Secretary for Justice v. Amina Mariam Bokhary

CAAR 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 10 OF 2010

(ON APPEAL FROM ESCC NO. 1354 of 2010)

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BETWEEN

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Before: Hon Tang Ag CJHC, Stock VP and Yeung JA

Date of Hearing: 11 January 2011

Date of Judgment: 11 January 2011

Date of Reasons for Judgment: 11 March 2011

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Hon Tang Ag CJHC:

Introduction

1.The Respondent pleaded guilty to three offences before Mr Anthony Yuen, a Permanent Magistrate, and was sentenced on 2 August 2010 as follows:

1^st charge:   Careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374: a fine of $3,000

2^nd charge:  Assaulting a police officer, acting in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap. 232: probation for a period of 12 months with a number of conditions, including a 3-month residential program in the Betty Ford Center in the United States;

3^rd charge:   A charge of failure to provide a specimen of breath, contrary to section 39B(2) and (6) of the Road Traffic Ordinance, Cap. 374: a fine of $5,000, disqualification from driving for 12 months and attendance of a driving improvement course.

2.The sentences were affirmed by the learned magistrate on 6 August 2010 on review.

3.On 26 August 2010, Ma CJHC (as he then was) granted leave to the Secretary for Justice to apply to this Court for review pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, in respect of the sentences passed on the Respondent for the charges of assaulting police officer, and failing to provide a specimen of breath.

4.We were informed by a letter dated 7 January 2011 from the Department of Justice that:

“There has been a recent change of circumstances in which the Respondent was sentenced to 6 weeks’ imprisonment for the charge of ‘assaulting a police officer’ (Charge 2). I apologise for the delay and providing this letter, but the Department has given careful consideration about this matter given the recent events and it has decided not to proceed with the sentence review on Charge 2. However, it has decided to proceed with sentence review on Charge 3 concerning the ‘failure to provide a specimen of breath’.”

5.Thus, when the matter came up for hearing before us on 11 January 2011, we were only concerned with the Secretary for Justice’s application in relation to the 3^rd charge. 

The facts

6.Shortly after midnight on 27 January 2010, “at Stubbs Road towards upslope near junction of Shiu Fai Terrace, Happy Valley” (see the Particulars of Offence) a car driven by the Respondent collided head-on with a coach travelling in the opposite direction when the Respondent’s car swerved onto the opposite lane.  As a result, the front of both vehicles were seriously damaged.  This gave rise to the first charge.

7.Police officers arrived at the scene shortly after the accident.  Because the Respondent was smelling of alcohol, she was requested by PC4991 to undergo a Screening Breath Test (“SBT”).  The Respondent became emotional and attempted to leave the scene on foot.  When PC46823 tried to stop the Respondent from leaving, she slapped him on his left cheek once with her right hand.  That became the 2^nd charge.  She was arrested and taken back to the Happy Valley Police Station.  However, despite repeated explanation and warnings, she refused to take a SBT (the 3^rd charge).

The Review

8.Mr Zervos, S. C., appearing for the Secretary for Justice, submitted that the sentence of a fine of $5,000 and the disqualification order for 12 months, and the attendance of a driving improvement course were manifestly inadequate and/or wrong in principle.  As noted the Respondent has pleaded guilty for failure to provide a specimen of breath, contrary to section 39B(2) and (6) of the Road Traffic Ordinance.    Section 39B(2) empowers a police officer in uniform to require specified persons to provide a specimen of breath for SBT, and under section 39B(6) it is an offence to fail without reasonable excuse to provide a specimen of breath.

9.In order to put the 3^rd charge in context, two other sections in the Road Traffic Ordinance should be noted. Speaking in general terms, section 39 deals with driving or attempting to drive a motor vehicle under the influence of drink or drugs.  Section 39A deals with the driving, attempting to drive or being in charge of a motor vehicle with alcohol concentration above prescribed limit.  On a charge under section 39A, proof of the degree of intoxication would depend on scientific evidence of actual measurement of the proportion of alcohol in a person’s breath, blood or urine.  Under section 39, conviction would depend on proof that the Respondent was “under the influence of drink … to such an extent as to be incapable of having proper control of the motor vehicle”.  It is well known that there are tell-tale signs of intoxication on the basis of which a conviction under section 39 is possible. 

