HKSAR v. NG KIM WING

DCCC 903/2018

[2019] HKDC 319

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 903 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty on 31 December 2018 to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1]. This is a serious offence for which the maximum penalty is 7 years’ imprisonment.

2.  In the early hours of 30 November 2017, the defendant, a public bus driver, was driving a double decker bus, PD 7770, on route N31 from the Airport to Tsuen Wan when he collided with the rear of a medium goods vehicle resulting in injury to the driver of the medium goods vehicle and seventeen passengers on the bus. 

3.  Sentence was initially adjourned to 20 February 2019 for update medical reports. Sentence was further adjourned to today for preparation of a psychological report on the defendant. 

4.  Full particulars of the offence are set out in the facts admitted by the defendant on 31 December 2018.  At around 4:45 a.m. Mr So Keung Shing, the driver of the medium goods vehicle FH 6162, was travelling along the North Lantau Highway.  The North Lantau Highway is a dual-carriageway with three lanes on each side and a hard shoulder on the left.  When Mr So began to feel dizzy he stopped his vehicle to take a rest.  Mr So parked the vehicle on the hard shoulder and turned on the hazard lights. 

5.  At the time the sky was dark with sufficient street lighting.  The traffic flow was light. 

6.  Around ten minutes later the bus suddenly crashed into the rear of the medium goods vehicle, pushing the medium goods vehicle forward around 50 meters before coming to a complete stop.  Photographs showing the scene of the accident and the damage to the two vehicles have been submitted to court.

7.  Prior to the accident passengers on the bus noticed the bus suddenly swerve to the left for 1-2 seconds and then back into its own lane.  Just before the accident the bus again swerved to the left and collided with the rear of the medium goods vehicle.  The defendant did not brake or steer to avoid the collision or sound the horn before the accident. 

8.  Mr So was trapped inside his vehicle and two passengers were trapped on the upper deck of the bus.  The Fire Services Department rescued Mr So and the two passengers, Mr Mown and Mr Mak.  Mr So, Mr Mown and Mr Mak sustained serious injuries.  Fifteen other passengers on the bus were also injured, two seriously, Mr Lee and Mr Yip.     

9.  The bus and the medium goods vehicle were examined and both were found to have no mechanical defects. 

Mitigation

10.  In passing sentence, I take into account everything said on behalf of the defendant by Mr Wong together with the mitigation letters from the defendant’s wife, his daughter, siblings and friends, all speaking very highly of the defendant both as a family man and as a friend[2]. The family and friends have also come to court to lend their support to the defendant.

11.  I take into account the defendant, aged 58, has both a clear criminal record and traffic record.  The defendant has been a driver for over thirty-three years and a bus driver for over twenty years. 

Dangerous Driving

12.  In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[3].  These factors were revised in R v Cooksley[4]. 

13.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another[5] emphasised that a sentencing court must look at the overall circumstances and the overall culpability of the offender.  

14.  I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving[6].  This principle was repeated in Secretary for Justice v Lau Sin Ting where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[7].

15.  In Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has been adopted in Hong Kong[8].

16.  Mr Wong informs the court that the collision occurred because the defendant fell asleep.  Mr Wong explains that the defendant was deprived of sufficient sleep because he worked the night shift, starting at midnight and finishing at 8:30 a.m. and when he came home he needed to visit his wife in hospital.

17.  In March 2016 the defendant’s wife was diagnosed with cancer[9].  In October 2017 the wife fell at home.  The wife was admitted to hospital where her condition worsened.  While in hospital the wife kept calling the police believing she was being held captive.  The cancer had spread to the brain.

18.  In mid-November 2017 the defendant’s wife was transferred from Princess Margaret Hospital to Wong Tai Sin Hospital for rehabilitation.  The defendant would pay daily visits to his wife between 4-8 p.m. and then go to work.  After finishing work at 8 a.m. the defendant would return home and sleep for 2-3 hours.  The defendant would wake up at around 12 noon and prepare some food and then go to the hospital to see his wife. 

19.  The deterioration in the wife’s condition is set out in the letters from the wife (letter 1) and the daughter (letter 2) which describe the effect of the wife’s illness on the defendant. 

