HKSAR v. MAN CHI KWONG

DCCC 907/2020

[2021] HKDC 511

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 907 OF 2020

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REASONS FOR SENTENCE

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1.  Mr Man pleaded guilty before me to Charge 1 of Causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374; and to Charge 2 of Causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374.

2.  The particulars of Charge 1 are that Mr Man, on 18 December 2019, near Chainage 27.5(A), Fanling Highway, Sheung Shui, New Territories, in Hong Kong, caused the death of So Lai Hung, Chan Ka Lung, Cheung Chi Ming, Wong Wai Lan, Yeung Yerk Yin and Cheng Yin Sang, by driving a motor vehicle, namely, a public bus bearing registration mark TA 6723, on a road dangerously.

3.  The particulars of Charge 2 are that Mr Man, on same date at same place, caused grievous bodily harm to Chan Kam Hung, Chan Mau Ching, Kan Yuen Wing, Ng Yan Sang, Hui Yat Hung, Lam Yiu Ming, Tony, Wong Pui Yan and Au Kin Kwok by driving a motor vehicle, namely, a public bus bearing registration mark TA 6723, on a road dangerously.

Summary of the facts admitted by Mr Man

4.  On 18 December 2019, at 4:13 pm, Mr Man was driver of the KMB double-decker bus which was travelling at a speed of about 70 km/h along the left 1^st lane of Fanling Highway.  The bus had 72 passengers on board including two children aged 10 and 3.

5.  The weather was fine with good visibility.  The speed limit of that section of Fanling Highway was 100 km/h.

6.  Upon reaching the charge location near Tsung Pak Long, the bus veered leftward without braking or turning on the emergency lights and grazed against the anti-crash barrier before ramming into the trees outside the anti-crash barrier.  The vehicles following the bus had to brake immediately and swerved right to the left 2^nd lane in order to avoid colliding with the bus.

7.  Upon impact, part of the upper deck roof of the bus was torn off and hanged on a tree branch.  Two passengers later found deceased were thrown out of the bus.  The front and nearside of the bus were seriously damaged.

8.  Mr Man had been employed by KMB as a full time driver since 2001.  He was assigned to the subject route no 978 (Wan Chai to Wah Ming Estate) since 2017.  On the day before the incident, he had his day off.  On the day of the incident, he reported duty at 5:58 am.  He was on the last trip of his duty-shift when the incident occurred.

9.  A camcorder inside the bus captured the following:-

(a)  The impact occurred at 16:13:51;

(b)  At 16:01:09 and 16:01:42, Mr Man’s head nodded;

(c)  From 16:05:16 to 16:05:18, Mr Man’s mouth was open;

(d)  From 16:13:44 to 16:13:45, Mr Man’s left hand dropped off the steering wheel abruptly;

(e)  From 16:13:46 onwards, Mr Man placed his left hand on the steering wheel;

(f)  From 16:13:48 to 16:13:50, Mr Man did not steer the wheel rightward, accordingly the bus steered to the left (crossing the solid white line on the left hand side of the left 1^st lane); and

(g)  The bus stopped motion at 16:13:56.

10.  Mr Man told a police officer SPC 58853 at the scene that while he was driving the bus, he momentarily fell asleep.

11.  Six passengers died on the day of the incident as a result.

12.  Thirty-eight other passengers were injured as a result of the incident, with eight of them suffering various grievous bodily harm.

13.  Black box of the bus showed that foot brake was applied 2 seconds after impact and the bus came to a complete halt at 16:15:14.

14.  Mr Man admits that at the material time of the charges, he drove the bus while he was unfit to do so, and without paying heed to the condition of the road and other road users.

Victim Impact Statements

15.  Prior to the hearing the prosecution has supplied the court with victim impact statements of the 8 seriously injured passenger (all in Chinese) with copies to the Defence.  I have read them and they do not in any way detract from the fact that the victims suffered really serious bodily injuries.

