HKSAR v. CHAN HO MING

HCCC 324/2019

[2020] HKCFI 1513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 324 OF 2019

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REASONS FOR SENTENCE

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Over-view

1.  On 10 February 2018 at 6.05 pm the defendant was the driver of a double decker bus (“the Bus”) carrying about 86 passengers.  About six minutes after the commencement of the journey from the Shatin Racecourse Bus Terminal the defendant lost control of the Bus as he was speeding downhill and negotiating a right turn on Tai Po Road near Tai Po Mei Village, causing the Bus to flip over onto its side.  As a result of which 18 people were confirmed dead at the scene whilst one was confirmed dead at a hospital later at night.  There were 67 injured passengers, 19 of which suffered grievous bodily harm.  They were rushed to 12 different hospitals after the incident.

The charges

2.  The defendant pleaded guilty to all 38 charges and admitted the summary of facts before a magistrate on the 30 September 2019.  He was committed to the Court of First Instance for sentence. 

3.  Of the 38 charges the defendant pleaded guilty to 19 offences were manslaughter contrary to the Common Law and punishable under section 7 of the Offences against the Person Ordinance Cap 212 otherwise referred to as motor manslaughter, which were counts 1-19. 

4.  The other 19 offences counts 20-38 were of dangerous driving causing grievous bodily harm contrary to sections 36A of the Road Traffic Ordinance cap 374.

5.  The counts 1-19 of manslaughter were all framed in the same way save that each count identified a different named deceased. 

6.  They were framed as follows:

“CHAN Ho-ming, on the 10^th day of February, 2018, in Hong Kong, unlawfully killed (the name of the deceased) by gross negligence in that:-

(i) Being the driver of the public bus with registration number LX 9991 (“the Bus”), and driving the Bus from Shatin Racecourse Bus Terminal to Tai Po Central Bus Terminal, you owed a duty of care to the said “name of deceased”, being a passenger on the Bus;

(ii) In breach of that duty of care, you failed to take reasonable care for the safety of the said “name of deceased”, being a passenger on the Bus, by:-

(a) driving at an increasing and excessive speed along the downhill carriageway of Tai Po Road, Tai Po bound, and at the start of the right bend before the bus stop at Tai Po Mei Tsuen, Tai Po;

(b) failing to slow down the Bus when negotiating the right bend;

(c) failing to apply footbrake or engine brake sufficiently or at all when approaching and negotiating the right bend;

(iii) That breach of duty resulted in the Bus to topple and further hit two lampposts and the bus stop shelter at Tai Po Mei Tsuen, Tai Po;

(iv) That breach of duty amounted to gross negligence on his part; and

(v) That negligence was a substantial cause of death of the said “name of deceased”.

7.  The 19 offences of dangerous driving causing grievous bodily harm were also in identical terms save counts 20-38 identified a different victim.  They were framed as follows :

“CHAN Ho-ming, on the 10^th day of February, 2018, near the bus stop at Tai Po Mei Tsuen, Tai Po Road, in Hong Kong, caused grievous bodily harm to (“name of victim”) by driving a motor vehicle, namely, a Kowloon Motor Bus displaying registration mark LX 9991, on the road dangerously.”

The facts

8.  The facts are drawn from the summary of facts admitted by the defendant.

The scene and the weather

9.  The relevant stretch of road, the Tai Po Kau Section of Tai Po Road (“Tai Po bound”), Tai Po, is a downhill carriageway. It was a straight road for over 150 meters with one lane before a right bend with two traffic lanes (the “Right Bend”). There were two “70” signs at about 220 meters before the start of the Right Bend, indicating the speed limit of 70km/h of that stretch of the road.

10.  At the end of the Right Bend was a bus stop lay-by on the nearside (the “Bus Stop Lay-by”) and an access road to Tai Po Mei Village on the offside.  The access road joined Tai Po Road (Shatin bound) to form a T-junction.  About 20 meters ahead of the Bus Stop Lay-by was an uncontrolled cautionary pedestrian crossing with tactile paving on both sides of the pavements, dropped kerbs and a traffic island guarded with bollards.

11.  There was a “bend to right ahead” sign at about 100 meters before the start of the Right Bend where a “Side Road Ahead” sign and a set of “Chevron” signs were also built to indicate a sharp right bend ahead.  At the start of the Right Bend, the double white lines, which divided Tai Po bound from the opposite bound, splayed with hatched marking inside. In the middle of the Right Bend, the single lane of Tai Po Road (Tai Po bound) was split into two lanes with the first lane from the left for going ahead only and the second lane for turning right into the access road of Tai Po Mei Village only.  The set of “Chevron” signs was clearly visible near the “bend to right ahead” sign.  Corrugated beam barriers were found along the right bend to guard the carriageway from the roadside slope on the nearside. 

