The Attorney General v. Choi Wah Hang and Another

HCMA000990/1986

BETWEEN

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Coram: Cons, V.-P., Clough, J. A. & Power, J.

Date of hearing: 11th November, 1986.

Date of delivery of judgment: 11th November, 1986.

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This is an appeal by way of case stated against the acquittal by Mr. Sweeney, a magistrate of this Colony, of charges brought against the two Respondents. It has been referred for decision by this Court by Garcia J. In a letter in support of the application to transfer it is said that -

"         The basis for the application will be that the issue for determination in the case involves a matter of law with important implications for the administration of justice in Hong Kong namely whether and to what extent the defence of self-induced intoxication operates in Hong Kong."

In point of fact it is no more than an application of the well-established principles in relation to self-induced intoxication to one particular crime, and one, with respect, not of major importance. To be fair however to counsel who asked for the transfer, it was done with the thought in mind that this Court might perhaps be tempted to reconsider those basic principles, should the opportunity be afforded. We have no hesitation in rejecting that temptation.

2. The charge, as it was amended during the trial, was founded on Section 49 of the Road Traffic Ordinance which provides -

"         If a person otherwise than with lawful authority or reasonable excuse gets on to a vehicle or tampers with any part of the vehicle, he commits an offence and is liable to a fine of $5,000 and to imprisonment for twelve months."

3. The facts as found by the learned magistrate and set out in the case stated are as follows:-

4. On the Review I determined that this was an offence requiring specific intent and that the defence of self-induced intoxication was firstly, available, and secondly, proven and therefore acquitted."

It is obvious that the magistrate accepted that self-induced intoxication is no defence to crime of mere basic intent. That is reflected in the question which he finally posed -

"Did I err in law in determining that the offence of tampering with a motor vehicle pursuant to Section 49 of the Road Traffic Ordinance was an offence requiring specific intent?"

5. He does not set out in the case stated the arguments which persuaded him to his conclusion. That may be, perhaps, because with respect, in our view, the point is not susceptible to much elaboration.

6. However, Mr. Smith who appears for the 2nd Respondent has gallantly put forward two submissions in support. The first is based partly on an historical survey of the English legislation which presumably provided the precedent for Section 49, and partly upon what he suggests to be a common-sense approach. The submission is that the word "tamper" necessarily connotes an intention to do something which is disadvantageous to the owner of the vehicle or alternatively has that effect. He supports his submission by the further suggestion that only in this way can tampering be differentiated from accidental interference with the vehicle.

7. With respect we are unable to accept that submission. We do not propose to attempt an exhaustive definition of the word "tamper", which is a common and well understood word of the English language. There may be occasions where it will not necessarily be easy to say whether particular conduct amounts to tampering or not. But we are satisfied that there is no reason whatsoever to add to its basic meaning the further requirement that Mr. Smith suggests.

8. The second submission is based on the distinction between an expression commonly used in statutes which prohibit particular conduct "without lawful authority or excuse", and the expression used in the present instance "otherwise than with lawful authority or reasonable excuse".

9. Mr. Smith concedes that if the former expression had been used, then he would have been out of court, by reason of such authorities as Jaggar v. Dickinson⁽¹⁾. But he suggests that the use of the instant expression indicates an intention on the part of the legislature that the crime does require some positive state of mind on the part of the wrongdoer.

10. Again with respect we do not agree. We are not persuaded, even though the two expressions were used in close proximity in the Road Traffic Act 1960, that there is any significant difference between them.

11. We should add that we find no assistance in the case of Blayney v. Knight ⁽²⁾ to which our attention had been drawn.

12. For these reasons we allow the appeal, set aside the acquittals and remit the case to the magistrate with a direction to convict and impose such sentences as he deem appropriate.

(1) [1980] 3 All E. R. 716

(2) [1975] C. A. R. at p.269

Representation:

Choi Wah Hang, 1st Respondent in person

C. Smith and Paul T. Y. Tse, D. L. A. for 2nd Respondent

A. A. Bruce, Crown Counsel for Appellant