Criminal and road traffic records

16.  Mr Man has no criminal record but he has a careless driving road traffic conviction record in 2011.

Antecedents

17.  Mr Man is aged 57 (56 at the time of the offences), educated to F1 level, started working as KMB bus captain since 2001.  He is married and lived with his wife and daughters in Fanling.

Mitigation

18.  Mr Francis Cheng of counsel mitigated on behalf of Mr Man.

19.  The following is a summary of the mitigation submissions.

20.  Mr Man has 2 daughters (aged 27 and 26).  His wife is a housewife.  However since Mr Man resigned from The Kowloon Motor Bus Co. Ltd in January 2021 due to this criminal case, his wife had to work as a part-time packager at a mask factory run by relatives in Tsuen Wan, in order to assist with the household expenses.  The monthly income is around HK$5,000.  Mr Man’s eldest daughter works as a mask producer in a mask factory run by relatives in Tsuen Wan.  Her monthly income is around HK$7,000.  The youngest daughter works as renovation supervisor.  Her monthly income is around HK$10,000.

21.  Mr Man started to work as a bus driver for KMB since 14 August 2001 and before this incident, he had been a bus driver for over 18 years and was expecting to work until retirement at age of 60.  After the incident, Mr Man was suspended from his bus driver position immediately, and KMB arranged a clerical work position for him.  At the mention hearing at the District Court on 7 January 2021, he voluntarily refused to continue to be bailed and resigned from his position at KMB.  His average monthly income before resignation was around HK$20,000 per month.  He has over 25 years of driving experience.

22.  Mr Man woke up at around 5 a.m. on 18 December 2019.  At 5:58 a.m. on the same day, he arrived in Sheung Shui to report to duty, and started working at 6:54 a.m.  He was originally scheduled to drive bus route 373, but was changed to drive bus routes 78K and 978 due to change of work arrangements.  Mr Man started to drive bus route 978 in 2017.

23.  At 4:13pm on the day, the Bus was travelling on the first lane on the left of Fanling Highway eastbound towards Sheung Shui at the speed of approximately 70km per hour.  There were 72 passengers on board the Bus.  When the Bus approached Chung Pak Long near Chainage 27.5(A), the Bus first hit the anti-crash barrier on the left before hitting a tree by the road, and continued forward for a few meters before it stopped.

24.  Based on Mr Man’s current recollection, his condition shortly before the crash was he felt that his whole body was as if it was frozen.

25.  After the accident, Mr Man’s mind went blank and did not know how to react.  He immediately took out his phone to report to the police and call his family and KMB.  He then alighted the Bus from the front door on the left.  He looked up and saw that the roof on the left front of the Bus was severely damaged and almost completely pared off; only then did he realize that a serious car accident had occurred.

26.  The following is an excerpt from Mr Man’s feelings and emotions after the accident:-

“Thinking that the accident caused six deaths and great amount of serious injuries which brought pain to the families of the deceased and injured, I felt extremely remorseful and sincerely hope that the families of the deceased and injured can be relieved from their grief soon. Sorry! Sorry! Sorry! In the past year while waiting for Court’s sentence, I often overthink and am full of negative thoughts. I was afraid of seeing other people. I received psychological counselling but I am still under great psychological stress. I feel extremely ashamed and I do not know how to face it knowing that I caused my family, relatives and friends to be so worried about me. Since the incident, I was afraid to look at anyone in the face. When I hear the sound of my neighbours opening the door while I wanted to leave the house, I would stop and wait until my neighbours walked further away before I dare to leave my house. While remanded in custody, there is no privacy or dignity in my daily life. Life in prison is never easy, and I am still unable to sleep at night just the same as when I was at home. I sincerely hope that after I have served my sentence, I will be able to stand with pride and live my life like I did in the past; unlike now that I do not dare to look up at others. I would like to give hope to my family who are waiting for me to return home. I also hope the Court will give me a chance to return to a normal life and I will cherish it.”

