香港特別行政區 訴 劉冠健

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[1] 在Secretary for Justice v Lam Siu Tong[2009] 5 HKLRD 601。上訴庭在判詞第19及20段指出︰-

「20….如果在此類型案件，碰撞地點在行人過路處發生，則這是判刑的加刑因素。」

[i] R v Cooksley & Ors: [2003] 3 All ER 40

1.   An immediate custodial sentence will generally be necessary in respect of a person who has been convicted of causing death by dangerous driving. Aggravating factors include:

(a)  consumption of drugs (including legal medication known to cause drowsiness) or alcohol; 

(b)  excessive speed, racing, competitive driving or 'showing off'; 

(c)  disregard of warnings from fellow passengers; 

(d)  a prolonged, persistent, and deliberate course of very bad driving; 

(e)  aggressive driving, eg driving much too close to the vehicle in front, persistent inappropriate attempts to overtake or cutting in after overtaking; 

(f)  driving while unavoidably distracted, eg by reading or by use of a mobile telephone (especially if hand-held); 

(g)  driving when knowingly suffering from a medical condition that significantly impairs driving skills; 

(h)  driving when knowingly deprived of adequate sleep or rest; 

(i)  driving a poorly maintained or dangerously loaded vehicle, especially where that has been motivated by commercial concerns; 

(j)  other offences committed at the same time, eg driving without ever holding a licence, driving while disqualified, driving without insurance, driving while a learner without supervision, taking a vehicle without consent, driving a stolen vehicle; 

(k)  previous convictions for motoring offences, particularly offences involving bad driving or the consumption of excessive alcohol before driving; 

(l)  more than one person killed as a result of the offence, especially if the offender knowingly puts more than one person at risk or the occurrence of multiple death is foreseeable; 

(m)  serious injury to one or more victims in addition to any death(s); 

(n)  behaviour at the time of the offence, eg failing to stop, falsely claiming that one of the victims was responsible for the crash or trying to throw the victim off the bonnet by swerving in order to escape; 

(o)  causing death in the course of dangerous driving in an attempt to avoid detection or apprehension; and 

(p)  committing the offence while on bail.

2.   Mitigating factors include: 

(a)  a good driving record; 

(b)  the absence of previous convictions; 

(c)  a timely plea of guilty; 

(d)  genuine shock or remorse (which may be greater if the victim is either a close relation or a friend); 

(e)  the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence); and 

(f)  the fact that the offender has also been seriously injured as a result of the offence, but only very serious, or life-changing, injury should have a significant effect on the sentence.

3.   In cases where there are no aggravating circumstances, the starting point for adult offenders, even when there is a plea of guilty, is a custodial sentence of perhaps 12 to 18 months, a custodial sentence only being avoidable if there are exceptional mitigating features. A starting point of two to three years is appropriate for an offence involving a momentary dangerous error of judgment or a short period of bad driving but which has been aggravated by an habitually unacceptable standard of driving on the part of the offender (aggravating factors (j) or (k)), by the death of more than one victim or serious injury to other victims (aggravating factors (l) and (m)) or by the offender's irresponsible behaviour at the time of the offence (aggravating factors (n) to (p)). It is possible to foresee circumstances, particularly where more than one of those aggravating factors are present, where five years may be appropriate. When the standard of the offender's driving is more highly dangerous (as indicated, for example, by the presence of one or two of aggravating factors (a) to (i)), a sentence of four to five years is the starting point in a contested case. For contested cases involving an extremely high level of culpability on the offender's part, the starting point is six years.