12.  There was a sign post of “pedestrians on road ahead” and “REDUCE SPEED NOW” and a road marking of “SLOW” next to the last “Chevron” sign at the end of the Right Bend and before the Bus Stop Lay-by.

13.  The speed limit of the relevant stretch of the road near Tai Po Mei Village, Tai Po Road, Tai Po, is 70 km/h.  The road surface was paved with tarmac in good state at the material time.  At the time of the incident, the weather was fine and the visibility was good with streetlights.

The journey

14.  On the 10 February 2018 at about 6.05 pm the defendant drove KMB double decker bus registration no LK9991 on route 872 travelling from Shatin Racecourse Terminal to Tai Po Central Bus Terminal.  This 872 route was a special route and only operates on horse racing days.  Almost all seats were occupied with 10 odd passengers standing at the lower deck.  The time for this single journey is about 10 to 15 minutes.

15.  Shortly before the Bus left the terminal more than 100 people were queuing for the Bus. As the defendant was approaching the driver seat of the Bus, some passengers swore at the defendant and scolded him for being late.  The defendant just looked at them and made no response.  After the passengers got on the Bus, the Bus started off at 6.05 pm. 

16.  During the journey and before the incident, according to the evidence of the surviving passengers:

(a) The defendant applied the brake abruptly for about three times even when there was no vehicle in front. At one time the bus was following a private car, the defendant applied the brake abruptly when it came very close to the tail of the private car;

(b) The defendant drove in a way as if he was throwing a tantrum;

(c) The defendant was driving at a high speed. He was being scolded for driving too fast by some passengers, but he had no response but continued to drive very fast;

(d) As recalled by some passengers, the Bus was driven much faster than the usual speed of Route “872” buses. Some passengers were scared and held onto the handle bars and handrails next to their seats tightly;

(e) The defendant did not apply the brake when negotiating some turns or going down slope. There was no deceleration when it went down slope and there were passengers asking the defendant not to drive so fast.

The speed of the Bus and the accident

17.  At around 6.11 pm when the defendant drove the Bus along the downhill straight stretch of the road, he increased the speed from 69.6 (± 1.5) km/h to 74.9 (± 1.5) km/h without applying the footbrake or engine brake.

18.  When the Bus arrived at near the start of the Right Bend, the speed of the Bus reached its maximum at 75.4 (± 1.5) km/h and the defendant did not apply the footbrake or engine brake to slow down the Bus after entering the Right Bend.  The Driver Feedback Device kept beeping and its LED lights kept emitting lights. There was no vehicle or obstacle ahead of the Bus.

19.  As the Bus was speeding downhill, passengers discussed amongst themselves that the defendant was driving too fast.  After 2 to 3 seconds, the Bus started to lose balance.  It also started yawing clockwise and leaning to the nearside and away from the Right Bend, resulting in the nearside bodywork of the Bus hitting the last “Chevron” sign, the sign post of “pedestrians on road ahead” and “REDUCE SPEED NOW” and Lamppost EC 0773 at the end of the Right Bend.

20.  The Bus finally toppled over the nearside, skidded forwards on the pavement and crashed into the Bus Stop lay-by, hit another two Lamposts EC0772 and EC0771 and knocked down the bus stop shelter.  Many passengers screamed before the Bus crashed. All passengers sitting on the right side of the Bus fell onto the passengers at left side.  The Bus finally came to a stop after the nearside bodywork skidded on the ground for about 24 metres in a few seconds.  The crash caused all nearside windows of the Bus to shatter and as the Bus skidded, and passengers were sent flying.  The light of the Bus went out.  People were screaming and yelling and the situation inside the Bus became very chaotic.

21.  The faces of many passengers were injured by the glass fragments of the broken windows. Two passengers were seen being pressed under the left bodywork of the Bus. 10 odd passengers were found unconscious and dead bodies piled up inside the Bus.  Blood was found all over the place.  The head of one of the deceased LAU Mei-lin (re Count 5) was almost completely detached from her body, whilst the heads of the deceased CHENG Tai-sing (re Count 13) and CHAN Yin-mui (re Count 14) were badly crushed and the shapes of their heads were seriously damaged.

22.  Some passengers who were still conscious managed to crawl out from the Bus.  Some returned to the Bus to pull out other passengers.  Subsequently the rear part of the roof of the Bus was cut open by firemen for rescuing the passengers.

