HKSAR v. CHU SUNG KEI

      [English Translation – 英譯本]
HCMA 122/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 122 OF 2007

(ON APPEAL FROM KCCC NO. 144 OF 2007)

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Dates of Hearing: 18 July 2007 and 7 March 2008

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REASONS FOR JUDGMENT

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Background

1. The appellant was convicted on his own plea before the principal magistrate of one count of driving a motor vehicle with the proportion of alcohol in his breath exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong.  The reading which was in excess was 112 micrograms of alcohol in 100 millilitres of breath.

2. Having heard mitigation from the defendant, the principal magistrate sentenced the defendant to 14 days’ imprisonment, suspended for 18 months, imposed a fine of $5,000 and suspended his driving licence for a period of 18 months.  The appellant appealed against sentence.  Having heard arguments from both sides, I allowed the appeal and set aside the 14 days’ imprisonment and the order for suspended sentence.  I also increased the fine from $5,000 to $8,000.  The order for suspension of his driving licence for 18 months is affirmed.  I now give the reasons for my judgment below.

Facts

3. The facts admitted by the appellant indicated that the private car driven by the appellant collided with another private car at 11:22 p.m. on Waterloo Road in Kowloon, resulting in damage.  Thereafter, although both parties had reached a settlement, the traffic police officer at scene found excessive alcohol in the appellant’s breath in a breathalyser test and arrested him.  The appellant was then taken to a police station where a further breathalyser test was done.  The result of the test revealed excessive alcohol in the appellant, namely 112 micrograms of alcohol in 100 millilitres of breath, while the prescribed limit was 22 micrograms of alcohol in 100 millilitres of breath.

The Appellant’s background and submissions on mitigation

4. The appellant does not have any previous traffic or criminal record.  He is aged 37 and works as an engineering manager, earning about $25,000 a month.  He is married and has two young sons.  He obtained his driving licence 19 years ago and has not violated any traffic laws and regulations since then.  On the day of the incident, he was driving home after drinking red wine and liquor with his colleagues, causing this incident.  As the appellant’s job duties involve making inspections at building sites, he needs to drive so as to facilitate his work.   Counsel for the appellant at the time urged the principal magistrate to impose as short a driving licence suspension period as possible.

Reasons for sentence

5. The principal magistrate gave the following reasons for sentence:

4.    I bear in mind that the amount of alcohol in excess of the limit is only one of many sentencing factors that I need to take into account when I pass sentence. Nonetheless, this factor is obviously a very important one.  In the present case, the alcohol in the defendant’s breath was 112 micrograms of alcohol in 100 millilitres of breath, exceeding the prescribed limit of 22 micrograms by 90 micrograms, i.e. four times.  This excess can be regarded as shocking. In a magistracy appeal case (R v. Chow Tin Jack MA 61/1997), where the alcohol in the breath of a lorry driver involved in a traffic accident inside the Cross Harbour Tunnel was 20 micrograms above the prescribed limit, Yeung J held that the proper sentence was one month’s imprisonment and disqualification from driving for 12 months.  In another case which involved a 60-year-old driver whose breath contained 122 micrograms of alcohol and who had one previous conviction for the same offence, V Bokhary J confirmed that 3 months’ immediate custodial sentence was appropriate (see HKSAR v. Tse Wai Lun HCMA 401/2004).  Furthermore, in HKSAR v. Lau Shu Wing HCMA 1124/1998 where a defendant involved in a traffic accident on the Island Eastern Corridor was found to have alcohol in his breath exceeding the prescribed limit by 41 micrograms, Stock J confirmed that a fine of $7,000 and disqualification from driving for 18 months was appropriate.  On the basis of the above cases, I do not consider the defendant’s sentence in the present case excessive.

Grounds of appeal

6. Mr Leung for the appellant, submits that in relation to the facts of the present case and the appellant’s background:

(i)      It is neither essential nor appropriate to impose a suspended custodial sentence, which is also incompatible with the sentencing principles of the court or practice adopted by the courts.

(ii)     A fine of $5,000 and disqualification for 18 months are sufficient punishment.  It was excessive to impose a suspended imprisonment term over and above such punishment.

(iii)    In the present case, the magistrate erred in passing double sentences, namely a suspended sentence as well as disqualification for 18 months, on the ground that the alcohol in the defendant’s breath exceeded the prescribed limit by several times.

(iv)    Despite the fact that the alcohol in the defendant’s breath exceeded the prescribed limit by several times, the length of the disqualification period should be considered as a factor in passing sentence.  A suspended sentence is not an appropriate factor to consider in passing sentence and is not a proper option.

7. Mr Leung relies on HKSAR v Ho Ho Chuen [1998] 2 HKC 544, HKSAR v Lo Chui Yuk Michelle, HCMA 313/2001 and HKSAR v Kauer, Frank Alfred, HCMA 1062/2004 to support his argument, i.e. a fine coupled with disqualification are an appropriate sentence in the present case.

