HKSAR v. Lai King Lun

( English Translation )
HCMA 889/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL JURISDICTION

APPEAL AGAINST SENTENCE

CRIMINAL APPEAL HCMA 889 OF 2007

( On appeal from Kowloon City Magistracy Case No.4154 of 2007 )

______________________

______________________

Before : Hon Fung J in Court

Date of Hearing : 21 November 2007

Date of Judgment : 22 November 2007

JUDGMENT

1.The appellant Lai King Lun pleaded guilty to the offences of careless driving ( the 1^st charge ) and failing to provide a specimen of breath whilst being suspected of driving the vehicle at the time of the accident contrary to Section 39B of the Road Traffic Ordinance ( Cap 374 ) (the 2^nd charge).  In respect of the 1^st charge, the appellant was fined $2,000.  In respect of the 2^nd charge, he was fined $8,000 and disqualified from driving for 20 months.  In addition, he was ordered to retake the driving test before he could resume driving again. The appellant now appeals against the length of the disqualification and the order to retake the driving test.

Summary of Facts

2.The accident occurred at 5am on the day in question. The appellant drove a private car  which crashed into a road railing, damaging nearly three meters of it. The photographs show that the railing almost came into contact with the road surface after the crash, the nearside front of the car was damaged, the nearside front wheel and the shock absorber having come off.  When the police asked the appellant to provide a specimen of breath for a screening test, he failed to activate the device after repeated attempts.  He said under caution that he swerved his car to the roadside because he saw a dark shade, which resulted in the accident. He also alleged that his failure to exhale sufficient air was due to the  impairment in his respiratory system, but this allegation is not supported by medical evidence.

The Magistrate’s Reasons

3.The  magistrate considered that failing to provide a specimen of breath should be viewed as a more serious offence than driving under the influence of alcohol.  Otherwise, the court would be indirectly encouraging people not to provide specimens of breath, who would then receive the same or even lighter penalties.   Furthermore, the appellant is an irresponsible driver, he has a number of speeding convictions, and was convicted of dangerous driving in 2003.  He should therefore be punished severely and required to learn the driving regulations again. Hence, he was disqualified from driving and ordered him to retake the driving test.

Grounds of Appeal

4.The perfected grounds of appeal can be summarized as follows:

(1)	The magistrate erred in finding that failing to provide a specimen of breath is a more serious offence than driving under the influence of alcohol;
(2)	The magistrate erred in speculating that the appellant had consumed alcohol before the accident;
(3)	The magistrate erred in giving too much weight to the appellant’s previous speeding convictions;
(4)	The period of disqualification is manifestly too long.

5.Mr Yeung, counsel for the appellant, submitted that even the conviction of driving under the influence of alcohol might not necessarily warrant a disqualification, let alone a disqualification period of 20 months , and the order to retake the driving test.  The penalty is manifestly excessive.

6.Mr Yeung pointed out that according to the transcript of the record of proceedings, the magistrate said in response to the  mitigation that it was hard to believe the appellant had not consumed alcohol before the accident.  Mr Yeung contended that it did not necessarily follow that the appellant must have consumed alcohol just because he did not provide a specimen of breath.  He might simply be losing his temper.  Furthermore, there was nothing in the prosecution’s case showing that the appellant had a smell of alcohol on him or had behaved abnormally.  The circumstances at the scene of the accident could not support the inference that the appellant had consumed alcohol. The prosecution would have charged the appellant with driving a motor vehicle under the influence of drink or drugs under Section 39 of the Road Traffic Ordinance had there been sufficient evidence proving that the appellant had consumed alcohol. Hence, it was inappropriate for the  magistrate to have taken into account the factor of alcohol consumption.

7.Mr Yeung also submitted that the penalties were the same for the offences under Section 39 ( driving a motor vehicle under the influence of drinks or drugs ), Section 39A ( driving a motor vehicle with alcohol concentration above prescribed limit ) and Section 39B ( failing to provide a specimen of breath being a person suspected to be driving a motor vehicle at the time of the accident ) of the Road Traffic Ordinance. Anyone who committed an offence under any of the aforesaid sections would be treated as a repeated offender if he had a previous conviction under any other sections.  It was therefore obvious that the intent of the ordinance was for the offences to be treated equally.  There was no question of which offence should attract heavier penalties.