23.  Blood stains were visible inside the Bus, and on the road along with bricks, upturned earth and debris. Copies of racing newspapers dated February 10, soaked red, laid scattered on the ground.  Brain tissues, body tissues, broken limbs and a passenger’s thumb were found on the ground.

The black box

24.  The Bus, like all other KMB buses, is installed with an electronic data-recording device, commonly known as black box (the “Black Box”).  The Black Box records operational data of the Bus including the Date/Time, footbrake usage, engine revolutions per minute (RPM), speed, inclination angle and global positioning system (GPS) coordinates.

25.  The Black Box system installed in the Bus includes a driver feedback device (the “Driver Feedback Device”), which will be activated in certain situations and will provide visual and acoustic feedback to the driver by beeping and illuminating four LEDs lights installed in front of the driver’s seat.  Those situations include “harsh acceleration”, “harsh brake” (see below) and “over speeding” (when the speed is over 75 km/h).

26.  The speed limiter installed on the Bus would cut the fuel supply to the engine when the speed of the Bus is over 70 km/h.  Therefore mechanically the Bus could not go over 70 km/h on flat surface.  However, the speed can go over 70 km/h when the Bus travels downhill.

27.  The Black Box of the Bus, which was functioning properly at the material time, recorded the following events:

	Time	Records of Events	Driver Feedback Device activated
(1)	6:05:09 p.m.	Bus started moving  (at the speed of 0.4 km/h)	N/A
(2)	6:05:15 p.m.	Harsh Acceleration (from the speed 12.6 to 17.1 km/h)	Yes
(3)	6:08:00 p.m.	Harsh Brake (from the speed 53.8 to 44.4 km/h)	Yes
(4)	6:08:16 p.m.	Harsh Acceleration (from the speed 33.7 to 35.4 km/h)	Yes
(5)	6:09:03 p.m.	Harsh Brake (from the speed 49.8 to 40.4 km/h)	Yes
(6)	6:09:21 p.m.	Harsh Acceleration (from the speed 30.1 to 31 km/h)	Yes
(7)	6:11:51 p.m.	Over speeding (at 75.4 km/h)	Yes
(8)	6:11:59 p.m.	The Bus was brought to a halt	N/A

(Remark: Based on the thresholds defined, ‘Harsh Acceleration’ is acceleration over 1.15 m/s²; ‘Harsh Brake’ is deceleration over 2.3 m/s²; ‘Over speeding’ is speed over 75 km/h.)

Comparing the speed of the Bus with that of other buses

28.  In order to determine the typical speed and manoeuvre of KMB double-decker buses along the incident stretch in Tai Po Road, black box data of KMB double-decker buses of the same route (“control vehicles”) previously passing through the incident stretch of road was obtained.  Upon analysis, the average speed of the control vehicles at the start of the Right Bend is 47.1 km/h.

29.  A survey on the speed of 20 other buses (“surveyed vehicles”) passing through the relevant stretch of road in Tai Po Road on 13 March 2018 (after the incident) using laser speed guns with the data of the surveyed vehicles in KMB’s server was also obtained as a reference.  It is noted that the average speed of the surveyed vehicles is 43.4 km/h.

30.  When the Bus arrived at near the start of the Right Bend, the speed of the Bus reached its maximum at 75.4 km/h, which is 65% higher than the average speed of both the control vehicles and surveyed vehicles (45.7 km/h), or 60% higher than the average speed of the control vehicles (47.1 km/h).

The deaths and injuries suffered

31.  The injuries suffered by the deceased and survivors were multiple and horrific.  They are set out in the summary of facts at paragraph 29. 

32.  The deceased passengers mainly sat on the near side and front rows of the upper deck.  In view of the large number of casualties, a temporary morgue was set up at the scene.  67 surviving passengers suffered from injuries of various degrees. The injured passengers were allocated to 12 different hospitals. The Police declared the accident as a “Major Incident” and mobilized resources from Fire Services Department, Hospital Authority and different Police Units to conduct rescue operation and the subsequent investigation.

33.  Miraculously, the defendant only suffered minor injuries on his hands. (not in the summary of facts)

The defendant’s arrest

34.  Upon his arrest at the scene and under caution he remained silent. 

35.  On 11 February 2018, a cautioned video recorded interview was taken from the defendant.  The defendant only answered questions relating to his identity and driving duty, and refused to answer other questions put to him.

Defendant’s antecedents

36.  The defendant is 33 years of age.  He has a clear criminal record.  At the time of the incident he was 31 years old.  He is educated up to form 5.

