HKSAR v. WONG WING KEUNG

DCCC 600/2022

[2023] HKDC 228

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 600 OF 2022

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing grievous bodily harm.

The Facts

2.  At around 11:13 pm on 18^th November, 2021, the defendant was driving a KMB double decker bus with 11 passengers on board towards Hin King.

3.  The deceased and PW1 were sitting on the upper deck while the rest of the passengers were sitting on the lower deck.

4.  The bus was travelling along the 3^rd left lane of a three-lane, one-way carriageway on Tai Po Road.  Speed limit was 50km/h.  The three lanes were separated by broken lines.

5.  The third left lane slightly bends to the right to merge with two lanes heading towards Tin Sum direction while the 1^st and 2^nd lanes go upslope to merge with Tsing Sha Highway.

6.  There is a road divider to separate the 2^nd and the 3^rd lanes.

7.  As the bus was traveling on the 3^rd left lane and approaching the road divider, it did not steer to the right when it should have been, it crossed the broken white line into the 2^nd left lane, rammed into the road divider, toppled over to the left and landed onto the ground.

8.  It slid on Tsing Sha Highway for about 8 meter before it came to a stop.

9.  The accident was captured by the bus car cameras at various angles at:-

23:13:45	The bus was travelling along the 3rd left lane of Tai Po Road, Tai Wai section towards Tin Sum direction. There was a taxi ahead of the bus on the 2nd left lane.
23:13:50	The front of the bus started crossing the broken white line separating the 2nd and the 3rd left lanes.
23:13:54	The front of the bus rammed into the road divider/
23:13:56	The bus toppled over, fell to its left and slid on the ground.

10.  The driver cabin camera showed that at:-

23:13:19 to – 23:13:30	The defendant nodded and his head slightly swayed to the sides.
23:13:30 to 23:13:35	The defendant head swayed for 5 seconds.
23:13:52	The bus started to cross the broken white line separating the 2nd and the 3rd left lanes.  The defendant’s left hand veered slightly to the right.
23:13:54	The bus rammed into the road divider and shuddered
23:13:56	The defendant was thrown off from the driver seat to his left.

11.  The upper deck camera showed the following:-

23:13: 46	The deceased was sitting on the 3rd right row while PW1 was sitting further behind him.
23:13:55	The deceased was flown off from his seat to the left side of the bus.
23:13:58	The bus was toppled over to the left. Two empty seats on the right side fell off.

12.  The lower deck camera showed at: -

23:13:48	All passengers were seated.
23:13:55	As the bus shuddered, all passengers were thrown off from their seats to the left.

13.  Firemen and ambulance men arrived at the scene within 9 to 10 minutes after the incident.  The deceased was stuck between the bus and the ground with no sign of life.  His head was severely deformed with brain plasma falling out from his head.  He was certified death at the scene.

14.  The autopsy report said that the direct cause of his death was due to “head injury”.

15.  There were 10 passengers suffered injuries as a result of the accident: -

a. PW1 suffered lower back pain. Medical examination revealed that a closed fracture of the right femoral medial condyle and mild degeneration changes of the lumbar spine. Operation has been performed on this area. The doctors recommended 3 months’ sick leave.

b. PW1 complained of persistent pain, soreness and weakness over her waist and both legs. As of 16 November, 2022, PW1 is still relying on walking stick for her mobility and cannot resume to work.

c. PW2 was diagnosed with liver injury with multiple liver laceration. She also suffered chin laceration and bilateral lower limb lacerations which required plastic and orthopedic surgery respectively. The scars on her face and hands affected her appearance. She was given 2 months’ sick leave.

d. As to the other 8 passengers, they sustained minor injuries.

16.  At the time of the offence, weather was fine, road surface was dry and in good repair.  There was sufficient illumination from the street lights.  The traffic flow was low.

17.  The defendant obtained his driving license in 2003.

18.  The black box of the bus indicated that the speed at the material time was 33.3km/hr.

19.  The result of the examination of the bus confirmed that it was free from any mechanic defects.  Extensive damage was found in the various parts of the bus.

Criminal record

20.  The defendant does not have any criminal conviction.

Traffic conviction record

21.  The defendant was convicted of careless driving in January,2021.  He was ordered to pay a fine of $1,800;

Personal background of the defendant

22.  He is now 59 years old.  Married with 3 children.  The eldest two children are married and live apart, while the youngest son is 19 years old and is still receiving education.

23.  The defendant worked as a bus driver for 18 years and he was due to retire at 60.  But for the present incident, the defendant has lost his long term service and the retirement fund he was entitled to.

24.  The defendant has suffered from post-traumatic disorder and depression due to the present accident.  He is extremely remorseful for what had happened to the deceased and those passengers who suffered injuries as a result of the accident.

25.  There are altogether 13 mitigation letters from his family, friends and colleagues, they all said that the defendant is a hardworking, humble and kind person.  He is also a good father and a good husband at home.  He is also a helpful colleagues and a courteous bus driver to the passengers on board.

26.  All his family members, friends and colleagues are shock and surprise that the defendant committed the present offences.

