HKSAR v. Lam Ming Lok

ESCC2365/2020

[2021] HKMagC 13

IN THE EASTERN MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 2365 OF 2020

__________

__________

RULING

Introduction:

1.The Defendant, Mr. Lam Ming Lok, is facing 3 charges:

a.  “Failing to provide specimen of blood for laboratory test after failing to provide specimen for screening breath test” (“Charge 1”);

b.  “Careless driving” (“Charge 2”); and

c.  “Using a vehicle on a road when window had been attached with tint films” (“Charge 3”)[1].

2.Originally, he pleads guilty to Charge 2 and 3 and the trial (the “Trial”) concentrates on Charge 1.  He is acquitted on Charge 1.  Before I sentence him on Charge 2 and 3, I indicate I will consider a term of imprisonment and will detain him for 14 days to obtain a Background Report.  At this juncture, his counsel, Mr. Cheng Huan S.C., applies to reverse the Defendant’s pleads on Charge 2 and 3 and admits openly he had given wrongful advice to the Defendant.  After a brief consideration, I allow the Defendant to reverse his pleads on Charge 2 and 3 and order the trial of them be heard by another Magistrate.

3.The Prosecution now applies for a review (the “Review”) on:

a.  the acquittal of Charge 1; and

b.  my decision to allow the Defendant to change his pleads on Charge 2 and 3.

4.In the Trial, Ms. Flora Cheng acts for the Prosecution; Mr. Cheng S.C. leading Mr. William H.M. Lam and Mr. Vincent Wan act for the Defendant.

5.In this Review, Mr. Man Tak-ho, Jonathan, Deputy Director of Public Prosecutions (Ag) leading Ms. Ho May Yu Lily, Senior Director of Public Prosecutions (Ag) act for the Prosecution; Mr. Martin Hui, S.C leading Ms. Vivian Wong and Mr. Vincent Wan act for the Defendant. 

6.Mr. Cheng S.C. does not act for the Defendant in this Review, for he expressed openly that as he had given negligent advice to the Defendant, he will not act for the Defendant anymore.  Mr. Wan is the only counsel who act for the Defendant in the Trial and Review.

The Trial:

7.In the Trial, the Prosecution has the burden of proof, to prove beyond reasonable doubt that the Defendant had committed Charge 1; the Defendant does not have any burden of proof, has right of silence and benefit of doubt.

8.The Prosecution calls 2 witnesses, Mr. Chung Kwan-shing, PC23248 (PW1) and Mr. Chan Ting-pong, Sgt.47357 (PW2).  After I find there is a case to answer, the Defendant elects not to give evidence to exercise his rights, but he calls one defence witness, Ms. Chan Hei-wah, Sharon, his counsel on the night in question, to give evidence.

The Evidence In The Trial:

9.The Prosecution adduces 3 exhibits in Trial:

a.  Further Medical Report of Dr. Chan Ngo-tin James dated 23 February 2021 (“Exhibit P1”);

b.  Dr. Chan’s Statement of Medical Practitioner (Pol.973D) dated 8 August 2020 (“Exhibit P2”); and

c.  Hong Kong Police Force Handling Drink Driving Procedural Form Part II (Pol.973A) dated 8 August 2020 (“Exhibit P3”).

Dr. Chan was not called as a prosecution witness, his statement (Exhibit P2) was admitted under s.65B of the Criminal Procedure Ordinance.

Evidence of PW1:

10.Mr. Chung Kwan-shing, PC23248, PW1, gives evidence mainly as follows:

On 8 August 2020, he was on duty, in uniform.  At around 0020 hours, he was summoned to an accident scene near No.9 Magazine Gap Road and saw a damaged private car with registration mark MY686 crashed on the embankment, the Defendant was the driver. PW1 found the Defendant was leaning against the railing, did not sustain any injury, was not very conscious and carried a slight smell of alcohol.  An ambulance was summoned to the scene, but it left as the Defendant did not suffer any injury.  Then the Defendant was arranged to take a rest on a police vehicle.

11.At 0037 hours, on the police vehicle, PW1 took out Pol.973, a pro forma document that PW1 normally used, and read out paragraph 3 and requested the Defendant to conduct a breath screening test.  The Defendant refused.  Then PW1 asked the Defendant three questions: “Have you smoked in the last five minutes?”; “Have you drink alcohol or consumed anything else in the last 20 minutes or since the traffic accident?” and “Are you taking any medication now?”  The Defendant all answered “No”.  Then PW1 took out the screening device and instructed the Defendant to carry out the breath test.  However, before the Defendant performed the breath test, at 0040 hours, the Defendant said he felt dizzy and put his head against the table on the police vehicle, became unconscious.  At 0043 hours, PW1 genuinely believed and concluded the Defendant committed the offence of “failing to provide a screening breath test with reasonable excuse” and arrested him by using paragraph 6 of Pol.973.  The Defendant gave no response.  PW1 requested for another ambulance.

