HKSAR v. HO HO CHUEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 63 OF 1998

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J U D G M E N T

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1. On 19th December of last year, the Appellant pleaded guilty to three charges which arose out of his driving of a private car. The first charge was one of driving a vehicle with an alcohol concentration above the prescribed limit. The second charge was one of careless driving, the third was one of not holding a valid driving licence, the currency of his licence having expired. In respect of the first charge, the Appellant was sentenced to two months imprisonment suspended for two years. For the careless driving offence and for failing to hold a current licence he was fined respectively $3,000.00 and $500.00. The Magistrate further ordered that the Appellant be disqualified from driving for two years.

2. The Appellant complains only of the suspended prison sentence imposed in respect of the offence of driving a vehicle with an alcohol concentration above the prescribed limit. His counsel, Mr. Thomas Iu, has argued that this sentence was wrong in principle and/or manifestly excessive.

3. The background facts are these. On the night of 8th September 1997, the Appellant, a serving police officer aged thirty one, spent the evening socialising with colleagues. Seemingly, he was still trying to get over a broken romance and was under some emotional stress. During the course of that evening and into the early hours of the following morning the Appellant consumed six beers. Sometime before three in the morning, he drove away from the gathering. He dropped a friend home and continued his journey. However, at a road junction, failing to see the sign, he drove the wrong way onto a one-way road. There was no suggestion that the Appellant was speeding. A taxi was approaching. The two vehicles attempted to avoid each other but there was a collision which resulted in damage to both vehicles 'at the points of impact' only. Nobody was hurt. At the scene of the accident, a screening breath test was conducted which gave a reading of 89 micrograms of alcohol in 100 millilitres of breath. The later evidential breath test gave a reading of 91 micrograms per 100 millilitres of breath and it was that second reading which was stated in the charge.

4. The offence of driving a vehicle with an alcohol concentration above the prescribed limit is set out in Section 39A of the Road Traffic Ordinance, Cap 374, in the following terms:

(1) A person who drives or attempts to drive a motor vehicle, or is in charge of a motor vehicle, on any road with the proportion of alcohol in his breath, blood or urine exceeding the prescribed limit, commits an offence and is liable -

(a) on conviction on indictment to a fine at level 4 and to imprisonment for 3 years; and

(b) on summary conviction on a first offence to a fine at level 3 and to imprisonment for 6 months and on a second or subsequent conviction or on a conviction subsequent to a conviction under section 39, 39B or 39C to a fine at level 4 and to imprisonment for 12 months.

(2) The court or magistrate convicting a person of an offence under this section shall disqualify him from driving for a period of not less than 2 years for a second or subsequent conviction or for a conviction subsequent to a conviction under section 39, 39B or 39C unless for special reasons the court or magistrate orders that he be disqualified for a shorter period or that he not be disqualified.

5. The 'prescribed limit' is 35 mg in 100 ml of breath which means that the Appellant was 56 mg over the limit.

6. In mitigation, it was mentioned to the Magistrate that the Appellant had no previous convictions for driving offences although he had been driving since 1985, approximately twelve years. It was also mentioned that, as a serving police officer, the Appellant faced internal disciplinary proceedings which could result in his dismissal from the force (resulting in a loss of pension and other benefits). In regard to such disciplinary proceedings, the Magistrate said:

"The fact that the defendant was a serving police officer and facing disciplinary proceedings was not in my view a mitigating factor. The defendant was police officer who should have appreciated the seriousness of committing an offence such as Charge A [driving a vehicle with an alcohol concentration above the prescribed limit] and he has brought his present predicament very much upon himself."

7. In arguing the appeal, Mr Iu placed before me (with the consent of Government Counsel) a table of statistics obtained from the Hong Kong Police. These statistics related to what I will call other 'drink-driving' convictions in the two-year period between 2nd February 1996 and 15th February 1998 and specifically concerned only those offenders found to have between 80 and 99 mg of alcohol in 100 ml of breath. The statistics revealed that there were 121 convictions of persons having an alcohol content within 10 mg of the Appellant. Of these convictions, however, only 5 resulted in prison sentences being imposed, all suspended: that is, on my calculations, 4.13% of those convicted.