10.The penalty in respect of an offence under sections 39, 39A and 39B(6) were the same, namely:

“(a) on conviction on indictment to a fine at level 4 ($25,000) and to imprisonment for 3 years; and

(b)     on summary conviction on a first offence to a fine at level 3 ($10,000) and to imprisonment for 6 months and on a second or subsequent conviction ... to a fine at level 4 and to imprisonment for 12 months.”

11.These sections also provided that “unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified”, “the court or magistrate shall order that the person be disqualified … in the case of a first conviction, for a period of not less than 3 months; and in the case of a second or subsequent conviction etc, for a period of not less than 2 years”, save that if a person has been ordered to attend and complete a driving improvement course, the period of disqualification shall “in a case of first conviction, be for a period of not less than 3 months, or until that person has attended and completed the course at his own cost, whichever is the later”, similarly, in the case of subsequent convictions.

12.These sections have been amended by the Road Traffic Amendment Ordinance of 2010, namely, Ordinance No. 19/2010, which came into effect on 17 December 2010.

13.The Road Traffic Amendment Ordinance 2010 does not apply this review since it came into effect after the offence was committed.

14.Mr Zervos for the Secretary for Justice drew our attention to the Road Traffic Amendment Ordinance of 2010 to support his point that the amendments show the Legislature’s increasingly strong view against drink driving and connected offences.  I do not doubt that.  Speaking generally, the result of the amendments is that the period of minimum disqualification has been substantially increased.  Moreover, the Legislature has prescribed gradation in limits on the proportion of alcohol in a person’s breath, blood or urine, and provided that the length of minimum disqualification should vary according to how much a defendant has exceeded such limits.  This formalized and gave effect to the court’s practice.  See HKSAR v Wong Man, HCMA 1088/2006 (unreported, 23 January 2007), where McMahon J said:

“6. …The degree to which the level of alcohol in the breath of the offender exceeds the prescribed limit is relevant to the period of disqualification imposed. (See Lau Shu Wing, HCMA1124/1998.)”

15.Nor do I doubt that even prior to the recent amendments, the offences under sections 39, 39A and 39B(6) were serious offences.  As noted above, at the time when the present offence was committed, these offences carried a maximum of 6 months’ imprisonment on a first conviction on a summary conviction.  However, it is important to note that a person could be prosecuted on indictment under these sections, in which event, even in the case of a first conviction, the offence carried a maximum of 3 years’ imprisonment.  Presumably, in deciding whether to proceed on indictment or summarily (which is the prerogative of the prosecution), the prosecution would take into account, inter alia, the degree of intoxication and the consequence of the offence.

16.Mr Zervos has referred us to the Magistrates’ Court Sentencing Guidelines published by the Sentencing Guidelines Council in England (“the English Guidelines”).  Mr Zervos pointed to the following in the English Guidelines which shows that in a suitable case a custodial sentence should be imposed even on a first time offender who has refused to provide a specimen of breath:

“Offence seriousness (culpability and harm)

A. Identify the appropriate starting point

Starting points based on first time offender pleading not guilty

Examples of nature of activity	Starting point	Range	Disqualification	Disqual. 2nd offence in 10 years
Defendant refused test when had honestly held but unreasonable excuse	Band C fine	Band C fine	12 - 16 months	36 - 40 months
Deliberate refusal or deliberate failure	Low level community order	Band C fine to high levels community order	17 – 28 months	36 - 52 months
Deliberate refusal or deliberate failure where evidence of serious impairment	12 weeks custody	High level community order to 26 weeks custody	29 - 36 months	36 - 60 months”

17.The English Guidelines have no application here and the English legislative provisions are different.  It is plainly right that where there is evidence of serious impairment as a result of intoxication a custodial sentence on a first time offender would fall within a permissible range of sentences.  Indeed, if that person has been involved in an accident resulting in serious injuries, I can see no reason why if he/she is prosecuted on indictment, a substantial custodial sentence should not be imposed.

18.Mr Zervos criticised the learned magistrate who has said on review of sentence on 6 August 2010 that:

“… And, as pointed out rightly by Mr. Duncan, the norm for a first-time offender for this kind of offence where no one was injured – and perhaps in this case except the defendant herself – a non custodial sentence is the norm.”

19.We have been supplied with a transcript of the hearing before the learned magistrate on 6 August 2010.  At that hearing Mr Zervos contended that this was “a case that warrants an immediate custodial sentence” in relation to Charge 2 and Charge 3.  Understandably, most of Mr. Zervos’ submission was directed at the 2^nd charge.  Mr. Duncan S.C. who appeared for the Respondent, had more to say in respect of the 3^rd charge, he submitted:

“… Can I just say a few words with regard to the refusal to provide a specimen.

