HKSAR v. Lam King Sing
Read the full judgment text of DCCC 190/2015 on BabelCite. This District Court judgment.
1. The Defendant pleads denies the following 3 charges:
Cited by 6 cases
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DCCC 190/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 190 OF 2015 -----------------------------------
---------------------------- Charges 1.The Defendant pleads denies the following 3 charges:
Defence stance 2.This case concerns a single incident of driving. The prosecution is put to strict proof that the Defendant was the driver of the car at the time of the respective offences, and as a driver, he drove an unlicensed car dangerously with alcohol concentration in blood exceeding the prescribed limit. Prosecution case Account given by eye-witnesses 3.At about 0659 h on 28/7/2014, the weather was fine, the traffic volume medium, the road surface dry and in good repair[1]. A private car, ST 5635, (“the Car”) travelling on the slow lane of northbound Tai Po Road suddenly crossed the lane and bumped into the nearside rear of PW1’s (SZETO Wan-shing’s) taxi, LA 8039, which was travelling on the fast lane of northbound Tai Po Road. The location was near the junction of Fuk Wa Street. The Car did not stop after the collision but proceeded along northbound Tai Po Road. PW1 memorised the registration mark of the Car and gave chase. I shall refer to this as “the First Collision”. 4.The Car went past a traffic light in red at the junction with Shek Kip Mei Street. It went past another traffic light in red, which was at the junction with Nam Cheong Street. When it reached the junction with Nam Cheong Street, its offside front hit, almost head-on, the offside front of a taxi, KL 4335 driven by PW2 (CHENG Ying-ki). KL 4335 with a passenger PW3 (KWOK Wut-ho) [2] on board had just gone through a traffic light in green from Nam Cheong Street to turn into Tai Po Road. The driver of the Car was apparently at fault for jumping the traffic light in red on northbound Tai Po Road[3]. 5.The first taxi, LA 8039, arrived at the junction of Nam Cheong Street a brief moment later and stopped behind the yellow grid near the junction[4]. PW1 saw the 2 cars stop still after the collision though he did not see how they had collided. The offside front of the Car was seriously damaged. The Car was stuck with KL 4335 at the junction after the collision. I shall refer to this as “the Second Collision”. 6.PW4 (LEUNG Wai-kuen) was the driver of a light goods vehicle, bearing registration marks HT 6687, on the adjacent lane of KL 4335 on Nam Cheong Street. After the Second Collision, he stopped his vehicle and went up to PW2 to complain that a jack from the boot of KL 4335 had hit the offside body of HT 6687. 7.PW1 saw the Driver come out of the Car from the driver’s door and walk against the direction of the traffic of Tai Po Road towards a Shell petrol station[5]. There was not much traffic as it was early in the morning. PW5 (LI Kam-ha) was sitting by the pedestrian pavement in the vicinity of Wong Chuk Street and Fuk Wa Street. She was doing nothing in particular. A man (whom she later pointed out to the police as the Defendant) walked up to her and lay down on the road. He offered $100 to her if she would call the police for him. He told her that he was hit in a traffic collision on Tai Po Road. She did not take his money but dialed 999 for him. She asked him to talk to the police by himself. After he had talked to the police on her phone, he continued to lie down on the ground. He also closed his eyes. She walked up to Tai Po Road to see if there was a traffic collision. The police soon arrived. She identified the Defendant and recounted her encounter to the police. 8.The police also made enquiries from PW1 – PW4 on Tai Po Road. PW6 (SPC 1854) conducted a breath test on each of PW1, PW2, and PW4 with no alcohol indicated. PW7 (PC 7469) saw the Defendant’s face and the right orbit both red with a smell of alcohol in his breath. PW8 (PC 9767) walked along Tai Po Road with the junction of Nam Cheong Street against the traffic up to the junction of Fuk Wa Street to see if there were other traffic collisions at around that time. There was none. 9.PW8 took photos of northbound Tai Po Road and each of the 4 vehicles at the scene.[6] He also drew 2 sketch plans of the scene. The first one was of the stretch of northbound Tai Po Road with the junction of Fuk Wa Street up to the junction of Nam Cheong Street.[7] The second one was of the junction of Tai Po Road and Nam Cheong Street with the stopping positions of all 4 vehicles indicated.[8] 10.At 0747 h, when asked to provide a breath test by PW7, the Defendant said:
11.At 0748 h, PW7 arrested him for failing to provide a breath test. After being cautioned, he remained silent[9]. PW7 recorded the encounter on the form accordingly. The Defendant was sent to Caritas Medical Centre in Sham Shui Po. 12.At about 0840 h – 0905 h, PW7 requested the Defendant to have a blood test for alcohol in Caritas Medical Centre and recorded the encounter on the form accordingly[10]. 13.At 0850 h on the same day, a specimen of blood was taken from the Defendant’s body by the medical practitioner for analysis of alcohol concentration. It transpired that there was not less than 253 milligrams of alcohol in 100 millilitres of blood[11]. This exceeded the prescribed legal limit of 50 milligrams of alcohol in 100 millilitres of blood. 14.Except for the damage to the body work caused by the collision, the Car did not have any mechanical defects[12]. 15.The fingerprint expert found the Defendant’s left palm print on the steering wheel of the Car[13]. As at 0000 h on 28/7/2014, the Defendant was the registered owner of the Car[14]. The Car’s licence had expired on 10/6/2014[15]. Therefore it was an unlicensed vehicle when being driven on the road on 28/7/2014. 16.The Defendant suffered the following injuries[16]:
Admissions by the Defendant 17.On the same date, PC 9767 (PW8) prepared a form, Pol. 571, Notice Requiring Identification of Driver in respect of the Second Collision. I shall refer to it as “the Form” before it was filled out by the Defendant. He was told of the resident doctor’s instructions through the nurse that the Defendant was not fit to give a statement to the police. Ten minutes later, at 1100 h, he served it on the Defendant. He told the Defendant that the Form could be filled out and submitted to the police within the next 21 days. The Defendant received the Form and filled it out at once. In PP8, he identified himself as the driver of the Car at the time of the Second Collision. He said that PP8 was ready for PW8’s collection. Therefore, PW8 collected it there and then. 18.The defence objects to the admissibility of this completed document on various grounds. I shall refer to it in this completed state as “PP8”. The grounds (which I hereby endeavour to outline) are as follow[18]:
19.PW7 and PW8 give evidence on this special issue of admissibility of PP8. They deny that they had taken any unfair advantage of the apparently drunken or unfit state of the Defendant. They also deny putting their own handwriting onto the Form at any stage except for PW8’s own signature[19] as the issue of the Form for the Commissioner of Police. Before serving the Form on the Defendant, PW8 was aware of the resident doctor’s instructions through the nurse that the Defendant was not fit to give a statement to the police. He served the Form on the Defendant but advised him of the right to submit the Form upon completion within 21 days after 28/7/2014. He collected PP8 from the Defendant there and then because the Defendant told him that the Form was completed and he could collect it there and then. 20.The Defendant elects not to give evidence or call witnesses on the special issue. I find PW7 and PW8 honest and reliable witnesses. I find it proved beyond reasonable doubt that:
21.So I rule in PP8 and mark it P8. The defence case on the general issue 22.The Defendant elects not to give evidence or call witnesses. My findings Closing submissions 23.The prosecution has no submissions. The defence has put in its full closing submissions in writing. Credibility and reliability of prosecution witnesses’ evidence 24.I find all prosecution witnesses’ evidence credible and reliable. Implications of P8 25.In P8, the Defendant admitted that he himself was the driver of the Car in the Second Collision. Defence counsel has devoted her entire submissions to challenging the weight to be placed on this admission. In my view, the drunkenness of the