HKSAR v. Fan Stephanie Winnie

HCMA 240/2019

[2019] HKCFI 2319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 240 OF 2019

(ON APPEAL FROM STCC NO 4744 OF 2017)

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BETWEEN

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J U D G M E N T

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Introduction

1.This is a case stated appeal by the Secretary for Justice (“the Appellant”) against the decision of the learned magistrate, Mr Colin Wong (“the Magistrate”), on 13 April 2018 that Ms Fan (“the Respondent”) be acquitted of the charge of “driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit”, contrary to s39A(1) of the Road Traffic Ordinance, Cap 374 (“RTO”).   

2.The particulars of the charge, insofar as they are relevant to the present appeal, alleged that the Respondent, on 3 November 2017 on a road in Shatin, New Territories, Hong Kong drove a private car with the proportion of alcohol in her breath 23 micrograms of alcohol in 100 millilitres (23 µg/100ml) which exceeded the prescribed limit[1].

3.After the acquittal of the Respondent, on 11 October 2018 there was an application by the prosecution for a review of the Magistrate’s decision, pursuant to s104 of the Magistrates’ Ordinance, Cap 227.  Having heard counsel, the Magistrate affirmed his decision of acquittal. The Magistrate’s decision was founded on the following bases:

I.  The combined effect of ss39C(3) & (12) of RTO only allows the “Statement and Certificate” (Pol 967) automatically generated by the Evidential Breath Test Device to be admissible evidence of the relevant alcohol level.  There is no presumption created.

II.  The principles laid down by the Supreme Court of Canada in R v Moreau[2] do not apply to Hong Kong.

III.  The Prosecution failed to prove beyond all reasonable doubts that the Respondent’s alcohol concentration in her breath was over the prescribed limited. 

4.Correspondingly, the questions of law which the Respondent now asks this court to address are:

I.  Whether the Magistrate erred in law in ruling that s39C(12) of RTO did not create a rebuttable presumption.

II.  Whether the Magistrate erred in law in ruling that the principles enunciated in R v Moreau do not apply to Hong Kong.

III.  Whether the Magistrate’s findings to acquit the Respondent of the charge were perverse.

The facts

5.At the trial, the following facts were admitted pursuant to s65C of the Criminal Procedure Ordinance, Cap 221 (“CPO”):

(1)  At around 2030 hours on 3 November 2017, some uniformed police officers including PC 13035 were performing a pre-screening breath test operation at the scene.

(2)  At around 2106 hours, the private car driven by the Respondent was intercepted.  PC 13035 conducted a Pre-screening Breath Test[3] on her with an approved pre-screening device under ss2 & 39F,RTO[4]. The Respondent failed the Pre-screening Breath Test.

(3)  At around 2110 hours, PC 13035 required the Respondent to provide a specimen of breath for a Screening Breath Test under s39B, RTO and warned her that a failure to provide the specimen might render her liable to prosecution.

(4)  At around 2111 hours, PC 13035 conducted a Screening Breath Test[5] on the Respondent.  The result showed a proportion of alcohol of 25 µg/100ml. 

(5)  At around 2113 hours, PC 13035 arrested the Respondent.  Under caution, her replied that: “have drunk one and a half glass of white wine.”  She was then taken back to Ma On Shan Police Station.

(6)  At around 2130 hours, at Ma On Shan Police Station, SGT 50212 (who was an approved operator) conducted an Evidential Breath Test with the Respondent using an approved breath analysing instrument (“the EBT Device”) under ss2 & 39F, RTO[6].  SGT 50212 required her to provide two specimens of breath for analysis pursuant to s39C, RTO and warned her that a failure to provide any one of those specimens might render her liable to prosecution.  The result of the Evidential Breath Test was 23µg/100ml.

(7)  After completion of the breath analysis by the EBT Device, a printout and a “Statement and Certificate” (Pol 967) were automatically produced by the EBT Device.  The printout was certified by SGT 50212 and signed by both the sergeant and the Respondent.

6.There was only one live witness (PW1) from the prosecution whose witness statement was admitted pursuant to s65B, CPO.  The Respondent did not elect to give or call any evidence.  PW1 was accepted by the magistrate as an expert on servicing, operating and calibration of the EBT Device[7] and his evidence was found to be honest and reliable.[8]  The only question, the magistrate said, was whether his evidence was sufficient to prove the accuracy of the EBT Device[9].

7.According to PW1[10],

“26. The calculation process was done by the instrument automatically and could not be influenced by the operator. For each individual, two breath samples were analyzed and thus producing two individual results. The result with the lower reading would be the final result. The decimal place of the result would be truncated i.e. if the result was 23, the result obtained by the instrument could be 23.0 - 23.99.

27.       Further, for the breath test, Dräger had prescribed a maximum deviation of plus or minus 0.8 microgrammes over 100 ml from the control sample.  As the concentration of the dry gas was 34.7, the five readings measured should be within plus or minus 0.8 of 34.7 microgrammes.  Since PW1 had embarked on the calibration and breath test on Alcotest 7110 in the year of 2003, PW1 had conducted about 9,000 times of breath tests.  There was no one single test the result of which had exceeded the prescribed range of permissible error.”

8.PW1, however, had never checked the concentration of the dry gas used for calibration was in fact 34.7µg/100ml[11].   

Legal principles

9.The following legal principles are laid down by the Court of Final Appeal in Li Man Wai v Secretary for Justice[12] concerning an appeal by way of case stated:

(1)  An appeal by way of case stated is not an appeal by way of re-hearing. It is a review by the appellate court on the limited ground that there is an error of law or an excess of jurisdiction.

