HKSAR v. KAUER, FRANK ALFRED

HCMA1062/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1062 OF 2004

(ON APPEAL FROM KTCC 7086 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on his own plea of one charge of “driving a motor vehicle with a breath alcohol concentration above the prescribed limit” contrary to section 39A(1) of the Road Traffic Ordinance, Cap.374.  He was sentenced to a fine of $8,000 and disqualified from holding or obtaining a driving licence for 12 months.  He now appeals against the disqualification order.

2. The facts and the appellant’s past and mitigation as summarized in the Magistrate’s reasons for sentence were as follows :

“3.    In the early hours of 3 September 2004, the appellant was stopped at a police roadblock while he was driving a private car along the Hiram’s Highway.  Since he had a strong smell of alcohol and he had admitted to the police that he had consumed alcohol before driving, breath tests were conducted on him.  In the evidential breath test conducted about one hour after he had been stopped at the roadblock, he was found to have 93 micrograms of alcohol in 100 millilitres of his breath.  The prescribed limit was only 22 micrograms in 100 millilitres of breath.

 4.    [The appellant] had a clear criminal record.  He had one previous traffic conviction, but it was for a different type of offence.

 5.    The appellant was the owner of a trading company, earning about $65,000 a month.  He was currently going through divorce with his ex-wife.  He explained that he had consumed alcohol before he drove on the day in question because he had just had a heated argument with his ex-wife, and that he was trying to drown his sorrows.  He stressed that it was not his nature to consume alcohol beyond the legal limit.  He said that he regretted what had happened.  When he was asked to address on the issue of disqualification, he stressed his clear record again, and added that he needed to drive his son to and fro between home and school.”

3. In sentencing the appellant, the Magistrate had taken everything that the appellant said into account.  However, he correctly pointed out that driving under the influence of alcohol is a serious offence, not to mention the fact that the appellant was 4.2 times above the prescribed limit on alcohol concentration.  He was right that it is now customary for the courts to impose a 12-month disqualification even though it was a first offence and that the offender pleaded guilty and had a clear record.  I should add that whether an accident took place as a result of the offender’s drink-driving is irrelevant, as when the cause of the accident was not attributable to him: HKSAR v. Lau Shu Wing, HCMA1124/1998 and HKSAR v. Leung Kam Fung, HCMA 617/1999.

4. This appeal is without merit.  It is dismissed.