27.  Mr Cheng submitted a total of 28 mitigation letters (all except one in Chinese) on behalf of Mr Man written respectively by Mr Man’s employer, family and friends.  The contents are generally that Mr Man worked dutifully and seriously, is a filial son, a good husband and father, courteous and helpful to passengers, that the whole immediate family have performed religious rituals for the deceased passengers, that he routinely drove safely, is always kind and supportive to relatives in need, helpful to others, that he is remorseful and will not re-offend, and that he sought and received counselling service after the accident.  In conclusion, a lenient sentence is asked for.

28.  Mr Cheng referred to the authority of HKSAR v Man Chun Pun [2019] HKLRD 426 at length.  He also asked the court to consider the reasons for sentence in HKSAR v Fong Kwing-wah, DCCC 230/2018.  Mr Cheng asked the court to consider imposing concurrent sentences after having regard to totality.

29.  Mr Cheng also submitted a summary (in table form) of Mr Man’s movements depicted in the video footage as recorded by the camcorder installed on the bus in an attempt to persuade the court that Mr Man was not dozing off.

30.  Mr Cheng added that all along the defence team was canvassing trial hoping to push for careless driving verdict but Mr Man insisted on pleading guilty as charged saying that so many lives have been lost.  Mr Man also asked if bail could be revoked and imprisonment started.  Every time in conference Mr Man demonstrated utter sorrow and he never once tried to say it was not his fault.

31.  Mr Cheng submitted that what went wrong in the incident covered only a short period; that the severity of the incident was augmented by the presence of tree(s) on the side of the road which peeled off the top of the bus causing deceased nos 3 and 4 to be thrown off the bus; those most seriously injured were seated on the top deck.

32.  Mr Cheng has no submissions to make in relation to special reasons preventing the imposition of mandatory disqualification orders for the minimum periods or mandatory completion of driving improvement course.

Sentence

33.  I have considered all the mitigation submissions.

34.  Dangerous driving causing death and dangerous driving causing grievous bodily harm are both serious offences carrying respectively a maximum sentence of 10 years and 7 years’ imprisonment.

35.  As is said in the case of HKSAR v Lee Yau Wing [2013] 1 HKC 572, a case of dangerous driving causing grievous bodily harm, and this is taken from the holding no 2, “Rather than trying to discern from other cases, the court found it was more helpful to identify the sentencing principles that must be accommodated when sentencing for an offence of this nature and level of seriousness, namely, the principles of retribution, deterrence, and denunciation.  In order to maintain public confidence in the sentencing system, a judge should bear the principles in mind when considering the appropriate level of punishment for the offender.  Then the sentence imposed should be a balanced, proportionate and just one.  However, the dominant sentencing principle for this offence was general deterrence but the severe sentences that were imposed in order to deter also had a secondary purpose of educating the public as to the potential dangers to others involved in driving a motor vehicle and the social responsibility that rested on the shoulders of all drivers to drive safely and with due regard to others.” (my emphasis)

36.  In HKSAR v Chan Chi Chiu Louis [2013] 5 HKC 162, a case of dangerous driving causing grievous bodily harm, it was held that the defendant’s culpability should be the dominant component in the sentencing exercise even though the outcome of the offence was also an important matter for the sentencing judge to take into account; it was also held that since the focus was on the culpability of the defendant’s driving, his clear record and general good character carried little weight; that the dominant sentencing principle was general deterrence with principles of retribution and denunciation being also of relevance. (my emphases)

37.  In HKSAR v Wu Yat Cheung, CACC 450/2012, a case of dangerous driving causing grievous bodily harm (as well as causing death), Lunn JA (as he then was), in giving the judgment of the Court of Appeal, said at para 23:-

