise a doubt as to whether his breath, blood or urine alcohol content would have exceeded the statutory limit.  This evidence of post-offence alcohol consumption, if relied upon by an accused, could affect the determination of the guilt of the accused being charged with driving with the proportion of alcohol in his breath exceeding the prescribed limit and his sentence after conviction.   

34.  According to the statutory scheme of investigating driving with the proportion of alcohol in his breath exceeding the prescribed limit contrary to s39A of the Ordinance, a police officer is first to obtain a specimen of breath from the suspected person for a screening breath test (s 39B(1) of the Ordinance).   That person must provide a specimen for the screening breath test or he risks prosecution for failing, without reasonable excuse, to do so (s39B(5) and (6)).

35.  Section 39C(1) of the Ordinance provides that

‘(1) A police officer may require a person whose screening test indicates that the proportion of alcohol in that person’s breath is likely to exceed the prescribed limit or who fails to provide a specimen for the screening breath test with reasonable excuse –

(a) to provide 2 specimens of breath for analysis by means of an approved breath analysing instrument; or

(b) to provide a specimen of blood or urine for a laboratory test.’ 

36.  Without scientific proof but relying on common sense, the effect of drinking beer before the screening test tends to alter (probably to increase) the proportion of alcohol in the breath, and thus that proportion is more likely to exceed the prescribed limit.  The police will be more likely to be entitled to invoke s39C(1) to require the subject person to provide 2 specimens of breath for analysis under s39C(1)(a) or a specimen of blood or urine for a laboratory test under s39C(1)(b).  The person must comply or he commits an offence (s 39C(15)) and risks prosecution (s39C(18)).

37.  For our present purposes, subsection (12) of s39C is important.  S39C(12) reads:

‘(12) Evidence of the proportion of alcohol in a specimen of breath, blood or urine provided by the accused shall be evidence that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than that in the specimen.’ (Emphasis added.)

38.  The specimen stated in s39C(12) is the specimen referred to in s39C(1) and not the specimen for the screening breath test referred to in s39B(1).  The drinking of beer has two possible consequences, altering (or increasing) the alcohol proportion in the screening breath test and increasing the alcohol proportion in the analysis or laboratory result of the specimen referred to in s39C(1), be the specimen one of breath, blood or urine.

39.  When a person drinks beer or alcohol prior to a breath, blood or urine test (I simply call it the test), the common sense is that the alcohol proportion will be increased, and on the other hand, when the person drinks water or non-alcoholic beverages, the common sense is that the alcohol proportion will be decreased or diluted.  Thus, the drinking of beer in the present case will possibly increase the alcohol proportion of the screening breath test.  In no circumstances will it decrease the alcohol proportion.  The police might take this into account when deciding whether section s39C(1) is met in considering whether the alcohol proportion is likely to exceed the prescribed limit, or they might take this as a refusal to provide a specimen for the screening breath test.  In either case, it was impossible for A1 to avoid the breath analysis or laboratory test as provided for in s39C(1), or he would risk prosecution.

40.  The other consequence of the drinking of beer is that it may affect the result of the subsequent breath analysis or laboratory test.  Again the common sense is that it will increase the alcohol proportion, more than the alcohol proportion that should properly have been the case without the intervening beer intake.

41.  By virtue of s39C(12), the evidence of the alcohol proportion in a specimen of breath, blood or urine provided by the person shall be evidence that the proportion in his breath, blood or urine at the time of the alleged offence was not less than that in the specimen. 

42.  The use of the words “shall be” indicates that this is the evidence to be used in court proceedings to prove, inter alia, the alcohol proportion of the driver in his breath at the time of the offence for which he is prosecuted. 

43.  Mr Robert Pang SC argues that this subsection has made the test result conclusive evidence of the alcohol proportion or it has created a statutory irrebuttable presumption.  He draws support from Beauchamp-Thompson v DPP [1989] RTR 54.   That case involved the interpretation of section 10(2) of the Road Traffic Act 1972, which relevantly provides:

‘Evidence of the proportion of alcohol … in a specimen of … blood … provided by the accused shall, in all cases, be taken into account, and it shall be assumed that the proportion of alcohol in the accused’s … blood … at the time of the alleged offence was not less than in the specimen; but … the assumption shall not be made if the accused proves – (a) that he consumed alcohol after he had ceased to drive … and before he provided the specimen; and (b) that had he not done so the proportion of alcohol in his … blood … would not have exceeded the prescribed limit …’ (Emphasis added.)

