HKSAR v. Tsang Yuk Lung

HCMA 378/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 378 OF 2008

(ON APPEAL FROM TWCC 899/2008)

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Before:  Hon Beeson J in Court

Date of Hearing:  30 July 2008

Date of Judgment: 7 August 2008

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J U D G M E N T

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1.The Appellant pleaded guilty before Principal Magistrate Andrew Ma to one count of Speeding contrary to section 41(l)(a) of the Road Traffic Ordinance, Cap 374(RTO) and one count of driving a motor Vehicle with alcohol concentration in his breath exceeding the prescribed limit, contrary to section 39A(1) of the same ordinance.

2.He was fined $1,000 on the first charge.  On the second charge he was fined $5,000 and was disqualified from holding or obtaining any class of driving licence for a period of 18 months and to 1 month’s imprisonment suspended for 18 months.

3.The Appellant appealed against the sentence imposed on the second charge on the ground that it was wrong in principle and excessive, in particular because of the imposition of a suspended sentence.

FACTS

4.The Appellant was stopped in the early morning hours driving a private car at a speed recorded by laser gun as 9l kph which, after a 4 kph technical allowance, was 87 kph.  The speed limit was 70 kph.  After breath testing, first by a screening device and then by a breath analyzing instrument, blood alcohol readings were recorded at 44ug/100ml and 30ug/100ml respectively.  Both readings exceeded the statutory limit of 22ug/100ml.

5.The Appellant was represented on sentence.  In mitigation the Magistrate was advised that he was 49 years old, married with 3 children and earning $20,000 pm.  He had a previous conviction for drink driving in 1998.  On that occasion he was fined $7,500 and disqualified for 12 months.  The court was told the Appellant had to attend business-linked social functions about 3 times a week and that on this occasion his host had served wine stronger than he expected, which affected his otherwise carefully calculated alcohol intake.

GROUNDS OF APPEAL

6.The main ground of appeal was that the Magistrate had imposed a sentence that was wrong in principle because he had adopted a construction of section 39A(3) of the RTO which unduly limited the application of that provision.

7.There was a second ground complaining that the sentence was excessive because the Magistrate failed to consider and/or give appropriate weight to the fact that the Appellant had caused no injury, damage or accident; that his alcohol content was only moderately in excess of the limit; that the previous similar conviction was 10 years old and that the sentence was disproportionate with sentences in other, similar cases.

8.Sections 39A(1)(2) and (3) of the RTO provide as follows.

“(1)   A person who drives or attempts to drive a motor vehicle, or is in charge of a motor vehicle, on any road with the proportion of alcohol in his breath, blood or urine exceeding the prescribed limit, commits an offence and is liable –

(a) on conviction on indictment to a fine at level 4 to imprisonment for 3 years; and

(b)    on summary conviction on a first offence to a fine at level 3 and to imprisonment for 6 months and on a second or subsequent conviction or on a conviction subsequent to a conviction under section 39, 39B or 39C to a fine at level 4 and to imprisonment for 12 months.

(2)  The court or magistrate convicting a person of an offence under this section shall disqualify him from driving for a period of not less than 2 years for a second or subsequent conviction or for a conviction subsequent to a conviction under section 39, 39B or 39C unless for special reasons the court or magistrate orders that he be disqualified for a shorter period or that he not be disqualified.

(3)  The court or magistrate may deal with the offence as a first offence when a period of 5 years has elapsed since the person’s last conviction under this section or section 39, 39B or 39C.”

9.The Magistrate was asked to treat the Appellant as a first offender under section 39A(3) of the RTO.  He considered the arguments advanced on the Appellant’s behalf and his findings on that point appear at paragraphs 8, 9and 10 of his Statement of Findings.

“8. Counsel for the Defence submitted that because of subsection (3), the Appellant should be treated as a first offender.  The tone of the Defence’s submission seemed to suggest that the court, when approached the sentence, should treat the Appellant as a first offender for all purposes.

9.  In my view, however, subsection (3), though not clearly specifying the scope, should be limited to the application of subsections (1)(b) and (2).  In other words, if the previous similar conviction was more than 5 years before the current conviction, the maximum fine and imprisonment term should be level 3 ($10,000) and 6 months respectively; and the mandatory disqualification period of 2 years is not applicable.

10.    Yet the court should not totally disregard the fact that the Appellant had had one previous similar conviction of drink driving, albeit 10 years ago.  Otherwise, it may lead to the following absurd scenario: assuming that the Appellant commits another drink driving offence 6 years later, which means that he will have altogether 3 similar convictions, yet the court has to treat him as a first offender.  That cannot be the correct approach of sentence.”

10.Counsel for the Appellant submitted that the Magistrate’s construction of s.39A(3) unduly limited the application of the said provision and that his reasoning did not support the construction.  If the legislature wished to limit the application of the section it could have done so by drafting the section expressly.

11.Counsel referred to various sections in Parts IV and V of the RTO where, it was submitted such drafting had been done.

“(a)   sections 27(4-5), 36(6-8), 37(6-8), 39C(22):  where the provisions were expressly stated to be for the purpose of certain section(s) or subsection(s) of the same Ordinance;

(b)  sections 43(5):  where the provisions were expressly stated to apply in certain specified circumstances;

(c)  sections 22(3-4), 23(2), 27(1), 32(1), 33(1), 40(1):  where the provisions were expressly stated to be subject to certain section(s) or subsection(s) of the same Ordinance;

(d)  sections 27(2):  where the provisions were expressly stated to be not applying in some specified circumstances.”