37.  The defendant has held a driving licence since 2003. He acquired his public bus licence in 2013 and joined KMB as a part-time bus captain in 2014 and remained so until the date of the accident. 

38.  Since 2017 he worked as an hourly rated bus Captain with no designated route assigned.  He had driven the present route on two previous occasions once in November 2017 and the other in January 2018.

39.  He has one conviction for careless driving of a bus, the date of the offence being in 2014 when he first started to be employed by KMB.  I am informed by Mr David Boyton counsel for the defendant that this was a result of a bad manoeuvre in a car park whilst he was at a slow speed.

40.  Mr Boyton in mitigation has emphasized that the defendant was only going some 5 km/h over the speed limit.  He submits that is the defendant’s real criminality.  He was not familiar with this route, he had not been trained properly by KMB as he was taken in a private car to become familiar with the route.  He had only driven it on two previous occasions seeing the speed limit was 70 km/h he was only driving slightly higher than the permitted speed limit. 

41.  As to the comparison by the prosecution to the black boxes of the other bus drivers Mr Botyon submits that the other bus drivers could have been more familiar with the route and therefore had more experience than the defendant did with it and therefore drove in the manner they did.

42.  Mr Boyton refers to the defendant being diagnosed with Asperger’s syndrome from the age of 12 years and still suffers from those symptoms.  He submits that is why the defendant drove “as if” he was throwing a tantrum.  He was however not throwing a tantrum but he would react by switching off.  Because of his Asperger’s syndrome, he did not react as he is socially inept to accept his criticism of his driving and that is why he acted in the way he did.

43.  According to the psychiatrist’s report dated 20 December 2019 the doctor confirmed the defendant was diagnosed to have Asperger’s syndrome at the age of 12 in 1999.  The psychiatrist had seen the defendant since April 2018 for psychiatric assessment.  Up to the date of the report the doctor had seen him on 11 occasions.  Although his mother informed the doctor that the defendant had follow up treatment at the Prince of Wales Hospital (PWH) for around 2-3 years after 1999 medical records were not available according to the Medical Record Unit of the PWH.  Mental state examination revealed that the defendant was in a stable mood.  He had no persistent mood problems nor major sleep or appetite problems.  Recent mental examinations revealed that he was mentally stable. No psychiatric follow-up and treatment are required.

The law

44.  The maximum term for manslaughter is life imprisonment.  The present type of offence is commonly referred to as ‘motor manslaughter.’ 

45.  The offence of causing grievous bodily harm by dangerous driving has a maximum term of imprisonment of 7 years upon conviction on indictment. 

46.  Although the present offences do not concern that of causing death by dangerous driving it is appropriate that I mention this offence as many of the cases cited by counsel concern this offence.  The maximum term is one of 10 years imprisonment^[1].

47.  As stated in the Court of Appeal in SJ v Law Siu Kuen [2011] 1 HKLRD 1022, motor manslaughter is a more serious offence than causing death by dangerous driving, it is reserved for particularly serious cases, namely those of such gross negligence as to give rise to a high risk of death and called for sentences greater than that available for dangerous driving causing death as reflected in R v Seymour [1983] 2 AC 493 and R v Cooksley [2004] 1 Cr App R(S) 1.  

48.  Stock VP said [2]  

“54. …That is not to say that the sentence for a motor manslaughter conviction will inevitably be higher than had the charge been dangerous driving causing death: that, ultimately is a matter for the sentencing court according to the facts of the case.”

49.  Additionally he said:[3]

“…what is required in the context of motor manslaughter is proof of breach of the duty of care towards the victim who has died, that that breach caused the death of the victim, and, importantly for present purposes, that “having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission. The defendant’s conduct “has to be such that it creates a very high degree of risk of death before it is to be classed as manslaughter… in the case of motor manslaughter, is an obvious risk of death from the defendant’s conduct, objectively assessed, and an indifference to that risk on the part of the defendant, or foresight thereof plus a determination nevertheless to run it…” (my emphasis)

And at paragraph 59 he continued:

“59. … the charge of manslaughter was laid because it was thought that the conduct in question was particularly grave conduct such as would lead a jury to conclude that it showed such disregard for the lives and safety of others as to amount to a crime.”

He noted that few cases have been prosecuted in Hong Kong for motor manslaughter saying[4]:

“61. … that few, if any, previous prosecutions in relation to death caused by seriously culpable driving in this jurisdiction have resulted in manslaughter prosecutions.”

