HKSAR v. ABDUL WAHED

HCMA 427/2018

[2019] HKCFI 241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 427 OF 2018

(ON APPEAL FROM KCCC 1430 OF 2018)

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J U D G M E N T

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1.  The appellant pleaded guilty to an offence of “Dangerous driving” (Charge 1) and an offence of “Drink driving” (Charge 2) before Magistrate Joseph To (“the magistrate”).

2.  For Charge 1, he was sentenced to 8 months’ imprisonment, a disqualification order for 7 years and driving improvement course.  For Charge 2, 6 months’ imprisonment and a disqualification order for 7 years.  The magistrate ordered the sentences of both charges to run concurrently, arriving at a total prison term of 8 months.

3.  The appellant now appeals against his sentence in relation to Charge 1 only.  He has indicated that he does not take issue with the disqualification order[1].

4.  During plea and sentence, the appellant was represented by Mr John Marray (privately briefed).

The facts

5.  About 9:10 pm on 30 January 2018, Mr Chau (PW1) was driving a private car along the 2^nd lane of Prince Edward Road West (eastbound).  Upon reaching the junction with Junction Road, PW1 proceeded straight in compliance with a green light.  The appellant, who was driving a private car along the 3^rd lane of westbound Prince Edward Road West, made a right turn onto Junction Road against a red light.

6.  As a result, the front part of the appellant’s car rammed into the offside of PW1’s car, pushing it onto the 1^st lane of the eastbound Prince Edward Road West.  Two civilians at the pedestrian crossing at Junction Road had to dash forward to avoid being hit by the vehicles.

7.  An Evidential Breath Test conducted at Kowloon City Police Station about 90 minutes after the collision revealed that the alcohol level in the appellant’s breath was 79 μ g/100 ml (Tier III). Under caution, he remained silent.

The appellant’s background

8.  The appellant is now 39 and has 2 conviction records[2], which include 2 offences of “Drink driving” and 2 offences of “Careless driving”.  He is married and has 3 young children from his 1st marriage.  He works as a self-employed translator and supports his children who live in Pakistan with his aunt.  The appellant also has significant health problems which I will deal with in the subsequent paragraphs.

The magistrate’s reasons for sentence

9.  In sentencing the appellant, the magistrate gave his reasons as follows[3]:

“5. In mitigation, Mr Marray for the defendant told the court that the defendant was a self-employed translator. Married to a Chinese medicine doctor, the defendant had three young children from his first marriage, whom he supported and who lived in Pakistan with the defendant’s aunt. The defendant suffered from diabetes and a chronic liver condition with cirrhosis and had an operation in September 2017. Mr Marray relied on the defendant’s early pleas and the fact that he had never served any prison terms in his life. Upon the court’s enquiry, Mr Marray confirmed that at the material time, the defendant was driving from Sai Kung to Kowloon City for dinner.

6. In sentencing the defendant, the court took into account the following matters. Drink driving is a conduct crime, not dependent upon the outcome of the illegal driving. The fact that no injury to anyone and no damage to any property are caused as a result of an offender’s drink driving shows only that there is no aggravating factor, but it does not mean that the offence is any less serious. The most important sentencing criterion for dangerous driving is the degree of culpability of the defendant, which must be judged in the context of the risk that the defendant represented to other road users. In the defendant’s case, the court found he was not in a position whatsoever to be in control of a car given the state of his insobriety, but he chose to do so and made a rather long trip from Sai Kung to Kowloon Tong. Two pedestrians had narrowly escaped injuries by rushing away in time. In the court’s view, the defendant represents a positive danger to a sector of the general public, namely, other road users; this is the third time in which he is convicted of drink driving, which has resulted in an accident with damage to property. As the prosecutor has correctly pointed out, dangerous driving committed by an offender with tier-three drunkenness is an aggravating factor recognised under section 37(2E) of the Ordinance, as a result of which the statutory maximum is enhanced pursuant to section 37(2D).

7. In all the circumstances, the court considered the proper starting points for the first and second charges to be 12 months and nine months, respectively.  The defendant was entitled to one-third discount for his guilty pleas.  He was, accordingly, sentenced as per paragraph two above.”

