HKSAR v. SIU TING CHEONG

HCMA706/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 706 OF 2008

(ON APPEAL FROM ESCC3693 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against the sentences imposed upon him by Mr Tallentire, Principal Magistrate, on 31 July 2008 at Eastern Magistrate’s Court following his pleas of guilty to one charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374, and one charge of driving a motor vehicle with alcohol concentration in his breath exceeding the prescribed limit, contrary to section 39A(1) of the same Ordinance. 

2. In respect of the conviction for careless driving, the learned magistrate fined the appellant $2,500.  In respect of the conviction for driving with an excess alcohol concentration in his breath, the learned magistrate fined the appellant $6,000 and suspended his driving licence for 15 months.

3. The appellant does not complain about the fines that were imposed upon him but argues that the period of disqualification was too severe.  The appellant is a 52-year-old man who has three previous convictions for careless driving since 2002. 

4. According to the admitted facts, on the late evening in question he was driving in a westerly direction along Tung Lo Wan Road.  On reaching the junction with Tung Lo Wan Drive he failed to comply with a “give way” sign and made a right turn into Tung Lo Wan Drive, and as a result collided with a taxi which was being driven along Tung Lo Wan Road in the opposite lane.  Both vehicles were damaged and a passenger in the taxi injured his hand.

5. The two drivers agreed to move their vehicles to Tai Hang Road and discuss the matter.  The appellant then left the scene in his vehicle before the police had arrived.  The police located the appellant subsequently at his home.  He returned to the scene by which time it was over an hour after the accident.  After a screening breath test was conducted which showed 75 micrograms of alcohol in 100 millilitres of his breath, the appellant was arrested and taken to the police station.  An evidential breath test there revealed that there were 64 micrograms of alcohol in 100 millilitres of his breath.  The legal limit is 22.  The appellant had therefore consumed almost three times the legal limit of alcohol.

6. When the magistrate invited him to do so, the appellant offered no mitigation.

7. In passing sentence, the learned magistrate said this :

“       These were serious road traffic offences.  In my opinion the careless driving was towards the upper end of the scale.  Whilst not sentencing on the record I did bear in mind that this was the 4^th conviction for that offence.  I did wonder if the defendant was in fact competent to be driving at all!  The Defendant’s conduct in leaving the scene was to say the least, reprehensible.  It is perhaps explicable in that almost 2 hours after the accident he gave an evidential breath test which was 64 micrograms of alcohol in 100 millilitres of breath.  That is 3 times the legal limit!  The Defendant offered no mitigation for the offences.  The only mitigation I could find was the plea of guilty.  Therefore taking into account the very poor quality of the Defendant’s driving on this occasion and the fact that this was the fourth conviction, for such an offence, I fined him $2,500 on the careless driving.  For driving with excess alcohol, the level being three times the legal limit some 2 hours after the accident, I fined him $6,000 and disqualified from driving for a period of 15 months which is slightly more than my base-line of 12 months.”

8. Today the appellant has explained that he did not offer any mitigation in the Magistrate’s Court because a police officer had suggested to him that it would make little difference to sentence and that the normal sentence for a first offender would be six to eight months’ disqualification.  In such circumstances he invites the court today to consider a number of matters that were not put before the learned magistrate.

9. Firstly, he denies that there was any sinister significance in him leaving the scene.  Initially he and the taxi driver had moved their cars away from the scene of the accident by agreement to avoid any obstruction.  That of course is in the facts which were cited by the magistrate and were part of the admitted facts.  The appellant said that having done so he waited for about 15 minutes but that the taxi driver did not come over to his car, and therefore he decided to return to his home which was nearby.  In my view, that does not provide any justification for leaving the scene.  The appellant accepts that he knew that the taxi driver had called the police.  He also accepts that he had not left his phone number with the taxi driver and so the police must have found his phone number through official records.  The magistrate, in my view, was entitled to take the view that leaving the scene was reprehensible in such circumstances.  It is relevant because it meant that the final evidential breath test taken from the appellant was delayed until approximately two hours after the accident.

10. The appellant then submits that the testing devices must have been inaccurate because his friend has informed him that his breath alcohol reading would not declined by 11 points in the time between his first breath test and the evidential breath test in the police station.  

11. I would point out that the appellant is not charged with the higher of the two readings but the lower.  It is on the basis of the lower reading that the magistrate passed sentence.  It is fanciful now to suggest that both devices were inaccurate, particularly as the appellant admitted the facts following his pleas of guilty.  The appellant has benefited from the court proceeding on the basis of the lower of the two readings.

12. The appellant also claims that the magistrate was biased because of his past record of careless driving offences.  It is apparent from what the learned magistrate said, that he took the appellant’s record into accounts when considering the proper sentence on the charge of careless driving.  There is nothing to suggest that he took the record into account in so far as the period of disqualification is concerned.  Even if he had, I do not consider it would have been an inappropriate consideration to take into account.  The offence of “driving with excess alcohol” is a traffic offence and concerns road safety.  A magistrate would have been entitled to take into account the appellant’s record in so far as it reflected on his attitude to driving and road safety.   

13. The appellant further suggests that the period of disqualification is out of line with the period of disqualification in other cases, and he has produced a piece of paper with some particulars of other cases.  I do not have all the facts of those other cases to which the appellant has referred.  Inevitably each case depends on its own facts.

14. Miss Lily Ho, for the respondent, however, has referred me to two cases where an appeal court has considered the appropriateness of sentences on those convicted of driving with the proportion of alcohol in the driver’s breath exceeding the prescribed limit.

15. In HKSAR v. Fong Leung, Lawrence, HCMA317/2001, Jackson J considered a fine of $7,000 and disqualification for 18 months appropriate for an appellant who had 89 micrograms per 100 millilitres of breath.  In other words, over four times the legal limit.  More recently, in HKSAR v. Wong Man [2007] 2 HKC 499, McMahon J considered the case of a driver with a clear record who had 82 micrograms of alcohol present in 100 millilitres of breath.   The judge found that a period of disqualification of two years was justified.  He said this :

“… Without attempting to set out tariffs, but with a view to promoting some consistency in penalty in respect to this offence, it seems to me that where a first offender’s breath alcohol level exceeds the prescribed limit by only a small margin, a relatively short period of disqualification could be imposed, perhaps significantly less than 12 months.  Where the excess is substantial, then 12 months would be a proper disqualification period, as reflected in many of the authorities produced to me today.  In circumstances where there is a doubling or more of the prescribed limit, longer periods of disqualification would be appropriate.  Where the breath alcohol level of an offender approaches four times the prescribed limit, a disqualification period of over 18 months should be considered.”

16. In this present case, while the appellant had somewhat less alcohol in his blood when the test was conducted than the appellant in Wong Man, it has to be remembered that his blood alcohol reading was still almost three times the legal limit.  Moreover, the reading upon which the prosecution proceeded was only taken approximately two hours after the accident as the appellant had left the scene.

17. I do not find anything improper in the period of disqualification imposed by the magistrate, and I accordingly dismiss the appeal against sentence.