8. Two of the 5 convictions resulted in sentences of 6 months imprisonment suspended for two years. In the one case, however, it was the second conviction for drink-driving while the other had involved an accident in which personal injuries were sustained. One conviction resulted in a sentence of 3 months imprisonment suspended for two years. Here again, however, there had been an accident in which personal injuries were sustained. There was just one sentence the same as that imposed upon the Appellant; namely, 2 months imprisonment, but in that instance the statistics can only be interpreted to read that the offender was a person who had never obtained a driving licence and therefore had no recognised skills which enabled him or her to drive in the first place. The remaining conviction which resulted in a prison sentence imposed a term of one month only suspended for one year. The data reveals that the offender in this case was not involved in any form of traffic accident.

9. In Appellant's case, he was a first offender and nobody was injured as a result his culpability. The statistics reveal that only one other person in this position, having a similar alcohol concentration, received a sentence of imprisonment. Indeed, a study of the statistics shows that in the great majority of cases, where there had been no more than accident damage and no injuries caused, first offenders who pleaded guilty were punished by way of a fine only coupled with a period of suspension of their driving licence, the suspension period in most instance not exceeding 12 months. That appears to be the broad guideline that Magistrates, who deal with these matters day-by-day, have fashioned for themselves over the past two years. Was there anything, therefore, in the Appellant's case which made it sufficiently serious to remove it from those broad, equitable guidelines? I do not think so.

10. It is apparent from his detailed Reasons for Sentence that the Magistrate placed reliance on the appeal judgment of my brother, Yeung J., in R. v. Chow Tin Jack (Mag. App. 61 of 1997). That judgment, however, was decided very much on its own facts. The appellant, Chow, entered the Cross-Harbour Tunnel at about four in the morning when only one tunnel was open, carrying traffic in both directions. He had been drinking beer. Although, as the judge pointed out, traffic was heavy in the tunnel (and no doubt moving at some speed), a combination of drink and fatigue resulted in the appellant falling asleep behind his wheel and veering across into the face of oncoming traffic. There was an inevitable collision with another vehicle. It appears that, while injury was caused to the driver of the other vehicle, it was minor. Nevertheless, the immediate and unavoidable danger to other road users was patent.

11. The facts of the case now before me are materially different. Having regard to the complexity of our highways, it is not unheard of, even in daylight, for sober persons to fail to read traffic signs indicating a one-way road and to make a wrong turn. In addition, there was evidence that when the Appellant, who was not speeding, saw a vehicle approaching, he took active steps to try and avoid a collision. He was not successful in this but the admitted facts did not reveal serious damage; to the contrary, they indicated that there was damage only at the points of impact.

12. Nor, with respect, do I think that the Magistrate was correct in principle to increase the sentence imposed on the Appellant to double that imposed in Chow Tin Jack supra by reason only of the alcohol concentration reading. In this regard, in his Reasons for Sentence, the Magistrate said:

"I passed a 2 month prison term suspended for 2 years as opposed to a 1 month term suspended for 12 months in R. v. Chow Tin Jack to take into account the significantly higher alcohol reading in the defendant's case (91 micrograms as opposed to 52)."

13. 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.

14. 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 sentences 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.

15. The Magistrate was aware, of course, that there is no difference in principle between an immediate sentence of imprisonment and one that is suspended. A sentence of imprisonment which is suspended is to be regarded as a sentence of imprisonment in the full sense. The Magistrate considered, however, that the culpability, of this Appellant warranted immediate imprisonment. I disagree. In all the circumstances of this Appellant's case, in my judgment, the justice of the matter would have been met by a fine and a period of suspension of the Appellant's driving licence.

16. 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."

17. In the circumstances, being of the judgment that the sentence imposed on the Appellant was both wrong in principle and manifestly excessive, it is for this Court to impose an appropriate sentence. Appellant's alcohol concentration level was high. While that is not the only factor, it is nevertheless a central factor. The higher the level, in the great majority of cases, the greater the risk the offender poses to other road users. Taking all factors into account, I consider that the justice of the matter will be met in this case by a fine of $7,000.00 and the suspension of Appellant's driving licence for a period of 18 months. The appeal is therefore allowed and that sentence substituted for the one imposed by the Magistrate.