HKSAR v. TSE WAI LUN

HCMA 401/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 401 OF 2004

(ON APPEAL FROM TMCC 881 OF 2004)

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J U D G M E N T

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1. On 22 March 2004 the Appellant, a man aged 60, appeared before T.S. Jenkins, Esq. in the Magistrate's Court at Tuen Mun to face two charges of careless driving and one charge of driving a motor vehicle with an alcohol concentration in breath above the prescribed limit. One of the careless driving charges was withdrawn. The Appellant then pleaded guilty to the other two charges. On the careless driving charge, the Magistrate fined the Appellant $2,500, and there is no appeal against that. But on the alcohol charge, the Magistrate sentenced the Appellant to 3 months' imprisonment, and there is an appeal against that.

2. The proportion of alcohol in the Appellant's breath was 122 micrograms of alcohol in 100 millilitres of breath, which was five times over the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath. This offence occurred on 31 January 2004. It was not the first time that the Appellant had committed such an offence. On 28 October 2000 he drove a motor vehicle with 105 micrograms of alcohol in 100 millilitres of breath, which was four times over the prescribed limit. On 29 December 2000 he was, for that offence, fined $2,000 and disqualified from driving for 3 months.

3. In sentencing the Appellant to 3 months' imprisonment on the alcohol charge, the Magistrate attached weight, as he was bound to do, to the extent by which the prescribed limit was exceeded and to the fact that the Appellant had committed such an offence before, receiving a non-custodial sentence which did not deter him from offending again. Did he attach undue weight to these matters?

4. The Perfected Grounds of Appeal Against Sentence read as follows:

1.	The sentence in respect of charge 3 was manifestly excessive in that the learned Magistrate:-
	(a)	Attached undue weight to the high level of breath/alcohol at the time of the commission of the offence and the fact that he was a second offender who had been dealt with leniently in 2000.
	(b)	He was unduly influenced by the high reading as an aggravating feature of the offence without fully recognising the circumstances surrounding the scene of collision, that there was no personal injury or substantial damage to 3rd party property.
	(c)	He did not pay sufficient weight to the mitigation advanced, in particular the defendant's good driving record prior to 2000 and had never been to prison before.
	(d)	He should have suspended a prison sentence."

5. The extent to which the prescribed limit was exceeded was a relevant matter. So was the fact that the Appellant had committed such an offence before and had not been deterred by the non-custodial sentence which he received. The Magistrate certainly attached considerable weight to these matters. But I do not think that he attached undue weight to them. Nor do I think that the Magistrate failed to give full recognition to all the circumstances. I do not think that he failed to pay sufficient weight to the mitigation advanced. The Appellant's good driving record prior to 2000 was of limited weight given the offences which he has committed since then. As for the fact that the Appellant has never been to prison before, the whole point of the Magistrate's thinking was that prison might be the only thing that would deter this Appellant from this sort of conduct which is a potential danger of a very great kind to himself and others. In my view, the Magistrate was justified in thinking along such lines.

6. In all the circumstances, I am not persuaded that the Magistrate was obliged to suspend the prison sentence. In my view, he was entitled to pass immediate custodial sentence which he passed.

7. Accordingly, I dismiss this appeal.