HKSAR v. HO WAI LEUK

[English Translation – 英譯本]

HCMA 33/2023

[2025] HKCFI 2054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 33 OF 2023

(ON APPEAL FROM KCCC 2946 OF 2022)

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REASONS FOR JUDGMENT

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Background

1.  The appellant pleaded guilty before Ms Peony Wong, Acting Principal Magistrate (“the Magistrate”), to one count of “driving a motor vehicle with alcohol concentration in breath above the prescribed limit”[1] (“the drink driving offence”). He was sentenced to two weeks’ imprisonment, disqualified from driving for two years and ordered to attend a driving improvement course at his own cost. The appellant appealed against sentence.

2.  At the conclusion of the appeal hearing, I allowed his appeal. Having called for a community service order report, I sentenced him to a community service order of 120 hours, in substitution of the original two weeks’ imprisonment, while the 2-year disqualification and the attendance of a driving improvement course at his own cost both remained unchanged.

3.  I now hand down my written reasons.

Admitted facts

4.  At 2300 hours on 12 September 2022, Police Constable 14796, while patrolling on Mody Road near Chatham Road South, Tsim Sha Tsui, noticed that the appellant was driving a private car at an unsteady speed along Chatham Road South heading towards Cameron Road. The police constable stopped the car in question and found that the appellant’s eyes were red and he smelled of alcohol. Suspecting that the appellant was driving under the influence of alcohol, the police constable thus conducted a screening breath test on the appellant.

5.  The breath test result of the appellant was 122 micrograms of alcohol in 100 millilitres of breath, which exceeded the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath. The police constable therefore arrested the appellant. Under caution, the appellant said, “Sorry, I only drank two glasses of whisky earlier. Please give a chance.”

6.  An evidential breath test was conducted on the appellant at the Breath Test Centre in Tsim Sha Tsui Police Station, with a result of 90 micrograms of alcohol in 100 millilitres of breath, which exceeded the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath.

Reasons for sentence

7.  In her Reasons for Sentence, the Magistrate said:

“7. In sentencing, the court has taken into account the defendant’s guilty plea, all his mitigation submissions, his clear criminal and traffic record as well as the facts of the case. 

8. The court must emphasize that drink driving is a very serious offence. In the present case, despite that no accident was caused and that the defendant drove at an unsteady speed with no other improper driving manner, the court still needs to consider the potential risk arising from the defendant’s drink driving. Had the police constable not noticed the anomalous way in which the defendant’s car was travelling, and given the ever-changing road conditions, particularly taking into account that the case occurred in the evening of a public holiday in Tsim Sha Tsui, a place that is generally busy with both pedestrians and vehicles, in case of an emergency, with the defendant’s high alcohol concentration of 90 micrograms of alcohol in 100 millilitres of breath at that time, which fell within tier 3 drink driving, it was highly likely that the defendant would have been incapable of reacting timely and appropriately, and this might result in casualties and loss of property.

9. I must emphasize that the gravity of the present case lies in the fact that it was a tier 3 drink-driving offence. When the defendant was found, his eyes were all bloodshot and he smelled of alcohol, not to mention his inability to keep driving at a steady speed at the least. He had consumed two glasses of whisky. Regardless of when the consumption took place during the banquet dinner, any right-thinking adult would know that such a quantity of spirits would significantly affect his judgment and he must definitely not drive on the road. No matter how stressful he was or how displeased he felt on that day, there was not in the least any acceptable reason in this case which justified the defendant’s need to drive after consuming as much spirits as that. Even though the defendant has no criminal conviction record, such consideration does not require one with a previous conviction to understand. Therefore, in the present case, although the court will definitely take into account the defendant’s clear record, in light of the high alcohol concentration in this case, the nature of the alcoholic beverage consumed by the defendant, and the serious risk that might arise from the alcohol concentration of the defendant, this court is of the view that the defendant’s good character should be given relatively less weight in the present case.

10. Furthermore, it was submitted that the venue for dinner was not very far away from the location in question. This is, in my view, not a mitigating factor. The defendant was stopped because the police officer noticed that his car was travelling at an unsteady speed, which has nothing to do with how far the defendant intended to drive after drinking alcohol.

