HKSAR v. CHAN YING KEUNG ANDY

CACC 356/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 356 OF 2009

(ON APPEAL FROM DCCC 40 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.  On 29 June 2008 at about 4:15 pm, a serious traffic accident occurred in Central. A tourist bus (KW 9059), with 50 passengers on board, lost control at Garden Road as it was coming down from Magazine Gap Road due to brake failure. It collided with eight other vehicles (five taxis and three private cars) and struck four pedestrians who had been standing on a safety island waiting to cross Garden Road towards the Peak Tram Station before crashing into the wall of the Central Government Office East Wing at the junction of Garden Road and Lower Albert Road.

2.  Of the four unfortunate pedestrians, one, a 15 year-old girl, was killed instantly due to head injuries; one was discharged after treatment for minor injuries; one was hospitalized for 3 days and one was hospitalized for almost two months for injuries to her face, left shoulder and left hip.

3.  Of the 50 passengers on board KW 9059, 37 were injured and three of them quite seriously resulting in periods of hospitalization of three to fourteen days. Ten drivers and passengers of the eight vehicles struck by KW 9059 were also injured, four quite seriously and they had to be hospitalized for periods up to six weeks. Some of the injured persons continued to receive treatment after their discharge from hospital. All the vehicles involved were very badly damaged.

4.  The applicant, Chan Ying Keung Andy, was the driver of KW 9059, and he was also injured. The prosecution alleged that the accident was the result of the applicant’s act or omission constituting dangerous driving.

5.  On 5 October 2009, the applicant appeared before Deputy District Court Judge Casewell for sentence, having pleaded guilty, on 21 September 2009, to the charge of dangerous driving causing death.

6.  The judge adopted a four-year starting point when the maximum sentence for the offence was then five years, and reduced it by one-third to 32 months’ imprisonment on account of the guilty plea. The judge also disqualified the applicant from driving for four years.

7.  The applicant sought leave to appeal against the 32-month sentence. On 2 March 2010, Cheung JA dismissed his application, and the applicant now renews his application before us.

Background Facts

8.  KW 9059 was one of three buses engaged by an Incorporated Owners Association for a one-day sightseeing tour for its residents, including a stop at the Peak. The tour started at 8 am and the buses left the Peak shortly before 4 pm, heading to the Western District.

9.  At the junction of Peak Road and Magazine Gap Road, instead of turning right along Peak Road towards Stubbs Road as the first bus in the convoy did, the applicant turned left into Magazine Gap Road, telling the passengers that it was a short cut.

10.  KW 9059, being a vehicle of over three tonnes, was not allowed to use Magazine Gap Road and the ban has been in force for a considerable period, as the road is narrow, long and winding with a steep gradient. There are two prominent road signs at the junction of Peak Road and Magazine Gap Road, informing drivers of the ban.

11.  Magazine Gap Road leads to Garden Road, which then leads down to Queen’s Road Central. When KW 9059 reached that part of Garden Road near MacDonnell Road, the applicant and the passengers heard the brake alarm sound. The applicant realized that his bus no longer had any braking capacity and he told the passengers to hold on.

12.  At that point, the applicant had lost effective control of the bus as it crashed down Garden Road and only stopped by the wall of the Central Government Office East Wing at the junction of Lower Albert Road and Garden Road.

13.  The applicant claimed not to have noticed the road sign warning of the ban on taking 3-tonne vehicles down Magazine Gap Road. He did, however, admit that he had taken a route different to the other buses in the convoy when coming down from the Peak.

The Braking System and the Cause of the Brake Failure

14.  KW 9059 was equipped with drum brakes operated on a compressed air brake system, an exhaust brake and a parking brake. The braking system was in good working order with no pre-existing mechanical defects.

15.  When the driver depressed the brake pedal, the compressed air in the brake lines would flow to the brake pump and activate the brakes. The repeated use of the drum brakes, especially when the bus was going downhill, would cause the air pressure to fall gradually and when the pressure reached “5” and below, represented by the red zone on the air pressure gauge on the dashboard in front of the driver, the alarm would sound to alert the driver that there was insufficient air in the braking system.

