HKSAR v. LAW MAN LOK

HCMA 602/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 602 OF 2002

(ON APPEAL FROM NKCC 2794/2002)

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J U D G M E N T

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1. The Appellant pleaded guilty to one charge of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit contrary to section 39A(1) of the Road Traffic Ordinance, Cap.374. He was sentenced to 240 hours of Community Service. The Appellant appeals against that sentence.

2. The facts are quite simply, on 8 April 2002 at about 11:26 pm, the Appellant drove his private car in an access road and a carpark at Olympian City One. At the bend near the exit of the carpark, he collided into a wall. No injury was caused, there was some slight damage to his car.

3. When the police arrived, a breath test was conducted on him. It was found that he had an alcohol concentration of 91 microgram of alcohol in 100 millilitres of breath which exceeded the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath.

4. The Appellant upon being cautioned had admitted to the police that he had drunk 3 bottles of sake before the accident.

5. The Appellant was aged 37 at the time of the offence and had no criminal or traffic record. It would appear that he had led a productive and lawful way of life up to that time. The mitigation advanced on his behalf was that after drinking the alcohol he had waited for about an hour to allow the level of alcohol to fall before he went to his car. The reason that was provided for the accident was that he swerved to avoid a cat. What can be said in the Appellant's favour apart from the fact that he had pleaded guilty was that he did wait at the carpark for the arrival of the police and it would appear that he was co-operative with them.

6. It was accepted by the Learned Magistrate in sentencing the Appellant that this was not an appropriate case for a custodial sentence. But the Learned Magistrate was extremely concerned about the concentration of alcohol in the Appellant's breath being 4 times over the prescribed limit. It is clear that his focus in sentencing the Appellant was on that matter because when he remanded the Appellant in custody for 3 days, pending pre-sentencing reports, he mentioned that he was considering whether to impose a custodial sentence on the Appellant. And subsequently in his Statement of Findings, it is clear that his reasons for sentence again the fact of the alcohol level in the Appellant's breath and, therefore, the Community Service Order should be the maximum that he could impose.

7. Whilst I agree with Ms Shine that the Learned Magistrate had an absolute discretion as to the number of hours the Appellant before him should serve and he is not bound by the recommendation of the probation service as to the number of hours recommended, he has to look at the circumstances of the accident not only at the level of alcohol at the Appellant's breath although it is an important factor.

8. As Mr Ng has very properly conceded this is a serious offence as it was fortunate that the only collision was with a wall. If he had driven on the street, the result may be more tragic.

9. But nevertheless, looking at the facts of this case, certainly it was not the most serious of its kind. Ms Shine has very helpfully provided some cases as to the level of sentencing and it is true that in one of the cases she has referred me to in 1998, a driver with breath alcohol level of 2 times over the prescribed limit was only given a fine of $7,000 and disqualification.

10. So in this case, the fact that the Appellant had 4 times the level of alcohol over the prescribed limit is more serious and therefore the Learned Magistrate was right to impose a Community Service Order.

11. I have to look at the facts of this case . I do consider that Mr Ng's reference to two English cases, particularly, the case of Barley 1999 2 Cr.App. R. do reflect somewhat the view of the Court of Appeal in England, that where a sentence of community service was ordered and it was not an alternative to a custodial sentence, their lordships considered that even a hundred hours to be excessive, and in that case, their lordships reduced the number of hours to 60 hours.

12. In this case, I am assisted by the view of the Court of Appeal in Barley and I consider that the order of 240 hours of Community Service is manifestly excessive in the circumstances. Naturally the conduct of the Appellant may have led to quite serious consequences and therefore it should be reflected in the sentence, but I consider that in all the circumstances a Community Service order of 80 hours would be sufficient in this case. So the appeal is allowed, the sentence in relation to the order of 240 hours of Community Service be set aside and the Appellant is sentenced to the Community Service Order of 80 hours and the rest of the sentence would stand, that is the fine and the disqualification.