44.  Before the justices, the defendant sought leave to adduce expert evidence that, although he was above the prescribed limit at the time the blood specimen was taken, he was or might have been below the level at the time of driving, but the parties agreed that the exception provided in section 10(2) did not apply.  The Divisional Court held that the assumption in section 10(2) was an irrebuttable presumption and the justices were correct to decide that it was not open to them to receive the expert evidence designed to show that defendant’s blood-alcohol level might have been lower at the moment that he was driving.

45.  Mr Pang argues that since the breath analysis result or laboratory test result of the alcohol proportion shall be evidence according to s39C(12), that is conclusive evidence or raises an irrebuttable presumption.  It follows that whatever A1 and A2 did by the drinking of the beer, the result is irrebuttably presumed and is to be accepted by the court in adjudicating whether the alcohol proportion in A1’s breath or blood or urine, as the case may be, exceeded the prescribed limit at the time when he was driving his car in connection with the collision.  Thus, there was no actus reus of any act tending to pervert the course of justice.

46.  I am unable to agree with Mr Pang that s39C(12) gives rise to such conclusive evidence or irrebuttable presumption.  In Beauchamp-Thompson, Hutchison J (with whom Bingham LJ agreed) said:

‘I can detect no ground for construing that as a rebuttable rather than an irrebuttable presumption, if presumption is the right word, bearing in mind that the word in the section is “assumption.” I come all the more readily to that conclusion not only because of the considerations that I have mentioned, but also because, as it seems to me, it would be a very strange position if Parliament in a section such as this intended a rebuttable presumption and yet went on in the very same subsection to provide an exception in respect of which the burden of proof was thrown upon the defendant.’

47.  In our s39C, no exception is specifically provided for, nor is it provided for in any other provision of the Ordinance.  This goes some way to show that despite the section making the alcohol proportion in the specimen of the accused’s breath the evidence of the alcohol proportion in his breath at the time of the alleged offence, contrary evidence can be adduced to show that the alcohol proportion at the time of the alleged offence can be less or more.  This does not detract from the statutory provision that the specimen analysis result shall be such evidence.  In the UK legislation and scenario, back-tracking was allowed, ie, it was open to the prosecution to call evidence designed to prove that, though by the time the specimen was taken the blood-alcohol level was lower than the limit, at the time when the defendant ceased driving, some hours earlier, it would have been above it (Gumbley v Cunningham [1988] RTR 57).

48.  In my judgment, the evidence that the alcohol proportion in the specimen shall be evidence under s39C(12) only raises a rebuttable presumption: where there is no evidence to rebut, the evidence of the analysis or test result of the specimen shall be the evidence of the alcohol concentration at the time of the alleged offence, but it is open to the parties to adduce evidence that the alcohol concentration is more or less than that shown in the test result.

49.  Mr Lee submits that s39C(12) does not amount to a conclusive evidence provision.  His contention, with which I agree, is that despite the provision, it is open to the defence to adduce evidence to raise a doubt that the alcohol proportion of his breath at the time of the alleged offence was less than that found in the analysis or laboratory test result.

50.  It is in this context that I come to examine in the circumstances of this case whether A1’s sip of beer that was poured into his mouth by A2 had a tendency to pervert the course of justice.  The evidence before the magistrate was clear that it was A2 who went into the convenience shop to buy four cans of beer and she opened one of the cans and poured the beer into A1’s mouth.  That was done in the presence of 5 or 6 police officers who were surrounding A1 at the time.  PW3 stopped A1 from drinking the beer and thereupon A1 and A2 desisted from what they were doing.  This act of pouring beer into A1’s mouth was done openly and not surreptitiously.  Mr Lee submits that in the circumstances of this case, in the prosecution of A1 for driving exceeding the prescribed alcohol limit, the prosecution is duty-bound to present all the relevant evidence pertaining to the offence, and that would include the fact that A1 drank a sip of beer.  If A1 were to give evidence as to that and adduce expert evidence as to how that sip of beer would have affected the test result, the magistrate would have to decide whether the presumption of the alcohol proportion shown in the breath test result was successfully rebutted. 

51.  Mr Pang argues that this task is what magistrates are trained to do and are doing day in day out. The sip of beer may give rise to challenging evidence against the certified test result being adduced that will require the court’s decision, but that does not pervert the course of justice. 

52.  In HKSAR v Wong Shing Yim [2003] 3 HKLRD 1046, the Court of Appeal stated:

‘The concept of perverting the course of public justice means the deflection, impairment or hindrance of the ability of a court or tribunal in an actual, imminent, contemplated or possible curial proceedings, to administer justice.’ (para 30)

‘… acts or conduct which might result in miscarriages of justice or which might result in defeating the ends of justice.’ (para 19).

(Emphasis added.)