“The fact that by his manner of driving the applicant had put at risk the lives and safety of multiple other road users is another factor of aggravation in the commission of the offence to which the judge did and was entitled to have regard. In HKSAR v Chan Kwok Fai [2012] 2 HKLRD 25 this court was concerned with a bus driver, convicted after trial of causing death by dangerous driving, who had driven a double-decker bus at excessive speed into a roundabout causing it to topple over, with the result that 2 passengers died whilst 33 others were injured. The appellant had no criminal convictions and a clear driving record. This court substituted a sentence of 4 years’ imprisonment for that of 4 years and 8 months imposed by the judge at trial. In the judgment of the court, Stock VP described as a “serious aggravating factor” the fact that the applicant had put at risk the lives of nearly three dozen passengers on the bus. He went on to say (page 31, paragraph 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 companies hold out the promise that that expectation will be fulfilled. Dangerous driving by bus drivers has firmly to be deterred by sentencing policy……”

Those observations in respect of bus companies apply in equal measure to those who operate, drive and use PLBs.” (my emphases)

38.  Before emphasizing that the offences in that case called for deterrent sentences, the Court of Appeal in Wu Yat Cheung also endorsed the observations made by the sentencing judge:-

“Road accidents can cause immense human suffering. Vehicles are potential lethal machines. Those who are in charge of vehicles must bear in mind the duty they owe to other road users.”

39.  In Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, a case of causing death by dangerous driving and causing harm to persons by racing vehicles, Ma CJHC (as he then was), in giving the judgment of the Court of Appeal, said at para 17, that the case was illustrative of “the need to deter those who, in pursuit of commercial gain, or indeed for any other reason, place at risk the lives of members of the public who entrust their safety to drivers of public transport vehicles …… that in the case of dangerous driving the fact that the driver is driving a public transport vehicle is an aggravating feature and that traffic violations in such circumstances will be met with no sympathy whatsoever by the courts.” (my emphasis)

40.  In Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, a case of dangerous driving causing death, the Court of Appeal after referring to the case of Poon Wing Kay, supra, and R v Cooksley & others [2003] 3 All ER 40 (again a case of dangerous driving causing death when the maximum sentence was then 10 years’ imprisonment) said in para 37 that “[i]n assessing the degree of culpability there are two extreme situations.  The first is where the event occurred because of a momentary error of judgment.  The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness.  In between there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at para 15.”

41.  At para 39, the Court of Appeal listed the 6 mitigating factors that the sentencing court must take into account, namely:-

(a)  A good driving record;

(b)  The absence of previous convictions;

(c)  A timely plea of guilty;

(d)  A genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(e)  The offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence); and

(f)  The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.

42.  The Court of Appeal then at para 40 drew out a table of sentences considered by Cooksley in respect of four categories of culpability not as tariff but as a cross-checker.  It must be emphasized that this table of sentences are for the offence of dangerous driving causing death where the maximum sentence at that time in England was 10 years’ imprisonment.  For the first category of no aggravating circumstances, the range of sentences is 12-18 months.  For the second category of intermediate culpability: momentary dangerous error of judgment or a short period of bad driving aggravated by a habitually unacceptable standard of driving, by the death of more than one victim or serious injury to other victims or by the offender’s irresponsible behavior at the time of the offence, the range of sentences is 2-3 years.  For the third category of Higher culpability where the standard of the offender’s driving is more highly dangerous, eg the presence of one or more factors of (1) to (9) [listed in para 38 of Liu Kwok Chun], the range of sentences is 4-5 years.  For the fourth category of Most serious culpability, the range of sentences is 6 years onwards.

43.  In para 38 also, the Court of Appeal listed the following aggravating factors relating to outcome of the offence, namely:-

“(12)  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);

(13)  serious injury to one or more victims, in addition to the death(s);” (my emphases)

44.  I pause to say that factor (9) ie driving when knowingly deprived of adequate sleep or rest could be applicable in this case (see analysis below). In addition, factors (12) and (13) are blatantly present in this case.