50.  In relation to sentencing referring to SJ v Poon Wing Kay [2007] 1 HKLRD 660 [5] he continued :

“62. The Court of Appeal has emphasised that real assistance from previous decisions is often unavailable because no two cases are the same … The sentencing judge must bear in mind that the defendant did not intend to cause serious injury to, or kill, anyone else, which would constitute murder, and that the offence is more serious than causing death by dangerous driving. The risk of death is higher, so the offence will generally merit a proportionately greater sentence than for the statutory offence … Aggravating features include hostility or aggressive action taken towards another and the consumption of alcohol or drugs. Other relevant factors include the number of deaths, whether the gross negligence was prolonged or shortlived and whether it took place in the context of some other offence, eg seeking to steal the vehicle:Blackstone’s Criminal Practice 2011 para.C3.6.” (my emphasis)

51.  I have taken into account the principles of sentencing which have been referred to in the numerous cases submitted to me by the prosecution and the defence and in particular to the following cases[6]. 

52.  The Court of Appeal in Lai Sai Ming considered an appeal against sentence for the offence of manslaughter by gross negligence where the appellant a coxswain of a vessel collided with another vessel as a result of which 39 passengers on board the other vessel were killed.  The appellant in that case was convicted after trial by a jury of 39 counts of manslaughter.  The Court upheld the sentence of 8 years’ imprisonment on appeal on the basis of the culpability which the trial judge had found.  The sentence was based upon the failure of the coxswain of the vessel not paying a proper lookout in that he should have used his radar to make sure nothing was there or should have changed his course so the light was no longer interfering with his vision and the fact 39 lives had been lost.  The judge based his sentence on the ground that the appellant did not see the other vessel until it was too late to take effective action to avoid colliding with her. 

53.  Macrae JA (as he then was) said at paragraph 31 and 32 when considering the 39 deaths as a result of the collision:

“31. The significance of this matter is that where there is “more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable)” 1, an offender's culpability is considerably aggravated: see R v Cooksley and others [2004] 1 Cr App R (S) 1. Although, of course, Cooksley was a case of causing death by dangerous driving, the same principle would apply to what is sometimes referred to as 'motor manslaughter', or any other form of manslaughter caused by gross negligence. The “Overarching Principles: Seriousness” guidelines issued by the Sentencing Guidelines Council of the United Kingdom in December 2004, which followed Cooksley but applied to crimes generally, state, in relation to the assessment of culpability and harm, that:

“1.18 Where unusually serious harm results and was unintended and beyond the control of the offender, culpability will be significantly influenced by the extent to which the harm could have been foreseen.”

We would adopt this principle in the present case.”

54.  What is clear as reiterated by Macrae JA is that the culpability of the offender in the particular circumstances of an individual case should be the initial factor in determining the seriousness of an offence[7].

55.  In Cooksley at paragraph 18 and 19 the Court said

“We agree with the conclusion of the Panel that the number of deaths resulting from dangerous driving is relevant to the length of sentence. There are cases in which the defendant, for example, is a coach driver who drives after being deprived of sleep or under the influence of alcohol where he must be taken to appreciate that the consequence could be that there will be more than one death if he is involved in an accident. Certainly in that situation, multiple deaths will be a more seriously aggravating feature.

19. Even where there is no reason to suggest that the defendant is knowingly putting more than one person at risk, the fact that the consequences of dangerous driving are particularly serious, for example, involving multiple deaths is a relevant factor as to the length of sentence. That is the view that will be taken by the public. However, we are certainly not suggesting that the sentence should be multiplied according to the number of persons who sadly lose their life. It is still necessary to regard the offender's culpability in relation to the driving as the dominant component in the sentencing exercise. While the sentence is increased to reflect more than one death the sentence must remain proportionate to the nature of an offence which does not involve any intent to injure.”

56.  The Court of Appeal in Hong Kong considered the sentence in two different cases in relation to the drivers of a double decker bus that had toppled over which resulted in death.  They were charged with dangerous driving causing death. 

57.  The first of those was in Chan Kwok Fai.  There the driver of a passenger laden bus took a corner at speed resulting in the bus toppling over.  Two passengers were killed and 33 passengers were injured.  The Court held that the trial judge (myself) erred when I referred to the excessive speed as an aggravating factor.  The excessive speed was itself the act of dangerous driving it did not fall into the category of “greatly excessive speed; racing; showing off; competitive driving.”  The Court held that a term of 4 years’ imprisonment was appropriate.

