HKSAR v. NG CHIN YUE WILSON AND ANOTHER

HKSAR v. NG CHIN YUE WILSON AND ANOTHER

Post-offence consumption of alcohol can constitute the actus reus of perverting the course of public justice where it has a tendency to affect forensic breath analysis used in ensuing curial proceedings; s39C(12) is not a conclusive bar to relevance of such consumption because the statutory evidential effect is rebuttable; intention must be proved and may be inferred from circumstances where the only irresistible inference is perversion of justice—on the facts the conviction of A2 was safe and her sentence appropriate, but the evidence was insufficient to exclude a reasonable innocent inference as to A1's intent, so his conviction was unsafe and quashed.

Citation
HKSAR v. NG CHIN YUE WILSON AND ANOTHER
Parties
Respondent: HKSAR; 1st Appellant: NG Chin Yue Wilson; 2nd Appellant: NG Yee Man Yvonne
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 January 2015
Case Number
HCMA684/2013
Procedural Posture
Magistracy Appeal (court of First Instance) / Appeal Judgment (conviction and Sentence Reviewed)
Outcome
1st Appellant (NG Chin Yue Wilson): conviction quashed and sentence set aside. 2nd Appellant (NG Yee Man Yvonne): conviction and sentence (6 months imprisonment) affirmed.
Legal Topics
Perverting the Course of Public Justice, Drink Driving, Actus Reus and Mens Rea, Statutory Evidence Presumptions (s39 C), Sentencing
Source Language
EN
Criminal Law Road Traffic Law Evidence Law Perverting the Course of Public Justice Drink Driving Actus Reus and Mens Rea Statutory Evidence Presumptions (s39 C) Sentencing

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Parties

HKSAR

Respondent

NG Chin Yue Wilson

1st Appellant

NG Yee Man Yvonne

2nd Appellant

Procedural Posture

Magistracy Appeal (court of First Instance) / Appeal Judgment (conviction and Sentence Reviewed)

Legal Issues

  1. 1 Whether post-offence consumption of alcohol (a single sip) constitutes an act tending to pervert the course of public justice (actus reus)
  2. 2 Whether the appellants had the requisite intention to pervert the course of public justice (mens rea)
  3. 3 Whether s39C(12) Road Traffic Ordinance creates a conclusive presumption rendering post-offence consumption irrelevant

Ratio Decidendi

Post-offence consumption of alcohol can constitute the actus reus of perverting the course of public justice where it has a tendency to affect forensic breath analysis used in ensuing curial proceedings; s39C(12) is not a conclusive bar to relevance of such consumption because the statutory evidential effect is rebuttable; intention must be proved and may be inferred from circumstances where the only irresistible inference is perversion of justice—on the facts the conviction of A2 was safe and her sentence appropriate, but the evidence was insufficient to exclude a reasonable innocent inference as to A1's intent, so his conviction was unsafe and quashed.

Court Disposition

1st Appellant (NG Chin Yue Wilson): conviction quashed and sentence set aside. 2nd Appellant (NG Yee Man Yvonne): conviction and sentence (6 months imprisonment) affirmed.

Orders

  • Allow the appeal of the 1st Appellant; quash conviction on Charge (3) and set aside sentence.
  • Dismiss the appeal of the 2nd Appellant against conviction and sentence.