53.  In Wong Chi Wai, Ribeiro PJ stated:

‘A person’s conduct has a tendency to pervert the course of justice if it has a tendency towards “impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice.”’ (para 31(b))

54.  In the present case, Mr Pang submits that A1’s sip of beer does not have a tendency towards impairing or hindering the ability or capacity of a court to do justice, because it may merely give rise to a possible challenge of the evidence founded on the test result.  If in fact the point arises for consideration, the court will deal with it and adjudicate on it.  That does not impair or hinder its ability or capacity to do justice.  Moreover, there is no statutory provision against the intake of beer or alcohol after A1 ceased driving, although on the other hand there is no express provision as in s10(1) of the Road Safety Act 1981 in the UK that it is open to the defendant to adduce evidence to disapply the irrebuttable presumption in that subsection.  It is important to note that the intake was done openly in front of police officers; there was no attempt to hide the consumption. 

55.  I am, however, not persuaded.  I am of the view that the intake of beer in the circumstances of this case amounts to the actus reus of the offence of perverting the course of justice.  It may give rise to a possibility that the court in the subsequent criminal proceedings is required to decide on the issue whether the intake affected the test result (normally presumed to be the evidence of the alcohol proportion at the time of the alleged offence), and the intake does impair, hinder or interfere with the court’s ability and capacity in administering justice.  If the police officer (ie, PW3) gave evidence at the trial, which he in fact did, he would tell the court of the intervening intake of beer by A1, either in examination in chief or in cross-examination, so that the matter would be squarely before the court, and the magistrate would have to consider its effect on the breath test result.  Depending on circumstances, for example, the amount of the intake and the strength of the alcoholic drink, a doubt might be raised and it could hinder or impair the magistrate’s determination whether the alcohol proportion in A1’s breath as shown in the analysis result was accurate or reliable in proving the alcohol proportion of A1’s breath at the time when the alleged offence was committed.  The fact that the intake took place in the presence of the police officers did not alter the effect of the intake.  It might encumber the police officers who gave evidence to tell the court the intake as witnessed by them, and this might create a doubt in the reliability and accuracy of the analysis result to prove the alcohol proportion in A1’s breath at the time of the alleged offence.  If the intake took place in the absence of the police, A1 could call evidence to prove that intake and the effect of that intake as a means to attack the reliability and accuracy of the alcohol proportion in his breath as that when the alleged offence occurred.

56.  Mr Lee has drawn my attention to the UK decision in R v Britton [1973] RTR 502, where the appellant, when driving in excess of a speed limit, was followed by a police constable on duty in a patrol car.  The appellant got out of his car at his mother’s house and was told by the constable that he required the appellant to give a specimen of breath for the purposes of the Road Safety Act 1967.  The appellant went into the house and asked his mother to give him a drink and to keep out the constable.  Subsequently the constable entered the house with another police officer, and they saw the appellant with a beer bottle to his lips.  The appellant was convicted of attempting to defeat the course of justice by consuming alcohol in order to prevent the provision of a sample of blood or urine as a specimen for the purposes of section 1(1) of the Road Safety Act 1967.  Lord Widgery CJ stated at p 504:

‘… it now being established on authority that if a motorist consumes alcohol before the breath test is applied to him, and after he ceases to drive, the breath test is ineffective and the full offence under the Act of 1967 cannot be committed. So the appellant had successfully, to put it in neutral terms, achieved a situation in which he could no longer be prosecuted for an offence under section 1.’

‘… we are of the opinion that once the statutory course of action has begun by the request for a sample of breath, any action thereafter deliberately and intentionally taken by the accused with a view to frustrating the statutory procedure may be charged as an offence, as charged in this case.’

57.  Mr Pang points out that Britton has no application in Hong Kong because our legislation is different and we do not have any law or rule, let alone that established on authority, that a motorist’s consumption of alcohol before the breath test and after he ceases to drive will render the breath test ineffective or will give rise to an impossibility to prosecute him for drink driving.  I agree. However, this argument does not alter the fact that in Hong Kong, s39C(12) is not a conclusive evidence provision; a motorist’s consumption of alcohol before the breath test after he ceases to drive will be a matter that the court will have to consider whether the breath analysis result can still be relied upon to prove the alcohol proportion in the motorist’s breath at the time when the alleged offence was committed.

58.  Now I propose to turn to look at the wording of the charge.  The acts that the appellants were alleged to have done were, “by tampering with the accuracy of the breathalyzer test, attempted to fabricate false evidence to mislead” the court. 

59.  I repeat the magistrate’s findings on this point.  She said:

‘37. It is common sense that any consumption of alcohol will affect or tend to affect the reading of a breath test. It does not matter how much it affects it. The mere fact that it will affect or tend to affect the reading of a breath test is sufficient to constitute the actus reus of the offence.’

