HKSAR v. SZETO KAU SUN

HCMA327/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.327 OF 1999

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J U D G M E N T

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1. The Appellant was convicted of an offence of driving a motor vehicle with an alcoholic concentration above the prescribed limit on 12th March 1999 and was sentenced to two months' imprisonment. He now appeals against that sentence. He was, on the same information, also convicted of one charge of careless driving. The sentence for which he did not appeal.

2. The facts alleged by the prosecution at the trial were that at about 10:40 p.m. on 6th December 1998, the Appellant was driving a motor vehicle along Tin Ha Road, Hung Shui Kiu, Yuen Long, away from Castle Peak Road. At the same time, a Mr Ho was driving a light goods vehicle along the same road in the opposite direction. Mr Ho testified that he saw the car driven by the Appellant travelling towards him in a zig zag manner. He said there was no vehicle in front of the Appellant's vehicle and that he slowed and kept to the nearside of the road. When the Appellant's vehicle was passing the offside of Mr Ho's light goods vehicle, it swerved to the right and struck Mr Ho's vehicle. There was damage to both vehicles. The police came to the scene and at 11:06 p.m., a screening breath test was conducted on the Appellant with a reading of 151 micrograms of alcohol per 100 milliliters of breath. The Appellant was arrested at 11:53 p.m. the same day. An evidential breath test was obtained from the Appellant with a reading of 131 micrograms of alcohol per 100 milliliters of breath. The prescribed limit of alcohol in the breath of a driver is 35 micrograms of alcohol per 100 milliliters of breath.

3. Having been cautioned, the Appellant stated that at the time of the accident, he was driving his car along the road and that when he was overtaking a bicycle, the bicycle suddenly swerved to the right. He avoided it, resulting in his vehicle colliding with that of Mr Ho coming from the opposite direction. He admitted to having consumed five cans of beer before the accident. At the time of the accident, the weather was fine, the traffic was light, the lighting at the scene was good and the road surface was dry and in good repair.

4. The Appellant, having entered the plea of guilty, admitted the facts as I have set out above. The Court obtained a Probation Office's report and Community Service Suitability Report and adjourned the matter for sentence.

5. The Appellant admitted one previous similar conviction, both for careless driving and one for driving a motor vehicle with a proportion of alcohol in his breath exceeding the prescribed limit, relating to an accident the Appellant had with two cyclists on 28th October 1998. At that time, he was found to have had a level of 100 micrograms of alcohol per 100 milliliters of breath.

6. The sentence of which he now appeals was committed whilst he was on bail in respect of the offences committed on 28th October 1998, this the learned Magistrate very properly found to be an aggravating feature in respect of the matter upon which he was called upon to sentence.

7. The grounds of appeal against sentence raised by the Appellant are firstly, that the Magistrate did not fully consider the explanation of the problems faced by the Appellant, set out in paragraph 4 of the Probation Report, and which had caused him to drink and the length of time those problems had run; secondly, it was submitted that the Magistrate should have not considered or adopted the sentencing practice in the United Kingdom when dealing with penalties for offences of driving with excessive alcohol; thirdly, that the Appellant being a civil servant, the sentence of two months' imprisonment would result in his dismissal from the Civil Service and his loss of pension and this was a very considerable financial penalty which made the sentence grossly excessive; and fourthly, I was asked to consider that the Appellant has two very young children and that on humanitarian grounds, I should consider the effect of the sentence upon those children when considering the appeal.

8. There is no substance in the first ground of the appeal. The learned Magistrate had clearly in mind the facts set out in the Probation Report and refers to the family conflicts that gave rise to his resorting to alcohol at page 3 of his Statements of Findings. It is argued before me that those conflicts which were differences between his wife and his parents over the disciplining of their children were such as to cause him to resort to alcohol over a long period of time, and that I should, unlike the Magistrate, consider his behaviour as one course of conduct notwithstanding he committed two offences of the same nature during that period. I am unable to do so. Such family conflicts cannot be justification for driving with an excess amount of alcohol in the system of the driver and the offences are clearly separate and distinct.

9. The Magistrate considered the case of R. v. Shoult [1996] RTR 298 which adopted as guidelines penalties set out by the Magistrates' Association in the United Kingdom for appropriate sentences for varying levels of alcohol in the breath of an accused. The Magistrate adopted the same approach as those guidelines and derived assistance from them. He appended to his Reasons the case of R. v. Shoult and a copy of those guidelines. I can see no reason why the Magistrate should not have used those guidelines in coming to his decision. Traffic conditions in Hong Kong give rise to a very substantial danger to other road users where a person drives whilst intoxicated or having a concentration of alcohol in his breath over the prescribed limit. It is for the protection of other road users that the legislature had seen fit to introduce this legislation.

10. In the crowded confines of Hong Kong, whilst the speed of vehicles may not be particularly high in many cases, the number of accidents which do occur in which people are killed or seriously injured, even when alcohol is not present, show that the additional presence of alcohol in the breath of a driver above the prescribed limit must be dealt with seriously. The Magistrate did not slavishly follow those guidelines but took them into consideration as well as the comments set out in the case of Shoult. They were sensible and practical comments and were appropriately considered by the Magistrate.

11. In respect of the third ground of appeal, the Magistrate had before him the case of HKSAR v. Ho Ho Chuen, MA63 of 1998, where a suspended sentence imposed upon a police officer for a similar charge to that appealled by this Appellant was reduced to a fine on appeal. The Magistrate in considering the case of HKSAR v. Ho Ho Chuen distinguished it from the present case upon the basis that in Ho Ho Chuen, the appellant's alcohol level was 91 micrograms per 100 milliliters of breath whereas in the case before me, it was 131 micrograms per 100 milliliters of breath, a considerably higher content. In Ho Ho Chuen, the conviction in respect of this offence was the first conviction of the appellant whereas in this case, the Appellant had a previous conviction for the same offence, and this offence had been committed while the Appellant was on bail for that offence. The period between the commission of the two offences was 39 days.

12. In Ho Ho Chuen, Hartmann J. said :-

"Finally, may I say that I do not consider the Magistrate was correct in principle to reject as a mitigating factor that the Appellant, a serving police officer, was facing disciplinary proceedings. In this regard, see Attorney General v. Poon Ping-kwok and Another (1992) HKCLR 231, a judgment of the Court of Appeal concerning the loss of service benefits by police officers :

'It is well accepted that losses and hardships of this kind suffered by an offender over and above the sentence imposed by the court may be taken into account as mitigating factors : see Thomas' Principles of Sentencing, 2nd ed., p.214. What weight they should be given is a matter for the judge's discretion in the particular circumstances.'"

13. The Magistrate, in respect of this Appellant, had all that was said in Ho Ho Chuen fully in his mind in coming to his decision as to sentencing. I cannot say that it is wrong in principle that a second offender who committed his second offence while on bail for the first, who swerved onto the wrong side of the road to hit an oncoming vehicle, be sentenced to an immediate custodial sentence. Having considered the quantum of the sentence, nor can I say that two months' imprisonment in all the circumstances is manifestly excessive. I say this taking into consideration the loss that would accrue to the Appellant by his dismissal from the government service but a point must be reached where the seriousness of an offence cannot be mitigated from a custodial sentence to other punishment by virtue of this type of loss.

14. The last ground of appeal is the humanitarian one with regard to the young children of the Appellant. The sentence passed upon the Appellant will no doubt put a hardship on the family but it is not of such a nature as warrants intervention upon humanitarian grounds. This appeal against sentence is dismissed.