(2)  Where a magistrate has come to a conclusion or finding of fact which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to, this would be regarded as an error of law, often described as a “perverse” conclusion or finding.  This is the case where the magistrate has misdirected himself on the facts or misunderstood them, or has taken into account irrelevant considerations or overlooked relevant considerations.  In such a case, the court is entitled to intervene and the magistrate's conclusion or finding would not be allowed to stand.

10.As to the form and contents of a case stated, guidance has been provided by the Full Court in Attorney General v Leung Chi-kin[13] that:

“… although s.105 of the Magistrates Ordinance provides for an application to the magistrate to state and sign a case responsibility for the form in which the case comes before this Court rests ultimately upon the parties and their advisers, because under s.112 they can apply for an order of mandamus requiring the magistrate to amend a case stated so as to rectify any errors or deficiencies, whereupon the magistrate has an opportunity to explain his refusal to comply with a request to amend. … In particular it is for the appellant to decide what questions he wishes to raise upon the appeal and the only justification for altering draft questions presented by an appellant would be that they were not clear, that they misrepresented the magistrate's decision or (as here) that they included questions which the Court ought not to be asked to answer. …

… The basic requirements of a case stated are that it should be complete in itself and should not have any annexure unless it is essential to the decision of the appeal that such annexure should be before the Court.  In particular the magistrate's judgment should not normally be exhibited and it is not desirable as a general rule, although it may not always be wrong, for the notes of evidence to be annexed even if the Court is asked to decide whether there was evidence on which the magistrate could properly come to his conclusion: Hickton v. Hodgson[14]. …”

Reference to trial evidence

11.Ever since Leung Chi Kin’s case, the courts have consistently reminded practitioners that a case stated document should be self-contained document and neither the judgment nor the record of the lower court should be annexed to it: Attorney General v Li Nai-ho & Others[15]. More recently, the reminder was repeated by Lam JA (as he then was) in Secretary for Justice v Leung Kwok Wah[16] in the following terms:

“3. In an appeal of this nature, the court is solely concerned with questions of law. It is not the function of the court in this appeal to make finding of facts. Unlike other kinds of appeal from magistrates, appeal by way of case stated is not a rehearing. In general the court should not go beyond what has been set out in the Case which should be a self-contained document setting out all information necessary for the proper resolution of the issues raised by the Appellant, see Attorney General v Leung Chi-kin [1974] HKLR 269; Attorney General v Yau Ka-ping [1977] HKLR 76. Those responsible for drafting the Case and the magistrate signing the Case should pay proper regard to what had been said in these cases as to how a Case should be prepared. Guidance may also be derived from the experience on how the case stated procedure has been applied in other areas. I have made some observations in the context of the use of the case stated procedure in tax appeals, see Lee Yee Shing Jacky v Board of Review HCAL 40 of 2008, 22 Feb 2011.

4.         Whenever a party considers that insufficient materials are set out in the Case, the proper course is to seek amendments of the Case instead of inviting the judge hearing the appeal to examine the evidence adduced at the trial to make up for the deficiencies.  This can be done under Section 107 of the Magistrates Ordinance.  The judge hearing the appeal can also exercise such power, see Section 109.  But the primary responsibilities rest upon the parties and their legal advisers to ensure all the necessary findings and all relevant information for the satisfactory consideration of the points of law raised in the appeal are set out in the Case.  If there is disagreement between the magistrate and a party as to whether the Case should be amended in a particular manner, the matter can be resolved by the procedure under Section 112.”

12.What has consistently been urged by the above successive line of cases of high authority must be taken heed of.  After all, it is the duty of the parties, and the appellant in particular, to ensure that sufficient material for the disposal of the appeal has been included in the case stated document itself.  Practitioners must not assume that simply because there is a challenge to the findings of the low court as “perverse”, that alone would not enable the parties at the appeal hearing to trawl through and rely on the evidence adduced at the trial which does not form part of the case stated document. 

Reference to PW1’s evidence by parties

13.In the written submissions filed by the parties prior to the hearing, in relation to Question III which is about the magistrate’s factual findings, both sides had made reference to certain parts of PW1’s testimony (which has neither been included in nor annexed to the Case Stated) with a view to support of their respectively submissions.  In particular, the Appellant referred to PW1’s evidence in re-examination and the documentary exhibits with a view to show that the magistrate had misunderstood that part of PW1’s evidence as to the “maximum permissible error” (“MPE”) relating to the EBT device. 

14.After this court had drawn to the parties’ attention to Leung Kwok Wah’s case, Mr Poon (counsel for the Respondent) sought to withdraw those parts of his written submission which referred to PW1’s evidence outside of the Case Stated[17].  On the other hand, Mr Lai (and with him, Mr Yung) submitted that there is no rule prohibiting the appellate court hearing a case stated appeal to make reference to evidence extrinsic to the Case Stated, if doing so is necessary for the determination of the appeal[18]. 

15.At the earlier stage of the hearing, this court canvassed with counsel the viability of remitting the Case Stated back to the magistrate for amendment, if counsel considered that it was necessary for this court to consider those parts of PW1’s evidence in question.  However, in view of the information given by Mr Poon orally about the Respondent’s present medical condition which I would not go into details, it was agreed that further delay in the matter would be most undesirable.  I therefore indicated to counsel that I would consider those parts of PW1’s evidence in question de bene esse and reserve my ruling as to whether they should be received for the purpose of this appeal.

16.Having considered counsel’s full submissions on the merits of this appeal, both oral and written, for reasons which will become clear in the discussion below, I have come to the conclusion that this court can properly and fairly dispose of the present appeal without referring to those parts of PW1’s evidence which has not been included in or annexed to the Case Stated.  Therefore, I refuse the Respondent’s request to consider them. For avoidance of doubt, I should point out that PW1’s evidence does not bear on the resolution of Questions 1 and 2 which are pure questions of law.

17.I now turn to the Questions.

Question I: rebuttable presumption?

