R v. CHOW TIN JACK

(English Translation - 英譯本)

Headnote

Sentencing guidelines for the offence of driving a motor vehicle with alcohol concentration above the prescribed limit.

Driving a motor vehicle with alcohol concentration above the prescribed limit or similar offences are serious offences because they would cause casualty to the innocent road users and serious damage to their property.

However, unless the case is a very bad one, an immediate custodial sentence should not be passed on a first offender except in cases where an offender, under the influence of alcohol, causes an accident by deliberately driving recklessly or causes death or serious injury accidentally, or in cases where the offender has similar previous conviction(s).

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

Case No.: MAG APP 61/1997

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J u d g m e n t

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1. The appellant, Chow Tin Jack, pleaded guilty in the magistrate's court to one count of driving a motor vehicle with alcohol concentration above the prescribed limit and one count of careless driving. For the first count, the appellant was sentenced to one month's imprisonment with immediate effect and was disqualified from holding a driving licence for two years. He was fined $2,500 for careless driving. The appellant now appeals against the sentence of the first count.

2. The facts as agreed by both parties reveal that the light goods vehicle driven by the appellant at 4 a.m. on 23.1.1996 got into the opposite lane in the Cross Harbour Tunnel and had a head-on collision with an oncoming taxi. Both vehicles were damaged in the accident and the taxi driver was slightly injured. At that time, only one tube of the tunnel was open, carrying traffic in both directions. The appellant was put on a breath test at the scene after the accident. A concentration of 52 micrograms of alcohol in 100 millilitres of the Appellant's breath was shown on the analysis device, which is 20 micrograms higher than the stipulated or prescribed 32 micrograms. The facts also show that in two subsequent breath tests conducted on the appellant at the Accident Investigation Office, the concentration of alcohol were 51 and 52 micrograms respectively. Police investigation also revealed that the appellant had consumed six cans of beer before driving and as he was behind the wheel, he fell asleep, probably because of tiredness or the influence of alcohol thus causing the accident.

3. The trial magistrate pointed out in sentencing that the alcohol concentration in the appellant's breath at the time of the incident was 50% higher than the statutory limit. The magistrate pointed out that traffic was heavy in the Cross Harbour Tunnel and a driver must ensure the safety when driving, otherwise the consequence would be extremely serious.

4. The trial magistrate also pointed out that if this case did not call for an immediate custodial sentence, than it would be hard to conceive of one that would do. The trial magistrate clearly indicated that among similar cases, this was a more serious one; therefore, although the appellant had no similar previous conviction, he was sentenced to one month's imprisonment. I have to state explicitly that driving under the influence of alcohol or drugs or similar offences are extremely serious as traffic accidents would cause injury or even death to innocent people or other road users, as well as serious loss and damage to property, resulting in a tremendous influence on the supply of resources to the society. In serious cases of a similar type, there is nothing wrong in passing an immediate custodial sentence.

5. That is why Miss Chan, Counsel for the prosecution, pointed out that the law provides that a first offender is liable to imprisonment for 6 months and for a second-time offender as long as 12 months. However, I disagree with the trial magistrate on one point. He said the present case was a comparatively serious one of the kind. The appellant was driving a vehicle with alcohol concentration higher than the prescribed limit and on the way, at 4 a.m., he fell asleep probably because of tiredness thus causing the accident. The facts do not show the appellant deliberately driving recklessly under the influence of alcohol; and although the taxi driver was injured, the injury was a very minor one. It would have been different if the accident had caused death or serious injury to other road users. Besides, if an appellant has previous conviction(s) of the same nature, the court will also adopt a more severe punishment.

6. I have carefully considered the facts of the case, and there is no aggravating factor like the above-mentioned in this case. Basing on the relevant facts and submissions of both counsel, I am of the view that the immediate custodial sentence is too heavy for the applicant. I, therefore, allow the appellant's application. The original sentence for the offence of driving a motor vehicle with alcohol concentration above the prescribed limit - one month's imprisonment with immediate effect - is quashed. In substitution thereof, the sentence is suspended for twelve months. However, I must again point out that driving under the influence of alcohol or drugs or cases of the kind are extremely serious. The court will pass an immediate custodial sentence as a deterrent where appropriate in order to safeguard the lives and property of other road users. For the above-stated reasons, the present case is not a comparatively serious one among similar cases, and the application for appeal is therefore allowed.

7. The term of disqualification for two years is upheld.