45.  I bear in mind the following mitigating factors which apply to Mr Man, namely:-

(a)  A good driving record;

(b)  No previous criminal record and only one single careless driving conviction in 2011;

(c)  Pleading guilty in good time; and

(d)  A genuine remorse.

46.  Zervos JA, in giving the judgment of the Court of Appeal in the more recent case of HKSAR v Man Chun Pun [2019] 4 HKLRD 426, a case of dangerous driving causing both death and grievous bodily harm, stated the following broad sentencing principles in this type of case:-

“43. In order for the driving to be dangerous, it would most likely involve a serious breach of the standard of driving expected of a competent and careful driver so as to create a risk of danger to persons and property. The assessment of the dangerousness of the driving will be affected by the extent of the risk of danger which the driving created, as well as by the extent of potential harm should the risk materialise. Stephens v R (2016) 50 VR 740 at [20].

44. In Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, this Court considered that a number of general principles as stated in the English case of Cooksley equally applied in Hong Kong, which they set out together with some of their own observations as follows:

(1)  In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly: p.45J (para.11). This is important to bear in mind because, while it may be true in some stances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.

(2)  Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: at p.46A (para.11). The impact on people’s lives ought to be taken into account when sentencing.

(3)  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: at p.46C–E (para.11). 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.

(4)  While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: at p.47B (para.14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. In some cases, the fact that only some aggravating factors exist, but not others, may still bring the case into a very serious category.

(5)  One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers or of pedestrians or with a degree of recklessness: at p.46F–D (para.12).

45. Set out in Cooksley are a number of aggravating and mitigating factors that may arise in a particular case and should be considered when sentencing the offender. However, in Poon Wing Kay it was stressed that while a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability, and that in assessing the overall seriousness of the crime, culpability is often the dominant factor. In other words, determining a sentence for this offence is not a mechanical exercise of counting the number of aggravating or mitigating factors but rather having an overall picture of the case.

46. In Chan Kwok Fai, Stock V-P acknowledged that there were almost none of the aggravating features to which Cooksley refers, but added “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.” He 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 (at [16]). …

47. It is significant that Stock V-P in Chan Kwok Fai went on to explain that:

“[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 companies 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.

…”

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.

……

53. 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.

54. We note that the death of the passenger and the injuries to the other passengers were dealt with by separate charges as provided by law. The culpability encompassed by the second offence was not, therefore, incorporated into the first offence. Thus, even though the two offences arose from the one accident, there was still an issue as to how the totality of the two sentences should be addressed in order to ensure a just and fair sentence is passed on the appellant. …” (my emphases)

47.  What is clear from the above quoted passages especially the underlined parts is that:-

(a)  the dominant sentencing principle in these types of offences is deterrence with principles of retribution and denunciation being also of relevance;

(b)  a defendant’s culpability should be the dominant component in the sentencing exercise even though the outcome of the offence is also an important matter for the sentencing judge to take into account;

(c)  since the focus is on the culpability of a defendant’s driving, his clear record and general good character carry little weight;

(d)  putting at risk the lives and safety of multiple passengers by a bus driver is a serious aggravating factor whose dangerous driving must be firmly deterred by sentencing policy;

(e)  more than one person killed and in addition, serious injury to one or more victims are both aggravating factors;

(f)  where death results from dangerous driving, grave distress will be caused to the deceased’s family the impact on whom ought to be taken into account when sentencing;

(g)  in some cases, the fact that only some aggravating factors exist, but not others, may still bring the case into a very serious category;

(h)  when sentencing for these types of offences, the potential harm and the actual harm caused are important considerations; and

(i)  even though dangerous driving causing death and causing grievous bodily harm are two offences that arose from the same accident, the totality of the two sentences still needs to be addressed in order to ensure a just and fair sentence is passed.