16.  According to the expert, when the alarm sounded, the driver should stop the bus immediately or risked a failure of brakes. When the bus was stationary, the driver could use the engine to build up/restore the air pressure to a level over “5”.

17.  At the time of the accident, the air pressure, according to the air pressure gauge, was below level “5”, at between levels “3” and “4”.

18.  The exhaust brake could relieve partially the burden on the drum brakes and it could be quite effective when the bus was going down slope for a long distance, particularly when the low gear was engaged.

19.  The expert took the viewthat the appropriate gear for KW 9059 to engage at the material time was 2^nd gear, but it was left in 3^rd gear after the accident according to facts admitted by the applicant.

20.  The Government Chemist opined that the brakes of KW 9059 had failed due to “brake fade”. Brake fade occurred because the applicant had applied brakes inappropriately in a continuous and prolonged fashion when driving the fully loaded bus down Magazine Gap Road.

21.  According to the expert, the applicant should not have taken Magazine Gap Road to go down hill and having wrongly taken the route, he should have taken all necessary steps to ensure there was sufficient compressed air in the braking system to avoid any “brake fade”, including the use of the “exhaust brake” to reduce the burden on the drum brakes.

22.  The applicant accepted the experts’ views and there was no dispute that what the applicant did and/or failed to do constituted dangerous driving.

The Judge’s Approach

23.  The judge referred to the sentiment as expressed in SJ v Poon Wing Kay [2001] 1 HKLRD 660, including inter alias:

“ 1. In most cases of dangerous driving, it will be obvious to the offenderthat his driving was dangerous and he therefore deserves to be punished accordingly.

2. Where death results from dangerous driving, it is obvious that gravedistress will be caused to the family of the deceased;

3. It is important for the courts to drive home the message that there may be extremely grave consequences flowing from acts of dangerous driving and it is necessary to have in mind a deterrent effect when sentencing, as motor vehicles can kill or maim;

4. While a list can be drawn up of aggravating and mitigating factors, the Court must look at the overall circumstances and overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor. Heavier sentences can be justified where there is a selfish regard to the safety of other road users or passengers or a degree of recklessness;

5. One must not overlook that an innocent life has been taken away as a result of an act or omission that could or should have been avoided;

6.         Dangerous driving invariably involves the taking of a risk or risks andthe courts will not show leniency to any driver who had endangered the lives and safety of other road users.”

24.  The judge doubted the applicant’s suggestion that he did not see and was unaware of the road sign warning of the ban, pointing out that he actually told the passengers that he was taking a short cut and was aware that his colleagues had taken a different, but safer route.

25.  In any event, the judge took the view that it was obvious that Magazine Gap Road was not suitable for any large vehicle when the frequent braking would put heavy demands on the braking system and the risk of brake failure must have been quite clear.

26.  The judge also doubted the applicant’s suggestion that he did not know enough about the exhaust brake, but thought that it was used only when the normal braking system was not working.

27.  The judge took the view that the applicant should stop the bus to restore the air pressure when clearly the air pressure was depleting at a fast rate.

28.  The judge considered that the applicant’s conduct more serious than that of a person driving a vehicle through a red light as he had made a bad decision and had failed to mitigate its effects. The judge took the view that the case was not just an instant of dangerous driving, but a consistent course of dangerous driving, leading to catastrophic effects in terms of death and injuries to people and damages to properties.

29.  The judge also mentioned the recent increase of the maximum sentence from 5 years to 10 years for the offence of dangerous driving causing death.

30.  The judge adopted a starting point of 4 years, pointing out that a bus driver who drives through a red light killing a person can expect a sentence of up to 36 months’ imprisonment. The judge reduced the sentence by one-third to 32 months on account of the guilty plea.

Grounds of Appeal

31.  In his written application, the applicant pointed out that he had been holding a driving license for 15 years without any serious traffic accidents. He said he was extremely remorseful and, having had discussion with his family members and lawyers, considered the sentence too heavy.

32.  The applicant tells us, in his oral submission, what he considers to be the causes of the accident. He says it was just a temporary arrangement for him to drive KW 9059 when he was not familiar with the road conditions on Hong Kong Island. He says he only accepted the task at his boss’s insistence to help a friend when he normally only drove a smaller van in Kowloon. He says he was only relying on a map, as he did not know the roads in Hong Kong well.