The relevant provisions

18.Before turning to the evidentiary provision of s39C, I shall start with the offence-creating section (s39A) which s39C is designed to serve: 

39A     Driving, attempting to drive or being in charge of a motor vehicle with alcohol concentration above prescribed limit

(1)  A person who drives or attempts to drive a motor vehicle, or is in charge of a motor vehicle, on any road with the proportion of alcohol in his breath, blood or urine exceeding the prescribed limit, commits an offence …

And according to s2, RTO:

prescribed limit (訂明限度) means—

(a)  22 micrograms of alcohol in 100 millilitres of breath;

(b)  50 milligrams of alcohol in 100 millilitres of blood; or

(c)  67 milligrams of alcohol in 100 millilitres of urine.

19.One thing to be noted is that s39A does not only “bite” when the accused’s blood alcohol level exceeds the prescribed limit, but it also “bites” when the alcohol level in either the accused’s breath or urine exceeds the applicable prescribed limit.  I will come back to this when I consider the differences between the Hong Kong and the Canadian legislation.

20.How is the proportion of alcohol of the defendant driver to be determine?  The procedure is laid out in s39C:

39C     Provision of specimens for alcohol analysis

(1)  A police officer may require a person whose screening breath test[19] 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.

21.We skip the subsections relating to blood or urine which are not relevant for the present purpose.  How is the proportion of alcohol in the accused’s breath specimen to be proved?  One method is provided by s39C(3):

(3)  Evidence of the proportion of alcohol in a specimen of breath … may be given by the production of a document which purports to be either—

(a)  a statement automatically produced by the approved breath analysing instrument by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by an approved operator certifying that the statement relates to a specimen provided by the accused at the date and time shown in the statement and that the approved breath analysing instrument was operated correctly and properly when the specimen of breath was being taken;  …

(Emphasis supplied)

22.By virtue of s39F, the Commission of Police may by notice in the Gazette approve types of instruments as (a) an approved breath analysing instrument; (b) an approved screening device; and (c) an approved pre-screening device.  The Commissioner may also authorize in writing members of the police force as approved operators to carry out breath analysis using an approved breath analysing instrument.

23.Schedules 1, 2 & 3 of the Road Traffic (Breath Analysing Instruments, Screening Devices and Pre-screening Devices) Notice (Cap 372S) respectively list out the breath analysing instruments, screening devices and pre-screening devices approved by the Commissioner of Police.

24.One obvious aim of s39C(3)(a) is to simplify proof by reducing the necessity of calling live witnesses. This is achieved by creating an exception to the hearsay rule so that, subject to the fulfilment of the procedural and other safeguards contained in that provision, the alcohol level in the accused’s breath specimen can be proved by just tendering a statement coupled with a certificate.  However, it has been held, as regards a similar provision in UK[20], that this is not the only way that a printout from an Intoximeter can become admissible: cf Garner v DPP[21].

25.As the defendant driver would be asked to provide for two specimens, it is further provided at s39D that the court shall use the statement relating to the specimen with the lower proportion of alcohol out of the 2 specimens and shall disregard the other one.  This was also what was done in the present case.

26.To establish the offence under s39A, the relevant alcohol level is that of the defendant driver at the time of his/her driving.  Since there would normally be a time gap between the defendant’s driving and the taking of the breath test, the defendant’s alcohol level at the latter time may not necessarily represents his/her alcohol level at the material time.  However, as one would expect that the alcohol level in a person’s body would drop rather than rise as time elapses in the absence of any additional intake of alcohol, to facilitate the proof of the offence, it is provided in s39C that:

(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 supplied)

The Appellant’s submission

27.Mr Lai’s submission, which was also his stance taken before the magistrate, is that s39C(12) creates a “rebuttable presumption” 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.  The sole basis for his submission is the judgment of Woo DJ in HKSAR v Ng Chin Yue Wilson and Ng Yee Man Yvonne[22] which, Mr Lai further submits, is approved or supported by the Appeal Committee in refusing leave to appeal: see HKSAR v Ng Yee Man Yvonne[23]. 

The magistrate’s ruling

28.The magistrate ruled that the phrase “shall be evidence” in s39C(12) was not a deeming provision nor did it provide any presumption, whether rebuttable or irrebuttable.  Unlike other provisions found in RTO, there was no shift of the normal rule of burden of proof by the legislation.  It was merely a provision so that the prosecution provides admissible evidence which would otherwise be inadmissible.  The burden of proving all elements of the relevant offence still rested on the prosecution.

The Respondent’s submission

29.Mr Poon supports the magistrate’s ruling.  He submits that the Appellant’s reliance on HKSAR v Ng Chin Yue Wilson and Ng Yee Man Yvonne is misconceived in that Woo DJ was using the term “rebuttable presumption” in a loose way and this is also clearly shown by what his lordship said in his latter ruling when he refused certification of points of law sought by the 2^nd defendant[24].  Furthermore, the decision of the Appeal Committee, when read in context, does not in fact support the Appellant’s submission.

Consideration

30.With respect, I have no hesitation in rejecting Mr Lai’s submission on “rebuttable presumption” and I agree with the magistrate’s ruling and Mr Poon’s submission on this point.

31.First of all, if it were the intention of the legislature to create a presumption as contended by the Appellant, it could be easily done by employing clear and express language like “presume” or “deem” or other words which clearly indicate a shift of the burden of proof from the prosecution to the defence.  However, there is nothing in the provision to suggest that a presumption is intended to be created or that the burden of proof has been shifted. 

