HKSAR v. LI KWAN LOK, ROY

HCMA 142/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 142 OF 2005

(ON APPEAL FROM ESCC 4026 OF 2004)

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J U D G M E N T

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1.  This Appellant appeals against a sentence of 28 days’ imprisonment suspended for 3 years, a fine of $5,000.00 and disqualification from holding or obtaining a driving licence for 3 years.

2.  This sentence was passed on him by I.S.C. Candy, Esquire in the Magistrate’s Court at Eastern following his plea of guilty on a charge of driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap. 374.

3.  The Magistrate’s Reasons for Sentence are brief.  He said:

“The Defendant admitted the offence.  He was marginally in excess of the prescribed limit.  The Defendant had a previous conviction for the same offence and had previously been disqualified under the penalty points system.

I considered a sentence of imprisonment appropriate on this occasion in the hope that it might act as a deterrent to the Defendant.  I adopted 6 weeks as the starting point.

I allowed a reduction of one-third to acknowledge the Defendant’s plea.  I imposed 28 days imprisonment and suspended it for 3 years.

I also imposed the usual fine and ordered that the Defendant to disqualified from holding a driving licence for 3 years.”

4.  The Appellant has put in a written submission in the form of a letter dated 6 March 2005 written to the court and copied to the prosecution.  The letter is written in Chinese and has been translated into English.  In it the Appellant says:

“I fully appreciate the suspended sentence for the 28 days’ imprisonment and I also agree to the sentence of HK$5,000.00 fine.”

What he asks is that the suspension of his driving licence, which he says has a serious effect on his job and his livelihood, be reduced to a shorter period.  In support, he puts forward the following arguments:

“1.  I understand that this was the second time committing the same offence, but the last time was 6 years ago.  I remember the Duty Lawyer telling me that my last record was over 5 years which is the limit of the ordinance and it might not be considered as a similar conviction.

2.  I was not stopped and inspected by the traffic police officer due to any dangerous driving at that night.  It was because of the malfunction of the nearside tail night.  During the inspection, I was very cooperative without creating any unnecessary problems to the police.

3.  No traffic accident happened nor was anyone injured in the offence.

4.  When the screening breath test was done, the alcohol adsorption rate in the blood was only one degree (mg) above the prescribed limit.

5.  My occupation is project manager.  Owing to the job requirement, I need to drive to different places for work.  Some places are very remote and it is not easy to call a taxi.  Therefore, the progress of my work can be ensured if the suspension period can be shortened.

6.  The car is mainly required for my job rather than for entertainment.  Seldom any occasion that I drove my car for fun at night.

As I did not go home before I went for the appointment in that evening, I tried my best to control how much alcohol to take.  I even took a rest before driving home.

It has been some seven months since this incident.  I have been thinking over the incident again and again, reflecting on what impact on the others and myself might have been.  I am regretful.

I hope My Ladyship would reconsider suspending my driving licence for 3 years excessive and that I should be given another chance.  Temper justice with mercy.  I will definitely treasure this chance and will keep reminding my friends not to drive after taking alcohol.”

5.  Disqualification is dealt with in sub-sections (2) and (3) of the section under which the Appellant was convicted, namely section 39A of the Road Traffic Ordinance. Sub-sections (2) and (3) read as follows:

“(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 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 shorter period or that he not be disqualified.

(3)  The court or magistrate may deal with the offence as a first offence when a period of 5 years has elapsed since the person’s last conviction under this section or section 39, 39B or 39C.”

6.  There are no special reasons within the meaning of sub-section (2).  And I do not regard this as an appropriate case for acting under sub-section (3) to deal with the present offence as a first offence even though the power to do so exists.  All things considered, I do however think that the just course is to reduce the period of disqualification to the two-year minimum provided for under sub-section (2).

7.  Accordingly, the appeal is allowed to the extent of reducing the period of disqualification from 3 years to 2 years.  The suspended sentence and the fine remain.