CRIMINAL CASE NO. 52 OF 2010
COURT: You have been convicted after trial of one count of manslaughter by a majority of five to two, and unanimously of one count of taking a conveyance without authority, one count of dangerous driving and one count of driving with your blood alcohol level exceeding the prescribed limited.
When sentencing you, I am to have regard to the jury’s decisions in order to ascertain the factual basis upon which you are to be sentenced. As it happens, their findings emerge clearly. It was made plain to the jury that, in order for them to convict you of any of the offences, they had to be satisfied, at the relevant time, that you did drive the taxi. That was explained to them in terms as meaning that they had to find that, intentionally, you had set the taxi in motion and thereafter had controlled the direction of it, relying on the use of the driver’s controls.
Clearly, five of them in respect of Count 1 and all of them in respect of the remaining counts were satisfied that that is what you have done. In short, the jury must have been satisfied that KL 9547 was seen to be stationary on the left-hand side of Connaught Road Central, the driver was standing at the open door of the taxi, apparently arguing with you. It moved from that position to its right, across the three other lanes in the eastbound carriageway. It collided with the end of the concrete divider separating the two carriageways and with the fire emergency railings closing the gap in the divider.
The driver at first ran alongside his taxi but then fell and was dragged along the ground and crushed against the concrete divider. After the collision with the railings, the taxi went through them and into the westbound carriageway where two other taxis collided with it and a fourth taxi collided with one of those two taxis.
The manslaughter charge arose from the death of the driver who died as a result of the injuries he sustained when crushed against the concrete divider. A while later, after sitting in the taxi, you set it in motion once more and drove the wrong way along Connaught Road Central and Harcourt Road, resulting in a number of approaching vehicles having to swerve to avoid you and ending in a head-on collision with an oncoming taxi travelling in the correct direction. That conduct gave rise to the remaining charges.
There was unchallenged evidence that your blood alcohol level at the time of these events was not less than 251.5 milligrams per hundred millilitres of blood. That is just over five times the legal limit for driving a motor vehicle. It seems that you told the doctor who treated you at Queen Mary Hospital that you had drunk 10 beers that evening.
I note, for what it may be worth, that a credit card voucher which you signed shortly before 3 am relates to the purchase of two mojitos. The stark figures of your blood alcohol level may be a little difficult to comprehend. The effect, however, clearly can be seen from the video recording and, particularly, the way you behaved after the final collision in Harcourt Road. In ordinary language, you were staggering drunk.
Your condition that night rendered you a very substantial and immediate danger to any other road-users abroad, let alone to the driver of the taxi who tragically died as a consequence of your behaviour. I will never know what you said or did that caused the driver to stop his vehicle, get out of it and then engage in some form of argument with you.
It is unnecessary for me to make any finding as to whether you do suffer from amnesia as you are not obliged to say anything anyway. Whatever it was, plainly, you were aware of his presence when he was arguing with you, yet you, the jury found, intentionally set the taxi in motion and drove off. It beggars belief that you would have been unaware that he was attempting to stop you.
Even after he fell, it must be that you were aware that he was attached to the vehicle because of his cries. They were loud enough for the driver of, and a passenger in, passing taxis to hear from inside their vehicles, yet you continued to drive his taxi.
After he had been brushed off against the concrete divider and you had then driven through the emergency railings, your conduct resulted in three further collisions, two directly involving the taxi you drove, and one between other taxis. Every person who was inside those vehicles was exposed to serious risk.
The point was made in evidence that you plainly were aware of your surroundings and what was going on as you can be seen reacting to the cameraman when he was filming you by giving him the thumbs-up sign. It was after that, that you set the taxi in motion a second time and drove off in it pursued on foot by a police officer, shouting at you to stop.
You drove the taxi into the face of three lanes of oncoming traffic, at night, when the road was slick with rain and it was starting to drizzle. The video clearly shows that a number of vehicles were forced to take evasive action and that, finally, another taxi was unable to avoid your drunken behaviour. The occupants of all those vehicles were exposed to a serious risk of injury. That the final collision had no greater consequences to the driver and passengers in that taxi was fortuitous. Each of these offences is deserving of an immediate custodial sentence, even though you are a first offender.
However, there is one matter which, in my judgment, materially affects sentence and does so in your favour. These events were not what might be thought of as the typical scenario of a person going out, getting drunk, getting into a motor vehicle as the driver, driving the vehicle and then being involved in a collision.
It is self-evident that you started off as a passenger in the taxi. What occurred between you and the driver which set in train these events is unknown. Whatever it was, it resulted in you, in your drunken state, taking control of the taxi and doing so on two separate occasions. That is a real distinction which justifies a lower sentence than otherwise would have been appropriate.
