HKSAR v. Yeung Ka Wai

[English Translation – 英譯本]
HCMA 361/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 361 OF 2011

(ON APPEAL FROM KTCC NO. 1418 OF 2011)

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BETWEEN

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Before: Hon Barnes J in Court

Date of Hearing: 12 July 2011

Date of Judgment: 12 July 2011

Date of Reasons for Judgment: 19 July 2011

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REASONS FOR JUDGMENT

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1.The Appellant was charged with one count of “Driving a motor vehicle with alcohol concentration in his breath exceeding the prescribed limit”, contrary to Section 39A (1) of the Road Traffic Ordinance Cap. 374, Laws of Hong Kong. The particulars of the offence alleged that on the 8^th day of February 2011, the Appellant did drive a motor vehicle, that is, a light goods vehicle with registration number HT978, near Lamp Post AE8403 on Kai Fuk Road, Kowloon, Hong Kong, with a proportion of 23 micrograms of alcohol in 100 millilitres of his breath, exceeding the prescribed legal limit of 22 micrograms.

2.The Appellant pleaded guilty to the charge and was fined HK$6,000 and disqualified from driving for a period of 12 months, and he had to complete a mandatory driving improvement course within 3 months.

3.The Appellant appealed against the sentence. I allowed the appeal after hearing and ordered that the disqualification for a period of 12 months be set aside and substituted with a 6-month disqualification whereas the other penalty and order to stand. I also ordered that the Appellant be awarded the costs of the appeal. Amount of costs to be taxed by Registrar if not agreed.  I give my reasons as follows:

Admitted facts of the case

4.The facts of the case admitted by the Appellant revealed that at 7:28 a.m. on the 8^th day of February 2011, he drove a light goods vehicle and was stopped and searched at the roadblock set up by the police at the place of offence.  A preliminary breath test was conducted at the scene and the alcohol concentration in the breath sample provided by him was 28 micrograms of alcohol per 100 millilitres of breath. The police arrested him. At 7:58 a.m. the same day, the police conducted a breath test on him again at the East Kowloon Operational Base. As a result, there was 23 micrograms of alcohol per 100 millilires of breath which exceeded the prescribed legal limit [22 micrograms].

The Background of the Appellant

5.The Appellant is 29 years old and of previous clear criminal record.  He is newly wedded and the couple each has a job. He is a driver by occupation and needs to support his parents. His father is a bankrupt while his mother a housewife.

The Magistrate’s Reasons for Sentence

6.In respect of the “disqualification”, the Magistrate gave his reasons as follows:

“Consideration of Sentence

It is not disputed that it is the first time that the defendant committed this type of offence and the alcohol concentration exceeding the prescribed limit is the lowest of 23 micrograms. Generally speaking, with nothing in the circumstances that aggravates the case, the Court should impose the minimum period of disqualification, that is, 6 months as stated by Deputy Judge Line of the Court of First Instance in HKSAR v So Wing Keung HCMA263/2009.

However, I am of the view that this case should not be considered as the least serious of its type based on the following reasons:

(I) The defendant committed the offence in this case after the amended legislation has come into effect for only as short as two months odd, which obviously shows that he disregarded the seriousness of increasing the period of disqualification by the new legislation.

(II) The commission of similar cases is increasing in number and I profoundly believe that the implementation of the newly amended legislation does have a connection with this phenomenon. Therefore, other than the duty to crack down on the offence of drink-driving, the Court needs to increase the penalty. As for a driver, no sentence is more direct and effective than an order of longer period of disqualification;

(III) Similar to So Wing Keung, this case occurred during general stop and search at the roadblock and did not lead to any traffic accident in the course of it. However, the time of offence of this case was 7:28 a.m. when most members of the public were on their way to work or to school. If it had led to a traffic accident, it might have caused quite a number of them to suffer injuries. Moreover, being a driver by occupation, the defendant drove while under the influence of alcohol on the early morning of a normal day [the 8^th day of February was a Tuesday], the situation was really worrying;

(IV) Defence counsel indicated that on the night of the 7^th day of February, the defendant and his family had a dinner banquet to celebrate the job promotion of a family member during which he drank a bit too much beer in a moment of happiness. However, he went home to bed shortly after 11 p.m. after the banquet and did not get up until 6 a.m. He committed this offence as he had underestimated the level of alcohol that had remained [inside] his body. I have doubt about this statement although I am not an expert in this aspect and have inferred by common sense that the defendant either took a lot of alcoholic drinks the night before or did not stop drinking until not quite [long] before the case occurred, thus causing the alcohol in his breath sample to exceed the limit at 7:28 a.m. Being a driver by occupation, the defendant’s conduct in both situations caused a lot of concern.

Therefore, although the newly amended legislation has provided that a period of not less than 6 months disqualification be imposed for the first offence where the alcohol concentration is tier 1, I am of the view that a longer disqualification period, that is, 12 months, should be adopted in this case in order to achieve a deterrent effect.”

Grounds for Appeal

7.The ground of appeal submitted by the Appellant’s Counsel Joseph Lee was that the sentence of disqualification for 12 months passed by the Magistrate was manifestly excessive.  The Appellant did not object to the order of fine and the taking of a driving improvement course at his own cost.   

8.The appellant accepted that in this case there were no factors constituting the “special reasons” as stated by the legislation which could cause the Court to exempt the statutory disqualification or shorten the minimum period of disqualification [6 months] as the law prescribes. The appealing party took the view that the decision of disqualifying the Appellant of this case was correct and not to be criticized.  However, in view of the Appellant’s background and the fact that it was his first offence and that he had no convictions of dangerous driving or careless driving, the period of disqualification ordered by the Magistrate was manifestly excessive. 