32.Secondly, to understand why and how Woo DJ used the term “rebuttable presumption” in HKSAR v Ng Chin Yue Wilson and Ng Yee Man Yvonne, it is necessary to have regard to the facts of the case and how the appeal was argued before his lordship.  In that case, Wilson’s (D1’s) car, with Yvonne (D2) as passenger, was involved in a traffic accident. Police detected alcohol on D1’s breath and informed the defendants that traffic police would come and conduct a breath test. Whilst waiting, D2 hurriedly purchased beer and poured a sip into D1’s mouth, and D1 was holding D2’s hand.  Police immediately stopped D1 and warned him against drinking further alcohol.  In the event, D1 was convicted of driving a motor vehicle with alcohol concentration above the prescribed limit and careless driving.  In addition, both D1 and D2 were convicted of doing acts tending or intended to pervert the course of public justice.  In respect of the latter charge, the trial magistrate noted that it was important to preserve D1’s state until a breath test was administered and that any additional intake of alcohol would render the result inaccurate and unreliable and affect subsequent curial proceedings.  This tampering with evidence was sufficient to constitute the actus reus of the offence.  The trial magistrate also found that the only irresistible inference from the defendants’ acts was that they had the intention to pervert the course of public justice. 

33.On appeal, as regard the perverting charge, it was argued on D2’s behalf that what she did could have no tendency to pervert the course of justice.  This was because s39C(12), RTO had made the test result conclusive evidence of the alcohol proportion or it had created a statutory irrebuttable presumption, so that 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. In other words, it was argued that there was no actus reus of any act tending to pervert the course of justice.

34.In rejecting counsel’s argument above, Woo DJ said,

“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.” 

(Emphasis supplied)

35.It can be seen from the above that, after using the term “rebuttable presumption”, the learned judge immediately explained what he meant by that, namely, “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”.  This is not what one would commonly understand as a “presumption”, but more in the like of prima facie evidence.  That the learned judge was using “rebuttable presumption” in a loose sense is reinforced by what he said in the paragraph immediately following, “it is open to the defence to adduce evidence to raise a doubt”.  That is to say that the defence bore only an evidential, rather than persuasive, burden.  It follows that the burden of proof had all along remained with the prosecution in that case.

36.If there were still any doubt as to what the learned judge meant, that doubt should have been dispelled by his latter ruling in refusing D2’s application for certification of points of law.  One of the points of law which the learned judge was asked to certify was: “Is section 39C(12) of the Road Traffic Ordinance, Cap 374 a conclusive evidence presumption so that any consumption of alcohol between the time of a suspected offence and the time of a breath test cannot have a tendency to pervert the course of justice?”  As to this, the learned judge said,

“11.  Ms Tsang also seeks to rely on a comparison between section 39C(12) and the provisions of section 75(1), (2)(a) and (b) and (4) of the same Ordinance to support her contention that s39C(12) gives rise to an “irrebuttable presumption”.

12.  Mr Edmond Lee, for the Respondent, submits that on the wording used in the various provisions, s75(2)(a) specifically uses the word “presume” and raises a rebuttable presumption, s75(4) uses “deemed” and is a deeming section, s75(1) provides for a document certifying previous traffic convictions “shall be admitted” in evidence, and s75(2)(b) provides such certificate “shall be evidence” of the subject having been convicted of the offences specified in it.  The wording of s75(2)(b) being similar to s39C(12), the purpose of “shall be evidence” in s39C(12) is to allow the breath or blood test result to be treated as evidence although technically it is not, eg, hearsay contained in documents remains hearsay and inadmissible without such a statutory provision. Examples are drawn from section 65B and section 65C of the Criminal Procedure Ordinance, Cap 221.  While s65B makes the contents of witness statements admissible in evidence without calling the witnesses, section 65C makes the facts agreed by the parties’ counsel “conclusive evidence”. Mr Lee submits that s39C(12) and s75(2)(b) with similar wording, are termed in such a way as to admit and treat certain matters as evidence and do not even concern presumption, let alone giving rise to an “irrebuttable presumption”.  I agree with Mr Lee and I do not see how s75(2)(b) helps to make Question (1) reasonably arguable.” 

(Emphasis supplied)

37.When D2 asked the Appeal Committee of the Court of Final Appeal to certify the same point of law and to grant leave for appeal, Fok PJ, who gave the decision of the Appeal Committee, in refusing D2’s application, says:

“13.  In contrast, where the RTO makes provision for a fact to be presumed (either on a rebuttable or irrebuttable basis), clear and express language is used: see, for example, section 76(2)[8].

14.  No such language is used in section 39C(12).  On the contrary, that section serves to assist the enforcement of the prohibition against driving whilst under the influence of alcohol by providing a means, which would otherwise be practically impossible, of establishing after the event (i.e. after being suspected of the offence because he has been involved in an accident or randomly stopped for testing) the level of alcohol in a driver’s breath, blood or urine at the earlier time when he was actually driving.  Thus, section 39C(12) enables the prosecution, on whom the burden of proving all elements of the relevant offence under section 39A(1) rests, to obtain admissible evidence of the relevant alcohol level.  It remains open to an accused to establish the contrary by showing, for example, that the alcohol level shown in the particular test is the result of the consumption of alcohol after the alleged offence.”

(Emphasis supplied)

Again, I note that there is nothing in the decision of the Appeal Committee which shows that s39C(12) has the effect of shifting the burden of proof to the defence.

Conclusion

38.Based on the above, Question I is answered in the negative.

Question II: R v Moreau

The Appellant’s submission

39.Mr Lai submits that even if s39C(12) does not create a rebuttable presumption, the combined effect of sections 39C(3)(a) and (12) is such that:

(i)  a certificate tendered pursuant to s39C(3)(a) shall constitute prima facie evidence of the proportion of alcohol in the accused’s breath at time of the offence, and it is open to the defence to adduce evidence to prove the contrary; and

(ii)  any possible inherent margin of error of an approved device, however, does not in law constitute contrary evidence: R v Moreau, ante.

