HKSAR v. Wai Wing Hong

HCMA 763/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 763 OF 2012

(ON APPEAL FROM STCC NO 3995 OF 2012)

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J U D G M E N T

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1.The appellant in this case was convicted on 25 October 2012 by a magistrate sitting in Shatin Magistracy of a charge of failing to provide a specimen of breath by a person suspected of having alcohol in his body, contrary to section 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap 374 Laws of Hong Kong. He was sentenced to a fine of HK$6,000 and disqualified from holding or obtaining a driving licence for a period of 5 years and ordered to attend a driving improvement course.

2.On 27 March 2013 perfected grounds of appeal against conviction and sentence were filed.

3.The perfected grounds of appeal against conviction are:-

(a)   Ground 1: The learned Magistrate erred in holding that the operators of the Lion Alcolmeter and the Drager Alcotest devices were suitably expert or proficient in operating one or both of those devices and of the evidence adduced before the learned Magistrate absent a statutory basis for proving expertise was not entitled to conclude by judicial notice or otherwise that the operators of the devices were suitable expert or proficient.

(b)   Ground 2: In particular by reference to Ground 1, the learned Magistrate was not entitled to place weight on the certificate that PW1 had attended a course concerning Lion Alcolmeter.

(c)   Ground 3: In particular by reference to Ground 1, the learned Magistrate was not entitled to place weight on the certificate that PW1 and PW2 had attended and passed a course concerning the Drager Alcotest device.

(d)   Ground 4: In the premises, the officers did not have reasonable grounds to require the appellant to submit a test using the Drager Alcotest device.

(e)   Ground 5: (Alternative to Ground 4) In the premises, if it is held that PW1 and PW2 or one of them (sic) reasonable grounds to require the appellant to submit to a test using the Drager Alcotest device, given that it was common ground at trial that the appellant appeared to have expended some effort in submitting to the Drager Alcotest device, neither PW1 nor PW2 were suitably expert or proficient in operating the Drager Alcotest device to say that the appellant had supplied insufficient breath for the Drager Alcotest device to properly operate.

4.The perfected grounds of appeal against sentence are:-

(a)   Ground 1: While recognizing that some suspension of the driver’s license of the appellant was appropriate in the circumstances, the component of the sentence in which the appellant was suspended from holding or obtaining a driver’s license is manifestly excessive because:

(1)   That component of the sentence was wholly out of proportion to the driving of the appellant or – to the extent it is relevant – his conduct after he was intercepted by the police; and

(2)   That component of the sentence is inconsistent with recognized approaches to sentence for such conduct in such circumstances.

5.On 11 June 2013 this court heard oral submissions on behalf of the appellant and the respondent who opposes the appeal and reserved its ruling in respect to both the appeal against conviction and sentence to be handed down at a later date.

6.I now give my ruling in respect of both the appeal against conviction and sentence. 

7.At trial in the court below, the prosecution called two witnesses to testify, PW1, SPC51189 and PW2, PC46519.  In addition, they relied on a set of admitted facts in which inter alia it was agreed that both officers were screening breath test operators at the material time with certificates obtained (exhibits P2 and P3).  The pre-screening device “Lion Alcolmeter 500” and the breath analysing instrument, the “Drager Alcotest 7410” used during the operation were functioning properly at the material time. 

8.The evidence from the two prosecution witnesses was that at about 0050 hours on 23 April 2012 a police road block was mounted at Chak Cheung Street, Ma On Shan, Shatin for a pre-screening breath test operation. 

9.A car driven by the appellant was intercepted at the road block.  PW1 produced the Lion Alcolmeter 500 to the appellant and after explaining to him the procedure, requested him to do the pre-screening test which he did, and the result displayed on the device registered “fail”.

10.As a result of this, PW1 suspected the appellant to have consumed alcohol, so he requested the appellant to undergo a screening breath test with the use of the Drager Alcotest 7410.  PW1 warned the appellant that failure to provide a breath test may constitute an offence, and he also explained to him that he was required to blow air into the device for 7 to 8 seconds continuously. 

