HKSAR v. LO YIK CHARN

HCMA1111/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1111 OF 2007

(ON APPEAL FROM STCC 8209/2007)

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J U D G M E N T

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1. This is an appeal against sentence following a plea of guilty to a charge of driving a motor vehicle with alcohol concentration in breath, exceeding the prescribed limit.  The appellant was sentenced to a fine of $5,000.00 and 9 months' disqualification. 

2. The appellant was stopped whilst driving an MGV on the Tolo Highway by a police officer who was going to warn him for hogging the right lane and not moving over.  The officer smelt his breath.  This was just after 11.00 in the morning and, smelling alcohol, he caused a breath test to be administered which gave a reading of 63/100.  The limit is 22.  He was almost three times the limit.  A further test was administered, the one that is the basis of the charge, and that resulted in a reading of 50/100 which was, of course, over twice the limit. 

3. The appellant is a professional driver and has been such for over 20 years.  He has never committed a serious offence and has a good driving record.  The loss of his licence will cause him financial hardship.  He claims that he had not knowingly set out in breach of the law because the alcohol had been consumed the previous night at a wedding banquet where, frankly, he had drunk a great deal.  And thus it was, as he says, his negligence that led to the commission of the offence rather than just a blatant disregard of the rules. 

4. The experienced magistrate who passed the sentence, Mr T S Jenkins, clearly gave weight to those matters of mitigation and that is why he imposed only 9 months for the disqualification. 

5. McMahon J, in the case of HKSAR v Wong Man which was Appeal No. 1088 of 2006, without setting guidelines, set out what the sentencing practice is in relation to these offences.  On the face of it, the disqualification period would have been one, on these readings, in excess of 12 months.  The magistrate had to do a balancing task, as I have to do - balancing the mitigation against the need for some consistency in sentence. 

6.     In my judgment, he was spot-on in the amount of discount he gave.  I agree entirely with his view and, accordingly, it means the appeal must be dismissed.