HKSAR v. WONG SAU KWAN

HCMA 53/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 53 OF 2001

(ON APPEAL FROM TWCC 4177/2000)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistracy to two charges, one of Careless Driving for which he was fined $1,000; the second charge of Driving a Motor Vehicle with Alcohol Concentration in Breath exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap.374.

2. The facts of the case show that the Appellant, who was a professional driver, lost control of his vehicle while negotiating a left hand bend. The vehicle knocked down a traffic light box, a traffic sign and two sections of road railing before overturning on the nearside of the road.

3. The initial breath test at the scene indicated that the Appellant had 67 micrograms of alcohol in 100 millilitres of breath, which was above the prescribed limit of 22 micrograms of alcohol in 100 millilitres. The subsequent breath test taken about 1 1/2 hours later showed a finding of 60 micrograms of alcohol in 100 millilitres of breath.

4. The Appellant pleaded guilty and admitted the facts. On the charge of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, he was fined $3,000 and disqualified from holding or obtaining a driving licence for a period of 9 months.

5. The Appellant now appeals against that sentence, complaining that he was treated more harshly than people with similar offences and similar records who were dealt with in the Magistracy on the same day.

6. He believed that he had solid grounds of mitigation which were not taken into account by the Magistrate and felt that although he had been represented by the Duty Lawyer, the sentence he received was heavier than that of other defendants.

7. He questioned whether the Magistrate had taken account of his family circumstances, his occupation as a professional driver, and the fact that he was the sole breadwinner of the family. He said that he had saved the court's time by pleading guilty and pointing out that there was no injury to anyone, nor was any other vehicle involved in the accident.

8. The Appellant's previous record only showed a Careless Driving conviction, which was 10 years ago and it appears that the Magistrate, apart from noting the conviction, took no further cognisance of it. In mitigation he was told that the Appellant had been asked to drive a sick friend home, that he failed to consider the serious consequences of his action and that he was very remorseful.

9. In sentencing the Appellant, the Magistrate took into account his plea of guilty and was mindful of the fact that the Appellant was a professional driver and that a period of disqualification would inevitably mean that he would lose his job for a time.

10. He noted that it was a serious accident and that the Appellant was close to being three times over the legal limit. He could find no special reason, relating to the offence itself, that would allow him to exercise his discretion not to order disqualification. He did, however, take into account that the Appellant was a professional driver. He said that ordinarily he would have considered a 12-month disqualification order together with a fine to be appropriate for the charge. Because the Appellant was a professional driver, he shortened the period of disqualification to 9 months to take account of the consequences to him.

11. There is nothing out of the ordinary in respect of this particular sentence. The Magistrate correctly took all factors into account. This sentence is not manifestly excessive, nor wrong in principle and this appeal against sentence is dismissed.