HKSAR v. LO CHUI YUK, MICHELLE

HCMA 313/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 313 OF 2001

(ON APPEAL FROM NKCC 1402/2001)

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J U D G M E N T

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1. The Appellant in this case had pleaded guilty before the learned Magistrate of two charges, one was careless driving and the second charge was driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit and she exceeded the prescribed limit of 22 micrograms of alcohol in 100 ml of breath in that she had 65 micrograms of alcohol in 100 ml of breath which was just below 3 times over the limit.

2. The facts of the case were that on 7 February 2001 at about 8:00 pm, the Appellant got into her car which was in the access road outside the Peninsula Hotel. When she started the car she lost control of the car because her car suddenly dashed forward in a high-speed and grazed some of the cars which were parked at that roadside and finally came to a stop after it rammed into the body of a taxi. Subsequently, the police were called and she was breathalysed.

3. The Appellant is aged 27 and had a clear record, the learned Magistrate after listening to mitigation by the duty lawyer who was representing the Appellant at the time sentenced the Appellant to $2,000 fine for the careless driving charge and on the second charge he sentenced her to a $5,000 fine together with 18 months disqualification from driving and 2 months imprisonment suspended for 12 months.

4. Today the Appellant appeals against her sentence in relation to the drink driving charge, in particular the sentence of 2 months imprisonment which was suspended for 12 months.

5. It is still good law that cases involving the driving of vehicles under the influence of alcohol have to be taken very seriously. And it is also true that even for a first offender, the facts of the case may be so serious as to merit a custodial sentence. In looking at cases of this type, there is a wide variety of circumstances. In this case as said in mitigation by Mr Lee, who represents the Appellant, the car was in the access road of the Hotel at the time and the damages that were caused, appeared to be minimal, according to the prosecutor. Mr Lee has referred me to two cases decided in 1998 which was prior to the increase in the alcohol limit by the legislature. I agree with Mr Lee that the increase in the limit is to cast a wider net to catch more people who were driving and drinking at the same time.

6. I consider that Hartmann J's judgment in Ho Ho Chuen is of persuasive authority. The sentencing magistrate has to look at the circumstances of the case, the alcohol limit or the excess alcohol that was found in the breath of the Defendant is one of the factors to be taken into account when sentencing but also to be taken into account are the circumstances of the case, the kind of damage that was done and whether any psychical injuries were caused to people at the time. Also to be taken into account is the driving record of the particular Defendant because it would appear from the case of Ho Ho Chuen and Tsing Kwok Yiu that they were all first offenders. And the facts in those two cases were indeed more serious than the present one before me.

7. In this case, the Appellant not only has a clear record, she also has been driving since 1993, so in taking that into account, one has also to consider whether a sentence of imprisonment is, therefore, appropriate in the circumstances.

8. As I have said, being a first offender is no bar to being sentenced to imprisonment for drink driving. But in this case having taken into account the plea of guilty, the clear record of the Appellant, the kind of damage that was caused and the fact that the accident happened in the access road; I consider that, in all the circumstances, the sentence of two months imprisonment, although suspended was manifestly excessive in the circumstances, so the appeal against sentence is allowed and the 2 months sentence which is suspended for 12 months is substituted by a fine of $3,000. The 18 months disqualification will remain.