HKSAR v. YU SUM-FAT TROSON-ZAB

DCCC 204/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 204 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Misconduct in public office". He was a Senior Ambulanceman. He misconducted himself by using dishonest means to avoid being deployed to ambulance duties.

Summary of Facts

Background

2.  The defendant joined the Fire Services Department ("FSD") in May 1987 as an Ambulanceman.  He was promoted to Senior Ambulanceman in December 2008.  During the offence period, he was posted to Lam Tin Ambulance Depot.

3.  FSD maintains a performance pledge that upon acknowledgment of an emergency incident, the Fire Services Communication Centre ("FSCC") will despatch an ambulance to the scene of incident within 12 minutes.  Any ambulanceman who failed to comply must submit a detailed explanation for the failure.  

4.  The crew of an ambulance consists of a Senior Ambulanceman (the Ambulance Supervisor) and 2 Ambulancemen (respectively the Driver and Assistant).

5.  After picking up a patient at the scene of incident, the ambulance crew needs to convey the patient to a nearby hospital and hand him/her over to the medical staff of the Accident & Emergency ("A&E") Department.  Thereafter, the ambulance crew must leave the hospital for their designated depot within 15 minutes.  If there is a genuine need to remain at the hospital for more than 15 minutes, the Ambulance Supervisor needs to seek approval from the Hospital Controller (assigned by FSD to station at each hospital) before the 15-minute time limit expires.

6.  Since 2005, FSD has been using a computer mobilizing system to facilitate accurate and efficient deployment of ambulances.  The system is able to identify, locate and despatch an ambulance to the scene of incident without delay.  As part of the mobilizing system, each ambulance is equipped with the Automatic Vehicle Location System, an On Board Unit ("OBU") and a Mobile Data Terminal ("MDT").

7.  OBU is a device for collecting location information of an ambulance in motion using its Global Positioning System ("GPS") data.  MDT is a touch-screen computer facilitating the retrieval and dissemination of operational information between an ambulance and the FSCC; and transmitting location information collected by OBU.  Based on the location information, FSCC can identify and despatch the most suitable ambulance which is available and located the nearest to the scene of incident.

The Offence

8.  Between 1 September 2013 and 22 January 2014, the defendant had on 204 occasions switched off the OBU of the ambulances he manned, resulting in deactivation of the GPS function of those ambulances.  He did so mostly during the journeys of conveying patients to hospitals.  Furthermore, on those 204 occasions, after handing the patients over to the A&E Departments, the defendant had deliberately input, via the MDT, false locations of his ambulances.  He input locations in remote areas which were far away from any hospital and outside the route to his designated depot(s).

9.  By doing so, staff members of FSCC were misled into believing that the ambulances manned by the defendant were not available for despatch to answer ambulance calls made at areas close to the true locations of his ambulances.

Admissions

10.  Under caution, the defendant admitted that he had switched off the OBU of his ambulances on various occasions between September 2013 and January 2014 in order to avoid applying for approval of overstay from the Hospital Controllers.  He also admitted that he had manually input false locations of his ambulances via the MDT, thereby misleading staff members of FSCC as to the travelling distance (as well as estimated travelling time) between the actual locations of his ambulances and the scenes of incidents.

Mitigation & Sentence

11.  The defendant is 54 and has a clear record.  Defence counsel Mr. IU informed me that the defendant is married with 2 sons.  His wife is a homemaker and the defendant was all along the sole bread winner.  Their eldest son is a university graduate currently working as a management trainee; the young one (aged 19) is still in school.

12.  In mitigation, Mr. IU submitted that there are statistics which show that the defendant did not, as a matter of course, misconduct himself[1] each time when he carried out his duty.  Within the 5-month offence period, although he misconducted himself on 204 occasions, he had certainly carried out his duty more than 204 times.  Furthermore, based on the chart prepared by the prosecution, clearly there were days when the defendant did not commit the misconduct at all.

13.  Mr. IU explained that the defendant would only switch off the GPS function of his ambulances during the journeys to hospitals.  He did so simply to facilitate the inputting of wrong locations after arrival at and before departure from hospitals.  Mr. IU further explained that even if the GPS function was switched off, the defendant, upon arrival at a hospital, still had to physically check in with the Hospital Controller stationed at the A&E Department.  In other words, his ambulances could still be tracked.

14.  Mr. IU submitted that the benefit gained by the defendant was the window (free of despatch calls) between the time when he entered the wrong location via the MDT and the time when he arrived at base.  Again, based on the chart prepared by the prosecution, the majority of those free-of-despatch-call windows were less than 15 minutes.  Mr. IU stressed that the defendant took advantage of those windows to purchase his meals.

15.  Mr. IU also submitted that none of the defendant's subordinates knew about his interference with the GPS function of the ambulances and inputting of wrong locations.  Finally, Mr. IU submitted that but for the present offence, the defendant is expected to retire at the end of this year.  It is likely that he would lose his pension.

16.  A bundle of mitigation documents including letters from the defendant's family members, friends and colleagues as well as departmental commendations were placed before me; their contents are duly noted.

17.  Until the present offence, the defendant had an impeccable record as a citizen and a civil servant.  Mr. IU suggested that perhaps owing to his age (lack of physical strength) and laziness, the defendant resorted to a foolish way to gain a few more minutes of rest.  Fortunately, there is no evidence before me which shows that any person's life was endangered as a result of the defendant's misconduct.  But one can reasonably imagine the catastrophic consequences even if only a few ambulancemen in Hong Kong decided to play the same trick at the same time.  What the defendant did has brought the Fire Services Department into disrepute.  Public confidence in ambulance service must be maintained.

18.  Beeson J has commented in HKSAR v CHOW Koon Shing [2007] 3 HKLRD 10 "An offence of misconduct in public office demands a different perspective and a sentencing range which ensures that perpetrators of such offences are punished in a manner that the public understands and expects. Such sentences should also serve as a warning to others who are tempted to misconduct themselves in a similar fashion." [2]

19.  I am aware of the defendant's service record and his contribution to the society.  It saddens me to see him destroying his career as a paramedic.  I am also aware of all the possible consequences (financial or otherwise) which the defendant and his family may need to face.  It is indeed tragic and sad, but the defendant must shoulder the responsibilities of his wrongdoing.

20.  Comments in the defendant's Community Service Order Report are favourable.  I accept Mr. IU's submission that the defendant's misconduct is far from being the worst of its kind.  Exceptional circumstances clearly exist in the present case.  The defendant's sentence must commensurate with his wrongful conduct.  After careful consideration, I take the view that a Community Service Order is the appropriate punishment in this case.

[Requirements of Community Service Order explained. The defendant understood and is willing to comply.]

I sentence the defendant to 200 hours of Community Service.