38. Secondly, in the present circumstances, PW3 had intended to take a breath test from the 1st Appellant. The results of the breath test are important in determining what and whether any subsequent charges will be laid against the 1st Appellant. No doubt, it is important to preserve the state of the 1st Appellant until the breath test is administered. Any additional intake of alcohol before the breath test was administered will render the subsequent reading to be inaccurate and unreliable. Moreover, the additional intake of alcohol, in essence, amounts to tampering with evidence and will no doubt affect the subsequent curial proceedings.

39. I therefore did not accept the submissions of Counsel and found that the acts were acts tending to pervert the course of justice.

60.  A2’s complaint is that the magistrate did not identify any false evidence or make any finding that A1 and A2 fabricated false evidence, nor did she make any finding that the court was misled or it was possible in any way specifically for the court to be misled.

61.  Mr Lee’s response is that the particulars of the charge should be looked at in the context of the prosecution allegations in this case.  The prosecution allegations were clear to both appellants at the trial.  No issue had been taken and no argument had been raised by A1 or A2, both of whom were represented, at any stage of the trial.  In essence, the conduct being complained of was the post-driving intake of alcohol by A1 as supplied by A2 before the breath test which could render the subsequent reading on the breathalyzer to be inaccurate or unreliable to reflect the true position of A1’s breath alcohol content at the time of the alleged offence of driving with alcohol content in his breath exceeding the prescribed limit.  Therefore, the relevant particulars of the charge were in fact understood by all parties during the trial to be “tampering with the accuracy of the breathalyzer test” to reflect the true position of A1’s breath alcohol content at the time of the alleged offence and, “attempted to fabricate false evidence” to conceal the true position of A1’s breath alcohol content at the time of the alleged offence.  Even if the particulars of the charge could or should have been pleaded in a better way, both appellants who were fully aware of the prosecution allegations throughout the trial and suffered no prejudice or unfairness.  

62.  Regarding the fact that the feeding of A1 with beer by A2 was done openly in the presence of 5 or 6 police officers at the scene, Mr Lee submits that even if the post-offence alcohol consumption by a defendant was done openly at the scene in front of police officers (as in this case), the position would be the same.  If, subsequently, that post-offence alcohol consumption is relied upon by the defendant in the court proceedings and the court could adjudicate the case with all the information, it is submitted that the defendant’s act still carries a tendency to pervert.  The reason is that there is always a possibility that the court, with or without the assistance of expert evidence, could not work back or do the back calculation to decide on the real situation, ie the alcohol proportion in the breath/blood/urine of the defendant at the time of the offence (or put it in another way, the alcohol content in the breath/blood/urine of the defendant without that additional intake of alcohol after the alleged offence). 

63.  Mr Lee also submits that A1’s breath alcohol content should not be interfered with after the occurrence of the traffic accident and before the breath test.  Any post-offence alcohol intake  would render the result of the breath test inaccurate or unreliable (in a way not reflecting the true position of A1’s breath alcohol content at the time of the accident) and could therefore frustrate the possible curial proceedings against A1 under s39A(1) of Cap 374 (driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit). 

64.  I accept Mr Lee’s submissions and come to the conclusion that the actus reus of the offence was substantiated and proved.  The grounds of appeal of A1 and A2 on the actus reus fail.

Intention to pervert – the mens rea

65.  The magistrate gave detailed reasons for her finding the necessary mens rea against both A1 and A2.  She said:

‘40. Having considered the evidence, I noted the following facts:

(2) 1st Appellant pleaded guilty to drink-driving. Hence the 1st Appellant admitted he drank alcohol before driving.

(3) After the collision, PW3 told the 1st Appellant that a breath test would be done on him.

(4) When the 2nd Appellant fed the 1st Appellant the beer, PW3 saw the 1st Appellant holding 2nd Appellant’s hand to drink the beer.

(5) 1st Appellant does not dispute he drank the beer. There is no evidence he spit it out or said anything at the scene to signal he did not know what he was drinking.

41. The evidence before the court shows that the 1st Appellant had [sic] drank the beer voluntarily without putting up any struggle or without raising any objections after it was poured into his mouth. From PW3’s evidence it is clear the 1st Appellant assisted the 2nd Appellant by holding her hand while the drink was poured into his mouth. The can of beer was in plain sight. When the drink was in his mouth, he must have known that it was beer.

42. Yet despite knowing that PW3 had called for the traffic police and already informed him that a breath test would be done on him, he nevertheless drank the beer in front of the policeman. Moreover, it is only common sense that drinking alcohol before the breath test would affect the reliability of any reading to be taken and therefore would affect any subsequent curial proceedings.

