HKSAR v. Cheng Man Ki Steven

HCMA 189/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 189 OF 2009

(ON APPEAL FROM TWCC 392/2009)

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BETWEEN

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Before: Deputy High Court Judge Mackintosh in Court

Date of Hearing: 11 August 2009

Date of Judgment: 11 August 2009

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J U D G M E N T

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1.This is an appeal against the sentence imposed on the appellant by Mr Lambert Lee, at Tsuen Wan Magistracy for an offence of driving a motor vehicle with a breath alcohol concentration exceeding the prescribed limit, contrary to section 39A(l) of the Road Traffic Ordinance, Cap 374. The offence, to which the appellant pleaded guilty, occurred on 17 December 2008, before recent amendments to the statutory scheme for driving with excess alcohol took effect.

2.The appellant was fined HK$5,000 and was disqualified from driving for two years. The appeal is stated to be in respect of the disqualification only, though since the sentence of the court comprised both elements, of the fine and disqualification, it is not open to the appellant to seek to limit the appeal in this way to avoid the use by this court of its powers to increase sentence, particularly if he feels (as he clearly does in this case) that he has done rather well so far as the fine is concerned. I will say more about that later.

3.The offence occurred on almost exactly the second anniversary of the appellant’s conviction for a similar offence, for which he was fined HK$6000 and disqualified for one year. Given the second conviction within five years, the magistrate was obliged comply with section 39A(2) of the Ordinance which, so far as is material, read at the time:

“The magistrate…shall disqualify [an offender] from driving for a period of not less than two years for a second or subsequent conviction…unless for special reasons…the magistrate orders that he be disqualified for a shorter period or that he be not disqualified.”

4.Section 39A(3), as then enacted, created the five-year time‑frame. Under section 39A(l) the maximum fine for such a second offence increases from Level 3 (HK$10,000) to Level 4 (HK$25,000). These statutory levels, found in Schedule 8 of the Criminal Procedure Ordinance, Cap. 221, and designed to allow for easy adjustment of maximum fines for all offences, were fixed in 1994 upon their introduction. They have not, so far as I am aware, been amended in the intervening 15 years: perhaps it is time to bring them up to date.

5.The admitted facts of the case revealed that in the early hours of the morning, the defendant drove a car in an erratic manner towards a police roadblock where it was stopped. The appellant smelt of alcohol and so he was breathalysed. The screening test showed 33μg of alcohol per 100mL of breath and he was arrested. Later analysis at the police station showed a breath alcohol concentration of 32μg per 100mL: the statutory limit is 22μg per 100mL.

6.The focus of this appeal has been on what was submitted by counsel to be a failure by the magistrate to take account of a number of “mitigating factors” in determining the period of disqualification. These included what was said to be the blameless driving of the appellant (despite the admission that his driving was erratic), the effect of disqualification upon his employment, including what is said to be a loss of income of HK$5,000 to HK$7,000 per month, and the consequential impact on his marriage plans, and his family circumstances.

7.The court, it is submitted, should have regard to the cumulative effect of these matters.

8.A definition of special reasons appears in section 2 of the Ordinance. It means:

“… special reasons relating to the offence itself, and in exceptional circumstances special reasons relating to (a) the offender; and (b) such other circumstances that the court ... may consider to be relevant”

9.At common law, it is well settled that certain minimum criteria must be satisfied for a matter to amount to a “special reason”. The most significant of these is that it must be directly connected with the commission of the offence - see Whittal v Kirby [1946] 2 All ER 552 and R v Wickens (1958) 42 Cr App R 236. Although this statutory definition in Hong Kong extends the meaning in, I stress, exceptional circumstances, to include other matters which may relate to the offender himself, none of the factors advanced in this case can be said to be exceptional either taken alone or taken together. Any disqualification is bound to have a significant impact on the offender’s personal life and may well affect his employment, particularly if he is a professional driver. However, such circumstances are commonplace, not exceptional. This aspect of the definition is aimed at cases where, for example, the offender is severely disabled or has a severely disabled family member and the loss of licence for two years would have a drastic impact.

10.It is submitted that the excess alcohol in this case, 10μg over the limit, is negligible and that this is a reason for reducing or cancelling the minimum period of disqualification because it relates to the offence itself.

11.I reject the contention that 10μg is a negligible excess. The appellant was driving with a breath alcohol content which was approximately 50% above the statutory maximum. However, even if it were correctly categorised as negligible, there is clear authority that being slightly over the limit cannot amount to a special reason.

12.In Delaroy-Hall v Tadman [1969] 2 QB 208, the Divisional Court in England held that the amount of the excess cannot constitute a special reason for not disqualifying or reducing the disqualification. The court was there dealing with three cases, involving excesses of 4%, 20% and 35% in relevant limit.

13.In R v Anderson [1972] RTR 113 CA, the Court of Appeal in England, in a case involving an excess of just under 2%, adopted what had been said in this regard by the Divisional Court in Delaroy-Hall v Tadman, whilst finding special reasons on different grounds.

14.Thus, although being slightly over the limit, were it to be the case here, might appear to fit the criteria for special reasons, it is not in fact capable of being a special reason. There may, as Lord Parker CJ said in Delaroy-Hall v Tadman, be some overriding reason, to be found in the legislation constituting the offence, which precludes a court from considering as a special reason something which at first sight may appear to be directly connected with the commission of the offence. In particular, the law lays down a statutory maximum, no more, no less than (in Hong Kong) 22μg per 100mL. At the same time, it lays down a mandatory disqualification for a second offence. Just as the amount of the excess cannot affect the issue of guilt or innocence, so it is of no consequence with regard to the question of disqualification. Thus the amount of the excess cannot constitute a special reason. To find otherwise, would be to introduce a degree of uncertainty, as to where the line is to be drawn, into legislation which was designed to provide for uniformity and certainty.

15.In my judgment, there are no special reasons for not disqualifying this appellant for the mandatory two years or for reducing the disqualification to any degree. The magistrate, who made a finding that there were no special reasons justify a shorter disqualification, was undoubtedly correct.

16.However, the magistrate was not correct in my judgment to impose a fine of HK$5,000, which is the sort of fine generally imposed on a first offender. No reasons were given in the statement of findings for imposing such a fine, but I daresay, it was because of what the magistrate regarded as the relatively low level of the excess, compared with many of the cases he would routinely handle in a busy plea court. However, a fine of such an amount fails to reflect the increase in the maximum fine for a second offender, from Level 3 to Level 4 which the legislature has prescribed. I consider that a fine in the order of at least HK$10,000 would have been appropriate given that increase and the degree of excess alcohol.

17.I have considered using the provisions of section 119(e) of the Magistrates Ordinance, Cap 227, to vary the fine from HK$5,000 to HK$10,000. It is however a rarely used power and I have decided not to use it here. I know from experience that it is common for legal representatives, both solicitors and counsel, to advise prospective appellants that they can appeal against a part of the sentence (such as a disqualification) and be confident that the rest will remain intact. Indeed, Ms Ody Lai, for the appellant, informs me that has been done in this case.

18.I have earlier remarked that it is not open to an appellant to take this approach: if he appeals against sentence under section 113(2) of Cap. 227, the whole sentence is at large. Section l19(e) expressly empowers the judge on appeal to award any punishment which the magistrate might have imposed, whether more or less severe than the original sentence. Those representing appellants should not advise them to the contrary.

19.This appeal has absolutely no merit and is dismissed.

Mr Andrew Cheng, PP, for the Director of Public Prosecutions, for the Respondent

Ms Ody Lai, instructed by Messrs Wong & Co., for the Appellant