48.  In the present case, Mr Man was a bus driver.  He had been employed by KMB since 2001, and was assigned to the subject route no 978 since 2017.  On the day prior to the day of the incident, he had a day off.  On the day of the incident, he reported duty at 0558 hours.  The subject journey was his last for the day which began at 1510 hours in Wan Chai.  When he was in the vicinity of the incident spot, he was carrying 72 passengers on board his double-decker bus.

49.  Regarding Mr Man’s driving manner before the impact at 16:31:51, there is certainly no evidence of speeding.  However, CAM2 inside the bus showed Mr Man’s head nodded (he appeared to have fallen asleep with his head falling forward) at 16:01:09 and 16:01:42; then from 16:05:16 to 16:05:18, Mr Man’s mouth was seen to have opened (he appears to be yawning).

50.  The critical moment came between 16:13:48 and 16:13:51 when Mr Man’s left hand was seen to have been placed on top of the spokes and the rim of the steering wheel with his ring finger and little finger holding over the rim of the steering wheel.  These 3 seconds are the most crucial part because it is during this short period of time that the bus continued to steer to the left uncorrected until the moment of impact.

51.  After the incident and while still at the scene, Mr Man told SPC 58853 that he momentarily fell asleep during the journey.

52.  Having seen the various video clips asked to be played by the prosecution and then by the defence in court, and noting that foot brake was not applied until 2 seconds after impact, and what Mr Man said to SPC 58853, I am sure Mr Man was showing signs of sleepiness during a part of the journey and dozed off at the critical moment.  While his left hand was placed on the rim of the steering wheel during the last 3 seconds and seemed to be in control, it was the weight of his hand on the steering wheel which had an effect of steering the bus slowly to the left while Mr Man was not fully awake to make the necessary corrections.

53.  As a result, the lives of 6 passengers were lost and 8 others suffered really serious bodily injuries.

54.  I found that Mr Man continued to drive when knowingly deprived of adequate sleep or rest from at least as early as 1601 hours.  This is factor (9) as described in para 38 of Liu Kwok Chun.  This is the culpability of his driving.  But that is not the end of the matter.

55.  There are also the aggravating factors of Mr Man being a bus driver who had put the lives and safety of multiple passengers at risk, and the deaths and serious injuries of multiple passengers with the resulting grave distress caused to their families.  With these aggravating factors also in mind, I am satisfied that this case belongs to the top end of the Higher Culpability category set out in para 40 of Liu Kwok Chun.  Considering that deterrence is the dominant sentencing principle with principles of retribution and denunciation being also of relevance, I will adopt a starting point of 5 years’ imprisonment for Charge 1, and a lower starting point of 4 ½ years’ imprisonment for Charge 2.

56.  I am cognizant of the mitigating factors as earlier identified.

57.  First of all, I will give Mr Man the full 1/3 discount for his timely pleas to the charges.  This will reduce the sentences in the first instance to 40 months’ imprisonment for Charge 1, and 3 years’ imprisonment for Charge 2.

58.  For his other mitigating factors including what I have read about him in the mitigation letters, I will take off 2 more months from each of the sentences after the 1/3 reduction.

59.  In addition, I am duty-bound to consider what is a just and fair final sentence in light of the principle of totality despite the fact that the two offences arose out of the same incident.

(Mr Man, please stand)

60.  For Charge 1, Mr Man is to serve a term of 38 months’ imprisonment.

61.  For Charge 2, Mr Man is to serve a term of 34 months’ imprisonment.

62.  I order that 10 months of the sentence on Charge 2 is to run consecutively to the sentence on Charge 1.  The aggregate sentence is therefore 4 years’ imprisonment.

63.  I further order that Mr Man be disqualified from driving all classes of vehicles for a period of 5 years in the case of Charge 1, and for a period of 2 years in the case of Charge 2; these periods to run concurrently.

64.  In respect of Charge 1 only, I further order Mr Man to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.  Mr Man shall continue to be disqualified until he has attended and completed the said course at his own cost.