Defendant at that juncture as borne out by the medical evidence of overwhelming excess of alcohol in his body suggests that this admission may not be reliable. Circumstantial evidence 26.PW1 saw a male alight from the driver’s door of the Car soon after the Second Collision and walk against the direction of traffic on northbound Tai Po Road. PW5 saw the Defendant at a side street of a few blocks at a walking distance from northbound Tai Po Road at around the same juncture. The Defendant told her that he had been hit in a traffic collision and asked her to assist him to call the police. The police found his left palm print on the steering wheel of the Car. The Transport Department record showed that he was the owner at that time. 27.I consider the question as to whether the prosecution has the duty to disprove that someone else was driving the Car that morning. The relevant legal principles are stated in Archbold Criminal Pleading and Practice 2015 para. 4-446 as follows:
28.There is no suggestion by the defence or a scintilla of evidence[20] emerged from either the prosecution or the defence to the effect that the Car had been driven by someone else at the time of the First or the Second Collision. The prosecution has no duty to disprove or contradict anything neither raised by the defence nor emerged in the evidence. I find it the irresistible inference that the Defendant was the driver of the Car both at the First and the Second Collisions. Aspects of the Defendant’s dangerous driving 29.Section 36 of Road Traffic Ordinance, Cap. 374, provides as follows:
30.The Defendant was found to have alcohol in his blood over the prescribed limit by 4 times. This indicated that he was very drunk at the time of driving. The irresistible inference is that when he was driving the Car that morning it was obvious to him and he was aware that he was under the adverse influence of alcohol. According to section 36(7)(c), this way of driving amounts to dangerous driving at law as it had fallen far below what was expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous. Conclusion 31.The alcohol in his blood had exceeded the prescribed limit by 4 times in the course of his dangerous driving of an unlicensed car. The prosecution has proved the ingredients of all 3 charges beyond reasonable doubt. He is convicted as charged.
[1] P20 Admitted Facts I para. 1(b) [2] PW3 was asleep and did not see the course of the collision [3] P20 Admitted Facts I, para. (1)(c), referred to P12 data sheets showing the sequence of traffic lights turning red, amber, and green respectively at the junction [4] From the scale sketch P18 can be reckoned that LA 8039 was parked at 20 metres from the location of collision [5] P7 Photo 5 read together with P22 map reflect that the Shell petrol station is on the pedestrian pavement on northbound Tai Po Road between the junctions with Nam Cheong Street and Un Chau Street; P6 scale sketch shows that it is about 15 metres from the location of the Second Collision [6] P7 photo album under P20 Admitted Facts I [7] P6 under P20 Admitted Facts I [8] P18 under P25 Admitted Facts II [9] P1(b) Pol. 973 Hong Kong Police Force Drink Driving Procedure Form Part I, in particular Sections 4 – 6 [10] P3(b) Pol. 973 Hong Kong Police Force Drink Driving Procedure Form Part II [11] P5(b) Statement of medical practitioner CHAN Chung-keung Cary under P20 Admitted Facts I [12] P13 M.V.E. Accident Report under P20 Admitted Facts I [13] P20 Admitted Facts I, para. 5 [14] P9 Certificate of Particulars of Vehicle Supplied Under Regulation 4(2) of Cap. 344E under Admitted Facts I [15] See overleaf of P9 Certificate of Particulars of Vehicle Supplied under Regulation 4(2) [16] P20 Admitted Facts I, para. 3 [17] P16 is the set of 5 medical certificates under P20 Admitted Facts I [18] The grounds of objection are from the 3 sets of written grounds D1, D2, and D3, and the case as put to prosecution witnesses in the cross-examination of PW8 [19] At the right bottom corner of the Form [20] No scintilla of evidence of someone else, with a name or of a category such as a friend, a car repairer, or a thief, being or possibly being the driver | ||||||||||||||||||||||||||||||
Other judgments that cite this case
Further hearings and rulings under DCCC 190/2015