HKSAR v. Lai Leung Yuk

HCMA1165/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1165 OF 2005

(On Appeal From ESCC 1622 OF 2005

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 8 December 2005

Date of Judgment : 8 December 2005

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J U D G M E N T

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1.The appellant, who pleaded guilty to one charge of Careless Driving, was convicted after trial of one charge of Failing to Provide Specimen Blood for Laboratory Test with Alcohol Concentration Likely to Exceed Prescribed Limit, contrary to sections 39C(1)(b) and (15) of the Road Traffic Ordinance, Cap. 374.  On that charge she was fined $5,000 and disqualified from driving for a period of 12 months.  She now appeals her conviction in respect of that charge.

2.The appellant, the driver of a motor vehicle, was involved in a traffic accident at 5:15 a.m.  A breath test conducted by PW1, a police office, returned a reading of 66 micrograms of alcohol in 100 millilitres of breath.  The appellant was arrested for driving under the influence of alcohol.  PW1 told the appellant that he needed to take blood sample and explained the reason.  The appellant refused and told PW1 that drawing blood was bad for her health.  Despite warning by PW1 of likely prosecution if she unreasonably refused to consent, she reiterated the same.  That was the crux of the case against the appellant.

3.At the trial the appellant gave evidence.  She said that she was in pain, feeling dizzy and sleepy most of the time.  She vaguely remembered about providing breath but she had no recollection of what happened afterwards.  She denied that she had refused to undergo a blood test but could vaguely remember that she did say that she was anaemic.

Grounds of appeal

4.No specific ground of appeal against conviction was filed but she submitted grounds orally today before me.  She said that the magistrate had erred in finding her conscious at the time and he had not taken into account that she had to undergo neural surgical tests afterwards.  She said that she was unconscious at the time, she was not aware that she was required under law to undergo a blood test.  She also said that she was so unconscious that she did not even know whether PW1 was a police officer or a doctor.  She said that she had no intention whatsoever to evade legal responsibility had she known that she was under law required to do so.

5.The respondent replies by submitting that this is a case which rests entirely on the credibility of the prosecution witnesses and the appellant.  The magistrate had thoroughly evaluated their respective evidence.  He had accepted the prosecution witnesses’ evidence and he was entitled to find that the reason given by the appellant, as related by PW1, was nothing more than a lame excuse and certainly did not amount to a reasonable excuse.  The respondent submits that the magistrate was entitled to convict the appellant on the ample evidence.

Findings

6.It is correct to say that the sole issue in the present case was whether the appellant did refuse to undergo blood test as required and whether there was any reasonable excuse for such refusal.  At the end of the day, it is a question of fact to be decided on the credibility of the prosecution witnesses and the appellant.

7.The magistrate had seen and heard the witnesses.  He was in a better position to make findings on credibility than a tribunal hearing appeal.  He set out his assessment of the evidence in great detail in his Statement of Findings.  All the points raised by the appellant today had been dealt with by the magistrate.  The magistrate took into account the medical officer’s evidence to the effect that when he examined the appellant her pulse, blood sugar level and blood pressure were normal.  The doctor’s evidence was that she was conscious and awake, and he certified on Form 973D (P4) that the appellant was suitable for an alcohol screen test or breath test.  His evidence, whilst supporting the observation of the appellant’s condition by PW1, went directly against the appellant’s evidence that she was sleepy and unconscious of what happened. 

8.Furthermore, the addresses on another form (P5), i.e. Form 973, being confirmed by the appellant to be correct, was evident of the fact that such were provided by the appellant to PW1, that in turn supported the evidence of PW1 of his conversation with the appellant.  The magistrate had given himself the necessary direction on credibility and propensity based on the appellant’s clear record.  He found that PW1 and PW2 were honest and truthful witnesses whilst the appellant was not a witness of the truth.  His findings were supported by sound and good reasons.  His findings of what happened was as PW1 had alleged could not be faulted.  This conclusion is one that I would have come to based on those evidence.

9.Having found that the appellant did refuse to undergo a blood test, the reason she gave to PW1 was as PW1 had related, that was bad for her health, was not a reasonable excuse.  There was ample evidence to convict the appellant of the charge.  I confirm the order of the magistrate accordingly and dismiss this appeal against conviction.

Ms Pang Po Kam, SGC of Department of Justice, for HKSAR

Appellant in person, present