HKSAR v. Wei, Edmund Chih Chan

HCMA 237/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 237 OF 2016

(ON APPEAL FROM ESCC NO 567 OF 2016)

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J U D G M E N T

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1.The appellant was convicted upon his own plea in the Magistrates’ Court of two charges:

(1)   “Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit”, contrary to section 39A(1) of the Road Traffic Ordinance, Cap 374 (“Drink driving”);

(2)   “Failing to report an accident which involved damage”, contrary to section 56(2A) and (6) of the Road Traffic Ordinance, Cap 374 (“Failing to report”).

2.The trial Magistrate (“the Magistrate”) sentenced him to a fine of $8,000 and disqualification from holding or obtaining a driving licence for 12 months for “Drink Driving”, and a fine of $10,000 and imprisonment for 1 month suspended for 12 months for the charge of “Failing to report”.

3.The appellant now appeals against the sentence of the charge of “Failing to report”. 

4.The appellant was represented by Mr Morley both at the Magistracy and in this appeal hearing.

Prosecution case

5.On 21 October 2015 at around 3:57am, the police received a report of “fallen tree” on Tin Hau Temple Road and a private vehicle bearing registration number PA 6656 (“the vehicle”) with damage was left unattended near the fallen tree.

6.The police attended the scene for investigation. They also contacted the registered owner of the vehicle asking the owner to inform the accident driver to contact the police.

7.At around 5:20am, the appellant contacted the police and was later located at the scene. The appellant told the police he was the driver of the vehicle at the material time.  He lost control of the vehicle at the accident location where it knocked down a tree. After the accident, he felt fainted and wandered in the vicinity of Tin Hau Temple Road and Braemar Hill Road.  Having been called by the registered owner of the vehicle to contact the police, he returned to the scene.

8.During the enquiry at the scene, the appellant was found to have a smell of alcohol. At around 6:08am, a screening breath test was conducted on the appellant with a result of 49µg/100ml of breath recorded (the prescribed limit was 22µg/100ml of breath).

9.A further evidential breath test was conducted at around 7:04am on the appellant with a result of 45µg/100 ml of breath recorded.

10.The appellant had never made any report to the police prior to the police calling the registered car owner.  The appellant remained silent in respect of the offences he was arrested.

Mitigation

11.The appellant, aged 50, has no criminal or traffic conviction record in Hong Kong.  He owns a company in Hong Kong employing about 700 employees.  Mitigation letters were submitted on behalf of the appellant.

12.In mitigation, it was submitted to the Magistrate that the appellant had been drinking due to work problems.  He stopped drinking at 12am and thought that he would be sober when he drove back home.  The appellant walked home after the accident and took a shower, as the airbags had gone off which produced powder and fumes.  After he was called by the registered owner of the vehicle, he returned to the scene.

Reasons for sentence

13.In giving her reasons for sentence for the charge of “Failing to report”, the Magistrate found that the extent of damage caused by the accident was not trivial.  She was also of the view that the more damage the accident had caused, the more urgent the report to the police was needed so that the damage could be remedied as soon as possible and further damage and inconvenience could be minimized.

14.The Magistrate noted that the appellant only called the police more than an hour after a passing driver had alerted the police and the registered owner of the vehicle had been informed. It was “utterly inappropriate and dishonest” for the appellant to have gone home and taken a shower after the accident, especially so when the appellant had consumed alcohol.  The time lapse made the breath test inaccurate.  The appellant was obviously destroying the evidence and was actually concealing the drink driving offence.  The Magistrate said the appellant’s acts were akin to perverting the course of public justice.

15.The Magistrate found that a custodial sentence should be imposed so that the correct message could be conveyed to the public.  It was only because of the appellant’s clear record and good background that he was given a suspended sentence.

Grounds of appeal

16.In a succinctly prepared written submission, Mr Morley submits that the Magistrate’s finding that by going home and taking a shower, the appellant was “…obviously destroying the evidence after the accident” is erroneous.  It is also contradicted by the appellant’s actions subsequently, as the appellant attended at the scene and had not consumed any alcohol after the accident, thus maintaining the integrity of the screening breath test.  He also confirmed that he was the driver.  Mr Morley contends that no evidence has been lost or destroyed.

17.In reliance on a list of authorities, it is submitted that the imposition of a suspended sentence is in disparity with those cases.

Discussion

18.The maximum sentence of the offence of “Failing to report” is a fine of $15,000 and imprisonment for 6 months. By virtue of section 113C of the Criminal Procedure Ordinance, Cap 221, the Magistrate may impose a fine of Level 4 i.e. up to $25,000.

19.There is no sentencing guideline or tariff for this offence.

20.Without disrespect to Mr Morley, I shall not repeat the facts of the cases cited by him and to compare them with the present case.  Suffice it for me to say that those cases have very different facts which are in my view much less serious than the present case.

21.The respondent cites a few authorities in support of the sentence passed by the Magistrate.

22.In HKSAR v HO Kwong Wai,CACC 167/2012 (unrep), the appellant tried to burn his vehicle after he collided with a motorcyclist when he crossed double-white line to over take another vehicle.  He was convicted of dangerous driving causing grievous bodily harm and other charges.  A starting point of 3 months’ imprisonment for the charge of “Failing to stop” was undisturbed on appeal.

23.In HKSAR v LIU Kwok-chun, CACC 34/2009 (unrep), the appellant drove in excessive speed and collided with a 73-year-old female at a pedestrian crossing and caused her death.  His sentence of 6 months’ imprisonment for the charge of “Failing to report” after trial was upheld.

24.The respondent however accepts that the cases being cited resulted in serious injury and even death of the pedestrian involved in the accident, and therefore the culpability of the respective appellants were far more serious than the present case.

25.In my judgment, the gravamen of the charge of “Failing to report” was the appellant, having committed the offence of drink driving, left the accident scene deliberately causing a delay of investigation for about 1½ hours.  The breath test could only be conducted more than 2 hours after the accident. Despite the delay, the alcohol level was still more than double of the prescribed limit.

26.I cannot agree with Mr Morley that no evidence was lost.  It is only common sense that the later the breath test was done, the less alcohol level in the body of the appellant could be recorded.  Generally speaking, the higher the alcohol level, the more severe sentence for the offence of “drink driving” might be imposed. The delay in taking the breath test could affect the sentence for the drink driving charge. Although the appellant eventually returned to the accident scene, it was only after the police had called the registered owner of the vehicle.

27.In my judgment, the Magistrate was entitled on the totality of the evidence to find that the appellant was destroying the evidence of his drink driving in the sense that a lower reading of alcohol might have been recorded. I also agree with the Magistrate that the appellant’s leaving the scene made the investigation of the police more difficult.  It is entirely proper of the Magistrate to take a serious view in the case.

28.The sentence is neither manifestly excessive nor wrong in principle.

Conclusion

29.For the reasons given above, the appeal has to be dismissed.

Ms Lily Yip, Public Prosecutor of the Department of Justice, for the respondent

Mr Christopher Morley of Messrs Morley, Chow and Seto, for the appellant