HKSAR v. Ko Kwong Shing

HCMA665/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.665 OF 2006

(ON APPEAL FROM KTCC 3741 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 16 August 2006

Date of Judgment : 5 September 2006

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J U D G M E N T

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1.This is an appeal by the appellant against the sentence of 18 months’ disqualification imposed upon him by Mr Tallentire sitting at Kwun Tong Magistrate Court on 16 June 2006, following his plea of guilty to the offence of failing to provide a specimen of breath having been suspected of committing a traffic offence, contrary to section 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap. 374.  For the same offence the appellant was also fined $6,000.

2.The appellant was driving a private car in Tong Mei Road in the early hours of 24 May 2006 when he was seen to violate a “no entry” sign and turn into a one-way street, driving in the wrong direction.  He was stopped by the police.  The facts admitted by the defendant include the following passage :

“As the defendant had a strong sense of alcohol at that time, therefore the police required him to provide specimen of breath.  However, the defendant refused to provide.”

3.In mitigation, the magistrate was told, inter alia, that the appellant was aged 59 and had driven for 35 years, that he was of clear record and was the proprietor of a transportation company employing some 30 drivers and earning about $30,000 per month.  He required his driving licence for his business in order to assist drivers who were on leave and to oversee his business.  The reason advanced for the offence was pressure owing to his son’s marriage. 

4.In his Reasons for Sentence, the magistrate said this :

“My baseline sentence for driving with excess alcohol is a fine of $6,000 with disqualification of 12 months.  This is increased or decreased according to circumstances especially the level of reading and any serious aggravating features.  However this was a refusal to provide a specimen of breath and in my opinion, is much more serious than providing the test.  In this case the admitted facts was to the effect that the defendant had a strong smell of alcohol on his breathe.  Also conspicuous by its absence was any reasonable explanation for his refusal.  I would strongly suggest the court must treat this offence more seriously than an average breathalyzer case as to do otherwise would encourage and fortify the resolve of the profoundly intoxicated to refuse the test.  This denies the court essential information extremely relevant to sentence.  Were it to be argued that the court could not and should not assume a high alcohol intake would be patently absurd.  A sober defendant would naturally wish to establish his fitness to drive.  Also the need for a driving licence is a two edged sword in that a view could properly be taken that if one depends on one’s driving licence then one must be careful and not to offend and risk its loss.  In sentencing the defendant I paid full regard to his excellent driving record and took into account the mitigation.  The brief facts and the mitigation acknowledge that he was in a state of drink.  What he prevented the court from knowing is just how bad that state was.”

5.The first two grounds of appeal alleged that the magistrate erred by :

(a)     treating the appellant as having a high alcohol intake, and

(b)     treating the offence more seriously than the average breathalyzer case, rather than as a case of driving with alcohol just exceeding the prescribed limit.

6.Mr Ross, for the appellant, referred this court to a number of previous cases.  They included HKSAR v. Yeung Wing Ting, Dick, HCMA979/2003, HKSAR v. Ng Kam Chau, HCMA1103/1999 and HKSAR v. Wong Wing Kwong, HKMA59/2006. 

7.I have considered the cases to which Mr Ross has referred me, but I am, nonetheless, satisfied that the reasoning of the magistrate in imposing a disqualification for 18 months in this case is compelling.  It accords with the views of the editors of Wilkinson’s Road Traffic Offences 22^nd edition (paragraphs 4334-4337) which are in the following terms :

“It is submitted that whilst the court is by the very nature of the offence handicapped by not knowing the exact alcohol level of the defendant, the level of penalties and the period of disqualification should approximate as nearly as possible to the penalties which would have been imposed if the defendant had supplied a specimen and the analysis had shown a high blood-alcohol level.  It may be difficult for a defendant who refuse to supply a specimen to persuade a court that his alcohol level would have been low since he could have demonstrated that fact by supplying specimens for analysis.  Of necessity he can only have committed the offence by failing to supply a specimen without reasonable excuse.”

8.The editors of Wilkinson also concur with the view of the magistrate when they comment if it were to become the general policy of the court only to impose a sentence equivalent to that imposed on someone just over the limit for the offence of refusing to provide a specimen, it would encourage drivers who had been drinking heavily to refuse to supply specimens for testing, rather than to supply them.

9.Although the decisions of other courts as to sentence are often of assistance, they are decisions on particular facts and are not binding.  In none of the cases to which I had been referred does it appear that the court’s attention was directed to the views of the authors of Wilkinson to which I have referred.

10.I find nothing in the first two grounds of appeal.

11.The third ground of appeal is that the magistrate failed to take into account the fact that the appellant works as a professional driver. 

12.I find no substance in this ground.  This was a plea of guilty.  The magistrate had just heard the plea in mitigation in which he had been informed of the appellant’s circumstances including the fact that he owned a transportation company and drove in the course of his business.

13.He may not have expressly referred to those circumstances at the time he passed sentence, but he said in his written Reasons for Sentence that he took into account the mitigation that had been advanced before passing sentence.  I accept what the magistrate said in this regard. 

14.In any event, although the appellant was described as a professional driver, he was not someone who would lose his livelihood in the event of disqualification.  He is a proprietor of a transportation company employing 30 drivers who drives in the course of running his business.  Disqualification may inconvenience him in the running of his business, but it does not prevent him carrying it on. 

15.I am satisfied that the period of disqualification was not manifestly excessive.  I dismiss the appeal against sentence.

Mr Harish Melwaney, SGC of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Messrs Lily Fenn & Partners, for the Appellant