HKSAR v. EBERT ROBERT JAMES

DCCC 990/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 990 OF 2015

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Reasons for Sentence

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1.   I convicted Mr Ebert after trial of one charge of dangerous driving causing death.

2.   I will not repeat the facts of the case, they are dealt with at length in my verdict.

3.   I found the defendant drove dangerously on an unnamed road under Kowloon Station and “The Waterfront” housing complex into a sharp corner.  I found he drove at excessive speed and did not slow down enough into the corner and drove across the corner, misjudging it.  The vehicle hit the curb at an undisputed speed of 70 kilometres per hour.  The nearside front wheel was significantly damaged causing the vehicle to career into the car park entrance immediately to the left of the corner and that curb.  The vehicle hit every object in its path including a wall and, sadly, the car park security guard, the deceased.   The victim died some hours later in hospital.

4.   The defence raised the question of a mechanical fault.  The defendant told a witness at the scene and the police under caution that his brakes failed before he reached the corner.  I heard evidence from three prosecution expert witnesses and from three defence expert witnesses. 

5.   I was satisfied beyond reasonable doubt there was no evidence of a brake failure or mechanical fault that led to the accident.  I found the defendant’s manner of driving, when considered objectively, fell far below what would be expected of a competent and careful driver.  It would have been obvious to that same driver that the defendant’s manner of driving on that road and into the corner would be dangerous.

6.   I accept the costs of prosecuting this case would have been exacerbated by the fact overseas witnesses were required to be called, but there is no costs application from the prosecution.  It would not be appropriate for me to consider those costs relevant to the sentence I will impose.

7.   I have heard mitigation in full.  Mr Ebert is now 49 years old.  He has a clear record and no traffic record.  He has been a driver for 30 plus years, with experience of powerful high performance vehicles.  He has been in the financial industry for over 30 years and extremely successful.  He has worked in London, New York and Japan and for the past five years in Hong Kong.  He recently resigned as the head of Asian equities of a prominent investment bank.

8.   He has a daughter at university from his first marriage; she is now 20 years old.  The defendant has remarried and his present wife has been in court every minute of this trial supporting the defendant. His elderly parents lived in London but his mother, sadly, passed away only one month ago.  I have been told they were a very close family.  His entire immediate family rely on the defendant financially.  I have been told today in mitigation that his wife is not in good health.  I have seen medical reports that relate to her health condition. 

9.   I have also had six letters of good character submitted in mitigation.  The description by Mr Plowman that they are powerful character references is a fair description.  The common thread amongst these letters is that the defendant has a generous and charitable nature; he is fully committed to helping others less privileged.  He is heavily and personally involved in the Angus Lawson Memorial Trust aimed at mitigating the suffering of marginalised children globally.  According to the letter from Mr. Lawson, this charity has helped with 91 global projects helping nearly one million children. 

10.   The defendant is also a generous donor of the charity “Room to Read” which focuses on education for economically disadvantaged children in Asia and Africa.  He has been described as passionate in his desire to help children.  Locally in Hong Kong, he financially supports the charity “Mother’s Choice”.  In total, his donations have run into millions of Hong Kong dollars. 

11.   The letters come from longstanding colleagues and friends who all stress the defendant is an upstanding, honest, kind man who has worked very hard to get to where he is now and has a reputation of not only integrity but responsibility.

12.   I have read all six letters carefully and taken their contents into account.   All six character references have spoken to the defendant about this accident and all describe the emotional impact on him and describe his deep remorse as being sincere.  Life-changing consequences of this accident will remain with Mr Ebert forever.  The family of the deceased likewise have had their lives changed forever. 

13.   This offence carries a maximum penalty of 10 years’ imprisonment.  This was in 2008, raised from 5 years to 10 years. That increase was to reflect the seriousness of this offence and emphasise the importance of a deterrent effect when sentencing cases involving dangerous driving. 

14.   The sentence for this offence depends on the culpability of the driver.  Culpability is the basis of any sentencing exercise.  I often refer to the authority of HKSAR v Chan Ying Keung CACC 356/2009 and it was quoted to me this morning by Mr Plowman in mitigation.  He also quoted from the authority of Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318 from paragraph 34 at page 326. 

15.   Sentencing this offence is difficult. The defendant is not a criminal.  However, the moment of irresponsible driving here has led to a death and grave distress to the family and friends of the deceased.  I accept this was never the intention of the defendant which makes the sentencing exercise difficult.

16.   In England, the leading case for dangerous driving is R v Cooksley [2003] 3 All ER 40.  This has provided extensive guidelines.  In Hong Kong, in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 610, the court agreed with the approach taken in the Cooksley authority.  That authority finds that even where there are no aggravating factors, a term of imprisonment is inevitable, starting from a 12 to 18 months’ starting point.  This would increase and progress as culpability becomes more serious, progressing through to intermediary culpability where 2 to 3 years was deemed appropriate, to a higher culpability and, lastly, to a most serious culpability with starting point increasing as culpability increases.

17.   Clearly, there is one aggravating factor that exists in this case listed in the Cooksley authority and that is one of an excessive speed.  At the same time defence point out there are several mitigating factors that are set out in Cooksley that exist here.  Firstly, the defendant’s excellent driving record for the past 30 years; secondly, his clear record; and thirdly, his genuine shock and remorse which I accept the defendant feels.

18.   I have taken into account the authorities of other cases submitted by the prosecution and the range of sentences imposed and upheld.  I agree with Mr Plowman that each sentence must be considered separately and confined to the facts and the mitigation unique to that case. It is not very helpful to compare sentences of other cases during the sentencing exercise.

19.   In mitigation, I have heard all that can be said on behalf of Mr Ebert and the salient points have been stressed.  I accept the defendant’s conviction means a significant fall from grace.  I accept the six character references are powerful and compelling.  I accept the accident was a serious and momentary error of judgment.  This makes the defendant guilty of the lesser culpable scenario as outlined by the Cooksley authority. He suffered a momentary lapse of judgment as opposed to the more serious culpable scenario of choosing to disregard the safety of other road users when driving in a particular manner.  However, speed is, as I have just said, an aggravating factor that does exist.

20.   Lastly, I also take into account the facts of the case that I have found proved and the grave consequence of that mistake was a loss of death.

21.   Mr Ebert, please stand up.

22.   Taking all of these relevant factors, my findings and mitigation I have heard today into account as well as the Cooksley guidelines, I find a starting point of 21 months appropriate.  You have been convicted after trial, there is no reason to apply any discount to that starting point.  For this offence, you are sentenced to 21 months’ imprisonment.