A public official causes a fatal accident: how is he to be exempt from liability?

1. Punishment out of proportion to the offence

On the law as it stands, Mao Zhiyao drove a motor vehicle while drunk and caused a death, and is suspected of two offences. First, causing a traffic accident. Article 133 of the Criminal Law of the People's Republic of China sets three sentencing bands for that offence: a person who violates the regulations on the management of traffic and transport and thereby causes a major accident, causing serious injury or death or heavy losses to public or private property, is sentenced to fixed-term imprisonment of not more than three years or to criminal detention; a person who escapes after causing the accident or whose case involves other especially flagrant circumstances is sentenced to fixed-term imprisonment of not less than three and not more than seven years; and a person whose escape causes death is sentenced to fixed-term imprisonment of not less than seven years. The Interpretation of the Supreme People's Court on Several Issues concerning the Specific Application of Law in the Trial of Criminal Cases of Causing Traffic Accidents likewise provides that where one person dies or three or more are seriously injured and the driver bears all or the main responsibility, the offence is made out and the penalty is fixed-term imprisonment of not more than three years or criminal detention. The offence is one of negligence, the wrongfulness of the offender is relatively slight, and the point is to make good the victim's loss, so the penalty prescribed is generally below three years. Second, dangerous driving. Under the law, a person who drives a motor vehicle while drunk may be sentenced to criminal detention and fined.

It cannot be denied that Mao surrendered himself, which is a sentencing factor. The law provides, however, that voluntary surrender "may" be punished more leniently or with a reduced penalty, not that it "shall" be, and the judge's discretion must be exercised in the light of the case. Here the offender was a public servant who drove drunk, disregarding both the regulations and party discipline and producing a fatal result, so whether leniency or a reduction was appropriate is open to question. His active compensation of the victim and the forgiveness he obtained may likewise be taken into account in mitigation, but under the Sentencing Guidelines of the Supreme People's Court for Common Offences the reduction may not exceed 40 per cent of the baseline sentence, and cannot amount to complete exemption from criminal punishment. The court's judgment broke through the statutory minimum and appears too lenient, so that the punishment does not fit the offence.

2. A small thing lost, a great thing lost with it

For many years drink-driving and drunk-driving have been among the worst problems in Chinese road safety, and in 2011 Amendment (VIII) to the Criminal Law of the People's Republic of China brought drink-driving within the criminal law. In May 2011 the well-known musician Gao Xiaosong drove drunk and rear-ended another vehicle, and was sentenced to six months' criminal detention for dangerous driving; the court's firm judgment fired the first shot for the new law. Lang Yongchun, formerly a well-known anchor on CCTV, was likewise detained for drunk-driving after causing an accident in October 2017 and sentenced to three months, a case that also drew attention at the time.

Eight years on, severe punishment of drink-driving and drunk-driving seems to have become a social consensus. Whoever the offender, drunk-driving is punished as it deserves, which both demonstrates the fairness and justice of the judiciary and closes off any possibility of a trade between money and power. The Mao Zhiyao case has therefore unsettled a settled public view: a public servant caused a death by drunk-driving and yet escaped criminal punishment, while Gao Xiaosong and Lang Yongchun, who caused no death, could not escape criminal sanction at all. Why Mao was shown mercy outside the law, the reasons are not known. The exposure of the case has not only gravely damaged the image of the judiciary but may undo the social climate built up over many years.

In response to the strong public reaction and the doubts hanging over the case, the Longxi county people's court has begun a special review, in the hope that the court's internal system for managing adjudication will establish the facts, give the public the truth and give them a more convincing answer. But why a just judgment was not given at the time is the question the court should answer. The judiciary must never be pushed along by public opinion; it should hold to the bottom line of fairness and justice and uphold the authority of the law in every case.