9.Mr. Lee submitted a detailed written submission of the grounds of appeal. He basically stated that the four reasons held by the Magistrate were improper and had the effect of imposing a double penalty on the Appellant.  Besides, the Magistrate also overlooked the fact that the Appellant did not drive immediately after drinking but drove only after he had returned home for a rest. He “exceeded the limit” by only 1 ‘graduation’ (sic) (microgram) and so the culpability was comparatively less than other cases of its type.  Moreover, he had a clear criminal record and his traffic conviction record was not bad, thus it was too harsh for the Magistrate to impose a 12 month disqualification on him. 

10.Mr. Lee cited So Wing Keung [that is, the authority referred to by the Magistrate] and Tang Hon Pui[1] where 23 micrograms of alcohol in breath was involved in each of the cases, the defendant being a first offender and the then minimum 3-month period of disqualification as the law prescribed was imposed.

The Respondent’s response

11.Basically, Ms Sheroy Tam, the Public Prosecutor representing the Respondent, stated in her written submission that the reasons for sentence given by the Magistrate were reasonable and that the 12 months’ disqualification was not manifestly excessive.

Relevant Legislations

12.Section 39A of the Road Traffic Ordinance is 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- (Amended 19 of 2010 s.10)

(a) …

(b) on summary conviction on a first offence to a fine at level 3 and to imprisonment for 6 months, …

(1A) The proportion of alcohol in a person’s breath, blood or urine is-

(a) tier 1 if it exceeds the prescribed limit but is less than-

(i) for breath, 35 micrograms of alcohol in 100 millilitres of breath;

(ii) for blood, 80 milligrams of alcohol in 100 millilitres of blood; or

(iii) for urine, 107 milligrams of alcohol in 100 millilitres of urine;

(b) tier 2 if it exceeds tier 1 but is less than-

(i) for breath, 66 micrograms of alcohol in 100 millilitres of breath;

(ii) for blood, 150 milligrams of alcohol in 100 millilitres of blood; or

(iii) for urine, 201 milligrams of alcohol in 100 millilitres of urine;

(c) tier 3 if it exceeds tier 2.

(2) If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate shall order that the person be disqualified in accordance with subsection (2A) or (2B) 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.

(2A) Subject to subsection (2B), the period for which the person is to be disqualified is-

(a) for a first conviction, a period of not less than-

(i) 6 months if the proportion of alcohol in the person’s breath, blood or urine is tier 1;

(ii) 12 months if the proportion of alcohol in the person’s breath, blood or urine is tier 2;

(iii) 2 years if the proportion of alcohol in the person’s breath, blood or urine is tier 3; and

(b) …

(2B) …

(2C) …

(3) …

(4) …

(5) …”

The present legislation came into effect in December 2010.

13.The Magistrate compared the old and the new legislations in his Reasons for Sentence:

“Comparison of the old and the new legislations

Since the 17^th day of December 2010, the Road Traffic (Amendment) Ordinance 2010 has come into effect. One of the main purposes of the amendment is to divide the offence commonly known as drink-driving into 3 tiers according to the alcohol concentration. For breath, the alcohol concentration is tier 1 where it is between 23 micrograms and 35 micrograms; tier 2 where it is between 36 micrograms and 65 micrograms; and tier 3 where it is 66 micro[grams] or above. Of course the relevant penalties are also amended accordingly. When compared with the old ordinance, the penalty for the first relevant offence in the amended legislation is obviously heavier in that the period of disqualification is increased.

Under the old ordinance, (a person) is liable on summary conviction on a first offence to a fine at level 3 and to imprisonment for 6 months. Besides, (he) should be disqualified from driving for at least 3 months and should attend and complete a mandatory driving improvement course.  It is provided in the amended legislation that the periods of disqualification are the minimum 6 months, 12 months and 2 years according to the respective tiers of alcohol concentration, whereas the other penalties remain generally unchanged.”

Discussion

14.The Magistrate had pointed out that there was nothing in the circumstances that aggravated the case, and so the minimum period of disqualification -- that is, 6 months should be imposed as in So Wing Keung.

15.Having considered the fours reasons given by the Magistrate, I cannot entirely agree with him. The Appellant did commit this offence after the new legislation had come into effect for 2 months odd, but exactly owing to this, he has to face the minimum 6-month period of disqualification instead of the previous 3 months, the sentence is obviously heavier than before.

16.More importantly, the Appellant is a first offender and he “exceeded the limit” by 1 microgram. As for the limit being exceeded by 1 microgram, I have pointed out in Tang Hon Pui that I entirely agree with Hon McMahon J, who said in Wong Man[2]:  “The greater the margin by which the prescribed level is exceeded then the greater the culpability of the offender.”  For tier 1 which is between 23 micrograms and 35 micrograms, you cannot find a lower reading than the Appellant’s.

17.The Appellant was stopped and searched at a roadblock and no traffic accident resulting in death or injury was involved. Although the Magistrate was not satisfied that after drinking the Appellant took a rest from 11 p.m. to 6 a.m., he did not reject the submission that the Appellant did take a rest. The Appellant went home for a rest before driving, the situation was not as serious as that of a person who drove immediately after drinking.

18.To conclude, I agree with Mr. Lee’s submission.  In view of the facts of the case, the Appellant’s background and guilty plea, the 12-month disqualification was too harsh.

19.Based on the above grounds, I allow the appeal, set aside the 12-month disqualification and substitute it with one of 6 months.

Sheroy Tam, Public Prosecutor of the Department of Justice, for HKSAR

Joseph Lee, instructed by Ho, Tse, Wai & Partners, for the Defendant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.