HKSAR v. NG KAM CHAU

HCMA1103/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1103 OF 1999

(ON APPEAL FROM FLCC 2091 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 20 October 1999 of being a driver failing to provide a specimen of breath for a screening breath test, contrary to section 39B(6) of the Road Traffic Ordinance. He was fined the sum of $3,000 and disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 12 months.

2. The facts as were agreed were that at about 4:40 in the morning at an unnamed road at Ta Kwu Ling, the appellant was driving a car and was stooped by a routine roadblock. Whilst the officers were inquiring of him, they noticed a strong smell of alcohol on the appellant's breath, and that he appeared very drunk. They called officers trained to take breath tests to the scene. Upon arrival, the appellant was asked by one of these officers to undergo a breath screening test, he refused and protested that he had not been involved in a traffic accident and should not be therefore required to take the test.

3. On board the vehicle with the appellant was the appellant's 10-year-old son. It was noticed that the appellant had difficulty in standing. His face was red and he had a strong smell of liquor. He was warned that failure to take a breath screening test would result in arrest and prosecution. He refused to give such a breath specimen and further claimed that he was taking his son to see a doctor.

4. The officers inquired with the son whether he required medical treatment and the child replied there was nothing wrong with him. At this point, the appellant slapped the child on the face. The child was separated from the appellant.

5. On three separate occasions over the next 20 minutes, the appellant was asked to give a breath specimen and on each occasion refused to do so. He was then arrested.

6. These facts were agreed at the trial where the appellant entered an early plea of guilty. It is clear, therefore, that the appellant admitted, upon those agreed facts, to being very drunk.

7. The first ground of appeal raised by Mr Chan is that the learned magistrate erred in believing that he had no discretion in respect of disqualification of the appellant's licence to drive. He relies upon the transcript in which 'Mr C. Wong' represented the appellant, and 'Mr Y. Wong' was the court prosecutor. The passage is as follows :-

"Mr C. WONG : That's the reason why he failed to do so. I wonder whether you may consider not to disqualify him.

COURT : I think there's got to be a disqualification where he's just refused completely.

MR C. WONG : Yes.

COURT : If everybody refused, the whole system would break down, wouldn't it? There would be no ...

MR C. WONG : Yes, but I understand that ...

COURT : There's got to be some ...

MR C. WONG : ... for the first offender, you may have the discretion to do so.

MR Y. WONG : No.

COURT : No."

8. Mr Chan argues that that is a clear indication that the court was of the view that no discretion existed to not disqualify a first offender in these circumstances. However, that must be read in the light of the magistrate's Statement of Findings in respect of sentence :-

"I noted that for a first conviction for this offence the disqualification is discretionary. However, I considered the appellant's conduct in this case was so egregious that a disqualification from driving for twelve months was necessary to impress upon him the seriousness of this offence."

9. It is quite clear from that passage that the magistrate disagreed with Mr Y. Wong's position. The matter must be looked at in overall terms, and it is quite clear from those overall terms that the magistrate had no doubt that a discretion existed in respect of a first offender.

10. The second matter raised as a ground of appeal by Mr Chan is that a disqualification period of 12 months was, in all the circumstances of the case, manifestly excessive. Mr Chan concedes that pursuant to section 69 of the Road Traffic Ordinance, the magistrate has the power to disqualify in the circumstances. His argument is not that the disqualification was inappropriate, but that the period of disqualification is too long. He asked me to bear in mind the clear record for this type of offence although the appellant has other road traffic offences on his record, his professional as a lorry driver and the fact that he has a family.

11. On the other hand, Mr Madigan for the respondent argues that by refusing to take a breath test in circumstances where the appellant admitted to have been very drunk, the court is deprived of the ability to assess the degree of drunkenness by a scientific test and is therefore deprived of the normal measures of sentencing which would otherwise be open to a case where a very drunk person drives a car.

12. Given the admission by the appellant that he was very drunk and given his admission that he had difficulty in standing, I am satisfied that in all the circumstances, the careful consideration by the magistrate of the elements of the events including the background of the appellant makes the period of 12 months' disqualification entirely appropriate. This appeal is dismissed.