Grounds of appeal

10.  The appellant is represented by Mr John McNamara in this appeal. In gist, Mr McNamara submitted that the sentence of 8 months’ imprisonment for Charge 1 is manifestly excessive.  Mr McNamara complained that the magistrate has wrongly taken into consideration of the fact that the appellant had driven a long way from Sai Kung to Kowloon City[4] (something which is not stated in the Brief Facts).  Mr McNamara also submitted and relied on the appellant’s latest medical reports (which were then not available to the magistrate).

My considerations

11.  The appellant has a poor, if not appalling, traffic conviction history.  He has been convicted of “Careless driving” twice, which is directly relevant to the sentence of Charge 1.  Although he is not appealing against the sentence of Charge 2, it is his 3^rd “Drink driving” conviction since December 2012.  For his 1^st “Drink driving” offence, he was fined $8,000 and disqualified for 9 months.  For his 2^nd (dated February 2014), he was fined $20,000 and disqualified for 36 months.  In the same case, for his 2^nd “Careless driving” conviction, he was sentenced to 2 months’ imprisonment, suspended for 2 years and fined $3,000.

12.  I see nothing wrong for the magistrate to make enquiries with defence counsel during mitigation to ascertain the purpose of the appellant’s trip as a matter of background information.  I, however, do see some force in Mr McNamara’s argument that the dangerous driving act in Charge 1 took place only within minutes or seconds, even though the appellant had driven all the way from Sai Kung to Kowloon City.  Had he not jumped the red light and crashed into PW1’s car (and assuming that he was stopped by the police for a random breath check), the appellant most probably would not have had to face Charge 1.  The simple fact that he had decided to drive such a long distance whilst under the influence of alcohol has little relevance to Charge 1.

13.  In my view, for the purpose of Charge 1, the relevant factors to be considered are: (i) driving under the influence of alcohol (at Tier III drunkness); (ii) disobeying a traffic light; (iii) crashing into PW1’s car; (iv) causing 2 pedestrians to run for their lives; and (v) 2 previous convictions of “Careless driving” whereas one of which carried a suspended sentence.  Based on these 5 factors, an immediate custodial sentence is inevitable even for dangerous driving simpliciter.

14.  When passing sentence, the magistrate was aware that the appellant “suffers from diabetes and a chronic liver condition with cirrhosis and had an operation in September 2017[5].”  The latest medical reports submitted by Mr McNamara revealed that, in plain English, the appellant’s liver cirrhosis has developed into cancer.  Furthermore, his private psychiatrist is of the opinion that “there is a high chance of further worsening of his depressive disorder if he is required to be detained in prison again[6].”

15.  I agree with Mr Kuan for the respondent that dangerous driving itself must be deterred and that there is no acceptable excuse for dangerous driving[7].  Furthermore, Li CJ in Yip Kai Foon v HKSAR (2000) 3 HKCFAR 31 held that “medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity[8].”  The appellant’s medical conditions already existed prior to the present offences. The health of his liver is no doubt worrying, but there is no medical evidence of it having reached terminal stage or any possibility of immediate loss of life.  Mr Kuan pointed out that the Commissioner of Correctional Services would allow prisoners to attend private hospitals for necessary medical treatments. 

16.  With the 50% enhancement[9] pursuant to section 37(2D) of Cap 374, the maximum prison term of Charge 1 becomes 18 months. The magistrate sentenced the appellant to 8 months’ imprisonment upon a guilty plea.  In other words, he adopted a starting point of 12 months.  In my view, this is manifestly excessive based on the present facts.  A starting point of 9 months would have been proportionate and just.  With the guilty plea, the sentence should be 6 months.

17.  Mr Kuan for the respondent informed me that the appellant has served about 1 month of his sentence before bail pending appeal was granted.  With the benefit of remission, the appellant is likely to be required to serve another 3 months or so.  In my view, a balance is struck between his desire to seek medical treatment of his choice and the need to punish him for what he did.

18.  Based on the reasons stated above, I allow the appeal to the extent that the appellant is sentenced to 6 months’ imprisonment for Charge 1 (to be served concurrently with the sentence of Charge 2).  All other orders made by the magistrate remain unchanged.