12.At around 0050 hours, the second ambulance arrived.  PW1 informed the Defendant to get on board that second ambulance.  The Defendant looked dull and said he wanted to get on board himself.  PW1 observed the Defendant’s mental state was absentminded and confused.  Then PW1 together with another police officer, PC16251, each stood at one side of the Defendant and held him to get on board of the ambulance.  They arrived at the Queen Mary Hospital at 0132 hours.  The Defendant waited in the waiting area which was an area that partitioned by curtains for medical treatment.  Dr. Chan came to handle the Defendant at 0150 hours, then signed Exhibit P2, saying that he had no objection for the Defendant to provide breath, blood or urine specimen.   The Defendant was not very conscious at that time and was lying inside the waiting area.

13.PW1 continued guarding the Defendant.  At 0224 hours, the Defendant’s counsel, Ms. Chan (i.e. the DW) arrived to have an interview with the Defendant.  PW1 went outside the waiting area and left they alone.  At 0245 hours, Dr. Chan tried to enter the waiting area to examine the Defendant but was refused by DW.  At 0304 hours, Dr. Chan tried to enter the waiting area again as the interview lasted too long. He requested the interview to be finished.  Then DW walked out of the waiting area.  Outside the waiting area, PW1 heard the Defendant yelled loudly inside and became emotional, he could not see what happened as there was a curtain.  In fact, it was PW2 who handled the Defendant inside the waiting area.

14.PW1 confirmed that throughout his contact with the Defendant, he found the Defendant always behaved in a genuine manner.

Evidence of PW2

15.Mr. Chan Ting-pong, Sgt.47357, PW2, gives evidence mainly as follows:

On 8 August 2020, he was on duty in uniform and arrived at the Queen Mary Hospital at 0132 hours.  He saw the Defendant was not very conscious and lying on the moveable bed of the ambulance at the A & E Department.  Then the Defendant was transferred to another bed and was moved to Consultation Room 7, which was partitioned by curtain.  At that time, the Defendant was semi-conscious.  Then a doctor came and at around 0150 hours opined that the Defendant was suitable to take part in a screening breath test or to give blood or urine sample.  After the doctor left, PW2 asked the Defendant inside the Consultation Room verbally “Well, you need to give your blood sample for testing.  Are you willing to do so?”, but the Defendant did not have much response.  PW2 did not know if the Defendant did not hear his question, nor he was still unconscious.  PW2 waited a bit, hoping that the Defendant would become a little bit sober that PW2 could read out a paragraph of warning to him.

16.PW2 confirmed that at round 0150 hours, when he was guarding the Defendant, the Defendant was mentally absentminded, at a semi-conscious condition.  The nurses asked the Defendant whether he knew where he was and he could not even answer it.

17.DW arrived at 0224 hours with a male, then they interviewed the Defendant inside the Consultation Room. PW1 and PW2 waited outside at the corridor.  DW and the male came out at about 0304 hours.  PW2 then saw the Defendant tried to stand up and expressed he had to answer the call of nature.  PW2 went out to ask the nurse for a wheelchair as he found the Defendant could not stand up steadily; but the nurse only provided a bedpan to let the Defendant to urinate inside the Consultation Room. The Defendant was not contented and shouted, “What’s wrong with it?”  Then the doctor and at least 4 or 5 nurses and 2 security officers entered the Consultation Room; the doctor ordered to put a straitjacket on the Defendant to restrain him.  All the curtains were closed, PW2 walked out of the Consultation Room and waited at the corridor.  Then the doctor said he had to take blood sample form the Defendant, so PW2 re-entered the room.

18.PW2 approached the Defendant who was on straitjacket, said to him “Now the doctor is going to take blood sample from you for laboratory testing of alcohol,” and asked “do you have any medical reasons why you cannot or should not give a blood sample?”, the Defendant did not answer.  Then PW2 gave him a warning, telling him that a blood sample had to be taken from him for testing of alcohol; if he was not willing, he might be prosecuted.  The Defendant looked at the ceiling without giving an answer.  Then PW2 cautioned the Defendant and asked “Do you give your consent to the hospital to take the blood sample for laboratory testing?”, and the Defendant did not reply.  PW2 confirmed he did not ask the Defendant if he understood the question or the caution.

