HKSAR v. SMITH MARK

HCMA 805/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 805 OF 2011

(ON APPEAL FROM ESCC 2839/2011)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted after trial of a charge of Driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap. 374. He was sentenced to perform 240 hours of unpaid work under a Community Service Order and was disqualified from driving for 12 months. He now appeals against the imposition of a Community Service Order. The Disqualification Order is not a subject of the appeal.

Facts

2.  Counsel for the Appellant, Mr. Kevin Hon, took no issue about the facts as set out by the Magistrate in her Reasons for Sentence.  I will therefore just quote what were said :

“2. At about 0225 hours on 18 March 2011, the southbound tube of the Cross Harbour Tunnel was operated in one tube two-way traffic. The nearside lane was for traffic heading towards the Hong Kong direction whereas the offside lane was for traffic heading towards the Kowloon direction. The Defendant was riding a motorcycle GX 2769 along the offside of the southbound tube towards the Kowloon direction. He lost control of his motor cycle near Alcove 9. As a result, the defendant’s vehicle fell leftward and scratched the embankment. Damage was caused to the defendant’s vehicle only at the point of impact. PC 5409, a trained police officer in uniform attended the scene and conducted a Screening Breath Test with the Defendant at 0327 hours on the same day. The result showed that there was 45 micrograms of alcohol in 100 millilitres of breath which was over the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath. PC 5409 therefore declared arrest on the Defendant. The Defendant subsequently fainted and was sent to Ruttonjee Hospital for medical treatment He regained consciousness at the hospital. At 0400 hours on the same day, the attending doctor agreed to the provision of breath, blood or urine sample by the Defendant under the Road Traffic Ordinance, Cap.374. The Defendant gave his consent to the provision of a blood sample to be taken for a laboratory test. At 0410 hours, the doctor took blood specimens from the Defendant. The chain of evidence of the blood sample was not challenged. The Government Chemist found that the blood sample contained not less than 102 milligrams of alcohol per 100 millilitres of blood (which was over the prescribed limit of 50 milligrams per 100 millilitres of blood).

3. PC 34501 subsequently took a record of interview from the Defendant. The Defendant stated that he had drunk 2 bottle of beers in the early evening prior to the accident. He was a diabetic. His blood sugar dropped and that affected his ability to make decisions.”

Reasons for the Sentence

3.  The Magistrate gave the following reasons for the sentence she imposed :

“6. I have considered the facts of the case and the mitigation very carefully. I did not accept that the Defendant was remorseful at all. He presented the Court with the most fanciful story at trial. He stated that he had only consumed 2 bottles of beer and thereafter, he was walking around in an automated stated for about 5 hours. He had no intention to drive that evening and had deliberately left his helmet and gloves in his office. He did not know how he had returned to his office, collected his driving gear, collected his motorcycle which was parked on the street and drove to the Cross Harbour Tunnel. He maintained that version of events after conviction.

7. The Defendant’s alcohol level was 102 micrograms in 100 millitres of blood over 1 hour after the accident. That is twice the legal limit (Tier 2). He chose to drive in that state. There was not a shred of remorse. In those circumstances, the Court was considering an immediate custodial sentence. However, I took into consideration the fact that the accident was not serious. There was no other party involved and the only damage was to the Defendant’s property. I therefore sentenced the Defendant to 240 hours of Community Service. No reasons were put forward for me to exercise my discretion not to disqualify the Defendant from driving or not to order him to attend a Driver’s Improvement Course. I accordingly made a disqualification and Drivers’ Improvement Course Order.”

Grounds of Appeal

4.  Mr. Hon put forward the following grounds of appeal :

1. The learned Magistrate adopted immediate imprisonment as the starting point which is not in line with the prevailing sentencing practice.

2. The learned Magistrate erred in not giving any or any proper weight to the mitigating factors :

a. There was no personal injury involved;

b. There was no other road user being involved or affected adversely;

c. There was no evidence of poor manner of driving; and

d. The Appellant’s good background and previous clear record.

Respondent’s submission

5.  The gist of the submission of the Counsel for the Respondent, Mr. Andrew Cheng, PP, is that although the number of hours the Appellant was ordered to do the community work is on the high side, it is not wrong in principle for the Magistrate to impose a Community Service Order given the aggravating features of the case as highlighted in the Magistrate’s Reasons for Sentence.  Mr. Cheng stressed the risk the Appellant had posed to other road users especially as he had to ride his motor-cycle in the cross harbor tunnel at a time when the tunnel was operated in one tube two-way traffic, and this must be something within his contemplation.  He submitted that a fine serves no adequate deterrent effect on the Appellant, especially in the light of the finding of the Magistrate that there was not a shred of remorse on his part.

