HKSAR v. Ng Chin Yue Wilson and Another

HCMA 684 of 2013

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 684 OF 2013

(On appeal from ESCC 1483 OF 2013)

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Date of hearing: 16 March 2015

Date of decision: 16 March 2015

D E C I S I O N

Introduction

1.I gave judgment in this magisterial appeal on 29 January 2015 (“the Judgment”), inter alia, dismissing the 2^nd Appellant’s appeal against both her conviction and sentence.   By a Notice of Motion taken out on 2 February 2015, the 2^nd Appellant seeks a certificate from me that the Judgment involves the following points of law of great and general importance, namely,

(1) “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?”

(2) (a) “Can an act which only tends to make investigation into a suspected offence more difficult be an act tending to pervert the course of justice?”

(b) “Can an act which does not in any way lead to a Court being misled be an act tending to pervert the course of justice?”

2.Having heard the parties, I refuse to grant a certificate as requested.  The following are my brief reasons.

Reasons – Question (2)

3.All the above questions relate to the actus reus of the offence of perverting the course of public justice, one of the matters challenged on the appeal.

4.I will dispose of the two questions under Question (2) first.  What I ought to mention is that the second of the two questions, question (b) was never raised at the hearing of the appeal in the terms as it now appears.  Moreover, my decision to dismiss the appeal of the 2^nd Appellant against conviction, affirming the finding of the magistrate that what the 2^nd Appellant did at the material time amounted to the actus reus of the offence, was not based on any of my rulings or decision on the two questions.  In the Judgment, I did not make any ruling or decision on or give any answer to these two questions.  Indeed from the written submissions of Ms Olivia Tsang, counsel for the 2^nd Appellant, in support of the present motion, it is abundantly clear that that was the case.  Para 15 of her said submissions reads:

“Question (2) stems from Ground (4) of the Applicant’s Perfected Grounds of Appeal against conviction dated 15 January 2014. Mr. Robert Pang, SC, leading Counsel for the Applicant in her appeal, also addressed this Court extensively and thoroughly on this ground. However, it is not apparent as to under which paragraph of the Judgment did this Court deal with the issue directly.”

5.These two questions and the absence of any answer to them did not form a reason for the Judgment.   Neither of them is, therefore, “a point of law of great and general importance” that “is involved in the decision” in the Judgement under section 32(2) of the Court of Final Appeal Ordinance, Cap 484.   Therefore, these two questions cannot be a subject matter of a certificate under section 32(2).

Reasons – Question (1)

6.Question (1) relates to the proper interpretation of section 39C(12) of the Road Traffic Ordinance, Cap 374.  If, as asserted by counsel for the 2^nd Appellant, this section provides for the result of a breath test being the conclusive evidence of the suspected offender’s breath alcohol content at the time of the alleged offence of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, no actus reus can be established for the offence of perverting the course of justice arising from alcohol being consumed by the suspected offender after the alleged offence and before the breath test.  The act accused of (being the consumption of beer after the alleged offence and before the breath test) was therefore incapable of perverting the course of justice and hence had no tendency to pervert.

7.In support of the present motion, Ms Tsang submits, correctly, that where leave to appeal to the Court of Final Appeal is sought on the basis that a point of law of great and general importance is involved, the point must be “at least reasonably arguable” before leave can properly be granted: Lee Kin Pong v HKSAR [1998] 1 HKLRD 182 at 183F (per Bokhary PJ).  On this basis I turn to examine whether Question (1) raises a point that is at least reasonably arguable.

8.The said section 39C(12) provides as follows:

‘(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 added.)

9.It is clear that the wording of the provision does not include “conclusive evidence” as appear in provisions such as section 65C of the Criminal Procedure Ordinance, Cap 221.  The term here used is “shall be evidence”.  How does it operate if there is contrary evidence?  The fact that s39C(12) allows the police or the prosecution to produce the result of the breath (or blood or urine) test as “evidence” of the proportion of alcohol in the accused’s breath (or blood or urine) at the time of the alleged offence does not express it to be conclusive in the matter, nor can it mean to be conclusive.  There is no express wording in the provision to disallow or exclude the parties (especially the accused) from adducing evidence of post-offence alcohol consumption (ie further alcohol consumed after the driving but before the test) to raise the issue or raise a doubt as to whether his breath, blood or urine alcohol content would have exceeded the statutory limit.  This evidence of post-offence alcohol consumption, if relied upon by an accused, could affect the determination of the guilt or otherwise of him being charged with driving with the proportion of alcohol in his breath exceeding the prescribed limit, and affect his sentence if he is convicted.    To put it simply, the wording of the provision does not deprive the right of the parties to adduce contrary evidence nor disallow the court from considering such evidence.

10.That was the reason why in the Judgment, I held that s39C(12) can only give rise to a rebuttable presumption.  I said:

47. In our s39C, no exception [as provided for in section 10(2) of the Road Traffic Act 1972 referred to in Beauchamp-Thompson v DPP [1989] RTR 54] is specifically provided for, nor is it provided for in any other provision of the Ordinance.  This goes some way to show that despite the section making the alcohol proportion in the specimen of the accused’s breath the evidence of the alcohol proportion in his breath at the time of the alleged offence, contrary evidence can be adduced to show that the alcohol proportion at the time of the alleged offence can be less or more.  This does not detract from the statutory provision that the specimen analysis result shall be such evidence.  In the UK legislation and scenario, back-tracking was allowed, ie, it was open to the prosecution to call evidence designed to prove that, though by the time the specimen was taken the blood-alcohol level was lower than the limit, at the time when the defendant ceased driving, some hours earlier, it would have been above it (Gumbley v Cunningham [1988] RTR 57).

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.”

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.

13.I am of the view that the point is so clear that it is not reasonably arguable that section 39C(12) of the Road Traffic Ordinance is or gives rise to a conclusive evidence presumption as proposed in Question (1).

Conclusion

14.In the result, I refuse to grant the certificate sought.

Mr Edmond Lee, SADPP, of the Department of Justice, for the Respondent

Ms Olivia Tsang, instructed by Messrs Tang & So, assigned by the Director of Legal Aid, for the 2^nd Appellant