I will deal with (ii) now and deal with (i) when I discuss Question III.

The Magistrate’s ruling

40.The magistrate ruled that the judgment of the Canadian Supreme Court in R v Moreau did not assist the Appellant, as it was based on Canadian provisions the wordings of which were very different from those of RTO here which raises no presumption.  There was no requirement for the Statement and Certificate under s39C(12) to be rebutted by evidence to the contrary. 

The Respondent’s submission

41.Mr Poon points out that R v Moreau has not previously been adopted in Hong Kong.  He supports the Magistrate’s ruling that the Canadian case is concerned with a different statutory regime than the one in Hong Kong and therefore not applicable here.

Consideration

42.In R v Moreau, the defendant faced a charge under s 236 of the Criminal code of driving with alcohol level exceeding the prescribed limit of 80mg in 100ml of blood, based on a reading of 90mg given by an approved instrument.  An expert testified that this type of breathalyzers was subject to a possible margin of error of 10mg, which was inherent in the instruments.  On appeal to the Supreme Court of Canada, the issue was whether or not the possible inherent margin of error of this type of instruments constituted “evidence to the contrary” under s237(1)(c) of the Criminal Code RSC 1970. 

43.Under s237(1)(c) of the Criminal Code RSC 1970, evidence of the result of the chemical analysis of the accused’s breath sample by means of an approved instrument operated by a qualified technician was, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time of the offence: –

“(1) In any proceedings under section 234 or 236,

…

(c) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1) if:

(i) (not proclaimed in force)

(ii) the sample was taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time,

(iii) the sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) a chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician,

evidence of the result of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed.” 

(6)  In this section

"analyst" means a person designated by the Attorney General as an analyst for the purposes of this section;

"approved container" means a container of a kind designed to receive a sample of the breath of a person for chemical analysis and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada;

"approved instrument" means an instrument of a kind that is designed to receive and make a chemical analysis of a sample of the breath of a person in order to measure the proportion of alcohol in the blood of that person and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada; "qualified technician" means a person designated by the Attorney General as being qualified to operate an approved instrument.”

(Emphasis supplied)

44.It can be seen therefore that the Canadian provision seeks to achieve two different aims in one go:

(1)  whilst the offence under s 236 of the Criminal Code is about the accused blood alcohol level at the time of the incident in question, s 237 allows evidence to be given of the result of the chemical analysis of a breath sample taken from the accused after the incident; and 

(2)  provided that the breath sample was:

(a)  taken as soon as possible after the incident in question;

(b)  received into an “approved container” or an “approved instrument operated” by a “qualified technician”; and

(c)  chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician,

then the result of the chemical analysis would be, in the absence of any “evidence to the contrary”, proof of the accused’s blood alcohol level at the time of the incident.

45.There is no dispute that the effect of s237 of the Criminal Code is to create a presumption.  There are two features of this presumption which are of note for the present purpose: firstly, it is declared to be a presumption rebuttable by “evidence to the contrary”; and secondly, it is different and distinct from any presumption which may exist at common law about the reliability of the instrument concerned: cf DPP v Brown; DPP v Teixeira[25]. I will come to that when I discuss R v Moreau[26]. 

46.Comparing the Canadian provision with the corresponding provisions in our RTO:

(a)  as regards (1) above, there is no similar provision in Hong Kong.  In fact, it is not necessary to have one.  As aforesaid, if the breath alcohol level of the accused’s breath when he is driving exceeds the prescribed limit, that in itself is an offence in Hong Kong under s39A(1), RTO;

(b)  as regards (2), our s39C(3) & (12), RTO read together serves a similar purpose in that evidence of the alcohol level found in the accused’s breath specimen taken some time after the incident is evidence that his or her breath alcohol level at the time of the incident was not less than that in the specimen.  However, unlike s237 of the Criminal Code, the wording of s39C(12) does not, in my judgment, create any presumption shifting the usual burden of proof from the prosecution to the defence;

(c)  similar to the Canadian scheme, in Hong Kong an “approved” instrument has to be operated by an “approved” operator in order that the result of the analysis would be admissible;

(d)  both in Canada and in Hong Kong, there are elaborated procedural and other safeguards built-in in the respective legislations to ensure fairness to the defendant;

(e)  following from (c) and (d) above, both in Canada and in Hong Kong, the scheme depends on the accuracy of the “approved” instrument” and the correct and proper operation of it by an “approved operator”; and

(f)   both in Canada and in Hong Kong, the legislature has entrusted the tasks of approving instruments and designating “approved” or “qualified” operators with the executive.  In Canada, the relevant approving authority is Attorney General, whereas in Hong Kong it is the Commissioner of Police.

47.Granted that there are the aforesaid differences and similarities between the two regimes, the question is whether those differences and similarities bear on the ratio of the majority judgment in R v Moreau and its applicability to Hong Kong.  To answer this question, one needs to examine the contention in R v Moreau, the rulings of the Canadian Supreme Court and the rationale behind those rulings. 

48.Now, the sole ground of appeal in R v Moreau was based on a piece of expert evidence showing there was a margin of error inherent in the type of instruments concerned due to their design.  In other words, it was not about the presumption as contained in s237 of the Criminal Code but the accuracy of the “approved” instrument.  It is in this context that Beetz J, who gave the judgment of the majority[27], said,

“What is "evidence to the contrary" within the meaning of this section has been the subject of some discussion in various courts. I agree with what was said on the subject by McFarlane J.A. speaking for the British Columbia Court of Appeal in R. v. Davis [(1973), 14 C.C.C. (2d) 513.], at p. 516:

While not expressed too clearly, I think the intention of Parliament becomes manifest when it is remembered that the fact to be proved is the proportion of alcohol to blood at the time of the offence. The result of the chemical analysis is one method of proving that fact: and the certificates are evidence, inter alia, of that result. It follows, in my opinion, that the concluding part of the subsection means that the result of the chemical analysis is proof of the proportion of alcohol to blood at the time of the offence in the absence of evidence that the proportion at that time did not exceed 80 to 100. Any evidence, therefore, tending to show that at the time of the offence the proportion was within the permitted limits is "evidence to the contrary" within the meaning of the subsection.