20.  After the wife was discharged from hospital in January 2018 the defendant continued to look after his wife who was now bed bound and required constant care and attention[10].The defendant was told about treatment which might help his wife but would cost about $40,000-50,000 per month, money the defendant could hardly afford, earning only $30,000 per month.  Worries over money added to the stress the defendant was under in looking after his wife[11]. 

21.  The defendant arranged for his wife to try the treatment which started in December 2017 and proved helpful[12]. The wife however relapsed in December 2018 and was again hospitalised.  Sadly, the wife passed away on 26 January 2019. 

22.  Without trying to excuse what happened Mr Wong asks that the court assesses the defendant’s culpability in light of these mitigating circumstances.

23.  Driving while knowingly deprived of adequate sleep or rest is evidence of a highly culpable standard of driving, in particular where the driver is a public bus driver who thereby puts at risk the lives of all passengers. 

24.  Mr Wong submits that the defendant did not knowingly fall asleep.  I reject this submission.  Sleeping for only 2-3 hours per day the defendant clearly knew he was deprived of sufficient sleep.  Whilst understandably the defendant cared for his wife, as a public bus driver he should also have considered the safety of his passengers. 

25.  Shortly before the collision the defendant swerved to the left before moving back into his own lane.  This alone was a sufficient warning to stop and rest before continuing.  To continue driving was obviously very dangerous[13].

26.  I am satisfied by falling asleep while driving a public bus thereby endangering the lives of all the passengers, the defendant’s driving falls into the category of higher culpability.     

27.  Without blaming Mr So, Mr Wong submits that the accident was partly caused by Mr So stopping the medium goods vehicle on the hard shoulder, the Road Users Code prohibiting parking and stopping on the hard shoulder. 

28.  I have no hesitation in rejecting the submission that Mr So contributed to the collision by stopping on the hard shoulder.  The hard shoulder is for emergency use.  Mr So had stopped because he felt dizzy.  To drive on would have been dangerous. 

29.  Mr So put on the hazard lights.  There was sufficient street lighting.  Photographs show the North Lantau Highway is a straight road[14].  The medium goods vehicle would have been clearly visible.  The defendant feeling sleepy likewise should have stopped for a short rest.  The accident happened only because the defendant fell asleep while driving. 

Injuries

30.  In HKSAR v Lui Chung Takthe Court of Appeal said that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence[15]. 

31.  In my view this is one such case where the injuries do have an impact on sentence with injury to the driver of the medium goods vehicle and seventeen passengers on the bus, four passengers with injuries I am satisfied amount to grievous bodily harm. 

Mr So

32.  Mr So suffered from right inferior orbital wall and lamina papyracea fractures without muscle entrapment; fractures of the lumbar vertebra; fractures of four ribs and left shoulder dislocation.  

33.  Mr So’s injuries were treated conservatively and his condition improved.  Mr So was discharged from hospital on 13 December 2017.    Mr So has attended regular follow-up.  When Mr So was last seen in May 2018 the anterior and posterior segments of both eyes were unremarkable and his back pain had improved.   Mr So refused surgical repair of his right eye.

34.  Mr Ho informs the court that Mr So has regained full mobility but has not yet resumed work and was granted sick leave until the end of May 2019[16].

Mr Mown

35.  Mr Mown suffered from a 3 cm laceration on the right side of his head; a 10 cm laceration over his scalp and a 15 cm open wound over his shin.  The neck, two ribs, the spine and the spleen were also fractured.  Mr Mown was admitted to the intensive care unit for surgery and halo ring application for traction reduction of the neck injury. 

36.  On 2 December 2017 Mr Mown was transferred to orthopaedic ward.  Halo-body jacket was applied on 13 December 2017 and walking exercises started.  Mr Mown was discharged from hospital on 29 December 2017 when his condition was stable. 

37.  Mr Mown has attended regular follow-up.  In January 2018 Mr Mown complained of swelling over his right shoulder.  CT scan revealed dislocation of the shoulder. 