It is our submission, that for an offender who comes before the court for the first time for drink driving offences, it is extremely rare that a custodial sentence should be imposed, unless there’s been a fatality or an injury to another party.

I notice my learned friend relies on a case of Ko Kwong Shing, but even in that case there was no term of imprisonment, it was a disqualification case. And we have included in our bundle, in the last three authorities - 8, 9 and 10 - first of all an extract from Hong Kong Archbold, this is a supplement, the second supplement to the 10th condition, one page there, paragraph 523 halfway down the page:

‘In drink driving cases where there are no fatalities or injury caused to other persons, an immediate custodial sentence is extremely rare’.

And we’ve advanced at Tabs 9 and 10, first of all the case of Wong Lok Fu, which is the case which is cited in Archbold supporting that proposition; and also an earlier case of Mr Justice Wally Yeung, as he then was in 1997 which is to the same effect.

So, we do not accept that for Charge 3 an immediate custodial sentence would be the norm.”

20.Mr Zervos in his reply said nothing more in relation to the 3^rd charge.

21.With respect to Mr Zervos, I do not believe his criticism of the learned magistrate is justified.  The learned magistrate did not, as Mr Zervos seemed to have suggested, say that no custodial sentence could be passed on a first-time offender whatever the circumstances.  He was careful to mention that this was a case where no one (with the possible exception of the Respondent, because she was said to have been concussed) was injured.

22.In Lau Shu Wing, HCMA 1124/1998 (unreported, 8 December 1998), the defendant was convicted of driving whilst the concentration of alcohol was more than twice the permitted level. He had been involved in a collision with two other vehicles whilst driving along a slip road to the Island Eastern Corridor.  Stock J (as he then was) said:

“My attention is drawn to the fact that as a matter of statistics and known practice, first offenders who plead guilty to offences of this kind are normally fined and suspended from driving for 12 months, and in his appeal against the period of disqualification, the appellant’s counsel suggested that that is the appropriate suspension which ought to have been imposed in this case.”

23.Here, the proportion of alcohol in the Respondent’s breath was unknown due to her refusal to take a test.  The Court’s approach to an offence of failure to undergo a breath test can be gathered from HKSAR v. Ko Kwong Shing, HCMA 665/2006 (unreported, 5 September 2006).  There the appellant was disqualified from driving for 18 months following his plea of guilty to the offence of failing to provide a specimen of breath, contrary to section 39B(1A) and (6) of the Road Traffic Ordinance.  He was also fined $6,000.  The Magistrate, Mr Tallentire said when sentencing the appellant that:

“My baseline sentence for driving with excess alcohol is a fine of $6,000 with disqualification of 12 months. This is increased or decreased according to circumstances especially the level of reading and any serious aggravating features. … the court must treat this offence more seriously than an average breathalyzer case as to do otherwise would encourage and fortify the resolve of the profoundly intoxicated to refuse the test.”

24.Deputy High Court Judge Longley agreed, finding support from Wilkinson’s Road Traffic Offences 22^nd edition (para. 4334-4337) which stated:

“It is submitted that whilst the court is by the very nature of the offence handicapped by not knowing the exact alcohol level of the defendant, the level of penalties and the period of disqualification should approximate as nearly as possible to the penalties which would have been imposed if the defendant had supplied a specimen and the analysis had shown a high blood-alcohol level. It may be difficult for a defendant who refuse to supply a specimen to persuade a court that his alcohol level would have been low since he could have demonstrated that fact by supplying specimens for analysis. Of necessity he can only have committed the offence by failing to supply a specimen without reasonable excuse.”

25.Judge Longley went on to say:

“8. … if it were to become the general policy of the court only to impose a sentence equivalent to that imposed on someone just over the limit for the offence of refusing to provide a specimen, it would encourage drivers who had been drinking heavily to refuse to supply specimens for testing, rather than to supply them.”