In order to comply with the wording of the Code, "evidence to the contrary" has to be evidence which tends to establish that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was not the same as that indicated by the result of the chemical analysis. There is no such evidence in the case at bar. Apart from the certificates, there is no evidence of any kind directed at showing what was the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed. What evidence there is, tendered on behalf of the accused, is expert evidence from which Courts are asked to conclude, contrary to what the Code explicitly prescribes, that the result of the chemical analysis is not or ought not to be proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed. This, in my opinion, is not evidence aimed at rebutting the presumption provided for in the section but at denying its very existence. "Evidence to the contrary" cannot be evidence solely directed at defeating the scheme established by Parliament under ss. 236 and 237.

This elaborate legislative scheme contemplates and provides for elements of positive certainty such as the official approval of certain kinds of instruments, the designation of analysts and qualified technicians, a maximum time period between the commission of the alleged offence and the taking of a breath sample, and the reading by a qualified technician on an approved instrument of a proportion of alcohol in the blood in excess of a specified proportion.  Once the conditions prescribed or contemplated by this scheme are fulfilled, a presumption arises against the alleged offender which he can rebut by tendering "evidence to the contrary".  But in my opinion, no evidence is "evidence to the contrary" when its only effect is to demonstrate in general terms the possible uncertainty of the elements of the scheme or the inherent fallibility of instruments which are approved under statutory authority.  Thus, the proof by expert evidence that, for physiological reasons of a general nature, the maximum time period of two hours between the commission of an offence and the taking of a breath sample is too long would not be "evidence to the contrary". (See also R. v. Gaetz [ (1972), 8 C.C.C. (2d) 3.]).”

(Emphasis supplied)

49.Therefore, the majority of the Supreme Court held that “evidence to the contrary” must directly relate to the amount of alcohol in the blood; evidence that challenges Criminal Code presumptions is not “evidence to the contrary”: see R v Jeffrey Gregory Borque[28] and R v Schnurr[29].

50.In my humble view, because of my judgment above that our s39C(12), RTO does not create any presumption as mentioned by Beetz J above, the magistrate is right that this aspect of the Supreme Court’s judgment is not applicable to Hong Kong. 

51.However, there is a second and different aspect of Beetz J’s judgment which does not seem to be have received adequately consideration, if any, by the Magistrate.  As pointed out by Mr Lai, that is the emphasis placed by the majority on the significance of Parliament providing an “approved instrument” for conducting breath analysis.  As to this, Beetz J said:

“In the case at bar, the evidence of the expert witness was to the effect that Borkenstein Breathalysers of the kind used to analyze respondent's breath sample were all inherently subject to a possible margin of error of 10 milligrams, more or less: the trial judge was asked to infer that unless this approved type of instrument indicated a reading in excess of 90 milligrams of alcohol in 100 millilitres of blood, an accused ought to be given the benefit of the doubt. … To admit the evidence of the expert witness in this case is to concede that evidence gathered through the use of certain types of approved instruments may be treated in the same manner as that obtained by ordinary instruments. The same would be true, up to a point, of approved instruments of any type since all instruments used for measurement or analysis are necessarily subject to built-in limitations which affect their precision. I think the assimilation of instruments approved under statutory authority to ordinary instruments amounts to an error in law. It seems to me that when Parliament provided for the analysis of breath samples by way of approved instruments, it was aware of the limitations inherent in all instruments. Parliament must be taken to have made allowance for these limitations in the provisions relating to the approval of certain kinds of instruments as well as in those setting the highest permissible level of alcohol in the blood at 80 milligrams in 100 millilitres of blood.”

(Emphasis supplied)

52.With respect, what was said in the dictum of Beetz J quoted above relating to the significance of the instrument used being an “approved instrument” by Parliament is convincing. 

53.That special consideration should be given to a reading of an instrument which has been by “approved” is legislature is also consistent with the approach taken the English courts.  In R v Skegness Magistrates’ Court, Ex P Cardy[30], two motorists, one before a magistrates' court and the other an appellant to the Crown Court against conviction, on charges of drink-driving, each applied for production of documents relating to the Lion Intoximeter, 3000 devices used for analysing their breath specimens and of the devices generally, and witness summonses were issued directing two witnesses to produce the documents concerned.  In granting the witnesses’ applications for an order of certiorari to quash the summons, Robert Goff LJ, who gave the judgment of the court, said that[31],

“In any event, it is one thing to challenge the reliability of the particular device upon which the defendant's breath was tested as the relevant time, which may be entirely proper in the circumstances of a particular case, and another thing to attempt to challenge the reliability of Lion Intoximeter 3000 devices generally. If there are those who have reason to believe that Lion Intoximeter 3000 devices are generally unreliable, they are in truth saying that they should never have received the approval of the Secretary of State, or that the Secretary of State should withdraw his approval from them. They should therefore address their representations to the Secretary of State. But, so far as cases such as these are concerned, the fact is that the Lion Intoximeter 3000 device is and has been since 19 April 1983 an approved device for the purposes of the Act and, so long as that state of affairs continues, it is, in our judgment, wholly immaterial to mount a challenge to the general reliability of these approved devices in individual prosecutions brought under the Act.”

(Emphasis supplied)

See also DPP v Brown; DPP v Teixeira[32].

