HKSAR v. TSING KWOK BIU

HCMA 1260/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1260 OF 1998

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JUDGMENT

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1. This is an appeal against sentence. The appellant was almost 22 years old when the offences of drink driving and reckless driving were committed. He pleaded guilty before the magistrate and admitted the following brief facts. At about 0345 hours on 13 September 1998, the appellant was driving a private car EU3695 along the southbound lane of Sands Street when he was first noticed by a police vehicle. He failed to comply with the red traffic light governing his lane and made a right turn into the westbound lane of Belcher's Street. The officers in the police vehicle switched on its blue beacon and through its loud speaker instructed the appellant to stop his car. However, the appellant did not comply and increased the speed of his car to about 70 to 80 km/h. While being chased by the police vehicle, the appellant jumped three further red lights, before ending up at the opposite lane of the eastbound Kennedy Town Praya, and his car ramming into the offside body of a stationary private car parked by the road side. Serious damage was caused at the points of impact. A tram stop sign post and the outer wall of a house were also damaged. At 0358 hours, a screening breath test was taken on the appellant, with a result of 54 micrograms of alcohol in 100 millilitres of breath. An evidential breath test was conducted on him at the police station at 0445 hours, and the result was the same.

2. The appellant had a clear record. In mitigation, his counsel informed the magistrate that the appellant attended a party for celebrating his 22nd birthday in advance and also for bidding farewell to a friend who was leaving for Australia for good. The appellant had about five or six cans of beer. When the appellant left the party, he took one of his friends home and he was on his way home in the Western District. When the police started to chase him, he did not notice. The air-conditioning of his car was on, and all the windows were closed, while his CD player was playing at quite a high volume. When he later realised that the police was after him, he panicked and jumped three other traffic lights before he rammed into the parked car.

3. His counsel, who also appears before me on this appeal, referred the magistrate to two cases, namely HKSAR v HO Ho Chuen [1998] 2 HKC 544, and R v SIU Yiu Wah (Magistracy Appeal No. 64 of 1997, 4 April 1997 unreported). The magistrate in his Reasons for Sentence said that "In the first case the driving was not reckless and in the second case the defendant was not proved to have been driving with excess alcohol." He considered that the appellant's driving was extremely dangerous, having jumped three sets of traffic lights which were on red and eventually crossed into the opposite lane and rammed into a stationary vehicle causing serious damage. He considered that the gravity of the offence was such that an immediate custodial sentence of imprisonment had to be imposed. Taking into account the age of the appellant, his clear record, his obvious remorse and his guilty plea, the magistrate passed a sentence of three months' imprisonment on each of the charges, to run concurrently. He also disqualified the appellant from driving for 18 months.

4. HO Ho Chuen was a case of drink driving and careless driving where the defendant, a police officer, who was subsequently found to have 91 mg in 100 ml of breath, drove the wrong way into a one-way street and could not avoid hitting an approaching taxi. There was damage to both vehicles at the point of impact only. There was no evidence of speeding on the part of the defendant's car. For the careless driving, the magistrate imposed a fine, but passed a sentence of two months' imprisonment, suspended for two years for the drink driving. At 549C-E, Hartmann J had this to say:

"In my judgment, it was incumbent upon the magistrate to consider all the circumstances of the case not only the concentration of alcohol in assessing the appellant's criminal culpability and from that the appropriate sentence.

At this juncture, I must make it clear that I agree fully with Yeung J that cases involving the driving of vehicles under the influence of alcohol are to be taken seriously. I also agree that, even for a first offender, the facts of a case may be so serious as to merit a custodial sentence. As was said in R v Nokes [1978] RTR 101, our courts recognise no principle of sentencing that a custodial sentence is not to be imposed even upon a first offender for an offence involving driving under the influence of alcohol. Every offence, however, depends on its own facts and facts vary infinitely from case to case."