26.In HKSAR v. Wong Lok Fu Michael, HCMA 1063/2006 (unreported, 26 March 2007), the defendant was charged with a charge of, as a person suspected of having committed a traffic offence, failing to provide a specimen contrary to section 39B(1)(a).  Nguyen J set aside a Community Service Order and substituted therefor a recognizance to be of good behaviour for 12 months in the sum of $1,000 as well as reducing the period of disqualification to 9 months from 15 months.  He said at page 5 of the judgment:

“9. … In drink driving cases where there are no fatalities or injuries caused to other persons, an immediate custodial sentence is extremely rare. …”

27.Mr Zervos has not referred us to any decision where a person had been given a custodial sentence on a first conviction under section 39B(2) and (6).  He submitted however, as a matter of principle, a custodial sentence might be appropriate.  I do not doubt that.  As I have explained, for a person prosecuted on indictment for such an offence the maximum sentence is 3 years’ imprisonment.  But I believe it is indeed the case that a non custodial sentence would be normally imposed on a first time offender where no one was injured, and where, as in this case, there is no evidence of serious impairment due to intoxication. 

28.In HKSAR v Lam Hon Wing, CACC 253/2003 (Stock JA, Beeson J and Lunn J, unreported, 6 February 2004), the defendant was sentenced to one month’s imprisonment in the District Court for failing to provide a specimen of breach for a SBT (Charge 4).  He was also charged with wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 (Charge 1) and 2 counts of Assault Occasioning Actual Bodily Harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212 (Charges 2 and 3).  He was sentenced to imprisonment for 21 months in respect of the 1^st charge, and 18 months to each of the 2^nd and 3^rd charges.  All the sentences were ordered to run concurrently.  His appeal against conviction and sentence was dismissed.  In dismissing his appeal in relation to the 4^th charge, the sentence of 1 month was made to run consecutively.  In that case the defendant had been drinking at a bar in Happy Valley until about 3 am, had a dispute with the bar tender and then left the bar.  He then returned with seven other men armed with wooden poles and collapsible stools and attacked the bar tender and two customers, resulting in the first 3 charges.  Then he drove away but was stopped by the police at Wong Nai Chung Road, Happy Valley where he refused to provide a specimen of his breath as required by law.  In the judgment the defendant was described as “aggressively drunk”.  Lam Hon Wing is a very different case, and provides no guidance for the instant case.

29.I turn to the agreed fact that the Respondent had swerved onto the wrong side of the road.  It will be noted that it was stated in the particulars of offence that the collision took place near the junction of Shiu Fai Terrace, Happy Valley.  Mr Zervos was unable to say how close to the junction did the accident occur.  The Respondent resided in Shiu Fai Terrace.  From Stubbs Road, going uphill, one has to go pass the entrance to Shiu Fai Terrace, travel a short distance before turning back to turn into Shiu Fai Terrace.  Mr Zervos was unable to discount the possibility that the Respondent had swerved not because she was unable to control her car, but because she (improperly) had tried to take a short cut.  I mention this to show that one could not infer from the fact that the accident occurred on the wrong side of the road that the Respondent was unable to control her car due to intoxication. 

30.Mr Zervos has very fairly accepted that there was no evidence of serious impairment although she smelled of alcohol and admitted to having drunk two small glasses of wine.  Mr Zervos told us that he has watched a video of the incident and could see no sign of serious impairment.  There were also no evidence from any witness (police or civilian) e.g. that her speech was slurred (a tell-tale sign of intoxication).

31.Mr Zervos submitted that there were aggravating factors, most importantly the fact that she had assaulted a police officer in the course of his duties.  But that is the subject of a separate charge for which she has been separately sentenced.  It would not be right to punish her again for that.  Mr Zervos also relied on the fact that she tried to walk away from the scene of the accident.  That is so but she was arrested.  Of course, she had, without reasonable excuse, refused to give a specimen of her breath.  For that offence, she is a first time offender and there is no evidence of serious impairment.  That being the case, a non-custodial sentence was indeed the norm.

32.This is an application for review under section 81A of the Criminal Procedure Ordinance, Cap. 221.  The principles relating to such applications are long established, and can be taken from Archbold Hong Kong 2011 which stated at 7-45:

“Generally, the Court of Appeal will only allow a review of sentence if it considers the sentence to be manifestly inadequate or wrong in principle. This will be so where the sentence is so out of proportion to the gravity of the offence that it indicates that the sentencer had failed to properly exercise his sentencing discretion: Attorney General v Yukta Bahadur Gurung and Anthony Armitage [1989] 2 HKLR 338; Secretary for Justice v Wong Kwok-Kau [2004] 4 HKC 1.”