43. There had been no reasonable explanation put before the Court as to why the 1st Appellant knowing that a breath test was imminent nevertheless drank the beer. It cannot be that the 1st Appellant was thirsty and drank the beer because he had already bought a bottle of water and drank the water.

44. Having considered all the evidence, I found the only irresistible inference is that by drinking the beer before the breath test, the 1st Appellant intended to pervert the course of justice.

2nd Appellant

45. I have considered the submission by counsel that the 2nd Appellant was intoxicated with alcohol and did not know what she was doing. However I noted that the 2nd Appellant did not give evidence hence there is no evidence to support Counsel’s submissions. As for the evidence in the CCTV tape, the images shown on the video is [sic] inconsistent with Counsel’s submissions. As indicated above, it is clear that the 2nd Appellant entered the 7-11 shop in a hurry and left within 1.5 minutes. She was able to go directly to where the drinks were placed and chose the drinks within 32 seconds. These actions are inconsistent with a person who was so intoxicated that they would not know what they are doing.

46. Defence Counsel submitted the Prosecution could not prove the 2nd Appellant heard that PW3 intended to conduct a breath test on the 1st Appellant and therefore there was insufficient evidence to draw the inference that the 2nd Appellant had the intention. However I did not accept the submissions of Counsel.

(1)      Firstly, whether the Prosecution could prove beyond reasonable doubt that the 2nd Appellant heard PW3 tell the 1st Appellant about the imminent breath test, is not the crux of the case against 2nd Appellant. The Prosecution could still prove the 2nd Appellant had the requisite intention from other circumstantial evidence.

(2) Secondly, PW3 said that the 2nd Appellant had intermittently joined in the conversation while PW3 made enquiries with 1st Appellant. This shows that the 2nd Appellant was paying attention to the conversation between PW3 and 1st Appellant. Moreover the 2nd Appellant was in the vicinity of the 1st Appellant at the time. It was highly probable for the 2nd Appellant to have heard PW3 mention the breath test.

(3) Thirdly, it is common sense that a breath test may be done after a traffic accident depending on circumstances. In this case, the 2nd Appellant must have known the 1st Appellant drank alcohol before driving. As stated by PW3, he was able to smell 1st Appellant’s alcohol smell. The 2nd Appellant being the passenger in the car must have also been able to smell it too. Moreover 1st Appellant’s face was red. In such circumstances, the 2nd Appellant must have contemplated that it was possible a breath test may be done.

(4) I also noted that the 2nd Appellant only chose to buy the beer and feed it to the 1st Appellant after PW3 had mentioned the breath test and not anytime before the police came or while PW3 was making enquiries with the 1st Appellant. Moreover from the CCTV tape it could be seen the 2nd Appellant entered 7-11 in a hurry. She went directly to the fridge of the 7-11 shop and chose the beer within 32 seconds and immediately left to pay. From the time she entered the shop until she left the total time used was 1.5 minutes.

(5) Hence having considered the evidence, I found that the only irresistible inference is that the 2nd Appellant must have known or contemplated the possibility that PW3 or the police intended to conduct a breath test on 1st Appellant.

47. I found that the only irresistible inference is that the 2nd Appellant knew or contemplated the possibility of curial proceedings.

48.         As to whether the 2nd Appellant intended to pervert the course of justice, I noted there was no reasonable explanation why the 2nd Appellant bought and fed the 1st Appellant beer in front of the police knowing full well that they were involved in a traffic accident and that the matter was being investigated. There is no evidence that the 1st Appellant asked her to buy the beer or mentioned he was thirsty. Moreover, it is undisputed that the 1st Appellant had in fact went [sic] into the 7-11 shop earlier and bought himself a bottle of water. If he had wanted a drink, he could have bought it himself.

49. For reasons given above, I found that the 2nd Appellant must have contemplated or knew [sic] that a breath test would be conducted on the 1st Appellant by the police. By feeding the beer to the 1st Appellant before the police had finished with the investigations and before a breath test was conducted, the 2nd Appellant must have realized or knew [sic] that her actions would or possibly affect the reliability of the breath test, thereby tending to pervert the course of justice.

50. Having considered the evidence I found the only irresistible inference is that the 2nd Appellant had the intention to pervert the course of justice based on the above facts.’

