HKSAR v. Da Conceicao Domingues, Luis Fernando

HCMA149/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 149 OF 2006

(ON APPEAL FROM TMCC 268 OF 2006)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 29 March 2006

Date of Judgment : 29 March 2006

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J U D G M E N T

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1.This is an appeal against sentence.  The appellant was convicted on his own plea of an offence of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374, and of an offence of driving a motor vehicle with an alcohol concentration in his breath exceeding the prescribed limit, contrary to section 39A(1) of the same Ordinance.  In respect of the 1^st offence the appellant was fined $1,000 and in respect of the 2^nd offence he was fined $4,000 and disqualified from holding or obtaining a driving licence for six months.

2.His Form 102 (Notice of Appeal) encompassed both offences, but before me today he makes complaint only in respect of the sentence of disqualification imposed for the 2^nd offence.  The appellant says that a period of six months’ disqualification is too severe. 

3.The facts of the case were that the appellant had been driving his vehicle in Ma Tong Road in Yuen Long.  He came to a halt at red traffic lights and a public light bus stopped behind him.  The appellant had been drinking.  When the lights turned green, the appellant mistakenly placed his gears in the reverse position instead of in drive.  When he accelerated he reversed into the public light bus behind him and slightly damaged that vehicle.  When the appellant’s breath was tested it was found to contain 60 mg of alcohol per 100 ml of breath, that is more than double the limit of 22 mg per 100 ml specified by the legislation.

4.On the face of the facts no complaint can be made as to the period of six months' disqualification, even given the fact that this was the appellant's first offence, see HKSAR v. Lau Shu Wing, HCMA 1124/1998 and HKSAR v. Wong Sau Kwan, HCMA 53/2001.  But the appellant says that he needs his licence for his work.  He is the pastor of a Christian charitable organisation which provides assistance to drug addicts, alcoholics and the homeless and needy in general.  He is the only staff person of the organization with an operable driving licence. 

5.Nevertheless, the level of alcohol in the appellant’s breath was high and no doubt was a contributing factor to the accident which occurred.  Whilst no doubt the work of the appellant is of value to the community, drink-driving must be discouraged in the interest of the broader community.

6.The magistrate took into account all these matters and in my view no substantial complaint can be made of the sentences he imposed, including that of the period of disqualification of the appellant's licence.  Accordingly, the appeal is dismissed.

Miss Sally Yam, GC of the Department of Justice, for HKSAR

Appellant in person, present