Driving under the influence and failing to provide a breath sample for alcohol analysis when the alcohol concentration in the body is likely to exceed the prescribed... HCMA 128/2024；[2025] HKCFI 4609

Case overview

• Defendant/Appellant: NG Kit Lung (originally the 1st defendant)

• Charge: Failure to provide a breath specimen for analysis when the alcohol concentration in his body was likely to exceed the prescribed limit (Road Traffic Ordinance, Cap. 374, s.39C(1)(a) and (15))

• Original sentence: Immediate imprisonment for 2 weeks; 2-year disqualification from driving; completion of a Driving Improvement Course within 3 months before the end of the disqualification period

• Scope of appeal: Sentence only

• Appeal outcome: 2-week term maintained but suspended for 2 years; disqualification and course order maintained

Factual highlights

• The appellant drove on the wrong side of the road for about 10 meters and then stopped, blocking a minibus travelling in the correct direction; no collision and no casualties.

• On-site preliminary breath test reading: 93 μg/100 ml (not for evidential use).

• At the police station, the appellant failed on three attempts to provide sufficient evidential breath samples and was charged with “failure to provide a specimen.”

• The appellant pleaded guilty at an early stage; had no criminal or traffic record; had to care alone for four minor children in Hong Kong.

Grounds of appeal and the court’s approach

Grounds 2 (error in finding aggravating factors) and 3 (insufficient consideration of mitigation) were central and accepted; Ground 1 (unsuitable for Community Service Order) was not dealt with.

Key observations by the court:

• Not all “refusal/failure to provide a breath specimen” cases mandate immediate imprisonment (citing SJ v Amina Mariam Bokhary).

• The magistrate’s aggravating findings—“highly dangerous driving attitude,” “wrong-side driving caused by alcohol,” and “inability to take remedial measures”—lacked firm factual basis or were over-inferences:

  • Wrong-side driving was only about 10 meters, the appellant stopped promptly, and there was no near-miss—hard to classify as “highly dangerous.”

  • Whether alcohol caused the wrong-side driving was uncertain; the appellant mainly drove in Mainland China (opposite traffic orientation), which could explain the lane error.

  • No evidence the appellant was incapable of self-correction; the record only shows the second defendant subsequently took over driving.

    
    

    Mitigation must be assessed holistically: early guilty plea, clean record, no accident or damage, very short distance, ability to brake and stop, cooperation at scene with a completed preliminary test, and substantial family responsibilities.

    
    

  Sentencing principles and comparator cases

  
  

• For refusal/failure to provide breath specimens, immediate custody is not automatic; assessment turns on specific facts and culpability.

• Comparator trend: many similar cases ended with fines or suspended sentences; some custodial sentences were varied to suspended on appeal (e.g., HCMA 457/2022; HCMA 120/2015).

• Probation/suspension principle (SJ v Wade Ian Francis, CAAR 1/2025): Unless a category of offence requires “exceptional circumstances” for suspension, courts should consider all offence circumstances and personal factors when deciding whether to suspend.

  
  

  Divergence between the magistrate and the appellate court

  
  

• The magistrate emphasized deterrence against refusal and inferred danger and alcohol influence.

• The appellate court stressed evidential foundations and restrained inference, reaffirmed that this is not a “custody-by-default” offence category, and placed weight on concrete facts (short distance, no accident) and personal circumstances (family responsibilities).

  
  

  Significance and practical takeaways

  
  

• Legal significance:

  • Reaffirms that refusal/failure to provide evidential breath samples is not per se a custody-mandatory category; courts should identify deliberate evasion and serious risk factors before imposing immediate imprisonment.

  • Caution in using non-evidential preliminary breath readings for sentencing; they are not equivalent to proof.

  • Causation between alcohol influence and dangerousness requires solid factual support.

• Practice points (defence):

  • Emphasize no accident, minimal distance, low-risk driving pattern, prompt stop; challenge characterizations of “high danger.”

  • Present stable employment and substantial family responsibilities to support suspension.

  • On-scene cooperation (successful preliminary test) can temper culpability.

• Practice points (prosecution):

  • If urging immediate custody, particularize culpability: clear evasion intent, persistent non-cooperation, near-misses/harm, distance and speed, and complexity of road conditions.

  • Avoid overreliance on speculative inferences (e.g., alcohol necessarily caused the lane error) without objective support.

    
    

  Conclusion

  
  

• This is a failure-to-provide case with no accident, extremely short driving distance, and substantial mitigation. The magistrate over-inferred danger and alcohol influence and did not fully weigh mitigation, leading the appellate court to impose a suspended sentence.

• The outcome balances general deterrence and individualized justice: it preserves a 2-week custodial benchmark to reflect offence seriousness, suspends it for 2 years to match the facts and personal factors, and maintains disqualification and the improvement course in line with road safety policy.

October 2025

Dr. Anthony Lai and Mr. Herbert Kwoon