11. Cases of this kind often come before this court. In my view, for drink driving cases of such severity, the court, in passing sentence, must send out a strong and powerful message so that the defendant as well as the general public can understand clearly the great potential harm posed by drink driving, which may affect the lives of the defendant and other road users. The court will certainly not condone. Regarding the circumstances mentioned above, my view is that an immediate custodial sentence is absolutely inevitable in order to deliver the above crucial message and to achieve a deterrent effect.

12.  Having considered all the above factors and that the defendant has performed quite a lot of charitable service and  held positions in relevant organizations, I adopt a starting point of three weeks’ imprisonment and give a one-third discount for the defendant’s frank admission of his guilt. The defendant is sentenced to two weeks’ imprisonment and disqualified from driving for two years, and is required to complete a driving improvement course.”

Grounds of appeal

8.  Mr Tony Li SC, acting for the appellant, advanced three grounds of appeal[2]:

(1)  The Magistrate did not obtain a community service order report and erred in considering imprisonment as the only sentencing option (ground of appeal 1);

(2)  The Magistrate did not, before imposing immediate imprisonment, fully or properly consider the option of suspended sentence (ground of appeal 2); and

(3)  The Magistrate, as stated in her written reasons for sentence, used the prevalence of the case as the basis for imposing a deterrent sentence. The Magistrate failed to notify the defence during mitigation that she would consider this sentencing factor and invite the defence to address the court accordingly, nor did she state this reason when she delivered her reasons for sentence verbally (ground of appeal 3).

Discussion

9.  The sentencing principle for drink driving is well established. As the Honourable Madam Justice Anna Lai, in HKSAR v Wong Chi Hang[3], said[4]:

“13. The case law has established that for a first-time offender who caused no casualties or serious loss of property, upon a plea of guilty, the normal sentence will only be a fine and a disqualification from driving. However, if an offender’s ability to react and control the motor vehicle was seriously impaired by alcohol, the court will consider otherwise. As such, the court must base on the facts of each case to arrive at the most just sentence.”

The said principle has been repeatedly confirmed in the authorities of the Court of Appeal[5] and the Court of First Instance[6].

10.  Therefore, the Magistrates’ Courts, when dealing with the drink driving cases, should premise the sentence on the basis of this principle.

11.  There are no sentencing guidelines for the offence of drink driving, nor has it been laid down in any authority the circumstances under which the court must consider a custodial sentence. Summarizing the previous authorities, factors which the court would take into consideration in sentencing include[7]:

(1)  whether the defendant is a first-time offender;

(2)  the proportion of alcohol in the defendant’s blood;

(3)  the extent to which the defendant’s driving ability was influenced by alcohol;

(4)  whether the defendant’s driving conduct caused an accident;

(5)  whether the accident caused loss of property or casualties.

12.  These factors are directly related to the sentencing principle mentioned above.

13.  The proportion of alcohol in the defendant’s blood is one of the factors for consideration, as it relates to the defendant’s reaction and driving ability. The higher the proportion of alcohol, the higher the chance that the reaction and driving ability were seriously affected. Therefore, the proportion of alcohol in blood is a crucial consideration in sentencing. However, with no accident, no loss of property and no injuries and death caused, if the defendant is a first-time offender, unless there is evidence to prove that the defendant’s reaction or driving ability was seriously impaired, custodial sentence should generally not be considered.

14.  In the present case, as pointed out by the Magistrate, the defendant only “drove at an unsteady speed with no other improper driving manner”. The defendant’s reaction and driving ability can hardly be described as “seriously impaired”.

15.  I have not overlooked the appellant’s breath test result of 90 micrograms of alcohol in 100 millilitres of breath, which brought him within tier 3 under section 39A(1A)  of the Ordinance. However, in my view, as the defendant is a first-time offender, with no injuries, deaths or loss of property caused, for a plea of guilty, if the said sentencing principle is applied, the court cannot consider imprisonment as the only sentencing option merely because the proportion of alcohol in blood fell within tier 3.

16.  The appellant in the present case had a proportion of alcohol in blood similar to that of the defendant in 香港特別行政區 訴尹劍華[8]. In that case, a traffic accident took place resulting in damage to property. The court, in dealing with the appeal against sentence, also expressed that the magistrate should have called for a community service order report.

