HKSAR v. So Wing Keung

HCMA263/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 263 OF 2009

(ON APPEAL FROM KTCC NO. 746 OF 2009)

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BETWEEN

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Date of Hearing:  20 May 2009

Date of Judgment:  20 May 2009

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J U D G M E N T

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1.This is an appeal against sentence.  The Appellant pleaded guilty to one count of driving a motor vehicle with alcohol concentration in his breath exceeding the prescribed legal limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap. 374.

2.He was sentenced to a fine of $5,000, and disqualified from driving for a period of 6 months.  His appeal today is directed to the length of the disqualification, and the appeal is based on the fact that his reading was 23 microgrammes in 100 millilitres of breath.  The prescribed limit is 22.  There was nothing in the circumstances that aggravated the case.  He was merely stopped at a roadblock.

3.The offence occurred on 16 December of 2008.  As a matter of policy, people with a very low reading like this were not prosecuted until a change of the policy, well publicised, in September of 2008.  It is also relevant to point out that in February of this year, 2009, the law changed, replacing a discretionary disqualification for this offence with a minimum 3 month period of disqualification.

4.The Appellant is a respectable man, and his only previous infringement of the law was in 2005, when he was fined a modest amount for speeding between 15 and 30 kilometres an hour over the limit.

5.A very experienced Magistrate has told me in her Statement of Findings why she came to the sentence she did, pointing out that normally the offence attracted, in her court, a 12 month disqualification, but that she reduced it by reference to the relevant reading, and she thought the correct reduction in this case was one of 6 months.

6.Because the policy changed in September of 2008, there was no history of sentencing in relation to people who were just 1 microgramme over the limit.  There clearly had not been time to build up some Region wide understanding of how to deal with such cases, and nor has there been time for cases to go on appeal.

7.Looking at the change in the legislation, one can now see that,  subject to special reasons, all cases will start with a sentence that includes the 3 months’ disqualification.  It may be sentencing practice will increase the starting point for the length of disqualification, for the 3 months, of course, is a minimum and not a norm. For the time being I suspect 3 months may become a starting point for the least serious cases.

8.We are all agreed in court that you could not find a less serious case of its type than this one.  It is the lowest reading, and there is a lack of any aggravation.

9.In those circumstances, I judge that 3 months is an appropriate length of disqualification. 

10.I would be slow to interfere with a decision from the Magistrates’ Court which reflected an established sentencing practice either in a particular Magistracy or area or throughout the Region, but that is not the case here, because there was not time to establish such in relation to cases of low readings like this.

11.There has been a lot of publicity in recent months about breathalysing.  The courts do not act on publicity; but, on the other hand, they pay particular regard to the wishes of the public once they have been expressed through the legislature, and even though this case is not actually caught by the amended legislation, because it occurred in December and not after February, the establishment of a minimum disqualification by the legislature is something that I choose not to ignore, and it fits this basic case.

12.So I will allow the appeal to the extent of reducing the disqualification to a period of 3 months.  The fine remains in place.

Representations:

Ms Grace Chan, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Michael Poll, instructed by T H Koo & Associates, for the Appellant