Project_LegalText

Date:29/1/2009  Time: around 11:30 pm  Place: Tai Shu Ha Road West in Yuen Long  Case received from reporting centre  Car crash between private car and a light goods vehicle 



After investigation:  Drove to wrong way 

Quick U-turn (around 80-100km/h) Speed limit (50 km/h) 



Lost control of her car

Crashed into a light goods vehicle

Defendant: Lau sin-ting (20, part-time account student)  Victims: 2 deads, 4 injured(including defendant) Yeung Yee-ni (14, dead) Cheung Tsz-kwan(14, dead)  plaintiff : The families of the victims 

ď‚ž Road

Traffic Ordinance Section 36: Causing death by dangerous driving Section 37: Dangerous Driving Section 38: Careless driving Section 41: Driving in excess of speed limit

Court: District Court in Wan Chai  Judge: Judge Esther Toh Lye-ping 



Lau admitted that she had caused

death by dangerous driving on 22/3/2010  Final Sentence on 9/4/2010 been jailed for 10 months 2.5 years driving license suspension

 Lau’s

pleading guilty to causing death by dangerous driving, and showing remorse.  A letter to the judge from Lau never drive again.

 Mitigation

letters from family, secondary school principal, teachers and friends

considered suicide  active in interschool sports and as an antidrug volunteer 

only able to walk slowly

 Judge

Esther Toh Lye-ping send a message to young people speeding is dangerous conduct to indulge in

 Department

of Justice

 represent the government  prosecutes all criminal cases  Civil

Cases

 dispute between parties  Department of Justice can sue or can be

sued

Chapter 374  Heading: Long title  To provide for the regulation of road traffic and the use of vehicles and roads (including private roads) and for other purposes connected therewith. 

With the regulation of road traffic & the use of vehicles and roads (including private roads)

Post-modification of ‘person’ (1) – Action Rule  A person who causes the death of another person by driving a motor vehicle on a road dangerously commits an offence and is liable(a) on conviction on indictment to a fine at level 5 and to imprisonment for 10 years; (Amended 23 of 2008 s. 5) (b) on summary conviction to a fine at level 4 and to imprisonment for 2 years.



summary conviction (簡 易 程 序 定 罪)  means a summary conviction by a magistrate

in accordance with the provisions of the Magistrates Ordinance ( Cap 227)  a less serious offence than indictable offences and for which both the procedure and punishment tends to be less onerous.

(2) – Action Rule Legal Subject

Legal Action Preparatory

the court or magistrate shall order that the person be disqualified

Qualification

If a court or magistrate convicts a person of an offence under subsection(1),

Complex Prepositional Phrases

Referential

in accordance with subsection (2A) or (2B)

Preparatory

unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

(2A) Action Rule Legal Subject

Legal Action Referential

the person

Qualification Subject to subsection (2B),

is to be disqualified Preparatory

(a)in the case of a first conviction, for a period of not less than 2 years; and (b) in the case of a second or subsequent conviction, for a period of not less than 3 years.

Disqualified: Disqualified under this Ordinance from holding or obtaining a driving licence and ‘disqualification’ shall construed accordingly

(3) Action Rule Legal Subject

Legal Action

The court or the magistrate

may deal with the conviction of an offence as a first conviction Preparatory

Qualification

If, as at the date on which the offence was committed, at least 5 years elapsed since the person’s last conviction under subsection (1)

(4) Definition Rule Legal Subject

Legal Action

A person

is to be regarded as driving dangerously

Qualification

Referential

within the meaning of subsection (1)

Preparatory

(a)the way he drives falls far below what would be expected of a competent and careful driver; and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(5) Definition Rule Legal Subject

Legal Action

A person

is also to be regarded as driving dangerously

Qualification

Referential

within the meaning of subsection (1)

Preparatory

if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state would be dangerous.

(6) Definition Rule Legal Subject

Legal Action Operational

"dangerous"

refers to danger either of injury to any person or of serious damage to property.

Qualification For the purposes of subsections (4) and (5),

(7) Action Rule For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case,

Legal Subject

Legal Action

regard

shall be had to all the circumstances of the case including(a) the nature, condition and use of the road concerned at the material time; (b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and (c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

(8) Action Rule Legal Subject

Legal Action

Qualification Operational

regard

may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.