19.PW2 then tapped the Defendant’s shoulder slightly as the Defendant was in a state of semi-consciousness, and asked the Defendant again “Do you give your consent for blood to be taken for laboratory alcohol testing?”, without asking if the Defendant understood what he was saying; then the Defendant answered in a soft voice “Do not consent.”  PW2 then declared the Defendant was under arrest for failing to provide specimen of blood for laboratory test and cautioned him again.  PW2 then walked out of the room and filled in Exhibit P3 at around 0314 hours, but he did not ask the Defendant to sign on it; as the Defendant was restrained tightly in the straitjacket.

20.PW2 confirmed when he asked the Defendant questions, the Defendant was mentally absent, dazed, and semi-conscious.  He could not sure if the Defendant was comprehending what was happening or what was said to him.  PW2 also confirmed that legally he could apply Section 39C(11A) to obtain blood sample from the Defendant, which could be done without the consent of the Defendant.

21.The above is a summary of the Prosecution’s evidence, which is not much challenged by Mr. Cheng S.C. in the cross-examination.

22.After Prosecution closes its case, I rule there is a case to answer.  The Defendant then calls his only witness.

Evidence of the Defence Witness:

23.Ms. Chan Hei-wah, Sharon (DW) gives evidence mainly as follows:

She had been practicing as a barrister-at-law for over 7 years and understood the Defendant had never waived his legal privilege.  On that night, she was briefed to attend Queen Mary Hospital for a legal visit with a paralegal Mr. Billy Mak.  She arrived at the hospital at 0215 hours.  At 0230 hours, she entered the Consultation Room to give advice to the Defendant.  At 0300 hours, Dr. Chan came into the room and insisted blood sample extraction had to be done immediately.  DW objected and Dr. Chan said he would only wait for 10 more minutes, then left the room.  At 0303 hours, Dr. Chan entered the room again, ordered the Defendant to be restrained and DW to leave the room.  DW went outside and could not see what happened inside.  She overheard some murmurs, so she used her finger to open the curtain a bit and saw PW2 hunched over the Defendant, who was lying on the bed; then she shouted several times that “Police officer, Ah Sir, please, if you are going to ask questions, we need to be there.” Then at 0312 hours, PW2 went out and informed her that the Defendant was unwilling to give consent.  DW then told PW2 that the procedure was wrong and unfair, that the Defendant’s legal representatives should have been present; she also questioned if the Defendant could understand the situation and his rights.

The Defence’s Submission in Trial:

24.Mr. Cheng S.C. presented his argument in three folds:

a.  Did the Defendant refuse to provide blood specimen?;

b.  Did the circumstances amount to reasonable excuse?; and

c.  Procedural unfairness.

25.The main thrust of Mr. Cheng S.C.’s argument is as the Defendant was so confused or unconscious at the material time, he was mentally incapable of comprehending the information given to him, thus he had a full statutory defence of reasonable excuse (the “Mens Rea Argument”).

26.First, I accept PW1 and PW2 are truthful and honest witnesses; their evidence have not been seriously challenged.

27.When giving evidence, both PW1 and PW2 use words like “not very conscious”, “unconscious without any response”, “no response”, “semi-conscious”, “slightly sober” and “absent minded” to describe the Defendant.  They agree the Defendant acted genuinely at the material time.

28.Dr. Chan mentioned in Exhibit P1 that “(the Defendant) repeatedly attempted to leave cubicle before xray assessment with high risk of fall during observation period. Despite explaining the needs and benefits of bed rest, (the Defendant) remained confused with unsteady gait.  Therefore, physical restraint was ordered …”.  It is clear Dr. Chan ordered straightjacket to be put on the Defendant because he had a high risk of fall and was confused with unsteady gait.

29.After a careful consideration of the evidence as a whole, I cannot rule out the possibility that the Defendant was genuinely semi-conscious and absent minded at the material time.  In particular, I accept PW1 and PW2 were very experienced police officers and were attaching to the traffic unit at the material time; further, Dr. Chan made a professional judgment to restrain the Defendant for his own safety. 

30.I cannot disregard the fact that, all three of them had first-hand observation on the Defendant and they give evidence that the Defendant acted genuinely at the material time.

31.Further, DW is an experienced barrister-at-law, I cannot rule out the possibility that at the material time, she was playing a delaying tactic to allow the Defendant’s alcohol concentration to be reduced instead of giving any meaningful advice to him.

32.In conclusion, I cannot rule out the possibility that at the material time, the Defendant was confused, absent minded or semi-conscious that he was not able to comprehend the situation and was mentally incapable of committing Charge 1.  I accept Mr. Cheng S.C.’s Mens Rea Argument.

33.It is not necessary to deal with Mr. Cheng S.C.’s other argument.

