HKSAR v. Chiu Kai Yan

HCMA 519/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 519 OF 2008

(ON APPEAL FROM ESCC 1835/2008)

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  17 July 2008

Date of Judgment:  17 July 2008

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J U D G M E N T

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1.This is an appeal against sentence.

2.The appellant pleaded guilty to careless driving and driving with excess alcohol.  He was fined $1,000 on the first offence; $6,000 on the second offence, for which he was also disqualified from holding or obtaining a driving licence for a period of 12 months.

3.The facts giving rise to the charges were that at 20 minutes past 1 o’clock in the morning in February of this year, the appellant was driving a motor car along Hennessy Road.  He was over three times the limit.  His attention wandered; he dropped off to sleep or whatever; the result of that was that he piled into the back of a stationary taxi in front of him, which in turn hit the car in front.  All three vehicles were damaged.  The taxi driver had to go to hospital; he was discharged the same day.

4.The actual readings involved were as follows:  there was 93 micrograms of alcohol in 100 millilitres of breath at the roadside, and the evidentiary breath test showed a result of 76 micrograms of alcohol in 100 millilitres of breath.  The limit, of course, is 22 micrograms.

5.Taking the evidential test breath result, it is still three times over the limit.

6.The appellant was a professional driver driving for a limousine service, and today he really addresses me about the disqualification imposed, hoping he can get back to work sooner.

7.I have to say that no grounds exist for reducing that period of disqualification.  As I have explained to the appellant, if I were, out of sympathy to him because he addresses me very nicely, to reduce what was a proper sentence, consistency is lost, and consistency in these matters is important.  One man cannot be seen to get a radically different result on the same facts, and people who drive over three times the limit and involve themselves in an accident of this nature are lucky to have their disqualification kept to a period of 12 months.

8.Accordingly, the appeal against sentence is dismissed.

Ms Laura Ng, Senior Public Prosecutor of the Department of Justice, for the Respondent

Appellant: Chiu Kai-yan (趙啟恩) in Person