66.  Mr Lee submits that the A2’s act of feeding A1 with beer and A1’s act of drinking it before the breath test, by nature and in the circumstances of this case, had a manifest tendency to pervert the course of public justice. Further, he asks this court to consider the particular circumstances of this case, set out below:

(a) As to A1, there was nothing to suggest that he was not sober at the material time or that he was unaware of the nature of the drink offered to him by A2.  There was nothing to suggest that he had to quench his thirst so urgently with whatever given to him (the evidence was quite on the contrary that prior to that he had bought himself a bottle of water and drank it).  He is a mature adult (aged 49) knowing full well at the material time that he was involved in a traffic accident, being investigated by police and being informed of an imminent breath test.  It is submitted that, A1’s suggestion of the possibility of “instinctive reaction” or “surprise sip” is unreasonable and contrary to the evidence in this case.

(b) As to A2, the evidence shown by the CCTV tape, as rightly found by the magistrate, was inconsistent with her assertion that she was intoxicated with alcohol at the time and that she did not know what she was doing.  The CCTV tape showed that A2 entered the 7-11 Convenience Shop in a hurry, went directly to the fridge where the drinks were placed, chose the beer within 32 seconds and went immediately to make payment.  The whole process was completed within 1.5 minutes.  All the above point to the fact that A2 was sober and conscious of what she was doing, namely buying the beer and feeding A1 with it, at the material time. A2 is a mature adult (aged 37).  The magistrate had rightly considered the cumulative effect of several matters and properly came to the only irresistible inference that A2 must have known or contemplated the possibility that the police intended to conduct a breath test on A1 and that A2 knew or contemplated the possibility of curial proceedings.

67.  On the other hand, as submitted by Mr Egan, for A1, the evidence from the prosecution was that while A1 was surrounded by 5 to 6 police officers, all of a sudden A2 came up with a can of beer in her hand and she poured the beer into A1 mouth.  A1 used his hand to hold her hand and had one sip of beer whereupon PW3 stopped A1.  Mr Egan describes that A2’s act was done out of the blue.  There was no agreement or any secret conversation between A1 and A2 before this occurred and A1 was entirely taken by surprise. 

68.  The magistrate emphasised the fact that A1 held A2’s hand in order to drink and did not spit out the beer; A1 therefore must have known that it was beer and the purpose or aim was to tamper with the breath test that he had been told by PW3 that was forthcoming.

69.  I agree with Mr Egan that the magistrate should have looked at the matter in all its surrounding circumstances.   Had A1 wished to affect the breath test he would have done so with the drinking of water that took place earlier.  While the fact that A1 held A2’s hand would enable an inference to be drawn that A1 wanted to drink what was being offered by A2 and that he did not spit it out after knowing by taste that it was beer, another reasonable inference to be drawn is that he held onto A2’s hand that was holding the can of beer so as to avoid the beverage spilling over onto his clothes.  PW3 was watching or monitoring A1 at the time and there is no evidence from any prosecution witness that A1 had told or indicated to A2 to go and get the beer.  Mr Egan quotes from Kwan Ping Bong v R [1979] HKLR 1 at 5, the statement of law by Lord Diplock that was acknowledged by the Court of Final Appeal in Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209 as “incontrovertible”:

“The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; by the inference must be compelling – one (and the only one) that no reasonable man could fail to draw from the direct facts proved.”

70.  On all the evidence before the magistrate, A1’s appreciation that the beer was poured into his mouth with a view and with intent to pervert the course of justice, is in my view, not the one and only one compelling inference that no reasonable man could fail to draw.  There is no evidence that he knew beforehand that A2 was going to pour beer into his mouth.  In view of the suddenness of A2’s action, the intention of drinking alcohol or beer to affect the test result (the screening test or the eventual analysis) to the benefit of the driver so as to raise a doubt or defence in an envisaged or contemplated prosecution would not and could not be obvious, even when the intervening intake of alcohol hinders or impairs the court in administering justice.  The reaction of A1 in holding the hand of A2 or the can of beer seemed more to be one of the natural reactions when somebody pours drink into another person’s mouth.  That may show, as the magistrate concluded, that A1 wanted to drink the beer, but on the other hand, it could well be a natural reaction for fear of spilling, without realising what it was or what its effect would be, and without immediately forming the intention to take the opportunity to adulterate the test result in order to pervert the eventual course of justice.  The magistrate failed to consider or to adequately consider this aspect of the evidence and the availability of this reasonable inference of innocence.  Is a reasonable inference to be drawn that A1 did not intend to drink the beer or did not intend to pervert the course of justice only if he pushed A2 aside, spit out what was poured into his mouth and told A2 off for her surprise act?  I do not think so.

71.  In all the circumstances, I am of the opinion that the finding that A1 had the intention to pervert and therefore his conviction was unsafe and unsatisfactory.