The Ruling and the Reverse of Plea

34.For the abovementioned reasons, I acquit the Defendant on Charge 1.

35.Mr. Cheng S.C. proceeds to mitigate on Charge 2 and 3.  The maximum penalty of Charge 2 and 3 are a fine of $5,000 and 6 months’ imprisonment; and a fine of $10,000 and 6 months’ imprisonment respectively.

36.After hearing the mitigation, I indicate as I consider the Defendant’s driving manner amounted to almost the worst case of careless driving, so I will imprison him; and will detain him to call for a Background Report first.

37.After a brief submission, Mr. Cheng S.C. indicates he will apply bail pending appeal; so I adjourn a few minutes to allow him to prepare the document.  When the court resumes, Mr. Cheng S. C. submits the Defendant applies to reverse his guilty pleas to Charge 2 and 3.

38.Mr. Cheng S.C. admits that as he had inadvertently misled the Defendant into thinking that he would not be sentenced to any term of imprisonment or remanded in custody, and induced him to plead guilty on Charge 2 and 3, so the Defendant was not free and voluntary to plead guilty to the Charges.  The Defendant would discharge Mr. Cheng S.C. and his juniors after the reverse of pleas application.

39.After hearing Mr. Cheng S.C.’s submission, I invite Ms. Cheng to reply, who had nothing to add. Then I adjourn briefly to consider Mr. Cheng S.C.’s application.

40.According to Archbold Hong Kong 2021, para.15-147:

“Where the defendant pleads guilty to an offence, albeit unhappily and reluctantly, after receiving ‘strong advice’ from his counsel, and the appeal court holds that the defendant may have lost his power to make a voluntary and deliberate choice, it will find that the plea was a nullity. … A judge may not accept an equivocal plea or a plea which is involuntary. … Where it is suggested that the plea of guilty was equivocal, the judge would be likely to consider the following factors:

(1)In order for a plea of guilty to be deemed to be equivocal the defendant must have added a qualification, which if true may show that he is not guilty of the offence.

(2)After an unequivocal plea has been entered and before sentence is passed, the trial court can permit the defendant to change his plea to one of not guilty. It is a matter for the court’s discretion. … For example he plea may have been induced by threats, fraud, misrepresentation or undue pressure, (including from the court);

(3)In determining whether to allow a reversal of plea, the court should ask itself three questions, (a) was the plea equivocal or unequivocal? (b) During the course of the proceedings did anything happen which makes it clear to court that it should consider exercising its discretion to permit a change of plea? And (c) by not allowing the change of plea did the trial court exercise its discretion wrongly? …

… The issue can be stated simply: does the confession of guilt reflect the defendant’s consciousness of guilt?  A mere change of mind will not suffice.  The burden of proof to establish that there are grounds to warrant a reversal of the plea of guilty is upon the defendant … .”

41.Accordingly, I accept Mr. Cheng S.C.’s application and allow the Defendant to change his pleads on Charge 2 and 3 as Mr. Cheng S.C. frankly admits he had given wrongful legal advice to mislead the Defendant and inadvertently induced him to plead guilty.

42.I then order the trial of Charge 2 and 3 be fixed to another date before another Magistrate, and bail be granted to the Defendant.

The Review:

43.On 27 May 2021, the Prosecution confirms they will proceed to review the above-mentioned decisions:

a.  To acquit the Defendant on Charge 1 (the “Acquittal Decision”); and

b.  To allow the Defendant to reverse his pleas on Charge 2 and 3 (the “Reverse of Plea Decision”).

44.The Defendant has indicated to me well before the review hearing that, despite he reversed his pleas on Charge 2 last time, he will plead guilty to Charge 2 and 3 in the review hearing.

45.Both Mr. Hui S.C. and I agree, as the Defendant elects to plead guilty to Charge 2 and 3, it renders the Prosecution’s application to review my Reverse of Plea Decision becomes academic.  However, Mr. Man disagrees and keeps on arguing on that issue and insists I should make a ruling.  I will deal with Mr. Man’s argument on The Reverse of Plea Decision briefly.

The Reverse of Plea Decision

46.Mr. Man submits:

a.  The Defendant should not be able to reverse his guilty pleas on Charge 2 and 3 on the basis that Mr. Cheng SC had given him the so-called ‘improper’ or ‘erroneous’ legal advice on the possible sentence that he may face.  After all, there was no real misunderstanding of the law as alleged and the Defendant admitted all the relevant facts;

b.  There is no evidence whatsoever that the Defendant had ever been under any pressure from counsel, the court or anyone else when deciding his pleas; and

c.  The Defendant misunderstands the minimum penalty is not a ground for nullifying his guilty plea.