58.  Stock VP in Chan Kwok Fai, however went on to refer to the statement in Cooksley that a specific aggravating factor is where more than one person is killed as a result of the offence, especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable[8] :-

“16. It is true that there was absent from this case almost all of the aggravating features to which R v Cooksley refers: for which reason, if there were nothing more that fact would render the sentence clearly far too high. But there is one feature that does constitute a serious aggravating factor and it is the fact that the applicant was a bus driver who put at risk the lives of nearly three dozen people who were passengers on his bus.”

59.  It is significant that Stock VP in Chan Kwok Fai went on to explain[9]

“17. 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 company hold out the promise that that expectation will be fulfilled. Dangerous driving by bus drivers has firmly to be deterred by sentencing policy.

18. There appears to have been no attempt by the applicant to slow down. As a result, the lives of two people have been lost and injuries occasioned to some 30 persons. Whilst culpability is the dominant factor to be taken into account – the impact on the families of those killed is nonetheless a matter that should certainly be taken into account: see R v Cooksley, para. 11.

19. The culpability of the standard of driving at the time of the offence, viewed on its own – the taking of a corner at too fast speed, which caused a fatality – and divorced from any aggravating factors, would have warranted a sentence significantly less than the 5-year starting point adopted by the Judge. But the fact that this was a passenger-laden bus taking a corner at too fast a speed resulting in two deaths and many persons injured makes a material difference.”

60.  The other case is that of Man Chun Pun.  The driver of a double-decker bus carrying 22 passengers was involved in an accident as a result of his dangerous driving, causing the death of one passenger and very serious injuries to five other passengers.  He pleaded guilty to two charges.  The first was causing death by dangerous driving, the second charge was causing grievous bodily harm. 

61.  The bus was travelling downslope in the first lane of a slip road. The passengers in the bus said that it was travelling at high speed along the bypass and down the slip road and the driver had to apply the brakes of the bus suddenly twice during this section of the road.  The bus then veered toward the hatched road markings before a kerbed ramp on its offside even though there were no other road users affecting the bus.  The bus then rammed into the kerbed ramp causing the bus to bounce up before it toppled over onto its side.  One passenger died while other passengers were variously injured. 

62.  The Court of Appeal found that the appropriate starting point was one of 4 years’ imprisonment for the offence of dangerous driving causing death.  The appropriate starting point for the charge of dangerous driving causing grievous bodily harm was one of 2 years and 6 months’ imprisonment.  Taking into account the totality principle the Court ordered 9 months of charge 2 consecutive to charge 1 resulting in a sentence of 3 years 9 months. 

63.  Zervos JA giving judgment for the Court said at paragraph 48:

“48. It is important to appreciate the reasoning in Chan Kwok Fai, for in our view, it makes it clear that a driver of a public service vehicle, who by his dangerous driving puts at risk the lives of his passengers, is a serious aggravating factor, which may depending upon the circumstances of the case, warrant a starting point in the higher category of offending. It needs to be also appreciated that in Hong Kong there has been a spate of serious accidents by drivers of public service vehicles where, as a consequence of their driving, death and serious injury to others has resulted, and therefore dangerous driving by such drivers has to be firmly deterred as a matter of sentencing policy. All drivers must ensure that they drive at the standard required, taking into account not only the laws of the road but also the care and responsibility that they have for their passengers and other road users, and there is even a greater care and responsibility by a driver of a public service vehicle laden with passengers to ensure their safe passage to their destination. It is therefore imperative that proper arrangements are in place to ensure that drivers of public service vehicles meet the high obligations that they have to their passengers and other road users by correspondingly maintaining a proper standard of driving at all times.” (my emphasis)

He continued at paragraph 54

“54. The offences in the present case were very serious, particularly because the appellant, a driver of a public service vehicle, put at risk the life and limb of his passengers and other road users by his dangerous driving. This was reflected by the two offences. When sentencing for an offence of this type, the degree of the offender’s culpability may be the dominant factor, but the potential harm and the actual harm caused are also important considerations.”

64.  Going back to the case of Law Siu Kuen the court in that case considered the appropriate sentence for the offence of motor manslaughter.  The defendant truck driver wrongly drove into the opposite lane and collided with a taxi, killing the driver and five passengers; the defendant's blood alcohol level was three times above the prescribed limit.  The defendant chose to drink to considerable excess and not to sleep knowing he was going to drive; and whilst thus affected, he drove a particularly heavy vehicle rendering any potential damage, as he must or ought to have appreciated, caused by any accident, to be significantly worse, than that occasioned by a lighter vehicle. 

65.  The court held that the appropriate sentence for the six manslaughter charges upon the pleas of guilty should have been in the region of 9 years' imprisonment.  Upon my calculation that assumes a starting point in the region of 14 years’ imprisonment with a one third discount on the defendant’s plea of guilty.  