33.In Attorney General’s Reference (No 4 of 1989) [1990] 1 WLR 41 Lord Lane CJ said:

“The first thing to be observed is that it is implicit in the section that this court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased -- with all the anxiety that this naturally gives rise to -- merely because in the opinion of this court the sentence was less than this court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases. However it must always be remembered that sentence is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”

34.That is also this Court’s approach.  See Attorney General v Tai Chin Wah [1994] 2 HKCLR 81.  It follows that there is no basis upon which we could interfere with the learned magistrates’ decision.

35.I turn to disqualification.  Mr Zervos submitted that the disqualification for a period of 12 months is unduly lenient.  I agree.

36.It is clear that the Respondent has a drinking problem which is aggravated by bipolar depression.  The fact that she has had a long-term problem with alcohol appeared from the report from Professor Peter W. H. Lee from Department of Psychiatry, Li Ka Shing Faculty of Medicine of the University of Hong Kong.  In a letter dated 1 December 2008, he said:

“Ms Bokhary has been diagnosed by all her medical experts to be suffering from an attention deficit disorder and bipolar depression. There is a strong association of alcohol abuse with bipolar depression and attention deficit disorders. Patients tend to use alcohol when they have irritability and agitation. They would use alcohol to calm themselves down. Alcohol abuse in such cases is very much a consequence of bipolar depression and attention deficit disorders, which therefore are usually addressed together.” page 92 of the appeal bundle.

37.Also, when the Respondent was sentenced in December 2008, in respect of one offence of common assault and one of assaulting police officer, the magistrate said:

“You are suffering from ADD (attention deficit disorder) and bipolar depression, conditions which lead to and invite alcohol abuse. I accept that your behaviour on the night in question was fuelled by your overindulgent alcohol, reacting with the psychotropic medication properly prescribed by your psychiatrist. …”

38.In Secretary for Justice v. Law Siu Kuen, CAAR 9/2009 (unreported, dated 12 January 2011), Stock VP giving the judgment of this Court (Stock VP, Yeung JA and Yuen JA) said:

“75. … ‘a vital factor in the discretionary disqualification is the necessity to protect members of the public,’”.

39.I have no doubt in this case that disqualification for 1 year is too short.  For the sake of the community, and I might add, for the Respondent’s own sake too, she must be disqualified for a much more substantial period.  That is why we ordered that she be disqualified for 3 years.

Hon Stock VP:

40.At the time of the hearing of this Review, the respondent was serving a term of six weeks’ imprisonment for the offence of assaulting a police officer in the execution of his duty.  We were concerned solely with the question whether a fine and 12 months’ disqualification, as opposed to a custodial sentence plus disqualification, for the offence of failing to provide a breath specimen was so outside the range of sentences which a magistrate could reasonably consider appropriate in all the circumstances of the particular case as to demand interference by this Court.

41.The implication of the submissions by Mr Zervos was to suggest that the norm for failure to provide a specimen of breath was an immediate custodial sentence.  Since that was his suggestion, and since that suggestion was not accepted on behalf of the respondent and since the proposition was one which did not speak for itself, as it would in many categories of offence, it was incumbent upon him to make good the contention by providing statistics.  He did not do so.  Indeed the English Sentencing Guidelines – which he produced as evidencing a commonsense approach which might be followed in this jurisdiction – contradicted his proposition save in cases where there was evidence of serious impairment which, for reasons provided by Tang VP, was not established in this case.  I would not myself go so far as to endorse the English guidelines in terms of the particular sentences suggested.  We would need statistics with arguments before setting our own guidelines but the English guidelines usefully highlight different levels of criminality.

42.Insofar as Mr Zervos prayed in aid the fact that the 2010 amendments evidenced the intention of the legislature to enhance disqualification for drink drive offences, there are two points to be made: first, that there has been no increase in the maximum terms of imprisonment prescribed and, second, that the offence with which this Court is concerned took place before the amendments; whereas established sentencing principle requires this Court to sentence in accordance with legislative intent at the time the offence was committed.

43.None of this is to say that a serious view is not to be taken of the offence of failing to provide a specimen of breath.  There will be cases in which a sentence of imprisonment would be warranted for such an offence even if it is a first offence of its nature.  In this case, however:

(1)                  the offender had not previously committed any traffic offences, let alone one of this nature, although she has been driving since 1994;

(2)                  though there can be no question but that she had been drinking, the uncontradicted evidence was that the offender suffered at the time of the offence from a significant mental ailment and for reasons provided by Tang VP, the evidence did not in this special context establish that there was, as a result of drink, serious impairment ; and

(3)                  the offender was, at the date of the hearing of the Review, serving a term of imprisonment for allied conduct on the same occasion.