33.  Contrary to the admitted facts, the applicant says he was always engaged in 2^nd gear when coming down from the Peak and when he noticed the leading coach in the convoy taking another route at a junction, he thought that it had taken a wrong route.

34.  The applicant claims that he had taken particular caution when driving KW 9059 although he ended up taking a wrong road down Magazine Gap Road. He emphasizes that he had taken every possible step to try to stop KW 9059 and that the accident was just the result of a momentary carelessness when he failed to notice the road signs banning vehicles of over three tonnes from using Magazine Gap Road. The applicant says that he did attempt to use the “exhaust brake”.

35.  The applicant repeats the suggestion that he is very remorseful and asks to be given a chance to look after his 62-year old mother who is sick and requires assistance.

Discussion

36.  The offence of dangerous driving causing death imposes serious difficulty for sentencers. The court is not dealing with criminals, but normally law-abiding drivers, who, apart from their involvement in the offence which resulted in death, can be individuals who would not otherwise dream of committing a crime. However, their irresponsible driving attitude had led to extremely serious consequences, including death to innocent people and grave distress to their families, albeit they did not intend to cause any such death or serious injury.

37.  We have to say this is a very bad case of dangerous driving causing death.

38.  Despite what the applicant tells us, the admitted facts show that he had driven this particular bus on previous occasions and that he took a route that he knew or should know would be dangerous, telling his passengers that he was taking a shortcut. He must have realized the danger involved. In the course of coming down the steep down slope of the long and winding Magazine Gap Road, the applicant had failed to use the “exhaust brake” to relieve the obvious risk of over-burdening the drum brakes. When the bus was coming down Garden Road before the accident occurred, the applicant inappropriately used the 3^rd gear instead of the 2^nd gear.

39.  The applicant’s suggestion that it was the firemen who changed the gear to the 3^rd gear when trying to release him from KW 9059 and that the pressure alarm only sounded after the brake failure was not related to the judge by his counsel. We find it difficult to accept his suggestion.

40.  It was inevitable that the applicant had to apply the brakes frequently and continuously in a prolonged fashion when driving down Magazine Gap Road, yet he took no evasive action despite the alarm onset by the insufficient air pressure in the barking system by simply stopping the bus to allow the air pressure to restore.

41.  It must be remembered that there were 50 passengers on board KW 9059 and what the applicant did and/or failed to do was risking the lives of a large number of passengers.

42.  A number of aggravating factors identified by Lord Woolf CJ in R v Cooksley & Others [2003] 3 All ER existed and the applicant was guilty of highly culpable standard of driving at the time of the offence. What the applicant did was a prolonged, persistent and deliberate course of very bad driving with willful disregard to the alarm onset by the insufficient air in the braking system.

43.  Also, we cannot ignore the catastrophic consequences of the accident. Apart from killing one pedestrian, the accident had caused injuries to 47 other people, some quite seriously. There were also serious damages to a large number of vehicles.

44.  For dangerous driving, the much heavier sentence which can be imposed where death results as compared with those cases where death does not result indicates that the legislation regarded the consequences of dangerous driving as being a relevant sentencing consideration. The fact that dangerous driving has led to a more serious consequence in itself can justify a heavier sentence.

45.  Human life cannot be restored and no prison sentence imposed on the offender can reconcile the families of the deceased and the injured victims to their loss, nor will it cure their anguish. However, the court must try to drive home the clear message that dangerous driving on the road can lead to serious danger in term of death and personal injuries as well as damages to properties and that drivers must appreciate the gravity of the consequences which can flow from their irresponsible manner of driving.

46.  Motor vehicles can be extremely lethal if they are not properly driven and it must be stressed, as a means of deterrence, that if as a result of dangerous driving a person is killed, the driver should expect a substantial custodial sentence because of the gravity of the offence.

47.  We have considered the facts of the case carefully. The four-year starting point adopted by the judge, given the maximum sentence then available, can hardly be said to be manifestly excessive. The judge did reduce the sentence by one-third on account of the guilty plea.  The judge was right also to impose a disqualification period of four years.

48.  We dismiss the application for leave to appeal against sentence.