8.Mr Yeung also cited HKSAR v. Ho Ho-chuen [1998] 2 HKC 544.  The appellant in that case drove against the traffic on a one-way  street and caused an accident, and there were passengers on board.   He admitted the offence of driving a motor vehicle with alcohol concentration above prescribed limit contrary to Section 39A of the Road Traffic Ordinance.  He was found to have 89 and 91 microgrammes of alcohol in every 100 millilitres of his breath, and was sentenced to two months’ imprisonment, suspended for two years.  In addition, he was disqualified from driving for two years.  On appeal, Hartmann J said in p. 545B to C that according to statistics, for a first offender who pleaded guilty in relation to an accident which caused only damages to properties but not injuries to any persons, the court would normally impose a fine and a disqualification period of not more than 12 months.  He set aside the suspended sentence and reduced the period of disqualification to 18 months.

9.For the sake of fairness, Mr Tso, counsel for the respondent , also submitted for reference the case of HKSAR v. Yeung Wing-ting, Dick, HCMA 979/2003 [2004] HKCU 117. The appellant therein pleaded guilty to one charge of failing to provide a specimen of breath for a screening test.  The magistrate referred to HKSAR v. Lau Shu-wing, which stated that the court was entitled to disqualify the appellant from driving for 18 months, given that his alcohol concentration was two times over the prescribed limit, and the facts of the case also clearly showed that he was driving under the influence of excessive alcohol.  The learned magistrate in Yeung Wing-ting said 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 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 the failure to provide a specimen.  The learned magistrate eventually imposed a period of disqualification of 18 months.  On appeal, Jackson J considered that the question he had to decide was whether a disqualification period of 21 months was excessive.  Although it was ruled in Lau Shu-wing that a period of disqualification of 18 months should be imposed for an alcohol level of two times over the prescribed limit, and 12 months for a level just exceeding the limit, Jackson J took the view that given the facts of the case, it was inappropriate for the learned magistrate  to draw the inference that the appellant had an alcohol level far exceeded the prescribed limit. He could only infer that the alcohol level was slightly over the limit, unless there was compelling evidence ( for example, his conduct or speech after the accident ) beyond the mere fact of the strong smell of alcohol on his breath.  The judge reduced the period of disqualification to 12 months.

10.Mr Yeung submitted that given the nature of the facts, the offence in the present case is less serious than Ho Ho-chuen. It is also distinguishable from Yeung Wing-ting in that the appellant therein had a strong smell of alcohol on him and he also flatly refused to have a breath test. Hence, the disqualification period of 12 months already had sufficient deterrent effect, there was no need to impose a heavier sentence.

11.Regarding the order to retake the driving test, Mr Yeung relied on the English Court of Appeal case  R v. Peat ( 1984 ) 6 Cr. App R ( S ) 311.  The defendant in that case pleaded guilty to one count of inflicting grievous bodily harm on others and one count of reckless driving.  He was sentenced to 12 months’ imprisonment, disqualified from driving for 3 years and ordered to retake the driving test.  The facts of the case showed that his car dashed through a road junction, causing a cyclist to brake abruptly.  When the cyclist protested against his way of driving, the appellant assaulted him and afflicted grievous bodily harm on him.  The appeal judge Watkins LJ took the view that the period of disqualification was too long for a single count of reckless driving, and hence reduced it to 1 year.  Watkins LJ also considered that the appellant was an experienced driver, and had the confidence and ability to drive competently. It was true that he did commit a serious mistake in driving, but overall, he was not an incompetent driver. Hence, he held that the order to retake the driving test was wrong in principle and quashed it.

12.Mr Yeung submitted that the appellant had been driving for over 10 years, but had only one previous conviction of dangerous driving. Regarding the speeding convictions, Mr Yeung submitted that speeding was a preventive offence which did not involve any substantive driving offence, hence it should not be given too much weight. The appellant is therefore not an incompetent driver.

Discussion

13.Section 39B(6) of the Road Traffic Ordinance provides that anyone who, without reasonable excuse, fails to provide a specimen of breath when required under that section commits an offence.  By pleading guilty to the charge, the appellant was admitting that he did not have any reasonable excuse.

14.Section 39B provides that a person is liable on summary conviction on a first offence to a fine at level 3 ($10,000) and to imprisonment for 6 months, which is the same as Section 39A. In addition, the court has the power to make a disqualification order or an order that the offender shall retake the driving test.

