HKSAR v. LAU SHU WING

HCMA1124/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1124 OF 1998

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J U D G M E N T

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1. At about 11 p.m. on 18th September 1998, the appellant was driving his vehicle along a slip road to the Island Eastern Corridor and he was involved in a collision with two other vehicles. He was subjected to a breath test which was positive, showing 87 micrograms of alcohol in 100 millilitres of breath. At the police station there was another test, referred to as an evidential breath test, which revealed 76 micrograms of alcohol in 100 millilitres of breath, that is more than twice the permitted level, which is 35 micrograms, and so he was charged with driving with an alcohol concentration above the prescribed limit.

2. He pleaded guilty before the magistrate who fined him $7,000 and disqualified him from driving for 18 months. The magistrate made an assumption in his favour that he was blameless in the accident.

3. In imposing that length of disqualification, the magistrate was motivated largely by the fact that the concentration of alcohol was very high - as I say, more than twice the permitted level. The magistrate noted that the appellant was a man of no previous convictions, but also that there was no special reason to explain his driving with such a high alcohol level, the appellant having put forward the fact that he had been entertaining that evening.

4. It is said that the sentence is too severe given, in particular, that the drinking in fact led to no danger and was not said to be bad.

5. 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 for 12 months, and in his appeal against the period of disqualification, the appellant's counsel suggested that that is the appropriate suspension which ought to have been imposed in this case.

6. But in my judgment, the magistrate is perfectly entitled to take a more serious view the higher the level of alcohol in the breath, and where it is over two times the permitted level, it would be surprising if the disqualification were not higher than 12 months, regardless whether an accident has been occasioned and regardless whether the driver has caused an accident.

7. I am not in the circumstances prepared to say that the period of disqualification was either manifestly excessive or wrong in principle and this appeal is dismissed.