8. Mr Leung also refers to HKSAR v Lau Shu Wing, HCMA 1124/1998 and, while accepting that the length of the disqualification period can be increased in proportion to the level of alcohol in one’s breath, submits that a suspended sentence is not an appropriate factor to consider in passing sentence and is not a proper option.

9. Mr Leung submitted that the facts of the cases referred to by the principal magistrate, i.e. HKSAR v Chow Tin Jack, HCMA 61/1997 and HKSAR v Tse Wai Lun, HCMA 401/2004, were much more serious than those of the present case.

The Respondent’s reply

10. Ms Ng for the respondent agrees with the cases referred to by the principal magistrate and argues that even if the appellant is a “first offender”, a custodial sentence may still be imposed, depending on the facts of the case.  The amount of alcohol in a defendant’s breath is a crucial sentencing factor — the higher the excess of alcohol, the greater the danger it poses to other road users.

11. The Ordinance is meant to deal with the above situation.  Moreover, the relevant legislation was amended on 1 October 1999 by lowering the prescribed limit from 35 micrograms to 22 micrograms of alcohol in 100 millilitres of breath.  It can be seen that the legislators have adopted a more severe approach towards such conduct.

12. Judging from the facts of the present case, there was no urgency for the appellant to drive.  It would have cost him no more than several tens of dollars to travel home by taxi, but he chose to drive home instead under the heavy influence of alcohol in total disregard of the safety of other road users.  Such a selfish act on his part should be sanctioned with a heavy sentence.

13. The court must convey a firm message to the community that this type of offence will not be tolerated.  A suspended custodial sentence would serve as a deterrent.

14. Ms Ng submits that, severe as it is, 14 days’ imprisonment is neither manifestly excessive nor wrong in principle.

Relevant data

15. The relevant Ordinance was amended on 1 October 1999 by lowering the prescribed limit from from 35 micrograms to 22 micrograms of alcohol in 100 millilitres of breath.  I therefore asked the prosecution to supply the relevant data in order to find out whether there was a trend that this offence was becoming more serious, and also whether custodial sentences had been passed in other cases.

16. The prosecution later submitted the relevant data, which was not disputed by the defence.

17. The police provided six sets of data taken from 1999 to May 2007.  Appendices 1 and 1A respectively represent the total number of drink-driving cases, their classifications and the sentences passed in those cases.  The number of drink-driving cases increased drastically from 238 cases in 1999 to 972 cases in 2000, and then leveling off at about 1,000 cases afterwards.  From 2001 to 2006, the number of cases where an immediate custodial sentence was passed rose from 6 to 49, 40, 76, 70 and 68 respectively.  The number of cases where a suspended sentence was imposed also rose from 4 to 29, 35, 24 and 49 respectively [Note: no suspended sentence was imposed in 2003].

18. As for the facts of the cases where a custodial sentence, suspended sentence and community service order were imposed, the prosecution was unable to provide such information in order to indicate the reasons for sentence by the magistrates.

Additional submissions

19. At the resumed hearing of the present case, Counsel for the appellant was taken ill and the appellant was represented by his solicitor, Mr Alexander Lee.  Mr Lee submitted that although there was a rise in the number of cases in question after the Ordinance was amended, the principal magistrate did not pass the custodial sentence for this reason.  If the sentence imposed by the principal magistrate were to be upheld on that ground, then justice would not be seen to be done.

Discussion

20. In HKSAR v Chow Tin Jack, a 1997 case, the defendant’s alcohol reading exceeded the prescribed limit by 20 micrograms.  He was driving a light goods vehicle in the small hours of the day and veered off to the opposite lane in the Cross Harbour Tunnel, colliding head-on with a taxi.  Both vehicles were damaged and the taxi driver was slightly injured.  The alcohol reading in the defendant’s breath was about 20 micrograms above the prescribed limit of 32 micrograms.  He was sentenced to one-month imprisonment and a suspension of his driving licence for two years.  Yeung J (as he then was) said that the facts of the case did not indicate the defendant was driving recklessly under the influence of alcohol and that the injuries suffered by the taxi driver were minor.  The learned judge held that an immediate custodial sentence was not warranted and imposed a sentence of one-month imprisonment, to be suspended for 12 months.

21. In HKSAR v Ho Ho Chuen, a 1998 case, the defendant drove his vehicle into a one-way street, colliding head-on with a taxi.  No one was injured in the accident.  There was no evidence that the defendant was speeding.  The alcohol readings in the defendant’s breath were 89 and 91 micrograms respectively, and the prescribed limit was 35 micrograms.  The defendant was sentenced to two months’ imprisonment, suspended for two years, and a suspension of his driving licence for two years.  Hartmann J pointed out, after considering the data submitted to him, that in most drink-driving cases where there was damage but no injury after the accident, a first offender having pleaded guilty was sentenced to a fine and a suspension of his driving licence.  Having considered the facts of HKSAR v Chow Tin Jack, Hartmann J held that that case was not as serious as Chow Tin Jack.  The learned judge also held that the magistrate should not increase the one month’s imprisonment in Chow Tin Jack to two months simply by reason of a higher quantity of alcohol above the prescribed limit.  The learned judge also took into account that the defendant was a police officer who would be subjected to disciplinary proceedings because of that case.  The learned judge held that, in the circumstances in that case, the appropriate sentence was a fine of $7,000 and a suspension of the defendant’s driving licence for 18 months.

