HKSAR v. LEUNG SAU WA

[English Translation – 英譯本]
HCMA 428/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 428 OF 2016

(ON APPEAL FROM TMCC NO 944 OF 2016)

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JUDGMENT

Introduction

1.  The appellant (Leung Sau Wa) was sentenced to 4 weeks’ imprisonment and he was disqualified from driving for 5 years after pleading guilty to one count of “being in charge of a motor vehicle with alcohol concentration in breath exceeding the prescribed limit” (generally known as “drink driving”) before Deputy Magistrate Mr Pang Leung-ting (the trial magistrate) in Tuen Mun Magistrates’ Courts.  The trial magistrate at the same time ordered that the appellant shall attend a driving improvement course at his own cost within the last three months of the period of disqualification before he can become qualified to drive again.

2.  The appellant considered the disqualification order of 5 years was excessive, and filed an appeal with the court seeking a shorter period of disqualification against him.  Although he later indicated that he would abandon the appeal, the court took the view that the case involved an important legal principle, so that it had to be dealt with properly.  As a result, the appellant attended court as scheduled on the invitation of the court and agreed to let the court deal with the matter.     

Facts of the case

3.  The brief facts show that at around 1:30 am on 13 March 2016, police officer(s) found the appellant sleeping at the driver seat of a private car with its engine still running.  At the scene, a breathalyser test was taken and the reading shown was 114, namely the proportion of alcohol in the appellant’s breath was 114 micrograms of alcohol in 100 millilitres of breath, which was classified as significantly exceeding the prescribed limit.  A further breathalyser test was taken at a police station and the reading was 101.

Grounds of defence

4.  At trial, the appellant submitted that at the night of the incident his friend drove the appellant’s private car and took him to Sam Shing Estate in Tuen Mun as he was drunk after attending a banquet.  As his friend needed to leave urgently and he failed to find a parking space, he left the appellant at the driver seat and left the scene.  However, the appellant did not give evidence nor call any evidence in support of his case.

Background of the appellant

5.  The appellant is 53 years old.  He has a criminal record of 11 convictions and most of them related to traffic offences including 3 convictions of “drink driving” committed in 1998, 2003 and 2007 respectively.  For the offence of “drink driving” committed in 2007, the appellant was sentenced to 4 months’ imprisonment and he was disqualified from driving for 36 months on 20 November 2007.  The appellant runs a garage business that is principally concerned with motor vehicle spray painting.  He is earning about $15,000 a month and he has to financially support his wife and his 16-year-old son. 

Reasons for judgment of the trial magistrate

6.  The trial magistrate did not accept the appellant’s case and stated clearly that he would not pass sentence on the basis of the appellant’s case.  The trial magistrate took the view that the appellant lacked genuine remorse.  However, he pointed out that the incident did not cause any accidents or injury to anyone or damage to any public property.

7.  The trial magistrate took the view that apart from the fact that the appellant lacked genuine remorse, his previous convictions and the alcohol concentration of his breath specimens taken at the time of the offence were also aggravating factors. 

8.  In the end, the appellant was sentenced to 4 weeks’ imprisonment.  In addition, the trial magistrate was of the view that there were no special reasons for him to exercise a discretion, and therefore he disqualified the appellant from driving for less than 5 years.  

The Respondent’s stance

9.  Ms Parwani, Acting Senior Public Prosecutor representing the respondent, set out in great detail different versions of section 39A of the Road Traffic Ordinance, Cap 374, Laws of Hong Kong (“the Ordinance”) from 1997 up to the present.  Ms Parwani stressed that the legislature has stated clearly that drink driving is a very serious crime which should attract heavier penalty, and over the years the provision in penalty has been increasing steadily.

10.  Ms Parwani submitted that according to the terms of section 39A(3) of the Ordinance, it states that if a defendant has not committed the offence within 5 years, the court “may” but not “must” deal with the offence as a first offence.  Ms Parwani emphasized strongly that the court should exercise the discretion conferred by section 39A(3) with caution or else it would be against the intention of the legislature to fight drink driving at all costs.

11.  Ms Parwani stressed that it is the appellant’s fourth conviction of an offence involving drink driving.  On 20 November 2007, he was sentenced to 4 months’ imprisonment and he was disqualified from driving for 36 months for such offence.  Ms Parwani particularly pointed out that the reading of the breathalyser test of the appellant in the present case was 101 micrograms of alcohol in 100 millilitres of breath, which was almost 5 times of the prescribed limit.

12.  Ms Parwani submitted that the discretion referred to under section 39A(3) of the Ordinance should only concern the sentence but not the period of disqualification from driving, otherwise it would lead to results that are conflicting with common sense.

