HKSAR v. Au-yong Shong, Samuel

HCMA831/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 831 OF 2006

(ON APPEAL FROM ESCC 5271 OF 2005)

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Before : Hon Nguyen J in Court

Dates of Hearing : 25 October and 17 November 2006

Date of Judgment : 17 November 2006

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J U D G M E N T

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1.The appellant pleaded guilty on 4 May 2006 to two charges, one of dangerous driving and the other of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit.  He was sentenced by Mr Allan Wyeth to three months’ imprisonment on each charge to be served concurrently, the learned magistrate having adopted a starting point of six months’ imprisonment on each charge.  He was also disqualified from driving for two years.  The appellant appeals against the sentence of imprisonment.

2.The facts of the case as narrated by the magistrate were that on Sunday 17 July 2005 at 4:45 a.m. the appellant was driving his car along Cotton Tree Drive, Admiralty in the direction of Harcourt Road.  He drew his vehicle to a stop for the red traffic light at the intersection with Harcourt Road.  At that time a police motorcyclist was travelling eastbound on Harcourt Road and through the intersection in front of the appellant’s stationary vehicle.  The police motorcyclist had the green light in his favour.  The appellant suddenly drove his vehicle through the still red light into the intersection.  His vehicle came into collusion with the offside of the motorcycle, knocking the motorcycle over and the rider from it.  The police motorcyclist sustained a fracture of mid-shaft of right femur.  He was admitted to hospital for 28 days and is still on sick leave.  A subsequent evidential breath test reviewed that the appellant had 88 micrograms of alcohol in 100 millilitres of breath.  The prescribed limit is 22 micrograms.  

3.As Mr Lok, SC, pleaded on his behalf on the appeal, this was not a case where because of the drunkenness the appellant engaged in a wanton course of bad driving involving jumping red lights and crossing the path of other motorists thereby endangering those other motorists.  Mr Lok submitted that despite the drinks the appellant was able to control his vehicle to the extent that he was able to properly stop at the set of traffic lights when the lights turned red.  He proceeded through the red lights and onto the path of the police motorcyclist because there was a different set of lights further down the road which, if one does not look at the lights very carefully, might well have led the appellant into thinking that those lights were the set controlling the spot where he was stopped.  After the accident the appellant did not escape from the scene but actually alighted from his own vehicle and went to the assistance of the injured police officer.  It was said that when the ambulance officers arrived at the scene the appellant was actually cradling or holding the injured officer in his arms. 

4.In the suitability report for community service order which I called for, the probation officer set out the appellant’s background as follows.  He is aged 41.  He has all along being a diligent person who leads a regular life pattern without any vice habits.  He achieved the professional qualification of a chartered accountant.  He started to work in 1988 and since then has been working steadily and his performance has been highly rated by his customers and employers.  As vouched for by his employer, family members, business counterparts and friends, he is a caring, responsible, reliable and sincere person.  He participated in voluntary work to serve the under-privileged for several years.

5.He manifested his remorse for having committed these offences by pleading guilty and he again expressed his remorse to the probation officer.  He told the probation officer that he was contrite and willing to make reparations for his wrongdoing by performing unpaid service to the society.  The probation officer was of the view that the appellant was suitable to perform community service and recommended that he should perform community service for 200 to 240 hours, which is the maximum provided for by the Ordinance.

6.Statistics helpfully provided by Ms Laura Ng, counsel for the respondent, on penalties imposed for drink-driving cases show that in the year 2005 there was a total of 197 drink-driving cases involving injures or fatalities and of those cases defendants in nine were sent to imprisonment for short periods of time.  In the year 2006 up to the 1 November, there was a total of 63 such cases, of which only one was sent to a term of imprisonment of two months.  Nine were given suspended sentences and defendants in six cases were made the subject of community service orders ranging from 80 to 180 hours.  

7.The appellant prior to his convictions had no criminal offence convictions nor any traffic offence convictions.  He is a professional accountant and is a divorcee but presently is in a relationship with his girlfriend.  I am impressed with the fact that for several years he participated in voluntary work to serve the under-privileged.  He is now prepared to perform community service to express his remorse for having committed these offences. 

8.Community service is not a soft option.  In R. v. Burton [1982] 1 NZLR 602, the Court of Appeal in Wellington said this :

“… In relation to such an offence (wilful damage to property) it will usually be possible and is often necessary to regard periodic detention, for example, or community service as forms of sentence intended by Parliament as very real and effective alternatives to imprisonment.  The impact and severity of such a non-custodial sentence can be severe in the case of persons such as the present appellants and indeed anybody and ought not to be regarded by the public as a minor or insignificant reaction by the Courts.”

In HCMA174/1999 HKSAR v. Shuichi, McMahon DJ, as he then was, said :

“I might emphasise that a community service order is a real and effective alternative to prison.  Its purpose is both punishment and deterrence.”

I respectfully agree with what the Court of Appeal in New Zealand and what my learned colleague said. 

9.In my view, this is an appropriate case for a community service order to be made.  I therefore allow the appeal, quash the sentence of imprisonment imposed by the magistrate and substitute therefor a community service order for 200 hours.  I also impose a fine of $10,000 on each charge, to be paid within 14 days.  The period of the disqualification from driving imposed by the magistrate remains.

Ms Laura Ng, GC of the Department of Justice, for HKSAR

Mr Lawrence Lok, SC leading Mr Anthony Butt and Mr Alan Woo, instructed by Messrs K.Y. Woo & Co., for the Appellant