HKSAR v. Ng Chi Wah

HCMA 455/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 455 OF 2013

(ON APPEAL FROM TWCC NO 1182 OF 2013)

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J U D G M E N T

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1.The appellant in this case was convicted on 25 October 2012 by a magistrate sitting in Shatin Magistracy of a charge of failing to provide a specimen of breath by a person suspected of having alcohol in his body, contrary to section 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap 374 Laws of Hong Kong. He was sentenced to a fine of HK$6,000 and disqualified from holding or obtaining a driving licence for a period of 5 years and ordered to attend a driving improvement course.

2.The appellant pleaded guilty to two counts of employing a person not lawfully employable before Magistrate Mr Lee.  The learned magistrate sentenced him to 15 months’ imprisonment for each count, and ordered that the two sentences be served concurrently.  The appellant appealed against this sentence.

3.In his reasons for sentence, the learned magistrate agreed that three months’ imprisonment should be the appropriate starting point for the charges, and granted bail to the appellant on his own initiative. 

4.At the hearing, he indicated that the appropriate sentence should be two months, after taking into account the appellant’s guilty plea, and one month be served consecutively to the other sentence.

5.This morning, the prosecution has fairly considered that the appropriate sentence should be the one as indicated by the learned magistrate.  Mr Kwong, counsel for the appellant, also agreed.

6.I found the sentence, as indicated by the learned magistrate and agreed by both sides, to be the appropriate sentence, and I order that the appeal on sentence be allowed and the sentence be substituted by a term of two months’ imprisonment for each count, with one month to be served consecutively to the other.

Ms Audrey Parwani, PPof the Department of Justice, for the respondent

Mr Kwong Ki-tack, instructed by Tse and Associates, for the appellant