11.Three initial tests were carried out by the appellant but on each occasion the tests failed due to insufficient blowing as a result of which PW2 demonstrated to the appellant how to blow into the device.  Three further tests were then carried out by the appellant who failed them all, once again, for insufficient blowing.  As a result PW1 arrested the appellant for the offence of failing to provide a specimen of breath for a screening breath test when required to do so. 

12.The appellant called no evidence at trial in the court below.  The prosecution was put to strict proof, the defence pointing out by way of submissions that the prosecution had failed to satisfy beyond reasonable doubt that the pre-conditions part set out in section 39B(1A) had been complied with and therefore section 39B(1)(a) did not apply, and that PW1 and PW2 were not approved operators and were therefore not qualified to operate the Drager Alcotest 7410.  In addition the defence also submitted that PW1 was not qualified to operate the Lion Alcolmeter 500.

13.Section 39B(1A) states:-

“Subsection (1)(a) does not apply to a person if, immediately before the police officer requires him to provide the specimen of breath –

(a) the person has, at the request of the police officer, provided a specimen of breath to be tested by an approved pre-screening device; and

(b)   the test does not indicate that the proportion of alcohol in the person’s breath reaches such a level that it would be reasonable to suspect that such proportion is likely to exceed the prescribed limit.”

14.Clearly, on the facts as found by the learned Magistrate, the first condition was satisfied, but the second was not as the reading on the Lion Alcolmeter 500 displayed “fail”.  Subsection (1)(a) obviously continued to apply.

15.Dealing with these specific grounds of appeal against conviction:-

(I)  Regarding Ground 1, there is no need to be an expert in order to operate the two devices.  In any event the learned Magistrate accepted the evidence of PW1 that he had received training in the Lion Alcolmeter and had passed that training.  In addition, with regard to the Drager Alcotest 7410 it was an admitted fact that both PW1 and PW2 were trained screening breath test operators and had obtained certificates.  Ground 1 fails.

(II) With regard to Ground 2, the certificate which was admitted at trial as exhibit P4 confirmed the testimony of PW1 which the learned Magistrate had accepted.  Ground 2 fails.

(III)  For the same reasons Ground 3 fails.  In addition the learned Magistrate could not fail to give full weight to the admitted facts that both PW1 and PW2 were trained screening breath test operators.

(IV) There is nothing in Ground 4, there is simply no need for any reasonable grounds to require a person to submit to a test. Section 39B(1)(a) stands alone.

(V) Finally, with regard to Ground 5, no question of expertise arises.  In addition section 39B(10) states:-

“A person fails to provide a specimen for a screening breath test unless the specimen –

(a) is sufficient to enable the test to be carried out; and

(b) is provided in a way to enable the objective of the test to be satisfactorily achieved.”

In the case of the appellant, all 6 tests failed due to insufficient blowing.  There is no merit in this regard either.  Ground 5 fails.

16.I dismiss the appeal against conviction.  I confirm the conviction of the learned Magistrate. 

17.With regard to sentence, it appears to me that the learned Magistrate did sentence the appellant taking into account his previous conviction in November 2006 and imposed the maximum level of disqualification for that level of sentencing by imposing a disqualification order for 5 years. It does not appear that the learned Magistrate considered at all the provisions of subsection 8 wherein he had a discretion to treat the conviction in 2006 as spent.  In the circumstances of the present case I am prepared to allow the appeal against sentence to the extent that the appellant be disqualified from driving all classes of vehicles for a period of 2 years instead of 5 years.

18.The appeal against sentence is allowed to this extent. 

Mr Tam Sze-lok Isaac, SADPP (Ag) of Department of Justice, for the respondent

Mr Andrew Bruce, SC leading Mr Kevin Tang, instructed by Pauline Wong & Co, for the appellant