54.In my judgment, in view of the similarities between the Canadian and Hong Kong scheme about “approved” instruments and “approved” operators, the rationale behind the aforesaid second aspect of R v Moreau applies with equal force to Hong Kong, so that the Legislature must be taken to have made allowance for the inherent inaccuracy of an “approved breath analyzing instrument” when sanctioning its use for court purposes and when setting the prescribed limits of the relevant alcohol level.  This point is further illustrated by the legislative history of the relevant provisions in RTO as summarized by Mr Lai in his written submission which I gratefully adopt as follows:

(1)  Before the enactment of the Road Traffic (Amendment) Bill 1995 (“the 1995 Bill”), any person who drove or attempted to drive a motor vehicle on any road while he was under the influence of drink to such an extent as to be incapable of having proper control of the motor vehicle committed an offence.  However, there was no alcohol concentration limit for breath, blood or urine stipulated in the legislation and there was no legal obligation for the accused to provide samples of breath, blood or urine for testing.

(2)  The 1995 Bill first introduced into Hong Kong prescribed limits for alcohol concentration in a driver’s blood, urine and breath and the legal obligation of the accused to be subject to tests.  Section 39D allowed a person who has provided specimens of breath, and where the result of the breath analysis fell within the margin of error, to request that they should be replaced by a specimen of blood or urine.  In which case, the police officer would decide whether it should be a specimen of blood or urine; but it must be a specimen of urine if a medical practitioner considered that for medical reasons a specimen of blood could not or should not be taken[33].

(3)  Section 39D(2) was later repealed by the Road Traffic (Amendment) Bill 2010 (“the 2010 Bill”).  During the Second Reading of the 2010 Bill, the Secretary for Transport and Housing explained why it was proposed that the option provided in s39D(2) be repealed[34] as follows: –

“… To prevent drivers from evading their criminal liability by delaying the provision of samples, we also propose to remove the option for a driver whose breath analysis result is no more than 37 mcg of alcohol per 100 ml of breath to replace his breath specimen by a specimen of blood or urine. This option was provided in 1995 when the drink driving legislation was first introduced to alleviate concern about the accuracy of the breath testing equipment. Nowadays, the breath testing equipment has proved to be reliable and able to provide accurate results.” (Emphasis supplied)

(4)  The 2010 Bill also introduced into RTO the current 3-tier penalty system, whereby the higher the alcohol concentration level, the longer the minimum disqualification period would be.  Prior to the 2010 Bill, a person with the proportion of alcohol in his breath, blood, or urine exceeding the prescribed limit, would be liable to the same maximum penalties in terms of fine, imprisonment and minimum driving disqualification period, regardless of the actual alcohol level.  It was only after the 2010 Bill that the actual alcohol concentration of a person’s breath, blood or urine would be reflected in the level of penalty. 

(5)  The EBT device[35] had been approved as “breath analysing instrument” since 15 December 1995[36].  It has survived the repeal of s39D(2) and remained as an “approved breath analysing instrument” all along.

In view of the above, I agree with Mr Lai’s submission that the legislature has recognised the EBT device as proven to be reliable and accurate and capable of supporting the current the 3-tier penalty system.

55.Based on the above, in my judgment, in dealing with a challenge to the reliability of the particular “approved breath analyzing instrument” upon which the defendant driver’s breath was tested, account should not be taken of evidence of a general nature about the inherent margin of error due to its design.  The situation, however, would be different in case there was evidence that the particular instrument used was defective or may have been defective at the material time: in which case, the trial court would have to be satisfied that the instrument provided a reading upon which it could rely: see DPP v Brown, DPP v Teixeira[37]; cf R v Jeffrey Gregory Bourque[38]. 

56.Therefore, the answer to Question II is a qualified “yes”.  The Magistrate has erred in his ruling by failing to taken into account the second aspect of the judgement in R v Moreau which is applicable to Hong Kong.

Question III: reliability of the particular instrument used

The Magistrate’s findings

57.The Magistrate based his factual finding that the prosecution failed to prove beyond reasonable doubt that the reading of 23 was correct on the following[39]:

(1)  “based on PW1’s evidence, the device had a maximum permissible error of plus or minus two microgrammes and, using point-zero-eight microgramme to calibrate”; and

(2)  there was no independent assessment or certificate on the true concentration of dry gas he used to perform the calibration.

The Appellant’s submission

58.Mr Lai submits, first of all, that the Magistrate misunderstood that part of PW1’s evidence about “maximum permissible error” (“MPE”).  In this regard, Mr Lai prays in aid PW1’s evidence in re-examination which has not been included in the Case Stated.  Secondly, he submits that even assuming that the “MPE” referred to by PW1 in fact amounts to an ‘inherent margin of error’ of the EBT device, that is not capable of rebutting the prima facie evidence established by the evidentiary certificate issued pursuant to ss39C(3) & (12), RTO, there having been a long line of English case authorities to the effect that the printout of a breathalyzer is admissible at common law as being real evidence which is capable of being proof of the matters contained therein: see, eg, Garner v DPP, ante. Thirdly, Mr Lai relies on PW1’s evidence that he had performed calibration and breath test on the EBT device ever since 2003 and had conducted about 9,000 breath tests.  However, there was no one single test the result of which had exceeded the prescribed range of permissible error, ie, plus or minus 0.8 µg/100ml. Furthermore, PW1 confirmed that he had not been aware of any evidence which suggested that the concentration of the dry gas he used to conduct the tests was not accurate. 

The Respondent’s submission

59.Mr Poon submits that the Magistrate was correct in finding that a margin of error could be present in the reading of the EBT Device.  Further, it was far from clear whether the margin of error (plus or minus 0.8 µg) was to be taken into account before or after the truncation.  It is also submitted that the prosecution cannot rely on PW1’s evidence alone to prove the reliability of the calibrations carried out in respect of the EBT Device.