47.According to the discussion transpires between the Court, Mr. Man and Mr. Hui S.C., we all agree that it is the Court’s discretion if a reverse of plea to be allowed; and the paramount principle to be considered is if there is any miscarriage of justice.

48.I consider Mr. Man’s submission and reconsider the whole case carefully, I am not persuaded by Mr. Man’s argument.

49.In fact, according to Mr. Cheng S.C.’s submission, other than he gave ‘improper’, ‘erroneous’ legal advice to the Defendant, he goes far beyond that; he admits in open court that he had ‘inadvertently inducing (the Defendant) to take the particular course of action’.

50.I would say it is a very strong evidence and admission that Mr. Cheng S.C. had induced the Defendant to plead guilty on Charge 2 and 3.  With such evidence and admission, I can easily conclude that the Defendant had lose his power to make a voluntary and deliberate choice on his pleas on Charge 2 and 3; and it will amount to miscarriage of justice if I do not allow the Defendant to change his pleas.

51.Mr. Man tries to argue that Mr. Cheng S.C. only mentioned to the Defendant “he was not likely to face any term of imprisonment if he pleaded guilty” (Transcript p.88C – D), that the Defendant’s free choice had not been deprived.  In fact, Mr. Cheng admits more than that.  He admits “that it was not free and voluntary given in the sense that I had given him erroneous legal advice …” (Transcript p.88N – O), “I have, in a way, encouraged him to plead guilty based on cases which I’ve come across and my learned junior’s research and so I’d, obviously, given him wrong advice” (Transcript p.88R – S), “I wish to put it on record that we have inadvertently misled him into thinking that he would not be sentenced to any term of imprisonment or remanded in custody for these …” (Transcript p.90L – M), “Therefore, we have inadvertently inducing him to take the particular course of action” (Transcript p.90R – S); that “we inadvertently induced him to do so …” (Transcript p.92T – U). 

52.The above shows Mr. Cheng S.C. admitted he had done much more than just advising the Defendant he was not likely to face any term of imprisonment.

53.I maintain my ruling on allowing the Defendant to change his pleas on Charge 2 and 3 and the Prosecution’s review application on the Reverse of Plea Decision is dismissed.

The Acquittal Decision:

54.On this aspect, Mr. Man’s submission is summarized at paragraph 60 of his written submission dated 10 June 2021 that:  “In our submission, the Court had not paid sufficient regard to the collective weight of evidence of this case.”

55.A Magistrate has wide powers in a review hearing, that he can “reopen and rehear the case wholly in part, and to take fresh evidence, and to reverse, vary or confirm his pervious decision”; and has all the powers which he has when information is first brought before him.  In a review hearing, the burden of persuading the Magistrate to reverse or vary his decision lies on the applicant (see s.104 of the Magistrate Ordinance, Cap.227; Archbold Hong Kong 2021, para.7-54; Poon Chau Cheong v Secretary of Justice (2000) 3 HKCFAR 121, [2000] 2 HKLRD 636 and Yeung Siu Keung v HKSAR (2006) 9 HKCFAR 144, [2006] 1 HKLRD 895).

56.I consider Mr. Man’s argument carefully and reconsider all the evidence as a whole, I still accept Mr. Cheng’s Mens Rea Argument, rule that at the material time, the Defendant’s mind was so confused that he might not be able to understand the situation, hence it is possible that he might not be able to commit Charge 1; I still rule that the Prosecution fails to prove beyond reasonable doubt on Charge 1 and the Defendant should be acquitted.

Reasonable Excuse:

57.As our discussion proceeds, I invite the parties to clarify a specific issue that “whether self-induced intoxication amounts to a reasonable excuse” under s.39C(1)(b) and (15) of the Road Traffic Ordinance, Cap.374.  It is my concerns that:

a.  If self-induced intoxication does not amount to a reasonable excuse, then the Mens Rea Argument bounds to fail and the Defendant should have been convicted anyway; and

b.  It looks illogical that the more alcohol a defendant has consumed, the easier he can escape from a conviction; it simply defeats the purpose of the Ordinance.

58.There is no local authority on this point directly.

59.In R v Lennard [1973] 1 WLR 483, the appellant whilst driving his car was involved in a minor road accident. When the police arrived, he smelt of drink. He refused to take a breath test. He was arrested and taken to a police station where he again refused to take a breath test or to provide a specimen of blood or urine for laboratory test. The appellant was thus charged with failing without reasonable excuse to supply a specimen for laboratory test. At trial, he contended that he had a reasonable excuse for not supplying the specimen in that, after he had ceased to drive but before being asked to supply either a specimen of blood or urine, he had consumed a substantial quantity of alcohol. No evidence was called and the trial judge ruled that the appellant’s excuse was incapable in law of amounting to a reasonable excuse. The appellant appealed against conviction. Upon dismissing his appeal, Lawton L.J. laid down the guiding principle which is followed in later cases at 487C-D:-

‘In our judgment no excuse can be adjudged as a reasonable one unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health’.