13.  Ms Parwani emphasized strongly that there were no exceptional circumstances in the present case where the trial magistrate could deal with the appellant’s conviction as a first conviction, and to disqualify him from driving for less than 5 years.

Discussion

14.  “Drink driving” is certainly a very serious crime because this category of offences may cause casualty and serious damage to property.  Since it is not the appellant’s first conviction of “drink driving”, pursuant to section 39A(2A)(b)(iii) of the Ordinance, he is liable to disqualification for not less than 5 years.    

15.  However, the Ordinance confers the court a discretion to order a driver, who is not a first offender of “drink driving”, to be disqualified from driving for a period of less than 5 years.  The court may exercise the discretion under section 39A(2) or (3) of the Ordinance.

16.  Section 39A(2) and (3) of the Ordinance states that:

“(2) If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate shall order that the person be disqualified in accordance with subsection (2A) or (2B) unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

… …

(3) The court or magistrate may deal with the offence as a first offence, or the conviction of an offence as a first conviction if, as at the date on which the offence was committed, at least 5 years have elapsed since the person's last conviction under subsection (1) or section 39, 39B or 39C.

17.  On the face of it, section 39A(3) of the Ordinance gives a driver, who has not committed the same offence for a long time, a chance to turn a new leaf. However, section 39A(3) of the Ordinance does not set out the basis or criteria for the court to exercise the discretion.  It only provides that the court may deal with the “drink driving” offence as a first offence if at least five years have elapsed since the person’s last conviction of a similar offence.

18.  I agree that the fact that a person has not committed a similar offence in 5 years does not mean that he must be regarded as a first offender when he commits that offence 5 years later.  A person who has committed a “drink driving” offence is liable to disqualification for 5 years and he simply cannot drive within 5 years.  If the court must deal with the offence as a first offence when he commits a similar offence 5 years later, then whoever commits a similar offence after being disqualified for 5 years for “drink driving” will be treated as a first offender.  This cannot be the intention of the legislature.

19.  However, I do not agree that a defendant who has committed “drink driving” has to put forward special reasons before he can receive the discretionary treatment set out in section 39A(3) of the Ordinance.  If a defendant has to put forward special reasons in order to receive the discretionary treatment, section 39A(2) and 39A(3) of the Ordinance will become duplicitous, and the prerequisite of “not committing similar offences within 5 years” will turn out to be having no substantive meaning. The legislature should have its particular intention to provide the prerequisite of “not committing similar offences within 5 years”.

20.  The term “may” in section 39A(3) of the Ordinance shows that the court has a discretion. But there should be a proper understanding of the intention of the Ordinance.  If a person who has committed “drink driving” can prove that before the commission of the offence, he has not committed a similar offence for at least 5 years, the court shall prima facie treat him as a first offender, unless there are other factors which make the court not to do so.  I am of the view that if a defendant of a “drink driving” offence has not committed a similar offence for at least 5 years before the commission of the offence, he does not have to show special reasons before he can be ordered to be disqualified for a shorter period, or else section 39A(3) and section 39A(2) of the Ordinance will become duplicitous.  This is not a correct way to interpret the Ordinance.

21.  The trial magistrate pointed out that he did not find any reasons to exercise a discretion to treat the appellant’s conviction as a first conviction of “drink driving”. 

22.  I am of the view that as the appellant had not committed any “drink driving” offences for at least 5 years, then, prima facie, that was sufficient for the trial magistrate to treat his conviction as a first conviction, and therefore order the appellant be disqualified for less than 5 years.  I am of the view that where the appellant has complied with the prerequisite of “not committing similar offences within 5 years”, the question the trial magistrate should ask would be “are there any reasons not to exercise a discretion to treat the appellant’s conviction as a first conviction of drink driving”.  Before answering the question, the trial magistrate should take into account all the relevant factors.  

23.  The appellant has repeatedly committed traffic offences including careless driving, driving a vehicle without a driving licence, failing to comply with traffic signs, driving without third party insurance and speeding.  The appellant committed “drink driving” offences for three times in 1998, 2003 and 2007. Furthermore, he was sentenced to 4 months’ imprisonment and disqualified for 36 months for “drink driving” on 20 November 2007.  The aforesaid disqualification order only expired by the end of 2010.  The appellant was convicted of “drink driving” again about 5 years later and the reading of his breathalyser test was almost 5 times of the prescribed limit.

24.  In my view, even if the trial judge had given proper consideration to whether there were any reasons not to exercise a discretion to treat the appellant’s conviction as a first conviction of “drink driving”, he certainly would have come to an answer that there were sufficient reasons not to do so.

25.  Under the aforesaid circumstances, the decision to disqualify the appellant from driving licence for 5 years was correct and inevitable.

26.  Therefore, I dismiss the appeal of the appellant and uphold the sentence.