HKSAR v. Chiu Wai Sing, Carman

HCMA 839/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 839 OF 2005

(ON APPEAL FROM TMCC 2572 OF 2005)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 12 October 2005

Date of Judgment: 12 October 2005

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J U D G M E N T

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1.On 25 of August 2005, this Appellant, a man in his early 40s, pleaded guilty before T S Jenkins Esq. in the Magistrate’s Court at Tuen Mun to an offence committed on 27 July 2005 of driving a motor vehicle with an alcohol concentration in breath exceeding the prescribed limit.  He was fined $5,000 and disqualified from driving for 9 months.  A suspended sentence of 4 weeks’ imprisonment which had been imposed on him on 27 January 2005 for overloading was activated.

2.Immediately after the Magistrate declined to review the activation of the suspended sentence, a Notice of Appeal against sentence was filed on the Appellant’s behalf and bail pending appeal was applied for on his behalf.  The Magistrate granted him bail pending appeal.

3.In this appeal the Appellant accepts the correctness of the fine and the disqualification order but seeks to avoid the activation of the suspended sentence.

4.The Magistrate did not like taking away the Appellant’s liberty but felt that there was no viable alternative to doing so.  My duty is to have respectful regard to the Magistrate’s view as sentencer but ultimately to make up my own mind as to the just and proper course to take in the exercise of my appellate jurisdiction.

5.In doing so I do not forget that suspended sentences would lose their effectiveness in deterring further offences unless those against whom they are passed realise that a further offence committed within the period of suspension will result in activation save in rare and exceptional circumstances.

6.At the same time, I do not forget the importance that the courts always attach to liberty.  The circumstances of the offences here are of offences which are serious but nowhere near the worst type, and the circumstances of the offender here are of a family man in gainful employment who will suffer greatly and whose family will suffer greatly if he were to lose his liberty.

7.The courts are used to hearing expressions of remorse, some purely self-serving and some genuine.  I am persuaded of the genuineness of the Appellant’s remorse in this case.

8.There is, in addition to the matters to which I have already referred, another factor.  The Appellant’s teenaged daughter was involved in a serious road accident in March this year and is going to undergo another operation in November.  I take this into account not merely as a humanitarian consideration but also as something which further teaches the Appellant how important road safety is.

9.All things considered, I am of the view that the circumstances are rare and exceptional enough for me to do this.  I set aside the activation of the suspended sentence and vary the original order by substituting a period of suspension expiring 3 years from today.

10.The Appellant will understand and remember that if he further offends within this fresh period of suspension, he will be liable to serve the sentence which has been suspended afresh as well as receive punishment for the further offence or offences.

11.In the result, the appeal is allowed to set aside the activation of the suspended sentence and impose a fresh period of suspension of 3 years starting from today.

Appellant in Person

Miss Winnie Lam, GC, of Department of Justice, for the Respondent