The present case

66.  The defendant was driving a vehicle for the carriage of members of the public, a double-decker bus.  Such professional drivers must be acutely aware of the necessity to be safe and not to risk people’s lives and safety.  The safety and well being of members of the public in Hong Kong are paramount and the public must be protected from any form of careless or dangerous driving. 

67.  The Black Box is proof of the defendant’s erratic driving manner.  His erratic driving started almost immediately that is within 6 seconds from the commencement of the journey.  He drove the Bus in a ‘kangarooing’ or jolting manner harshly accelerating and braking. 

68.  The jolting of the Bus supports the evidence of the passengers when they said the defendant applied the brake abruptly for about three times.  However, their eye witness account was that he did this even when there was no vehicle in front.  On another occasion however when the Bus was following a private car, the defendant did apply the brake abruptly when it came very close to the tail of the private car.  He was driving aggressively.  At both times his driving clearly put the private car, its driver and or his passengers if any and the Bus passengers lives at risk. 

69.  From the observation of the passengers, the defendant drove at a fast speed.  The passengers said the defendant did not apply the brake when negotiating some turns or going down slope.  Some passengers considered the Bus was driven much faster than the usual speed of Route “872” buses.  Some passengers were scared and held onto the handle bars and handrails next to their seats tightly.  These passengers were distressed, disturbed and frightened for their lives.  They were well aware and knew their lives were in danger. 

70.  There were passengers asking and scolding the defendant not to drive so fast.  The defendant had no response but continued to drive very fast.  It was the passengers observation that the defendant drove in a way as if he was throwing a tantrum. 

71.  His tantrum, reaction or mood commenced at the very beginning.  It was more than likely to be his retaliation or payback for having been scolded by the passengers for being late before he boarded the driver’s seat.  However, whatever the reason, the defendant’s agitation, discontent or mood should never have influenced his driving.  However, it clearly did.  

72.  This was not the defendant’s first time he drove this route.  He had driven it twice before.  Whilst speeding he turned a blind-eye and totally ignored all the road signs informing him of the right bend and the chevrons on the road.  The defendant intentionally drove at a high speed.  His conduct displayed was as though he was relishing in the thrill or vindication from the alarm he knew he was causing to his passengers. 

73.  It is no justification to say that the defendant drove in the manner he did as he was socially inept to accept the criticism of his driving. 

74.  The defendant failed to apply the brakes at all when approaching and negotiating the right bend.  When the Bus reached its maximum speed at 75.4 km/h it was 65% higher than the average speed of both the control vehicles surveyed vehicles which was 45.7 km/h and 60% higher than the average speed of the control vehicles which was 47.1 km/h.  It matters not that the speed limit of this road was 70km/h.  The speed was grossly excessive and aggressive.  It further matters not that the speed for this stretch of road or the bend has been reduced to 50 km/h after the accident. 

75.  In addition, he purposely neglected the activation from the Black Box.  The driver feedback device was activated right at the start of the journey and continued for almost all his harsh acceleration and braking and over speeding.  The Black Box was clearly visible by its flashing lights and audible with its beeping sound to the defendant.  Its purpose was to inform the defendant of his improper driving.  The Black Box recorded that the defendant was speeding for at least 8 seconds during which time the driver feed back would have been activated, before the Bus was brought to a halt.  He was deliberately shutting out all signs of warnings.

76.  The journey to Tai Po was to take only 10 to 15 minutes.  The defendant knew the time of this as he had driven this route before.  His intention was to make this short journey as uncomfortable and disconcerting for his passengers from the beginning.  The awaiting catastrophe did not take long, it occurred within 6 minutes from the start.  

77.  There was a prolonged, deplorable and deliberate escalation of bad and appalling driving until the tragic end.  I reject the mitigation as set out in the defendant’s letter that it was a momentary loss of judgment.  I also reject the mitigation the defendant was unfamiliar with the route and believed that he was only going 5 km/h over the speed limit. 

78.  The defendant’s driving showed an utter and selfish disregard and contempt, for the safety and well-being of all his passengers.  Their cries that he was driving too fast was met with defiance by continuing to drive fast.  His contumacious conduct was spiteful and done to deliberately scare them. 

79.  The defendant flagrantly and deliberately put at risk the life and limb of his passengers and other road users.  There was an obvious risk of death from the defendant’s conduct.  He showed an obvious indifference and determination to take that risk.  His standard of driving was extremely grave.  This was seriously culpable driving.  It was outrageously appalling, unacceptable and intolerable. 