Reply from the Appellant

6.  Mr. Hon reiterated that the level of alcohol detected was only tier 2.

7.  He also stressed that since the Appellant was riding a motor-cycle, he was the one who would bear the highest risk if an accident was to take place.  

Discussion

8.  There is no sentencing tariff for this nature of offence.

9.  In R v CHOW TIN JACK, HCMA 61/1997, Yeung J (as he then was) said :

“I have to state explicitly that driving under the influence of alcohol or drugs or similar offences are extremely serious as traffic accidents would cause injury or even death to innocent people or other road users, as well as serious loss and damage to property, resulting in a tremendous influence on the supply of resources to the society. In serious case of a similar type, there is nothing wrong in passing an immediate custodial sentence.”

10.  In HKSAR v Chu Sung Kei, HCMA 122/2007, having reviewed a series of cases, Barnes J observed :

1. Even for a first offender, if the facts of the case are serious, an immediate custodial sentence is inevitable; and

2. The quantity of alcohol in excess of the prescribed limit is a factor to be considered in sentencing.

11.  In the case of SJ v Amina Bokhary, CAAR 10/2010, the Court of Appeal noted the following observation of Stock J (as he then was) in HKSAR v Lau Shu Wing, HCMA 1124/1998 :

“My attention is drawn to the fact that as a matter of statistics and known practice, first offenders who plead guilty to offences of this kind are normally fined and suspended from driving … …”

12.  Whilst I accept that a motor-cyclist is often most vulnerable in a traffic accident, the potential high risk that is caused by driving under the influence of alcohol cannot be underestimated.  Precedents clearly show that if such driving causes serious consequence it has to be taken into account in sentencing.  Potential risk should also be given due weight in the process.

13.  Having considered the circumstances of the case, in particular bearing in mind the relatively low level of excessive alcohol detected and what had actually happened, in my judgment an immediate custodial sentence is not called for in this case.

14.  The Magistrate did not impose such a sentence, she made a Community Service Order.  Despite she mentioned that “the Court was considering an immediate custodial sentence”, following that remark she immediate said she “took into consideration the fact that the accident was not serious.  There was no other party involved and the only damage was to the Defendant’s property”.  Having considered all these she made a Community Service Order.

15.  The Magistrate did not say she was making a Community Service Order as an alternative to an imprisonment term.  It is obvious that she considered a Community Service Order appropriate in all the circumstances of the present case.

16.  It is sometimes neglected that a Community Service Order stands as a sentencing option in its own rights.[1]  A Community Service Order had been held to be properly imposed for an offence for which an immediate sentence of imprisonment would be wrong in principle.[2]

17.  The case of HKSAR v Wong Man, HCMA 1088/2006 demonstrated that in a suitable case, a Community Service Order should be imposed upon conviction of this offence even if there is a guilty plea.

18.  In the light of the factors highlighted by the Magistrate in her Reasons for Sentence, I do not consider it wrong in principle to consider making a Community Service Order in the present case.  I agree that such an order would be effective to serve as a reminder to the Appellant that he should not re-offend.

19.  However, the number of working hours is excessive.  In my judgment, having regard to the circumstances of the case, a Community Service Order of 60 hours is appropriate.

20.  In this connection, I note that the officer who prepared the report did not recommend a Community Service Order mainly for the concern, arising from the Appellant’s health problem, about his capability to perform the unpaid work safely and the related supervision problem.  Otherwise, there is nothing in the report which makes me think the Appellant is not a suitable candidate for the order.

21.  I also note that Mr. Hon, who represented the Appellant also at the trial, had assured the Magistrate that the Appellant was willing to perform work under a Community Service Order and he was physically fit to do so.  Indeed, today I was informed by Mr. Hon that the Appellant had already performed more than 40 hours of work pursuant to the order.

22.  All in all, I find Community Service Order the appropriate sentence to impose in this case but the length of working hour imposed is too long.

23.  I allow the appeal against sentence to the extent that the Appellant is to work a total of 60 hours pursuant to the Community Service Order.