HKSAR v. Yeung Wing Ting, Dick

HCMA000979/2003

HCMA979/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 979 OF 2003

(ON APPEAL FROM ESCC 3132 OF 2003)

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Coram: Hon Jackson J in Court

Date of Hearing: 30 January 2004

Date of Judgment: 30 January 2004

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J U D G M E N T

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1.The background to this appeal is admirably and concisely set out in the magistrate's 'Reasons for Sentence' which I set out in full hereunder :

"On the 3rd October 2003, YEUNG Wing-ting, hereinafter referred to as the Appellant, appeared before me charged on one count of Failing to Provide a Specimen of Breath for a Screening Breath Test. He pleaded Guilty to the charge. Having considered the Admitted Facts, the Appellant's Record both Driving and Criminal which meant that he could not claim credit of having a clear record, and all the matters put in mitigation, I ordered that he pay a fine of HK$5000 and be disqualified for a period of 21 months.

The Appellant now appeals against sentence.

The agreed facts show that at 02.10 the Appellant was driving his motorcycle, with a pillion passenger, along Shek O Road, when he lost control of his motorcycle as he rounded a bend. I noted that at the time of the accident the weather was fine, the road surface was dry, the traffic conditions were light and the street lighting was good. No other vehicle was involved and serious injury was sustained by him, less serious injury was sustained by his passenger. The police officer who attended the scene stated that the Appellant's breath smelled strongly of alcohol. At 3.30 the medical staff indicated that the Appellant was in a fit state to give a breath test or urine or blood sample. At 04.25, more than 2 hours after the accident, the Appellant refused to give a screening breath test.

The court thus has no numerical basis upon which to assess the appropriate period of disqualification, the court can only look at the facts of the case and consider the mitigation. In mitigation the only explanation for the accident was that the Appellant skidded and fell from the motorcycle. No mention was made of the alcohol consumed by the Appellant that evening prior to the accident. I was informed that the Appellant refused to give a breath test because he was in pain at the time of the request. I was also informed that he was a bus driver and was the sole breadwinner of the family. I was thus asked to impose a disqualification, which was as short as possible.

In excess driving cases, the length of disqualification is related to the level of alcohol. LAW Shu-wing, MA 1124/1998 has confirmed that 18 months disqualification is appropriate for being double the legal limit. Two months imprisonment was upheld where a driver was three times over the limit, although the driver had one previous similar conviction.

It is clear from the facts, that this accident can only have been caused by the Appellant's driving falling well below that expected of a normal competent driver, and/or excessive alcohol. It would be contrary to the intent of the Ordinance if a driver could avoid longer terms of disqualification and/or imprisonment by refusing to give a sample of breath, and thereby receiving a short period of disqualification such as would be imposed on someone who was just over the limit. In such situations therefore it is appropriate for a longer term of disqualification to be imposed for a failure to provide a specimen.

Having considered the agreed facts, the fact that injuries sustained in a motor cycle accident are invariably more serious than those sustained in a car accident, the fact that the Appellant cannot claim credit for a clear driving record, I was of the opinion that a disqualification of 21 months was the minimum disqualification which could be imposed for an offence of this nature."

2.The grounds of appeal settled by Mr Luk of counsel are as follows :

"	1.	The learned Magistrate erred in law in failing to note that there is no provision which expressly deals with disqualifying a 1st offender to Section 39B(6) of Road Traffic Ordinance (Cap. 374) from holding or obtaining a driving licence ...
	1A.	Further or alternatively, the learned Magistrate failed to consider that disqualification from driving is not a penalty, it is rather a preventive device. The punishment of disqualification should be restricted to cases involving bad driving and persistent motoring offences. Failing to provide specimen of breath for a screening breath test does not mean bad driving. Given the Appellant's age, he should be mature enough that he would get himself under better control and would not yield to the temptation to refuse to provide specimen of breath for a screening breath test again in future or to engage in bad driving. Disqualification is a very serious penalty to impose on a professional driver like the Appellant. It deprives him of his livelihood. It may even drive him to anti-social behaviour. The only effect of a disqualification in the present case is that it would break the Appellant's family's rice-bowl and hinder the Appellant from obtaining employment and for that reason it is wholly wrong to disqualify in the present case. The Appellant will rely on R v Callister [1993] RTR 70, 71, Sin Yau-kong v R [1977-1979] HKC 526, 529 and R v Tang Sik-hung MA 653/94.
	2.	In the further alternative, the disqualification of 21 months was manifestly excessive or wrong in principle in that:
		(a)	The learned Magistrate erred in not giving any or any due weight to the evidence that disqualification of 21 months would impose an unbearable hardship on the Appellant;
			(i) The Appellant is a professional driver;
			(ii) He is the sole breadwinner of the family.
		(aa)	Before the fact that the Appellant is the sole breadwinner was put forward in mitigation, the learned Magistrate had interrupted twice. She said,
			(i) 'He's not going to be driving a Citybus in the foreseeable future.'
			(ii) '... he's going to be disqualified for quite a long time.', showing that the learned Magistrate had failed to hear all the essential points of the mitigation before imposing the disqualification order.
		(b)	In the absence of being prosecuted for careless driving and/or drink drinking, the learned Magistrate erred in finding that the accident could only have been caused by the Appellant's driving falling well below that expected of a normal competent driver and/or excessive alcohol. The learned Magistrate erred in entering into a realm of speculation whereas there was no such evidence from the admitted facts or elsewhere.
		(c)	The learned Magistrate erred in drawing the analogy from the case of Lau Shu Wing, Magistracy Appeal No.1124/1998 in which the Court imposed 18 months disqualification on the Defendant as the concentration of alcohol in his breath test was more than twice the permitted level. In the above case, it was mentioned that the normal tariff for the same offence was a disqualification of driving for 12 months.
		(d)	The learned Magistrate erred in the reasoning that it would be contrary to the intent of the Ordinance if a driver could avoid longer terms of disqualification and/or imprisonment by refusing to give a sample of breath, therefore in the present case, it is appropriate for a longer term of disqualification to be imposed for a failure to provide a specimen. Such inference drawn by the learned Magistrate was incorrect in that Section 39B(7), Cap. 374 clearly provides for a starting point of 2 years of disqualification for a repeated offender, but not for a 1st offender.
		(e)	The learned Magistrate erred in finding that the injuries sustained in a motor cycle accident are invariably more serious than those sustained in a car accident and erroneously took this irrelevant factor into consideration or alternatively she gave undue weight to this factor when passing sentence on the Appellant.
		(f)	The learned Magistrate failed to give any discount to the Appellant for his plea of guilty to the charge.
		(g)	In any event, the learned Magistrate failed to give any credit to the Appellant for his clear record for this type of offence. The Appellant's last driving offence dates back to 1996."

