HKSAR v. NG YUET SHING

HCMA 276/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 276 OF 2004

(ON APPEAL FROM TWCC 693/2004)

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J U D G M E N T

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1. The appellant pleaded guilty to one charge of dangerous driving and was sentenced to imprisonment for one month and disqualified from driving for one year. He now appeals against that sentence.

2. He had also, after he had been sentenced, applied to reverse his plea and that application was rejected by the learned magistrate. The appellant had originally also launched an appeal against that decision of the learned magistrate but I am told by Mr Fu, for the appellant, that the appellant no longer wants to appeal against that decision and so that appeal is, therefore, dismissed.

3. The facts to which the appellant had admitted shows that the appellant had indulged in a course of dangerous driving over several stretches of road in the course of which the appellant not only went through two red traffic lights, he had also been speeding in excess of the speed limit by some 40 to 50 kph. There is no doubt at all that this is a very serious form of dangerous driving. The consequences to other road users could have been very disastrous. The appellant is lucky that no one was hurt and no property was damaged. But this sort of conduct cannot be tolerated and the learned magistrate was entirely proper to consider that, in the circumstances of this case, an immediate custodial sentence is necessary to act as a deterrent.

4. The appellant was unrepresented in the court below and he presented no special mitigating circumstances before the learned magistrate. On appeal Mr Fu had submitted a letter from his employer to show that the appellant had been working for the company FDS Networks Limited since 1995 and that he now holds the position of Support Services Manager. The company letter shows that the appellant is considered to be a responsible and trustworthy person in the company and, according to the letter, the company is prepared to keep the appellant in his position if he is not given a term of imprisonment. But if he is given a term of imprisonment then his employment will be terminated.

5. Now, this is a special circumstance which is relevant for the learned magistrate in the court below to consider when assessing sentence. Unfortunately this was never placed before the learned magistrate either by the appellant himself or by counsel who was subsequently representing him. Whilst it is true that on appeal the Court of Appeal will look at the circumstances before the learned magistrate in considering whether the sentence was manifestly excessive before allowing the appeal. I do not consider that the sentence was manifestly excessive but I do consider that if the learned magistrate was made aware of the fact that the appellant was in jeopardy of losing his employment and, taking into account his personal background, the learned magistrate may have considered suspending the sentence. This was certainly a factor to take into account because whilst the sentence should be to punish the appellant, it would certainly not help him or society to keep him in prison for one month if he loses his job in a responsible position because of it and if he should become unemployed, the added burden on society would be greater.

6. So, having considered all the circumstances, I am prepared, therefore, to grant some leniency to the appellant in this case. I am, therefore, prepared to suspend the sentence for 18 months. I will say very briefly here what suspension means. If the appellant wishes further information I am sure his counsel will explain it to him in detail. What suspension means is that the sentence of one-month imprisonment will be suspended for 18 months. If, during these 18 months the appellant does not commit another offence then he would not need to go to prison for this one month but if he should commit another offence, then he stands the risk of having to serve this month's imprisonment. I have also considered that in view of the circumstances the disqualification period should be extended to three years.

7. So the appeal is allowed. The sentence of one month is suspended for 18 months and the appellant is disqualified for three years.