Four years and eight months after Garfield (Gary) Wong was arrested on traffic charges, he was found guilty of careless driving and leaving the scene of the accident, but not guilty of driving under the influence of alcohol.
Magistrate Grace Donalds handed down her verdicts on Wednesday, noting it was the twelfth time the matter had been before her since trial began in January 2017.
Mr. Wong, a senior immigration officer, was arrested in the early hours of Dec. 27, 2013, after his truck was in a collision with a car on Shamrock Road, in the vicinity of Hibiscus Gardens.
The magistrate referred to Mr. Wong’s own evidence. He said he was driving west toward his home when his cellphone fell from the seat to the floor of the truck. He said he checked his rear-view mirror and the road ahead, did not see anything, and then bent down to pick up the phone, taking his eyes off the road in the process.
By doing so, the magistrate said Mr. Wong had shown a lack of critical judgment and he had failed to conform to the standards of a reasonable and prudent driver. Questioned by Crown counsel Scott Wainwright, he had agreed he was driving without due care and attention.
Mr. Wong had also told the court that as he picked up his phone, he felt a bump and heard a thump. He said he thought he had hit a pothole.
Photos of the two vehicles showed considerable damage to both of them. The force of the impact must have been significant, the magistrate commented. The noise should have alerted Mr. Wong that he had been in an accident and the final resting place of the other vehicle should have made him aware, she said.
Given the damage to his own front wheel, he should have been aware that he had been in an accident, she concluded, and found him guilty of leaving the scene of an accident.
The magistrate detailed evidence presented about the breathalyzer test given to Mr. Wong at the Bodden Town Police Station after the accident. It had produced a reading of .184. The legal limit in Cayman is .100.
The officer administering the test explained the procedure he had followed. When he was asked if the arresting officer was in the room for the test, he said he could not confirm that.
The magistrate pointed out that either the arresting officer was present or he was not. If he was present, she would have expected the officer to say so. The magistrate said she was of the view that this response should have been clarified to remove any doubt as to whether the officer was present or not. This inability to unequivocally confirm the officer’s presence raised a doubt – It appeared that there may not have been strict compliance with the law, so that the breathalyzer certificate should not have been admitted into evidence.
The Traffic Law states that the constable operating an alcohol-in-breath measuring device shall do so in the presence of another constable and the result of the breath test is to be signed by him and “countersigned by the constable in whose presence it was made ….”
Without evidence of the alcohol-in-blood level, the magistrate found Mr. Wong not guilty of this charge and acquitted him.
Mr. Wainwright said the Crown would be asking for costs because an expert witness had to be called to reply to the defense witness. Defense attorney Dennis Brady indicated there should not be any costs awarded because Mr. Wong had been acquitted.
Mr. Wainwright then noted that leaving the scene of an accident is a very serious offense and he asked for time to place authorities before the court. Mr. Brady did not disagree and sentencing was set for Tuesday, Sept. 18.