3.On 30 January I allowed this appeal to the extent that I ordered that the period of disqualification of 21 months be reduced to a period of 12 months. My reasons for so doing are as follows.

4.In relation to grounds 1 and 1A I need say little more than that they are wholly without substance and should never have been advanced. As to ground 1 one needs to look no further than to section 69(1)(a) of Chapter 374 which reads :

"... a court before which a person is convicted of ... any offence under this Ordinance in connection with the driving of a motor vehicle ... may order him to be disqualified for such period as the court thinks fit."

As to ground 1A a period of disqualification is of course a penalty whatever else it might be and its use is not restricted in the manner which Mr Luk sought to suggest that it should be restricted. That seems to me to be no more than a matter of common sense.

5.In my judgment there is substance to be found in ground 2 but only in subparagraphs (c) and (d) of that ground and those are the only matters which I will deal with.

6.Whilst a number of authorities were cited to me by counsel for the parties none of them were 'on point' or of assistance to me save HKSAR v. Lau Shu Wing (HCMA No. 1124 of 1998). Perhaps all that might be said from the other authorities is that there would appear to be a certain lack of consistency in the periods of disqualification ordered for the same types of offence.

7.That said, it appears to be accepted following Lau Shu Wing's case that disqualification for a period of 18 months for an offence where a breath test shows twice the permitted level of alcohol in the body of a driver is not inappropriate. It also appears to be accepted from statistics (albeit that these may now be somewhat out of date) that a first offender (and by that I assume a first offender in a drink/driving matter) who pleads guilty to an offence of driving with an alcohol level (perhaps only just exceeding the prescribed limit) will likely be disqualified for a period of 12 months.

8.The question which I had to decide, given the reasons stated by the magistrate, was whether or not a disqualification of 21 months for an offence of refusing to give a breath sample was excessive. In coming to the decision that it was, and that it was not merely 'somewhat on the high side' as was contended by Ms Lai for the respondent, whilst I respectfully agree (at least in part) with the magistrate's general proposition in the penultimate paragraph of her 'Reasons for Sentence' in that a driver cannot escape disqualification for an alcohol related offence by refusing to provide a breath or blood sample, she may have fallen into understandable error on the facts of this case by drawing the inference that the appellant refused to provide the sample not merely because he believed that he might be over the prescribed alcohol limit, but that he might be two times over that limit.

9.Whilst that may possibly have been the case, and again whilst I fully appreciate the important point made by the magistrate, the inference drawn by her was in my view, if I may put it this way, an inference too far. The inference that the appellant was riding his motorcycle whilst above the prescribed limit (but possibly slightly so) and that the reason why he refused to provide a sample was to avoid the usual penalty was, on the facts of the case, perhaps as far as the matter could properly be taken. Of course the situation might well have been very different had there been some compelling evidence as to the amount of alcohol which the appellant had in fact taken - compelling evidence (perhaps as to his conduct or speech after the accident) beyond the mere fact of the strong smell of alcohol on his breath.

10.It was principally for that reason, but also upon consideration of the appellant's particular circumstances that I allowed this appeal to the extent that I did allow it.

Representation:

Ms Anna Lai, SGC of the Department of Justice, for the Respondent

Mr Victor Luk, instructed by Messrs Au Yeung, Cheng, Ho & Tin, for the Appellant