60.In DPP v Eddowes[1991] R.T.R. 35, the prosecution appealed against the dismissal of an information against the defendant charged with failure to provide second breath specimen. The trial justices were of the opinion that the defendant was ready and willing to provide a second specimen, had tried as hard as he could provide it and, there was a reasonable excuse for his failure. Upon allowing the appeal, the English Court of Appeal held that the justices were wholly wrong and mistaken in their approach to the case and should, on the facts before them, have concluded that there was no excuse whatsoever, certainly not a reasonable excuse for the defendant’s failure to provide a second breath specimen. Guided by what was said by Lawton LJ in Lennard, Watkins LJ made the following comments at 40J-41C :-

‘In the present case … at the first attempt, this defendant provided a specimen the result of which … was the revelation of a very high reading. After that there followed the so-called unsuccessful attempt. Facing that situation it seems to me that the justices were in no position to approach the question as to whether on that evidence a reasonable excuse had been provided as they appear to have done. From what I have read in the case stated, no excuse whatsoever had been, in my view, provided which could be used for the purposes of finding that what was done or not done by the defendant was in the circumstances reasonable. The justice state that they were prepared to assume, it could be not more than an assumption, he was under some stress as a consequence of being involved in a traffic accident. Many motorists who attend police stations and who are asked to take breath tests have done so after having been involved in traffic accidents. If it is, in the absence of direct evidence, to be assumed that a motorist is in a state of stress as a consequence of being involved in such an accident, which provides automatically a reasonable excuse for not providing a specimen as required under section 8, then, it seems to be that the purpose of this Act in this respect will be defeated. Justices must be very careful not to be so gullible, if I may say so with respect, as to accept propositions of this kind in circumstances such as are before this court’.

61.The English decision of DPP v Beech[1992] R.T.R. 239, decided on 4 July 1991, is apposite to illustrate that self-induced intoxication rendering the defendant incapable of providing a specimen of breath was not, in law, a reasonable excuse.  In Beech, the prosecution appealed against the dismissal of an information against the respondent charged with failure to provide a specimen of breath. The trial justices found the respondent was so drunk that although he heard the request he was unable to understand the procedure at the police station under section 7 of the Road Traffic Act 1988, that constituted reasonable excuse for not providing a specimen of breath so as to give him a defence to the charge. Upon allowing the appeal, Leonard J, to which Woolf LJ agreed, had this to say at p.245:

‘In my judgment, where a warning has actually been given, but it is said that it did not impinge on the mind of the person to whom it was addressed, the more appropriate approach normally is to consider whether there is reasonable excuse. It would be artificial in such circumstances to say there was a failure to warn as required by section 7(7).’ (245B-C)

…

‘The justices specifically found in paragraph 2(h) of the case that “the breath test procedure was explained to the defendant but he was too drunk to understand the procedure.”

Moreover, when he was requested to give a specimen the defendant, as I have pointed out, refused in clear terms.

Mr Turner [Note: Counsel for the Prosecution] argues that the true analysis of the situation in the present case is that what the constable said was capable of giving the defendant the necessary information to comply with the statute. It was the defendant’s self-induced drunkenness which rendered him incapable of understanding what was said, as the justices found.

With the analysis of the situation I for my part agree.’ (245K-L) 

The Court then continued:

‘There is, in my judgment, a clear distinction between the present case and the language cases. It would, in my view, defeat the object of the legislation, which is intended for the protection of the public, to hold that the fact that the defendant was too drunk to understand what was said to him could provide him with a reasonable excuse. It would also be an abuse of language so to describe it.

The conclusion I have come to is that the justices misdirected

themselves on the law in holding that the fact that the defendant was so intoxicated, such intoxication being self-induced, that he was unable to understand the procedure under section 7(7) and the

consequences of a refusal could amount to a reasonable excuse.’