In determining for the purposes of subsection (5) the state of the motor vehicle,

(9) Action Rule Legal Subject

Legal Action

Preparatory

the person charged

shall be acquitted of the offence under subsection (1) and be found guilty of an offence under section 37.

Qualification If on the trial of any person charged with an offence under subsection (1) the prosecution proves that the person charged drove dangerously but not that he caused the death of another person by so driving,

(10) Action Rule Legal Subject

Legal Action

Preparatory

the person charged

Qualification On the trial of any person charged with an offence under subsection (1),

may be acquitted of the offence under subsection (1) and be found guilty of one or more offences under section 38, 39 or 39A.

Provide flexibility for the Department of Justice

(1) Legal Subject

Legal Action

A person who drives a motor vehicle on a road dangerously commits an offence and is liable(a) on conviction on indictment to a fine at level 4 and to imprisonment for 3 years; (b) on summary conviction to a fine at level 3 and to imprisonment for 12 months.

(2) Action Rule Legal Subject

Legal Action Preparatory

If X, then shall do Y Qualification If a court or magistrate convicts a person of an offence under subsection (1),

the court or shall order that magistrate the person be disqualified Referential

in accordance with subsection (2A) or (2B)

Preparatory

unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

(2A) Action Rule Legal Subject

Legal Action Referential

the person

Qualification Subject to subsection (2B),

is to be disqualified-

Preparatory

(a) in the case of a first conviction, for a period of not less than 6 months; and (b) in the case of a second or subsequent conviction, for a period of not less than 18 months.

(1) Action Rule Legal Subject

Legal Action

A person who drives a motor vehicle on a road carelessly

commits an offence and is liable to a fine at level 2 and to imprisonment for 6 months.

(2) Definition Rule Legal Subject

Legal Action

A person

drives carelessly within the meaning of this section Referential Preparatory

Qualification

if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road.

(1) Action Rule Legal Subject

Legal Action

A person who drives a vehicle on a road at a speed exceeding- (Amended 80 of 1988 s. 9) (a) 50 km an hour or such other speed limit as may be in force on that road under section 40; or (b) 70 km an hour as provided for in section 40(5),

commits an offence and is liable to a fine of $4000.

Legal Subject

Legal Action

Preparatory

the court or magistrate

shall order that the person be disqualified

Preparatory

Qualification If(a) a court or magistrate convicts a person of an offence under subsection (1); and (b) it is proved or admitted that, at the time of the offence, the person was driving the vehicle at a speed exceeding the relevant speed limit as described in that subsection by more than 45 km an hour, In accordance with subsection (4) unless the court or magistrate for special reasons orders that he be disqualified for a shorter period or that he not be disqualified.



Precious: no anaphoric devices  Achieve all inclusiveness: binomial  Include all the situations  Definitions/ Interpretation



Sequence 1. Punishment (imprisonment; fine; disqualified)  

Action Rules Qualification for Preparatory Functions

2. Definition  Definition Rules 

Qualification for Referential Functions

No syntactic discontinuities  Sometimes – no qualification 



What would be the appropriate judgment? 

 

Do you agree with the judge’s decision?

What are the factors constituting her decision?

What others factors would you consider?



Law: Justice vs. Humane Rational, logical thinking and reasoning About people



Ordinances differ greatly from the final judgment

'I don't know how much value 'If 10 months is all it is, I fear the judge places on human that people will think they life, given the sentence she can take their car out and kill has handed down,' the people, then just say sorry mother of one of the dead and shift the blame.‘ girls said outside court yesterday.

Toh acknowledged reports that Lau was remorseful and that the incident had affected her mentally and physically.

The court heard earlier that Lau had realised she was driving the wrong way and decided to make a U-turn. She did so at a high speed and lost control of the car.

A Department of Justice spokesman said it would study the prosecutor's case report and the judge's reasons before deciding whether a review of sentence was required.

Everyone has his/her own scale  Reasoning has not been issued  On one hand 

 Kill two young girls

 Careless and dangerous driving  Inconsiderate

   

    

On the other hand No one forced the victims to get into the car Imprisonment for MAXIMUN 10 years First conviction Honest- Accept the charges- save time for judges and police Apologize/ show remorse Suffering from the accident: cannot walk properly Learnt from her mistakes Less chance for recurrence

Ordinances: written & composed with great care  Rare for Syntactic Discontinuity  Some subsections have no qualifications  Extensive consideration for judging a case  Law – ordinance and people 