HKSAR v. Chan Cheung San

HCMA 961/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 961 OF 2008

(ON APPEAL FROM ESCC 4798/2008)

----------------------

BETWEEN

----------------------

Before: Deputy High Court Judge Geiser in Court

Date of Hearing: 5 December 2008

Date of Handing Down Reasons for Judgment: 29 December 2008

--------------------------------------------

REASONS FOR JUDGMENT

------------------------------------------

1.On 10^th October 2008, the appellant appeared before the Principal Magistrate of Eastern Magistracy and pleaded guilty to an offence of driving a motor vehicle with excess alcohol contrary to section 39A(1) of the Road Traffic Ordinance, Cap. 374 Laws of Hong Kong.  He was fined a sum of $6,000 and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months.

2.Perfected grounds of appeal against sentence were filed on the appellant’s behalf on 4^th December 2008 seeking the quashing of the disqualification order or the substitution of a shorter period of disqualification on the basis that there are in fact special reasons which ought to be taken into account.  However at the outset of this appeal, Mr Fung on behalf of the appellant made it clear that his client restricted his appeal to a reduction of the period of disqualification.

3.The brief facts of the case which the appellant admitted in the court below described how a patrolling police officer saw the appellant pulling out his car from a stationary position and reversing along Wing Lok Street for about 20 metres.  This was not the first manoeuvre the officer witnessed.  Despite the fact that it was 2316 hours, no lights on the vehicle were displayed.  The officer approached the appellant and noticed a strong smell of alcohol.  Shortly afterwards another officer arrived at the scene and administered a breath test which recorded 94 micrograms of alcohol in 100 millilitres of blood.  The learned Magistrate in his reasons for sentence noted that the limit is 22.  The appellant was subsequently arrested and taken to a police station where an evidential breath test recorded 84 micrograms of alcohol in 100 millilitres of blood.

4.It is apparent from the learned Principal Magistrate’s reasons for sentence, that despite being invited by the court to enter mitigation prior to sentencing, the appellant elected to say nothing.

5.The learned Principal Magistrate noted that the appellant was 4 times over the legal limit for breath/alcohol concentration and he rightly considered this to be an aggravating feature.  He referred to the case of HKSAR v. Wong Man HCMA 1088/2006 where McMahon J upheld a disqualification period of 2 years for a defendant with a clear record who had 82 micrograms of alcohol in 100 millilitres of breath.  In that case I note the learned Judge said this:

“Obviously the greater the margin by which the prescribed limit is exceeded then the greater the culpability of the offender … Where the excess is substantial, then 12 months would be a proper disqualification period.  In circumstances where there is a doubling or more of the prescribed limit, longer periods of disqualification would be appropriate.  Where the breath alcohol level of an offender approaches four times the prescribed limit, a disqualification of over (emphasis mine) 18 months should be considered.”

6.In an attempt to persuade this court that there are special reasons such as to allow this court to reduce the period of disqualification, the appellant through his counsel and by notice of motion sought at the hearing of the appeal to adduce two affirmations, one from the appellant himself and one from Mr Yeung Wan Wah.  I allowed the application in the interests of justice and the affirmations were marked as exhibit “A-1” and “A-2” respectively.

7.In effect, the appellant said in his affirmation that on the night of the offence he had had dinner with some municipal leaders from China during which he had drunk cognac.  He decided he should not drive home, so he called his friend a Mr Yeung Wan Wah to come to collect him.  Whilst waiting for Mr Yeung, he said that someone approached him and asked him to reverse his car to allow the car which was parked in front to move.  He said he complied with the request and “reversed his car for a few spaces to let go his car”.

8.Mr Yeung in his affirmation merely confirmed that on the night in question he received a call from the appellant who told him that he had drunk alcohol over dinner and could not drive home.  He said he was requested to come over and drive the appellant home.  On the way to picking the appellant up, he said he received another phone call from the appellant who informed him he had been arrested.

9.Dealing with the affirmation of Mr Yeung, I attach no weight whatsoever to it.  He was unavailable to be cross-examined on this affirmation and I received no application for an adjournment for him to be so cross-examined.

10.As regards the affirmation of the appellant, I find his explanation to completely lack any credibility.  It is clear that the appellant has tailored his explanation to coincide with the brief facts which indicate that the appellant reversed for some 20 metres.  In his affirmation the appellant says he reversed his car for a few car spaces.  This is absurd.  In the circumstances, if what the appellant says is true, it would only have been necessary for him to reverse two to three feet.

11.In any event if the appellant was being sincere when he says that the had decided not to drive at all that night, why did he see fit to reverse his car some 20 metres down the road?  There was simply no urgency.

12.There are no special reasons for this court to consider reducing the period of disqualification.  The appeal against sentence is devoid of merit and it fails.  I confirm the sentence.

Mr Sharman Lam, Senior Public Prosecutor, of Department of Justice, for the Respondent

Mr Louis Karon Fung, Counsel, instructed by Messrs Chan, Evans, Chung & To, for the Appellant