(245L-246C)

62.The more recent judgment of DPP v Camp [2017] EWHC 3119 (Admin) decided in 2017 is also very illustrative. The trial judge acquitted the defendant, who had failed to provide specimen, ‘because he found that [the defendant] “had a reasonable excuse, he was simply too drunk to provide” ’ The Divisional Court considered the question of whether self-induced intoxication could properly amount to a “reasonable excuse” for failing to provide a specimen of breath for analysis, for the purposes of an offence under s.7(6) of the Road Traffic Act.  Following Beech, Lindblom LJ, in holding that self-induced intoxication could not amount to a “reasonable excuse”, had this to say:

‘18. … the scope of a “reasonable excuse” for the purposes of section section 7(6) of the Road Traffic Act 19885 will always be a question of fact for the court on the evidence before it. Subsection (6) does not prescribe the ambit of a “reasonable excuse” nor does it preclude any particular form of excuse, including an excuse based on the evidence as to the person’s physical or mental capacity at the relevant time, which may include evidence as to his intoxication at the time when he was required to provide a specimen of breath. It is also important to keep in mind, however, that there is a real difference between a true explanation for a person’s failure to provide a specimen when required to do so and a “reasonable excuse” for that failure. An explanation may constitute an excuse, and that excuse may be a reasonable one. But that is not necessarily so. The fact that voluntary intoxication may sometimes, perhaps often, explain a person’s inability to provide a specimen does not mean that that person will therefore have a “reasonable excuse” for not doing so’.

19. … At this court’s decision in DPP v Beech illustrates quite vividly … where the court is concerned with the question of whether or not a defendant’s excuse for not providing a specimen required of him as a “reasonable excuse”, it must recognize the object and purpose of the 1988 Act, and must gauze whether, in view of that object and purpose, the excuse put forward can properly be regarded as reasonable. That is necessarily an objective exercise for the court, to be conducted, as was held in DPP v Beech, in the light of evidence as to the defendant’s level of intoxication, and, as will usually be so, the fact that his or her intoxication is self-induced.  It might reasonably be thought unattractive, to say the least, that a defendant whose self-induced intoxication was so great as to prevent him from understanding the requirement to provide a specimen or, to render him physically incapable of providing that specimen, could take advantage of a statutory defence not available to a defendant whose conduct had been objectively more “reasonable” in that his level of intoxication when he drove a motor vehicle on the highway was not such as to render him incapable of providing a specimen of breath. This would seem an unlikely concept for the legislators to have embraced in providing the defence of “reasonable excuse” for a defendant’s failure or refusal to provide the specimen required.’

63.In 香港特別行政區訴李建業 HCMA 215/2009 (Chinese judgment dated 27 August 2009), at para. 44 of the judgment, the Honouarable Justice Tong quoted the following remarks made in 香港特別行政區訴蔡志雄 HCMA 62/2000 (dated 1 September 2000) :-

44. 裁判官正確地引用了蔡志雄的判例，朱芬齡法官的有關判詞如下:

「香港法例第374 章《道路交通條例》第39B（6）條，與英國Road Safety Act 1967 第3（3）條相類似。在R v. Lennard 案中，英國上訴庭指出第3（3）條所屬的第一部份(Road Safety Act PartI) 的訂立，是為解決控方在檢控駕車者受酒精影響下駕車的控罪時，在舉証方面所遇到的困難。英國議會在法例的第一部份引入身體內酒精含量濃度的上限，並規定駕車者必須應警員要求提供呼氣樣本，以供測試酒精含量的濃度。為確保條文得以有效地被執行，第3（3）條同時規定，如無合理辯解而不提供樣本者便屬違法。本港訂立《道路交通條例》第39B（6）條的用意和作用想必相同。有鑑於此，倘駕車者因醉酒而不能提供樣本，以致警方無法鑑定其體內酒精含量濃度，和認定其是否在受酒精影響情況下駕駛車輛，仍可被視為有合理辯解，則《道路交通條例》中有關禁止酒後駕駛的條文，豈非形同虛設？因在此情況下，律政處既不能以第39B（6）條提出檢控，又不能按第39 條控以在受酒精影響下駕駛車輛。本席認為，倘接納因醉酒而不能提供呼氣樣本屬身體能力不逮，且能構成合理辯解，則與第39B（6）條的立法精神有所抵觸。依本席之見，R v. Lennard 中所指的身體能力不逮(physical inability)應局限於體能方面或非因酒精、藥物所引致的身體狀況。」

64.In R v LAI Chi-keung[1996] 4 HKC 168, YEUNG J (as he then was) stated the following at 171G – 172B :-

‘In my view, feeling discomfort per se cannot be a valid reasonable excuse for failure to comply with the request for a breath sample. One must not ignore that the purpose of the legislation in question was to prevent people from driving while under the influence of alcohol. Very often breath samples need to be taken from people who are in some stage of physical discomfort, perhaps after a traffic accident or in cases when they were suspected to be drunk. In fact, it was precisely for those reasons that breath sample needed to be taken. In my view, physical discomfort, in the light of the purpose of legislation in question, cannot be a reasonable excuse unless such physical discomfort render it impossible to have a proper breath sample taken or that the taking of samples would adversely affect the well-being of the person involved. Unless the courts adopt such an attitude, people who appear to be drunk and therefore in some physical discomfort can always raise this as a reason for not complying with the request to supply breath samples’.