72.  As to A2, the evidence shown by the CCTV tape, as rightly found by the magistrate, was inconsistent with her assertion that she was intoxicated with alcohol at the time and that she did not know what she was doing.  The CCTV tape showed that A2 entered the 7-11 Convenience Shop in a hurry, went directly to the fridge where the drinks were placed, chose the beer within 32 seconds and went immediately to make payment. The whole process was completed within 1.5 minutes.  All the above point to the fact that A2 was sober and conscious of what she was doing, namely buying the beer and feeding A1 with it, at the material time.

73.  Moreover, the evidence of A2’s knowledge that A1 was drunk and a breath test was going to take place is strong.  A2 is a mature adult (aged 37).   She knew there was a collision between the car driven by A1 and the truck.  Police officers had arrived to deal with the complaint made by PW1 (the truck driver) against A1.  The parties and the police officers were waiting for the traffic police to arrive.  She intermittently joined in the conversation while PW3 made enquiries with A1, and she was in the vicinity of A1 at the time.  She went to the convenience shop in a hurry, went directly to the fridge and chose 4 cans of beer within 32 seconds and immediately left to pay; the total time used by her was 1.5 minutes.  She went back to where A1 was and opened one can and fed A1 with the can of beer.  There is no evidence that A1 had asked her to buy the beer or had told her that he was thirsty.  She did all that after PW3 had mentioned the breath test and not anytime before.   She did not give any evidence as to why she bought the beer and fed A2 with a can.  This enables an inference to be more readily drawn against her that she had the intention to pervert in feeding A1 with beer.  The magistrate had rightly considered the cumulative effect of all these matters and properly came to the only irresistible inference that A2 must have known or contemplated the possibility that the police intended to conduct a breath test on A1 and that A2 knew or contemplated the possibility of curial proceedings

74.  Mr Lee submits that A2’s act of feeding A1 with beer and A1’s act of drinking it before the breath test, by nature and in the circumstances of this case, had a manifest tendency to pervert the course of public justice.  As such, where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act – see Wong Chi Wai at para. 32(b).

75.  Mr Lee argues that alternatively, even if one takes a different view that the acts of A1 and A2 do not have a manifest tendency to pervert, the requisite intention to pervert on the part of A1 and A2 can still be proved with reference to all the circumstances of the case.  It is submitted that, both A1 and A2, at the material time, had contemplated the imminence of the breath test and the possible institution of curial proceedings against A1; they knew that their conduct would have or that they intended it to have a tendency to pervert the course of justice in relation to the curial proceedings (ie the prosecution of A1 for driving with alcohol concentration above the prescribed limit).

76.  One must not lose sight of the fact that none of the appellants had testified and no defence evidence had been adduced at the trial.  Both appellants were perfectly entitled to do so but the prosecution case remains uncontradicted and the compelling inferences against them remain unanswered.  The tribunal of fact may be persuaded to be more readily to draw an adverse inference.  Mr Lee relies on the following cases in support:

(a) R v Chong Kin CheongCACC 196/1995, at p 3,

(b) Li Defan & Anor v HKSAR (2002) 5 HKCFAR 320, at paras 27-28,

(c) HKSAR v Chang Che Wei [2012] 2 HKLRD 1151, at para 46, and

(d) HKSAR v Chiu Wai KeungFAMC 59/2012, at para 9.

77.  While I agree with Mr Lee on the evidence against A2, enabling the court to draw the inference of her intention to pervert, I consider the evidence against A1 must be viewed differently, although he also did not give or call any evidence at the trial. The prosecution’s evidence against him provided him with a readily available inference of being taken by surprise by A2’s act, and is therefore of insufficient quality or weight to justify the court being sure of his intention to pervert.

78.  For the above reasons, I am of the view that, different from A1’s position, the magistrate’s finding that A2 had the intention to pervert and therefore her conviction was neither unsafe nor unsatisfactory.

Sentence

79.  Mr Pang refers to HKSAR v. Hwang Ting KwanHCMA 1093/2007 (31 January 2008, unreported) where Deputy High Court Judge Line (as he then was) was dealing with an appeal against sentence for perverting the course of justice, the act complained of being destroying the evidence after arrest in the police station by eating 2 cannabis cigarettes which had earlier been found on him.  It was common ground that the charge of possession of the 2 cannabis would likely have attracted a fine of $2,000 or so.  The learned Deputy Judge considered that “[t]he sentence for perverting the course of justice has got to bear some relationship to what that course of justice was”, that the course of justice engaged was not a particularly grave one, and substituted a sentence of 3 months imprisonment in lieu of the original sentence of 12 months.

80.  In the present case, A1 was sentenced to a fine of $5,000 for the charge of driving with alcohol concentration in breath exceeding the prescribed limit. The course of justice engaged could similarly be described as not a particularly grave one.  The magistrate, however, failed to take this matter into account.  Mr Pang submits that a similar sentence of 3 months imprisonment would be more than adequate.  This is the first ground of appeal against sentence.