12.Counsel went on to submit that an alternative method of limiting the scope of the application was to draft it under the section, or subsection, for which it was intended to take effect.  

13.A further complaint was that the Magistrate had failed to conform with section 19 of the Interpretation and General Clauses Ordinance which states:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

14.Counsel argued that if a real doubt existed as to the scope of the application of s.39A(3) the Appellant should be given the benefit of it.  The essence of the argument is contained in Paragraph 17 of the Appellant’s written submission:

“it is clear that s.39A(3) provides the discretion for the court to treat the offence as a first offence.  Where it is appropriate in view of all the facts of a case, the court may disregard the fact that a defendant has a previous similar conviction of drink driving, which occurred more than 5 years ago.  The court may treat the defendant as a first offender and so sentence him accordingly.  It is plainly wrong to construe that the court has no discretion, but has to consider the offender as a repeat offender except for the purpose of subsections l(b)and (2).”

15.The Magistrate was said to have imposed the sentence based on his erroneous construction of the relevant provisions of the RT0.

“He took the Appellant’s previous conviction as a factor which he must consider.  The Appellant was deprived of at least a consideration by the learned Magistrate of a mitigating factor which he should have been entitled to.  The wrongful construction had materially affected the level of sentence.”

16.The Magistrate was aware at the time he sentenced the Appellant that he had a discretion under s.39A(3) to treat him as a first offender, because his previous conviction was more than 5 years old.  He did so, which accounts for the Appellant avoiding the compulsory 2 years disqualification in s.39A(2).

17.Counsel for the Respondent drew an analogy between s.39A and a spent conviction under s.2 of the Rehabilitation of Offenders Ordinance, Cap. 297, which for the purposes of sentencing can be admitted as evidence, in the event of a subsequent conviction.  Although counsel for the Appellant denied that that legislation was comparable, there are similarities in the way the court should treat the spent conviction, or a conviction over 5 years old.

18.Having considered the points raised on behalf of the Appellant, I am of the view that the Magistrate correctly construed s.39A(3) which bestows on the court a discretion to treat an offence committed over 5 years before as a first offence and, if the court’s discretion is so exercised, consequentially to treat the offender under the sentencing provisions applicable to a first offender.

19.In exercising his discretion to treat the Appellant as a first offender the Magistrate was entitled to take cognizance of general sentencing principles.  One matter he could take into account was that a repetition of the drink driving offence indicated that the previous sentence had failed as a deterrent.  Although usually a first offender would not be sentenced to a term of imprisonment, there are cases where an immediate custodial sentence is warranted.  In terms of general sentencing principles it was undesirable and unrealistic to treat the Appellant entirely as a first offender.

20.The Magistrate considered the social evil of the offence and the need to deter those who drink and drive from doing so.  For that reason he was of the view that the Appellant’s being “only” 1.4 times over the limit was not a significant mitigating feature.  Deterrence in the form of some type of custodial sentence was a matter he could properly consider.  He stated expressly he was not treating the previous conviction as an aggravating factor; it meant simply, that the Appellant lost the wholly favourable position of the true first offender.  On that basis he imposed a short term of imprisonment and suspended it, so as to send a clear message of deterrence to the public and the Appellant.

SECOND GROUND

21.The Appellant contended that the sentence was excessive and manifestly so because the Magistrate failed to;

(1) give proper weight to the fact that no injury, damage or accident was caused;

(2) give weight to the low level of alcohol;

(3) treat the alcohol level as only ‘moderate’;

(4) consider proportionality in relation to other cases.

22.The Magistrate, having exercised his discretion, considered sentence and took into account all the matters raised by the Appellant’s counsel as mitigation.  The only cogent mitigation was his plea of guilty.  There is no substance in this ground.

23.His legal representative tried to argue that a ‘special reason’ existed, as referred to in s39A(2) RT0, which the Appellant could pray in aid to persuade the court that the period of disqualification could be dispensed with, or shortened below the minimum set out in the section.

24.That ‘special reason’ was the unfortunate behaviour of the Appellant’s host in putting on the table for his guests ‘a stronger bottle of wine than he (the Appellant) thought’.  Mr Paul Emerson, who appeared for the Appellant in the court below, wisely, did not pursue this point with any vigour.

25.In HKSAR v. Lau Shu-wing HCMA 1124/1998 the court held that the higher the level of alcohol in the breath the more likely it was that the disqualification would be higher – “regardless of whether an accident has been occasioned and regardless whether the driver has caused an accident”.  In Lau the breath alcohol level was twice the limit – here it was 1.4 times the limit and the Appellant was driving at speed.

26.This Appellant was said to have had business social functions about 3 nights a week.  Thus he knew that if he chose to drink at those functions, he was at risk on those occasions when he drove himself home of being stopped and breathalysed.  On the night in question he attracted attention by speeding.  His ignorance of, or his mistake about, the alcohol concentration is not any form of mitigation.  In Hong Kong there is rarely, if ever, any valid reason or excuse for driving after drinking.  Public transport is plentiful, varied and comparatively cheap.  It behoves drinkers to make use of it.

27.I am satisfied that the Magistrate dealt properly with this case and that his sentence is neither excessive nor wrong in principle.  This appeal against sentence is dismissed.

Ms Vinci Lam, SPP, of the Department of Justice, for the Respondent

Ms Jane Ho, instructed by Messrs Wilson Yeung & Co., for the Appellant