65.It occurs to me that there is good policy reason that self-induced intoxication does not constitute a “reasonable excuse”.

66.However, when reading the above authorities, one must very cautious that on 1 October 2002, s.7A was inserted to the Road Traffic Act 1988 in England; likewise, in 2011, ss.39C (11A) to (11G) and (13A) were added to the Road Traffic Ordinance, Cap.374 in Hong Kong.

67.Both s.7A of the Road Traffic Act and ss.39C (11A) to (11G) of the Road Traffic Ordinance add a mechanism that a police officer may request a medical practitioner to take a sample of blood from a person even if he or she may be incapable of giving a specimen of blood.

68.The above English authorities were decided before 2002 except Camp (supra) and R (on the application of Cuns) (supra); however, Camp concerns of taking breath sample, instead of blood and R (on the application of Cuns) concerns s.7(6), instead of s.7A of the Road Traffic Act 1988.  Likewise, the Hong Kong authorities were decided before 2011.

69.Ss.39C (11A) to (11G) had never been invoked in our case.

70.I am persuaded that the purpose of the newly added mechanism under the Road Traffic Ordinance s.39C (11A) to (11G) is to ensure the person being investigated would not in any way to evade from his responsibility to provide blood specimen, despite the fact that he or she is incapable of giving consent for the taking of the specimen; failing to do so renders him to be prosecuted.  The legislative intent and the public policy requirement are fulfilled by the newly introduced mechanism.

71.Unlike taking breath or urine samples, taking a blood sample involves an intrusive procedure, which substantially affects a defendant’s privilege against self-incrimination.  I am in the view that the mechanism introduced by S.39C (11A) to (11G) strikes a proper balance on obtaining blood sample from a defendant and preserving his or her privilege against self-incrimination.  Accordingly, with the introduction of the S.39C (11A) to (11G), the Mens Rea Argument is a sound and proper argument.

Conclusion

72.For the reasons above, all the Prosecution’s applications are dismissed.

73.With the benefit of hindsight, the police officers involved should have invoked the mechanism under S.39C (11A) to (11G) and (13A) by requesting a medical practitioner to take blood sample from the Defendant, instead of embarking on S.39C (1)(b) and (15).  The police should pay proper attention on such practice.

74.I thank the assistance of Mr. Man, Mr. Hui S.C. and their juniors and would invite either party to bring this case to the higher court to resolve the legal issues completely.

Mr Jonathan Man DDPPI Ag. leading Ms Lily Ho SADPPI Ag. for HKSAR

Mr Martin Hui SC leading Ms Vivian Wong and Mr Vincent Wan instructed by Messrs SSW & Associates for the Defendant

[1] Charge: (1) Failing to provide specimen of blood for laboratory test by a person failing to provide specimen for screening breath test

Statement of Offence: Contrary to sections 39C(1)(b) and (15) of the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong.

Particulars of Offence: LAM Ming-lok, you are charged that on the 08^th day of August 2020, inside the Accident and Emergency Department, Queen Mary Hospital, 102 Pok Fu Lam Road, in Hong Kong, you, who failed to provide a specimen for the screening breath test but with reasonable excuse, did, without reasonable excuse, fail to provide a specimen of blood for a laboratory test when required by a police officer, namely, Sergeant 47357.

Charge: (2) Careless Diving

Statement of Offence: Contrary to section 38(1) of the Road Traffic Ordinance, Cap.  374, Laws of Hong Kong.

Particulars of Offence: LAM Ming-lok, you are charged that on the 07^th day of August 2020, at Magazine Gap Road (westbound) near the lamppost no. 37716, Mid-level, in Hong Kong, you did drive a vehicle, namely, private car displaying registration mark MY686 on a road carelessly.

Charge: (3) Vehicle door window glasses, (except front and rear windshields) “attached with tinted films” were reduced the ability of the glass light transmission rate.

Statement of Offence: Contrary to regulations 28(2) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong.

Particulars of Offence: LAM Ming-lok, you are charged that on the 07^th day of August 2020, at Magazine Gap Road (westbound) near the lamppost no. 37716, Mid-level, in Hong Kong, you did use a vehicle, namely, private car displaying registration mark MY686 on a road when the window had been added whereby the ability of the safety glass to transmit light was decreased.