38.  In March 2018 CT scan showed fracture healing and the halo-jacket was removed and switched to external brace.  In June 2018 the neck fracture had healed and the external brace was removed.  Mr Mown still complained of shoulder injury and was referred to physiotherapy. 

39.  Mr Mown was last seen in December 2018 when he still suffered from stiffness over the neck and right shoulder.  Mr Mown continues to receive physiotherapy and occupational therapy. 

40.  Mr Ho informs the court that Mr Mown has also regained full mobility.  Mr Mown however has not returned to work and has been granted sick leave until 12 April 2019[17].

Mr Mak

41.  Mr Mak sustained a 5 cm laceration over the left eyebrow; fracture of the left orbit with multiple corneal lacerations and ruptured eyeball; fracture of the left hip and spine and minor spleen injury. 

42.  Mr Mak was managed with neck collar for protection of the neck.  On 1 December 2017 left eye exploration and repair of ruptured eyeball was performed.  On 8 December 2017 Mr Mak was transferred to the Department of Orthopaedics and Traumatology.   The fractures were treated non-operatively.  Mr Mak started non-weight bearing walking exercises and after six weeks commenced full weight bearing exercises.     

43.  On 14 December 2017 Mr Mak was transferred for rehabilitation to Caritas Medical Centre where he stayed until 5 January 2018.  On discharge Mr Mak was able to walk with a rollator for eight meters and was prescribed soft neck collar for his neck pain.   

44.   Mr Mak has attended regular follow-up.  The soft neck collar was removed on 13 February 2018.  By June 2018 Mr Mak was able to walk with the assistance of two elbow crutches. On his last follow-up on 30 October 2018 Mr Mak was able to walk unaided for thirty minutes.  Mr Mak still complained of residual left hip pain and stiffness.  X-ray showed that the fracture healed with good alignment. 

45.  Mr Ho informs the court that Mr Mak is able to walk again but complains of blurred vision in his left eye.  Mr Mak is awaiting corneal replacement surgery.   Mr Mak has not resumed work and has been granted sick leave until 1 April 2019[18]. 

Mr Lee

46.  Mr Lee suffered from a fracture of the left clavicle (collar bone) which was managed conservatively with a clavicular brace.  Mr Lee also sustained lacerations on both legs which were sutured under local anaesthesia. 

47.  Mr Lee was hospitalised for one night and has attended regular orthopaedic follow-up. Mr Lee was referred to physiotherapy and occupational therapy training and rehabilitation which has reached static rehabilitation progress.   Follow-up X-ray showed that the fracture of the collar bone had healed with satisfactory alignment. 

48.  Mr Ho informs the court that Mr Lee has made a full recovery and returned to work in May 2018 having been on sick leave until 30 April 2018. 

Mr Yip

49.  Mr Yip suffered from a 5cm deep laceration on the right side of his face which required emergency surgery under general anesthesia.  Mr Yip was hospitalised for one night. 

50.  Mr Yip was last seen on 28 December 2017 when he complained of neck pain.  X-ray showed minimal degenerative change.  Mr Yip was clinically well and his facial wound had healed.  Mr Yip defaulted follow-up in March 2018.   

51.  Mr Ho informs the court that Mr Yip has also made a full recovery and resumed work in September 2018.  Mr Yip was granted 15 days’ sick leave[19].

52.  Full particulars of all the injuries and treatment are set out in the various medical reports submitted to court and supplemented in court by Mr Ho[20].  I am not told the extent of the injuries of the other thirteen passengers.

53.  The injuries to Mr So the medium goods vehicle driver and Mr Mown and Mr Mak, who were trapped on the upper deck of the bus, are the most serious.  Over one year after the collision Mr So, Mr Mown and Mr Mak are yet to return to work.   I do however accept the submission of Mr Wong that there appears to be no permanent injuries.  Mr Lee and Mr Yip have both fully recovered and returned to work.

54.  Whilst the impact on people’s lives is to be taken into account when sentencing the Court of Appeal in Secretary for Justice v Poon Wing Kay said that a sentencing court must look at the overall circumstances and the overall culpability of the offender and that in assessing the overall seriousness culpability is often the dominant factor[21].

