c. The Court’s attitude
The sentence to be imposed by the Court would largely depend on the facts of each individual case. While facts may differ from case to case, the following words by the Honourable Mr. Justice Ma (now the Chief Justice of the Court of Final Appeal) can probably serve as a an illustrative guide to the Court’s attitude towards sentencing in dangerous driving cases:
“In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly. This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light…In assessing the overall seriousness of a crime, culpability is often the dominant factor. It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.…One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians) or with a degree of recklessness.” (Court of Appeal Review Case No.2 of 2006)
In this same case, the Honourable Mr. Justice Ma also expressly approved certain aggravating factors as laid down in the UK case of R v Cooksley (2003):
- consumption of drugs (including legal medication known to cause drowsiness) or alcohol;
- excessive speed, racing, competitive driving or “showing off”;
- disregard of warnings from fellow passengers;
- a prolonged, persistent, and deliberate course of very bad driving;
- aggressive driving, e.g. driving much too close to the vehicle in front, persistent inappropriate attempts to overtake or cutting in after overtaking;
- driving while unavoidably distracted, e.g. by reading or by use of a mobile telephone (especially if hand-held);
- driving when knowingly suffering from a medical condition that significantly impairs driving skills;
- driving when knowingly deprived of adequate sleep or rest;
- driving a poorly maintained or dangerously loaded vehicle, especially where that has been motivated by commercial concerns;
- other offences committed at the same time, e.g. 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;
- previous convictions for motoring offences, particularly offences involving bad driving or the consumption of excessive alcohol before driving;
- 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;
- serious injury to one or more victims in addition to any death(s);
- behaviour at the time of the offence, e.g. 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;
- causing death in the course of dangerous driving in an attempt to avoid detection or apprehension; and
- committing the offence while on bail.
Therefore, in cases where the Court finds any of the above aggravating factors, the Court will not hesitate to impose an immediate custodial sentence, even when there is no serious injury or death. The rationale is: citizens have to be protected from drivers whose way of driving poses a great risk of dire or even tragic consequences.
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