81.  The second ground of appeal against sentence is that the sentence imposed by the magistrate is manifestly excessive.  Mr Pang refers to HKSAR v. Yuen Sun Wing[2010] 3 HKLRD 138, where the Court of Appeal considered the sentences in relation to conspiracy to pervert the course of justice, the acts being to arrange for one person to act as a substitute for other drivers who had committed traffic offences to take the blame so that those other drivers could avoid accumulating demerit points. The Court of Appeal expressed the view that in driver substitution cases, an immediate imprisonment of 3 to 6 months should be considered.

82.  Mr Pang also relies on HKSAR v. Ho Hoe Fung (香港特別行政區訴何浩峰), HCMA 443/2010 (10 December 2010, unreported) where the Court imposed a Community Service Order on the accused who attempted to pervert the course of justice by falsely claiming to be a driver of a car involved in an accident.

83.  Mr Pang submits that although each case turns on its own facts, the present case involved no deception whatsoever of the police or other law enforcement agencies, that there was no possibility of a miscarriage of justice when the acts complained of were done in full view of the police. Nor was there any attempt to compromise/subvert the course of justice.  These factors distinguish the present case from the many cases of perverting by driver substitution where an immediate custodial sentence may be called for.  It is therefore submitted that in the present case, a Community Service Order would be more than adequate to reflect the gravity of the offence.

84.  On the other hand, Mr Lee submits that the sentencing norm for perverting the course of public justice is immediate imprisonment.  See Attorney General v Yeung Sau Shing [1981] HKC 129 (a case which had been considered by the magistrate), where it was also stated, as matters of sentencing principle, that this is always a serious offence which usually attracts a sentence of immediate imprisonment or other form of custody, and that the personal circumstances (eg, clear record or good character) of an individual defendant carry little weight than in other crimes, per Cons JA at 132A-C.

85.  In order to justify any sentence other than one of immediate custodial imprisonment abnormal circumstances must be present.  See Attorney General v Yeung Kwong Chi [1989] 1 HKLR 266 at 269B-C.

86.  In HKSAR v Chong Choong Leong HCMA 258/2013, Li J, having considered the relevant sentencing factors suggested by the English Court of Appeal in R v Tunney (Reynolds) [2007] 1 Cr App R (S) 91 (at para. 85), observed at para 87 that,

“In my judgment, the nature of the primary offence is relevant in sentencing an offence of pervert the course of justice but a minor primary offence does not necessarily attract a lower starting point.”

87.  In reply to the first ground of appeal against sentence, Mr Lee submits that even if Charge 1 (drink driving) and Charge 2 (careless driving) against A1 would most likely have resulted in fine and disqualification, A2’s conduct of tampering with evidence was of a serious nature. 

88.  It is submitted that, some perverting cases involving concealment of driver’s identity, though not of identical facts, may be relevant for consideration.   Mr Lee refers me to the following:

(a) HKSAR v Mok Wai Hung HCMA 5/2000 (a case which had been considered by the magistrate), where the appellant lied to the police that he was not the driver.  Convicted after trial, he was sentenced to 6 months’ imprisonment.

(b) HKSAR v Ng Hon Man [2008] 1 HKCLRT 230, where the appellant falsely claimed that someone else was the driver.  He was convicted after trial and sentenced to 6 months’ imprisonment.

89.  In reply to the second ground against sentence, it is submitted that, in the circumstances of this case, a sentence of 6 months’ imprisonment is not manifestly excessive.

90.  I am of the view that, as rightly observed by the magistrate, A2 committed the offence “openly and blatantly in front of the police” and “such acts are reprehensible and cannot be tolerated in a civil society”.  The magistrate had considered the option of CSO as suggested by defence counsel and rightly found that it would not be appropriate in this case.  She referred to the nature of the charge which by itself calls for a deterrent sentence.  She found the acts of A2 to be deplorable.  Not only was she seeking to avoid the prosecution of A1 but she had blatantly committed the perverting acts in front of the police.  Moreover, she failed to show any remorse for her acts.  

91.  I consider that in all the circumstances of this case, the sentence of 6 months’ imprisonment is neither wrong in principle nor manifestly excessive. A2’s appeal against sentence should be dismissed. 

Conclusions

92.  By reasons of the matters set out above, I consider that A1’s Ground (2) succeeds.  The magistrate’s finding that A1 had the intention to pervert the course of justice is unsafe and unsatisfactory.  A1’s conviction is therefore quashed and his sentence set aside. 

93.  A2’s appeal against conviction and her appeal against sentence both fail and they are dismissed accordingly.