There is a second factor which it is proper for me to take, to some extent, into account in your favour when determining the appropriate sentence. That is that there was a perverse element of fate involved in these events in the sense that the deceased’s arm became entangled with the seatbelt at some stage. But for that, the probabilities are that he would have fallen over and perhaps sustained some lesser injuries, or given up pursuing you and that you simply would have driven off in his taxi, although given your condition, that, in all probability, would have ended in an accident anyway.
It has been said that you are now disturbed by your involvement in the death of the deceased. Of course, you were quite entitled to deny liability and make the prosecution prove each offence. That is not an aggravating feature for the purpose of sentence. But you went further than that. You sought to push the blame onto others. There is a suggestion that it is a mitigating factor that the driver got out of the taxi and left you in it, knowing you were drunk, without switching off the engine, that his conduct contributed in some way to his own death.
The suggestion was also made on your behalf that the ambulanceman who attended you quite possibly set the taxi in motion at the beginning of the second phase and had been less than frank in his evidence in order to cover up his error. It was also suggested that the second series of events would not have occurred had the police and other emergency services personnel not failed in what was described as ‘their duty’ to switch off the engine.
The jury, by its verdicts, resoundingly rejected those allegations, and rightly so, on the evidence. They were baseless and distasteful in the circumstances. Remorse? No. Regret? I think not. Even sorrow at the fact that you were involved in the death of another human being, even if you did believe that you were not responsible for it, I have not seen the slightest indication that that is so.
None of this, however, justifies an enhancement of sentence but what it does mean is that you are not entitled to any reduction in sentence which otherwise might have been available to you had there been a genuine expression of remorse, given that this manslaughter arose from the use of a motor vehicle.
I have had regard to the three appeal judgments to which your counsel has referred me. It seems to me that the point that emerges, which is already well settled, is that, especially when sentencing for manslaughter, the appropriate sentence is fact-sensitive. The facts of which you have been convicted are, by any standard, truly appalling.
I have taken into account what was said in evidence concerning your personal circumstances and your apparent willingness to give up some of your spare time for the benefit of others, but I do not regard them as going so far as to facilitate any reduction in sentence. I am, of course, aware of the fact that you are a young man whose life lies ahead of him and that the period of imprisonment which I impose will interrupt your studies.
I am satisfied that there is no mitigation available to you which would reduce any of the sentences. I have given particularly anxious consideration to the appropriate individual sentences as well as the overall period of imprisonment.
First, disqualification. I am obliged, in terms of sections 37(2) and 39A(2) of the Road Traffic Ordinance which relate to Counts 4 and 5, to disqualify you from driving for certain stipulated minimum periods unless special reasons exist for not doing so. I am also obliged in terms of section 72A(1A) of the same Ordinance to order you to attend and complete a driving improvement course unless special reasons exist for not doing so. It is not suggested on your behalf that any special reasons do exist and I am satisfied that none do.
The purpose of disqualification is to provide a measure of protection to members of the public. That is partly achieved by your imprisonment but, in my judgment, a period beyond that is appropriate.
On each of Counts 4 and 5, I disqualify you from holding or obtaining a licence in Hong Kong to drive a vehicle for a period of 5 years. To avoid any misunderstanding, those periods are to run concurrently with one another. I order you, in respect of Count 4, to attend and complete a driving improvement course. By virtue of the provisions of section 72A(1B), I make no such order in respect of Count 5.
Second, sentence. In respect of Count 1, manslaughter, you are to serve a period of 3 years’ imprisonment. In respect of Count 3, taking a conveyance without authority, you are to serve a period of 12 months’ imprisonment. In respect of Count 4, dangerous driving, you are to serve a period of 18 months’ imprisonment. In respect of Count 5, driving whilst your blood alcohol concentration exceeded the prescribed limit, you are also to serve a period of 18 months’ imprisonment.
As to the question of the total sentence you are to serve, the latter two counts are inextricably interwoven and, plainly, the fact that you were drunk played a major role in the dangerous driving. I consequently direct that those two sentences be served concurrently with one another.
However, those offences arose during what has been referred to as the second phase which was a separate and distinct course of conduct on your part. It is appropriate, therefore, that subject to the principle of totality, they be served consecutively to the sentence on Count 1. you are to serve 1 year of those sentences consecutively to the sentence on Count 1. In addition, 3 months of the sentence on Count 3 is to be served in addition to those sentences.
In aggregate, you will go to gaol for 4 years and 3 months.