Read the full judgment text of CAAR 1/2015 on BabelCite. This Court of Appeal judgment was delivered on 5 February 2016 before Hon Lunn VP, Macrae and McWalters JJA.
Criminal law – dangerous driving – drink driving – sentencing – review of sentence – whether fine-only sentence adequate – whether custodial sentence required – whether sentence should be suspended – exceptional circumstances test for suspension – Road Traffic Ordinance (Cap. 374) ss.37(1), 37(2D), 37(2E), 36(1) – Criminal Procedure Ordinance (Cap. 221) s.109B – appeal allowed – 6 months' imprisonment suspended for 2 years imposed. On 5 December 2014, the respondent, aged 74, drove a private motor car in Hong Kong after consuming alcohol, being involved in four separate collisions with other vehicles in Electric Road, Java Road and twice in Tai Tam Road over about 35 minutes, and driving away from three of the collision scenes. His breath alcohol level was 3.36 times the legal limit and his vehicle licence had expired. He pleaded guilty in the District Court to dangerous driving contrary to s.37(1) of the Road Traffic Ordinance (Cap. 374) and driving an unlicensed vehicle. The sentencing judge imposed a fine of $30,000 and an 18-month disqualification on Charge 1, departing from the norm of a custodial sentence. On review by the Secretary for Justice, the Court of Appeal held that the judge erred in failing to impose a custodial sentence. The persistent, prolonged reckless driving with alcohol at over three times the legal limit, involving four separate collisions and flight from three scenes, constituted a selfish disregard for the safety of other road users that required custodial consideration, following Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 and R v Cooksley [2003] 3 All ER 40. Whether the judge erred in failing to refer to the statutory enhancement under s.37(2D) and (2E) was held to be no error as the judge was clearly aware of the Tier 3 alcohol level. The Court also clarified the test for suspending a sentence of imprisonment in Hong Kong: the 'exceptional circumstances' test articulated in textbooks and applied in HKSAR v Cheung Suet Ting [2010] 6 HKC 249, HKSAR v Yuen Chi Ming (HCMA 56/2001) and HKSAR v Leung Ping Nam [2007] 5 HKC 413 arises only in respect of certain serious offences such as fraud, bribery and forgery. For other offences, the court must have regard to all the circumstances of the offence and the offender in determining whether to exercise its power under s.109B of the Criminal Procedure Ordinance. Applying that test, the Court found that the mitigating factors (low speed, no injury, slight damage, clear record, good character, age of 75, diagnosed adjustment disorder with depression following an acrimonious divorce, genuine remorse, guilty plea) justified suspending the custodial sentence. The appropriate starting point was held to be 9 months' imprisonment, with a one-third discount for the guilty plea yielding 6 months' imprisonment, which was suspended for two years. The orders of the sentencing judge were otherwise upheld.
Legal issues: Adequacy of fine-only sentence for dangerous driving with high alcohol level · Test for suspending a sentence of imprisonment in Hong Kong · Whether the custodial sentence should be suspended
Outcome: Appeal against sentence allowed; sentence of 6 months' imprisonment suspended for two years imposed on the respondent in respect of Charge 1, in addition to the orders made by the sentencing judge.
Cited by 53 cases · Cites 5 cases