80.  This conduct of driving by the defendant a bus driver is to be firmly deterred by sentencing policy. 

81.  The outcome of the offences was catastrophic.  The defendant is the only and sole cause of the magnitude of multiple deaths and grievous injuries to the victims who suffered.  The deaths have caused great distress to the families of the deceased, the victims and their families.

82.  In Cooksley at para 11 the Court stated :-

“Where death does result, often the effects of the offence will cause grave distress to the family of the diseased. The impact on the family is a matter that the courts can and should take into account. However, as was pointed out by Lord Taylor C.J. in Attorney General's References Nos.14 and 24 of 1993 (Peter James Shepherd, Robert Stuart Wernet) (1994) 15 Cr.App.R.(S.) 640 at p.644:

“We wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence. We recognise that no term of months or years imposed on the offender can reconcile the family of a diseased victim to their loss, nor will it cure their anguish.”

83.  I have before me a bundle comprising more than 200 pages of the recent updated condition of the injured passengers in counts 20-38[10].

84.  With no disrespect to the victims, I shall not be go through the terrible and horrific injuries.  The pain suffered by the survivors was immense.  Their families have also been distressed.  Many of the survivors are scarred and suffer some form of disfigurement.  Physical pain lingers together with psychological and psychiatric issues that have been caused as a result of the disaster.  Many suffer from post traumatic stress disorder.  They are distressed and disturbed upon the recollection of the accident, suffer anxiety, panic, nightmares and unsurprisingly fear of or are unable to take a bus.  The injuries have caused a disruption to their life psychologically and physically.  Some have suffered total or partial loss of ability to work and are unable to live life like they did before.  Many are still in need of regular treatment by a doctor for their injuries sustained as well as for their psychiatric and psychological well being.  After finishing what was likely to be enjoyable occasion spent at the races their lives, their families and loved ones have been altered forever. 

85.  I have had regard to all of the cases placed before me by both counsel for the prosecution and the defendant.  This case is clearly distinguishable from Lai Sai Ming in that the defendant’s culpability in this case is far more serious as he took a conscious and deliberate decision to drive in the manner he did.  The sentence in Lai Sai Kuen provides some assistance to the appropriate level of sentence to be imposed.  That said it is unhelpful to attempt to compare those cases as no two cases are the same, each case is fact sensitive.  References to sentences imposed in previous cases are not of any real assistance they can do little more than provide broad guidance. 

86.  The instance case as stated in the opening sentence of the summary of facts is one of the deadliest bus accidents in Hong Kong.  In this particular case the serious aggravating factor are the multiple deaths and injuries.  The fact there were 19 deaths and 19 persons suffering grievous bodily harm is a relevant factor as to the length of sentence.  I accept that when sentencing however that the sentence must remain proportionate to the nature of the offence.

87.  The only and strongest mitigating factor in this case is the defendant’s plea of guilty at the earliest opportunity to which he will be granted the full one third discount. 

88.  In sentencing the defendant, I take into account the totality principle.  As is common in the case of manslaughter sentencing, a starting point is not nominated[11]. For counts 1-19, the defendant shall be sentenced to 14 years’ imprisonment.

89.  For counts 20-38 the appropriate starting point shall be one of 6 years’ imprisonment giving the defendant a one third discount he shall be sentenced to 4 years. 

90.  The sentences in all counts shall run concurrent to each other.  The total term of imprisonment the defendant shall serve is 14 years’ imprisonment. 

Disqualification

91.  I bear in mind that the defendant’s employment as a bus driver has not been his only employment.  He had only been driving professionally for 4 years.  That is from 2014 to 2018. 

92.  The defendant has demonstrated that his mood and emotions are reflected in his driving.  He has shown a total failure to control or manage his emotions when in control of a vehicle.  In this case he took retaliation and revenge and ultimately used his vehicle as a weapon against the passengers.  I have considered his background particularly that as mentioned in his medical report in respect of his character.  These factors may have contributed to the defendant exhibiting his emotions in his driving.

93.  Whilst I appreciate that in general lengthy periods of disqualification should be avoided there is a need to protect the public against someone like the defendant who is an enormous danger on the road.

94.  I am of the view that in the interests of road safety and to protect members of the public because of the circumstances of this accident and because of the fact that there is a real prospect for the defendant to drive in the manner that he did again, I consider that the defendant should be kept off the road indefinitely. 

95.  I make an order that the defendant should be disqualified from holding or obtaining a licence to drive all classes of motor vehicles for life.