15.Mr Tso submitted that there was no tariff in respect of the offence under Section 39A ( driving a motor vehicle with alcohol concentration above prescribed limit ), and the period of disqualification normally ranged from 12 to 18 months, but could be increased in accordance with the alcohol concentration and the seriousness of the offence as disclosed in the facts.  It is difficult to compare the penalty of the offence under Section 39B ( failing to provide a specimen of breath ) with the penalty of the offence under Section 39A.  The penalty of failing to provide a specimen of breath should depend on the facts.  In the present case, judging from the damages on both vehicles, the impact was by no means slight, the accident did constitute considerable risk to other road users.  The  magistrate commented that failing to provide a specimen of breath should be treated as a more serious offence than driving under the influence of alcohol, which could be construed to mean that he regarded the offence as disclosed in the facts of the present case was more serious. While agreeing that the disqualification period of 20 months might be a bit too harsh, Mr Tso contended that it was not manifestly excessive.

16.In my view, Section 39A and Section 39B are two different sections, and Section 39B does not involve the reading of alcohol concentration, hence it is difficult to compare the penalties of the offences under the two sections.

17.Be that as it may, the breathalysing is the most efficient measure in curbing accidents caused by driving under the influence of alcohol. Section 39B(2) provides that, if an accident occurs owing to the presence of a motor vehicle on any road, a police officer may require a person whom the police officer has reasonable cause to suspect was driving the vehicle at the time of the accident to provide a specimen of breath for a screening breath test.  This provision should have been known to all drivers.  The purpose of Section 39B is to assist the execution of Section 39A, and should not be viewed as a lesser option. The failure to provide a specimen of breath not only hampers police investigation of the accident and obstructs the sanction of  the provisions, it also affects the civil claims.  Due to the seriousness of the offence, the penalty must have sufficient deterrent effect and reflect the gravity of the charge, so that no one can avoid the more serious consequences by deliberately failing to provide a specimen of breath. The penalty may depend on the seriousness of the offence as disclosed in the facts, including the overall circumstances of the accident, the behaviour or condition of the driver, whether anyone is injured, and the degree of the damage, etc. In sentencing, the court can take into account the tariff of driving a motor vehicle with alcohol concentration above prescribed limit, but it is irrelevant whether the offender has consumed alcohol or what  the alcohol concentration is, unless of course, there is evidence to support the inference that the offender had consumed alcohol.

18.The appellant has failed to provide a specimen of breath without reasonable excuse.  He cannot benefit from the fact that the prosecution does not have the result of an alcohol testing. It cannot be presumed  that he has not consumed alcohol.  The learned magistrate is entitled to reject the excuses of the dark shade and the impaired  respiratory system.  The appellant has only himself to blame.

19.The penalties for the 2^nd charge consist of three parts: a fine, disqualification and the retaking of the driving test.  All these  have to be taken into account as a whole in considering whether the penalties are manifestly excessive.

20.Mr Yeung agreed that as a matter of principle, the court can impose a fine and a period of disqualification.  The only question is whether the period of disqualification should exceed 12 months and whether the appellant should be ordered to retake the driving test.

21.Regarding the order to retake the driving test, the appellant had 12 traffic convictions between 2003 and 2006, including a conviction of dangerous driving , 9 convictions of speeding ( demerit points were incurred in 8 of them ), a conviction of crossing  double white lines, and a conviction of failing to display registration plate properly. As the  learned magistrate had pointed out, the appellant adopted an irresponsible attitude towards road regulation.  He is not a competent driver and needs to learn the proper attitude towards driving again.  Hence, the order to retake the driving test is a proper one.

22.Since I have upheld the order to retake the driving test, it is inevitable that the appellant must be disqualified from driving for a substantial period.  The only question is whether the period of 20 months is too long.  I reiterate that the offence under Section 39B is in itself a serious offence, the court should impose penalties which have deterrent effect.  It can be seen from the damage on the vehicle after the accident that it was a serious case of careless driving, even though no one was injured.  Against this background, the offence of failing to provide a specimen of breath is serious. In the present case, the disqualification period of 20 months and the order to retake the driving test is severe punishment, but by no means manifestly excessive.

Conclusion

23.For the above reasons, the appeal is dismissed.

24.Finally, I wish to express my gratitude to Mr Yeung and Mr Tso for their submissions.

Mr Tso Yum Man, Simon, SGC of the Department of Justice, for the Respondent HKSAR

Mr Yeung Shak Nung, instructed by Lau Gary & Partners, for the Appellant

(Translated by Yip Chun Tak, SCI )