44.Absent any statistics suggesting that a custodial sentence was a norm for a first offence with such factors at play, it could hardly be said by us that the failure to impose a term of imprisonment was outside the range of sentence permissible to a sentencing court.

45.I agreed with Tang VP that the term of disqualification was manifestly inadequate and he has provided the reasons for our decision to substitute a term of three years’ disqualification.

46.It is unrealistic to ignore the concern which has been expressed about remarks made by the magistrate in the original proceedings about the applicant’s background, and the fact that she came from a well-off and caring family.  The magistrate, obviously concerned by the impression which this conveyed, sought to explain in his later decision of 6 August 2010 that he had not intended to suggest that she deserved thereby to be treated more leniently than someone from a different background.

47.It is, of course, a central tenet of our system of justice that no one is accorded favour because of wealth or connections.  A ‘good’ background is not dictated by wealth or connection and the vast majority of young people in Hong Kong come from caring families.  So the remarks by the magistrate were unfortunate.  But it must also be remembered that by reason of the same principles of levelheadedness and fairness which must drive judicial decision-making, the courts do not visit extra punishment upon, or brush aside true mitigating factors in respect of, a defendant who happens to be from a privileged background simply to make sure that it cannot possibly be said that such a person is being favoured.  I would add only this, that it would have been better for the magistrate to have ordered a psychiatric report independent of that produced by the respondent.

Hon Yeung JA:

48.In this application, the remaining issue is whether the fine and disqualification order for the offence of failure to provide a specimen of breath, contrary to s 39B (2) and (6) of the Road Traffic Ordinance, Cap 374 is wrong in principle.

49.This case has attracted much public attention because of the suggestion that the respondent’s background had led to what was described as “lenient sentences”.

50.All judicial officers have taken an oath to administer the law without fear, favour, affection or ill will. I have no doubt that the learned magistrate, in fining the respondent and ordering a disqualification period of 12 months for the offence of failing to provide a breath specimen, had kept to his oath.

51.The respondent comes from a highly respected and affluent family and she is also well-educated. Those matters are certainly not reasons to treat her leniently. The doctrine of equality before the law mandates the court to treat all persons, regardless of wealth, social status, or the political power wielded by them or their families, the same. No individual or group is entitled to special legal privileges.

52.I accept that the sentence for failing to provide a specimen of breath can and should, in most cases, be more severe than drink driving in order to discourage drivers, who had been drinking heavily, from refusing to supply specimens for testing and I would not rule out an immediate custodial sentence even for a first offender. However, Mr Zervos’s suggestion, that the norm for an offence under s 39B (2) and (6) of the Road Traffic Ordinance, Cap 374, whatever the circumstances, was an immediate custodial sentence, had not been made out. The circumstance of each individual case must be examined to determine the proper penalty.

53.If the deliberate refusal or failure was prompted by a desire to avoid the consequence of a serious traffic accident due to the effect of heavy drinking, the proper sentence could well be an immediate imprisonment even for a first offender. But this is not one of such cases, there being no injury to anyone except to the respondent herself and no suggestion or evidence that the respondent was serious impaired due to intoxication. Also, the respondent did not have any similar previous conviction.

54.That the respondent had assaulted a police officer in the course of his duties is of course a very serious matter. Police officers, in the proper execution of their duties, are symbols of law and order and must be respected and protected from abuse. If contemptuous and abusive behavior towards police officers were tolerated, law and order would be compromised.

55.However, the respondent had been separately dealt with and sentenced to 6 weeks’ imprisonment for such a reprehensible conduct.

56.I was not persuaded that the fine imposed on the respondent for the offence of failure to provide a specimen of breach fell outside the range of sentences which a judge, applying his mind to all the relevant factors, could consider appropriate. I therefore declined to vary the sentence other than the disqualification period on that charge. I was persuaded that, for the protection of members of the public, a longer disqualification period, namely three years, should be ordered.

57.I agreed with the analysis of Tang Ag CJHC and the orders he made.

Mr. Kevin P Zervos, SC, DDPP and Ms. Hermina Ng, PP, of the Department of Justice, for the Applicant.

Mr. Peter Duncan, SC, instructed by Messrs Haldanes, for the Respondent.