Consideration

60.As to Mr Lai’s contention that the Magistrate misunderstood PW1’s evidence about the “MPE”, I note that the Magistrate was not saying that it was the direct evidence of PW1 that the EBT Device had a MPE of plus or minus 2 µg.  The Magistrate was saying that “based on PW1’s evidence” the device had such a MPE, so that it is possible that he was making an inferential finding from PW1’s evidence rather than making a direct quote of what PW1’s said.  However, whether or not the Magistrate had misunderstood PW1, for the following reasons, with respect, I find that the magistrate’s finding cannot be supported even without referring to the transcript. 

61.Firstly, it is not entirely clear to me what the Magistrate meant by saying that the EBT Device had a MPE of plus or minus 2 µg. If the Magistrate meant that the device had an inherent margin of error of that magnitude due to its design[40] and used that as a basis for finding that the prosecution had failed to prove that the reading of 23 given by the device was reliable, then, with respect, he fell into error by failing to follow the principle contained in the second aspect of R v Moreau as discussed above.

62.Secondly, the Magistrate has failed to take into account the presumption of reliability at common law (based on the principle omnia praesumuntur rite esse acta) to the effect that in the case of a breath specimen, there is a common law principle that, in the absence of evidence to the contrary, instruments are presumed to be in order: see Castle v Cross[41], applied in Garner v DPP[42]; R v Skegness Magistrates’ Court, ex parte Cardy[43];and Anderton v Waring[44].  See also generally Phipson on Evidence (19^th ed) at §28-28. 

63.In the present case, it was agreed that the calculation process done by the EBT device automatically and could not be influenced by the operation[45]. In my judgment, the combined effect of the aforesaid common law presumption of reliability and s39C(3), RTO is such that the Magistrate ought to have assumed, in the absence of evidence to the contrary, that the EBT Device was in good working order at the material time.  However, there is nothing to show that the Magistrate had directed himself on this.

64.Thirdly, in my judgment, the fact that PW1 had not personally verified the concentration of the dry gas which he used to calibrate the EBT Device is not in law a reason to reject that part of his evidence on the reliability of the device.  This is because PW1 was entitled to rely on what he was told was the concentration of the dry gas.  In Leung Chi Kin v The Queen[46], the appellant was convicted, as a licensed wholesale dealer, of failing to keep a record of a poison in Part I of the Poisons List.  The Government Chemist carried out the essential work himself and he certified that he had found prednisolone in all of the 61 cartoons of bottles seized from the appellant.   It was argued on the appellant on appeal, among other things, that the Government Chemist's evidence should not have been accepted because it relied on reports from assistants of processes carried on in his absence.  The Full Court rejected this argument and said:

“In chemical matters as in other scientific and technical matters those concerned must inevitably place some measure of reliance on the work of others. As Blair-Kerr, J. has pointed out in R v Ma Wai Fun (No.2) [1962] HKLR 61, a nurse taking a temperature relies on the efficacy of the thermometer and is not normally required to prove its accuracy or the manner in which it works. A chemist using different substances to carry out his tests will normally rely on the labels attached to these substances in his laboratory and unless there is some special reason for raising the issue, will not normally be required to establish that he had personally tested each of these substances beforehand in order to show that they were what he thought them to be. A chemist or doctor who says that he took, say chloroform, from a bottle so labelled is not normally required to prove that he had personally examined and tested the contents beforehand, any more than he would be asked to prove from his personal knowledge that a glass slide was in fact made of glass before being allowed to refer to it as such. The courts observe a limit on the extent to which they require every element in the testimony of an expert witness to be established by his own personal knowledge and we do not think those limits have been crossed in the present case.”

65.Leung Chi Kin v The Queen was applied in The Queen v Wan Pui-hay[47].  It is unfortunate that neither of the two cases had been drawn to the attention of the Magistrate.

66.Lastly, granted that PW1 was entitled to rely on the concentration of the dry gas being 34.7 µg/100ml and that there was no gainsaying that, for the 9,000 times of breath tests he had performed, there was no one single test the result of which had exceed the prescribed range of permissible error, in the absence of any evidence to the contrary, the inference is overwhelming that the EBT Device in question was working properly and correctly at the material time.  There was no basis, legal or evidential, for the Magistrate to reject the prosecution case that the reading of “23” given by the EBT Device was accurate. 

67.Furthermore, there was also no basis, legal or evidential, for the Magistrate to reject the prosecution case, which was based on s39C(12), RTO, that the breath alcohol level of the Respondent at the time of her driving in question was not less than that found in the specimen.  In this regard, I respectively adopt what is said by Woo DJ in HKSAR v Ng Chin Yue Wilson and Ng Yee Man Yvonne, ante, that although the burden of proof rests all along with the prosecution, by virtue of s39C(12), RTO the prosecution is entitled to rely on the evidence of the test result of the accused’s breath specimen as prima facie evidence of his or her breath alcohol level at the time of the driving in question.  However, it is open to the defence to adduce evidence to raise a doubt that the breath alcohol level at the material time was less than that found in the breath specimen.  However, as I have said, there was no such evidence in this case.

68.In view of the above, with much regret, I am driven to the conclusion that the Magistrate’s decision to acquit the Respondent of the charge is based on a factual finding which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to.  Therefore, the answer to Question III is in the affirmative.

Order

69.Based on the above, the appeal is allowed and the acquittal of the Respondent is set aside.  It is further ordered that this case be remitted to the Magistrate for him to convict the Respondent of the charge and to sentence her accordingly. 

70.It only remains for me to thank all counsel for their valuable assistance.

Mr Derek Lai, SADPP and Mr Eric Yung, PP of Department of Justice, for the Appellant

Mr Poon Siu-bunn, instructed by Lam & Co, for the Respondent