5. On that defendant's appeal against sentence for the drink driving, the learned judge set aside the sentence of two months' imprisonment, suspended for two years and disqualification for two years, and substituted a sentence of a fine of $7,000 and a suspension of driving for 18 months.

6. In SIU Yiu Wah, the defendant was driving a motorbike very early in the morning with no traffic about. He noticed the police officers behind him and tried to speed off to avoid them. He went through a no-entry sign, crossed a red light and subsequently abandoned his motorbike. He pleaded guilty to reckless driving and said that he had feared being breathalysed. Sears J said at pp 4R-5E:

"For this type of offence, I can see no reason why a prison sentence may not be appropriate, but the personal circumstances of each case must be considered. For serious reckless driving or road racing, short, sharp shocks may well be passed on defendants. In my judgment, the proper sentence here should have been, if imprisonment was necessary, two or three weeks which would have taught this young man a lesson. The disqualification itself was a severe punishment. However, he has been kept in custody, in my judgment, wrongly, therefore I consider that although he may well have had a prison sentence, he has already served nine days which is sufficient."

7. I agree with both decisions of my brothers and the reasoning set out in the passage quoted above. In particular, I think Sears J was right in stating at p 2G-J that "The duty of magistrates is to try to keep people out of prison if that is possible. For first offenders, there is a duty to see whether there is any other method of dealing with them before they are sent to prison."

8. Although I agree with the magistrate that the two cases are distinguishable from the one under appeal, in that the first case only involved driving under the influence of excess alcohol and the second related to reckless driving without any charge of drink driving, I am of the view that the magistrate committed two errors, namely,

(a) he failed to sufficiently consider that in HO Ho Chuen, the alcohol content of the defendant's breath was 91 mg in 100 ml of breath, which was much more severe than the appellant's test result of 54 mg in 100 ml of breath, and that that defendant was only fined $7,000 and disqualified for 18 months whereas the appellant was being given a three months' immediate custodial sentence; and

(b) he failed to take sufficient account that the defendant in SIU Yiu Wah was released after having served a period of nine days in jail, and that the defendant committed the offence of reckless driving in an attempt to avoid police pursuit and being breathalysed, quite similar to the circumstances surrounding the appellant's reckless driving.

9. Ms Chan, for the HKSAR, has directed my attention to R v. Steel (1992) TLR 351, where the Court of Appeal in England said that both the quality and the consequences of a reckless driving were relevant when determining the appropriate sentence.

10. No doubt, the magistrate had taken into account the quality of the appellant's driving. While I see, as the magistrate did, that the reckless driving committed by the appellant is more serious than that in SIU Yiu Wah, the appellant had been remanded in custody for background reports (which were favourable) for 14 days before he was sentenced to three months' imprisonment. It appears to me, however, the magistrate failed to take sufficient account of the consequences of the offences, in that apart from some property damage, there was no resulting personal injury. The offences were committed at 3:45 am in the morning, where there was no evidence of any other road users, except the police vehicle, or indeed anyone else, on the street. I am of the view that taking into consideration all the circumstances surrounding the offences, which the magistrate should have done, where no personal injury was involved, the sentences imposed by the magistrate on the appellant as a first offender in both drink driving and reckless driving, which arose out of the same incident, are excessive, especially in view of the facts that the magistrate had stated to have taken into account, namely, the appellant's age, clear record, obvious remorse and guilty plea. The 14 days in custody should, in my view, be treated as giving the appellant a sufficient lesson for what he had done. He should not be left with a sense of grievance that he was treated much more severely than the defendants in the cases cited. For each of the two charges, I set aside the sentences of the three months' imprisonment. For the drink driving, the think the appropriate sentence in all the circumstances should be one of a fine. For the reckless driving, I would substitute a period of imprisonment that has been served by the appellant during his remand in custody. I would not, for his having been in custody, fine the appellant for his drink driving. The sentences of concurrent disqualification for 18 months for both offences do stand.

11. As the Prosecution does not object, I also order that the appellant do have the costs of this appeal, to be taxed on a party and party basis.