Sentence

55.  In Secretary for Justice v Poon Wing Kay the Court of Appeal further said that[22]: -

“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

56.  In Secretary for Justice v Tsang Ho Pong the respondent driving a medium goods vehicle collided with the back of a motorcycle and a container truck, killing the motorcyclist.  The cause of the collision was the respondent closing his eyes for 2 seconds.  The Court of Appeal describing the respondent as having an extremely poor driving record and having no respect for traffic laws held that the case fell within the lower categories of seriousness and that a starting point of 2 years’ imprisonment was appropriate[23].

57.  Where the driver is a public bus driver higher sentences have been imposed.  In HKSAR v Chan Kwok Fai the Court of Appeal in emphasising that a bus driver who puts at risk the lives of passengers constitutes a serious aggravating feature said[24]:

“A very substantial proportion of the population of this territory rely on buses to travel to and from work and to their family and social destinations and in doing so they expect to be carried safely from one place to another; and the bus companies hold out the promise that that expectation will be fulfilled. Dangerous driving by bus drivers has firmly to be deterred by sentencing policy….”

58.  The Court of Appeal held that 4 years’ imprisonment was appropriate where the driver of a double decker bus took a corner too fast resulting in two deaths and many persons injured.

59.  In HKSAR v Wu Yat Cheung the Court of Appeal dismissed an appeal against sentence of 4 years’ imprisonment where due to fatigue the applicant, a PLB bus driver, mounted the pavement causing the death of one passenger and grievous bodily harm to another passenger and two pedestrians[25].

60.  Taking into account the circumstances of the collision, including that the defendant fell asleep and that Mr So was seriously injured and seventeen passengers on the bus were injured; four passengers seriously, I am satisfied that the proper starting point after trial is 3 years’ imprisonment. 

Mitigating factors

61.  The defendant was deprived of sleep because he was understandably looking after his wife who was dying of cancer and who has during the sentencing process sadly passed away. 

62.  I accept that the defendant is genuinely remorseful for what happened.  This is best reflected in the letter from a long-time friend, a nurse at the Princess Margaret Hospital (letter 5), who describes the defendant as often feeling guilty and who is deeply regretful having witnessed the pain and sorrow of the families of the many people injured in the accident[26].  

63.  I also take into account that the defendant suffered injuries to his left leg, waist and left shoulder in the accident.  The defendant was on sick leave for about one year, after which he was told to resign from the bus company.  

64.  Due to the accident, the loss of his job and the pressure in looking after his wife the defendant has suffered from depression and since late 2018 has been taking anti-depressants[27].

Psychological report

65.  Fritz W.C. Yeung, Clinical Psychologist reports that the defendant appeared to experience intense emotional distress and physiological reactions when discussing the incident and marked emotional disturbances towards his wife’s death[28].

66.  The defendant had persistent low mood and lost interest in pleasurable activities and had pervasive sleep disturbances, heightened irritability and marked concentration problems.  The clinical psychologist is of the opinion the defendant has post-traumatic stress disorder.  Continued management and psychological follow-up is recommended[29].

67.  Taking these mitigating factors into account I reduce the starting point by 9 months to 2 years and 3 months’ imprisonment. 

68.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 6 months’ imprisonment.  

Blood donor

69.  The defendant has been a regular blood donor since 2007, having given blood at least twenty-nine times.  In recognition of this I reduce the sentence by 1 month. 

70.  The defendant is convicted and sentenced to 1 year and 5 months’ imprisonment. 

Disqualification

71.  There is mandatory disqualification of not less than 2 years for causing grievous bodily harm by dangerous driving unless the court for special reasons decides not to make such an order.  I find there are no special reasons not to order the defendant to be disqualified.  Taking into account the circumstances of the driving I am satisfied that a period of 3 years’disqualification is appropriate. 

72.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years.      

73.  Section 72A(1A) of the Road Traffic Ordinance provides that a court shall order a person convicted of causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons not to order the defendant to attend and complete a driving improvement course.

74.  The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification expires.  The defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course notwithstanding the disqualification period may already have ended.