17.  Mr Li SC submitted that before refusing to obtain a community service order report, the Magistrate should give more careful consideration to the appellant’s background and mitigating factors, including:

(1)  There were no injuries, deaths or loss of property. Other than driving at an unsteady speed, he did not have other improper driving manner;

(2)  He has a good personal background. The appellant not only has no criminal conviction record but has also engaged in charitable activities for many years. He also held different positions in a number of charitable organizations;

(3)  He frankly admitted his guilt and is truly remorseful.

18.  Mr Li SC cited the case of HKSAR v Chan Chi Ming & Anor[9]in which Deputy Judge McMahon of the Court of First Instance (as he then was)  pointed out that the court has to give careful consideration to the offender’s clear record and avoid imposing a sentence of deterrence. If it is, in the court’s view, not necessary to impose a long sentence of imprisonment, there is a real likelihood that it is not necessary to deal with the case by way of custodial sentence at all.

19.  I concur with Deputy Judge McMahon’s view and also agree with the submissions made by Mr Li SC.

20.  Hence, I find that ground of appeal (1)  has been made out.

21.  Regarding ground of appeal (2), as Mr Li SC pointed out, throughout the Magistrate’s reasons for sentence, the Magistrate did not state her reasons for not passing a suspended sentence, nor did she even mention whether she had considered suspended sentence. In my view, even if the Magistrate considered imprisonment an appropriate sentencing option, in light of the facts of the present case as well as the appellant’s background and remorse, suspended sentence was clearly an appropriate sentencing option. Ground of appeal (2)  should also succeed.

22.  Regarding ground of appeal (3), Mr Li SC submitted that the Magistrate, in her reasons for sentence, stated that she imposed a sentence of deterrence on the basis that “cases of this kind often come before this court”. The Magistrate, nevertheless, did not mention this reason in her reasons for sentence given verbally, and she did not even give the defence any opportunity to make corresponding reply and submissions during mitigation.

23.  Mr Li SC attached to his written submissions the information he gathered, stating that the Magistrate’s conclusion regarding the prevalence of drink driving was not consistent with the objective data shown by the information.

24.  Although the Magistrate was entitled to treat the prevalence of the said offence within the jurisdiction as an aggravating factor in sentencing, before so doing, she must have sufficient basis to support her view rather than purely relying on impression. The Magistrate must also inform the defendant in advance that she was prepared to treat this as an aggravating factor, and the basis in support of her view that the offence concerned was prevalent, so that the defendant could have an opportunity to respond fully[10].

25.  In 香港特別行政區 訴黃卓邦[11], Deputy Judge Anthony Kwok of the Court of First Instance (as he then was)  made the same observation:

“10. I note that there was not any prosecution statistics before the magistrate to support his view that the appellant’s type of problem is becoming increasingly prevalent. The magistrate did not even explain whether this impression stemmed from his daily handling of this kind of cases in Kwun Tong Magistracy. Relying merely on his own conclusion, this reason is over simplistic which inevitably gives others the feeling of being too arbitrary.”

26.  As pointed out by Miss Yuen, Acting Senior Public Prosecutor acting for the respondent, the Magistrate did not clearly state that she had to enhance the sentence because she was of the view that the offence was prevalent, and she just simply said at the beginning of a paragraph that “cases of this kind often come before this court”. However, what the Magistrate said indeed causes others to infer that she did take into account the prevalence of the relevant offence at the time of sentencing.

27.  In any event, I am of the view that there is no sufficient basis in the present case upon which the Magistrate can sentence the appellant to immediate imprisonment for the prevalence of the offence. Now that grounds of appeal (1)  and (2)  have succeeded, I do not intend to make other findings in respect of ground of appeal (3)  other than the observations made above.

Conclusion

28.  For the reasons above, I allowed the appeal against sentence, set aside the order of imprisonment and considered the sentence afresh.

29.  Having considered the community service order report, I accepted the probation officer’s recommendation and sentenced the appellant to a community service order of 120 hours. The original sentence of 2-year disqualification and attendance of driving improvement course at his own cost remained unchanged.