22. In HKSAR v Lau Shu Wing, another 1998 case, the defendant’s vehicle collided with another vehicle on a slip road leading to the Island Eastern Corridor.  The alcohol test found that his alcohol reading was 87 micrograms, more than two times above the prescribed limit of 35 micrograms.  The defendant pleaded guilty and was sentenced to a fine of $7,000 and suspension of his driving licence for 18 months.  The defendant appealed against the suspension of his driving licence.  Stock J (as he then was) held that while the data showed that in general, a first offender who pleaded guilty was sentenced to a fine and a suspension of driving licence for 12 months, the magistrate had for sentencing purposes correctly taken into account the quantity of alcohol over the prescribed limit.  The learned judge did not accept that an 18-month suspension of the defendant’s driving licence was manifestly excessive.  The appeal was dismissed.

23. In HKSAR v Lo Chui Yuk Michelle, a 2001 case, the defendant, a first offender aged 27, began to drive in 1993.  The accident took place in 2001.  When she was driving her vehicle on a road at the Peninsula Hotel, the vehicle suddenly moved forward at high speed, scraping other vehicles parked there when it drove past them, and finally came to a halt after ramming into the body of a taxi.  The defendant’s alcohol reading was 65 micrograms, almost three times the prescribed limit of 22 micrograms.  The defendant pleaded guilty and was sentenced in the magistrates’ court to two months’ imprisonment, to be suspended for 12 months, and a suspension of her driving licence for 18 months.  Deputy Judge Toh considered HKSAR v Ho Ho Chuen above as well as other cases and held that a fine of $3,000 would have been appropriate, but the suspension of the defendant’s driving licence for 18 months was upheld.

24. In HKSAR v Tse Wai Lun, a 2004 case, the defendant, who had a previous record, pleaded guilty to drink-driving.  His alcohol reading was 122 micrograms, five times the prescribed limit of 22 micrograms.  The magistrate sentenced him to 3 months’ imprisonment.  V Bokhary J dismissed his appeal, ruling that the quantity of alcohol in excess of the prescribed limit was a crucial sentencing factor.

25. In HKSAR v Kauer, Frank Alfred, the defendant was stopped on a highway by police roadblock.  He was found drink-driving, with the alcohol level exceeding the prescribed limit by 4.2 times.  He pleaded guilty and was sentenced to a fine of $8,000 and a suspension of his diving licence for 12 months.  His appeal against the suspension order was dismissed by Pang J.

26. The following general sentencing principles can be derived from the above cases:

(1)      Even for a first offender, if the facts of the case are serious, an immediate custodial sentence is inevitable.

(2)      The quantity of alcohol in excess of the prescribed limit is a factor to be considered in sentencing.

(3)      As regards the suspension of driving licence, whether the accident resulted from the drink-driving is not a factor to be considered when deciding the length of the suspension.  However, the higher the quantity of alcohol in excess of the prescribed limit, the longer the period of suspension should be.

27. The number of cases increased noticeably after the amendment to the relevant Ordinance.  Nonetheless, I also have to take into account the possibility that with the reduction of the prescribed limit, more people were caught by the amended Ordinance.

28. I understand that the prosecution was unable to provide the facts of all or most of the cases where imprisonment, suspended sentences or community service orders were imposed.  It is not particularly helpful just to look at the number of such cases.

29. There are no sentencing guidelines in relation to the offence in question.  Magistrates need to decide on the sentence on a case-by-case basis.  However, previous appeal cases are of referential value.  When the facts being considered by a magistrate in a certain case are similar to those in other previous cases, the sentence imposed by him should, in the absence of special reasons, not be more severe than those imposed in those other cases.

30. Turning to the present case, the quantity of alcohol in the appellant’s breath is definitely a sentencing factor.  Apart from this, the appellant’s background as well as the circumstances in which the offence was committed were not worse than those in the cases cited by Mr Leung.

31. I also agree with Mr Lee’s submission that the principal magistrate had not sentenced the defendant for the reason that the offence in question was on the rise.  The defendant was sentenced to 14 days’ imprisonment in addition to a fine of $3,000 and a suspension of his driving licence for 18 months.  The appellant felt aggrieved even though the custodial sentence was suspended.  In all the circumstances of this case, the custodial sentence was manifestly excessive.

32. In my judgment, a fine of $8,000 and suspension of driving licence for 18 months sufficiently reflect the appellant’s culpability.

33. This appeal is allowed accordingly.