27.  His wife and his youngest son are now taking up part-time job to support the family.

28.  As to the health condition of the defendant, he suffered from hypertension, high cholesterol and high blood pressure.  He was on medication, but that would not affect his ability to drive.

29.  The defendant has not yet informed his old-aged mother of the present proceeding.

Sentence

30.  The maximum sentences for:-

a. Dangerous driving causing death is 10 years’ imprisonment and a fine at level 5 plus disqualification period.

b. Dangerous driving causing grievous bodily harm is 7 years’ imprisonment and a fine at level 5 plus disqualification period.

31.  In the present case, there was one death and 10 passengers were injured, 2 of 10 were seriously injured.

32.  As said in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 610 that:-

“in assessing the overall seriousness of a crime, culpability is often the dominant factor.”

33.  While the Court in HKSAR v Man Chun Pun [2019] 4 HKLRD 426 also said that apart from culpability of the defendant,

“the potential / actual harm caused were also important consideration.”

34.  In the case of HKSAR v Chan Kwok Fai [2012] 2 HKLRD, Stock VP said that:

“whilst capability 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.

35.  In Cooksley [2003] 3 AER 40, it stated that there were four categories of culpability and there are also adopted in Hong Kong:-

a. Where there are no aggravating factors, starting point is 12 to 18 months’ imprisonment;

b. Intermediate capability – 2 to 3 years’ imprisonment;

c. Higher culpability – 4 to 5 years’ imprisonment;

d. The most serious culpability – 6 years’ imprisonment.

36.  In paragraph 15 of the judgement in Cooksley, it listed out a number of aggravating factors which included: -

(i) The outcome of the offence when

a. 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);

b. Serious injuries to one or more victims, in additions to the death(s).

37.  The defence in mitigation said that: -

a. The defendant through his error of judgement, misjudged the distance and travelling direction of the bus, therefore crashed onto the road divider.

b. The defendant was not falling asleep; he was in control of the bus as the bus camera showed that he “attempted to steer the bus to the right.”

c. The speed at that time was about 33.3km/h.

d. The day before the accident was his day off. He was not derived of any sleep.

e. He commenced his work on that day at 4 pm, he also had 2 hours’ dinner break before the accident.

f. There was no prolonged, deliberate dangerous manner of driving.

g. He was the designate driver for the route and was therefore familiar with the road.

h. It was a momentary error of judgement.

38.  The defence accepted that since he was a public vehicle driver, it amounted to an aggravating factor.

39.  The defendant had already admitted to the summary of facts which indicated that:-

a. 23:1319 to 12:13:30, a total of 11 seconds, that he nodded and his head swayed to sides;

b. 23:13:30 to 35, he then swayed his head for another 5 seconds;

c. Altogether there were about 16 seconds that the defendant nodded and swayed his head (11 + 5 seconds);

d. About 19 seconds later (at 23:13:54), the bus rammed into the road divider and shuddered;

e. At 23:13:56, the defendant was thrown off from the diver seat to his left.

40.  The prosecution said that when the defendant nodded and swayed his head, he was dozing off for that 16 seconds.

41.  The defence made references to a female passenger who also had swaying body movements in the lower deck.  However, the passenger in the front and at that back of that female passenger did not have any swaying body movement.  The handles on the rail also swung a bit.

42.  I cannot speculate why the female passenger had such body movements.  As to the handles, they would move when the bus turned around corners or moved from one lane to another.

43.  We all have the opportunities to view the CCTV in open courts on numerous occasions.

44.  The period before the defendant bagan to nod and sway his head, that was 23:13:19, we all could see that the defendant was actively engaging the steering wheels with his hands.  He looked attentively to the road condition on his left and right, on the wing and rear mirrors of the bus.

45.  He was driving the properly.  I can see that his eyes were opened.

46.  However, when he nodded and swayed his head for that 16 seconds, we cannot see his eyes, his eye lids were closed.  He did not engage his hands with steering wheels actively.

47.  I accepted that before the accident occurred, his eyes were opened that he looked ahead in front of him.

48.  The defence said that he had a day rest before and a 2 hours’ meal break before the accident.  All in all, the defence said that he was not tired at the material time.

49.  He started his shift at about 4:30pm that day.  The accident occurred at about 11:13 pm.  He might have a rest day before the day of the accident.  Only he himself knew whether the quality of sleep and rest was good one or not.

50.  Nonetheless, I consider that it was a long day for the defendant.

51.  We all have experience drowsiness before.  When it comes to a point, it is just unbearable to keep eyes open.

52.  As said in the judgement of Cooksley:-

a. at paragraph 17 that “falling asleep at the wheel usually involved a period during which a driver is conscious of drowsiness and difficulty in keeping his/her eyes open.”

b. at paragraph 55 that “sleep is normally preceded by a period of drowsiness and difficulty in keeping the eyes open”;

53.  To this end, I ruled that when the defendant nodded his head and swayed to sides, his eyes were shut and his mind was not focusing on the road condition;

54.  However, I do accept that just before the accident, his eyes were opened

55.  This is a route that he was familiar with for some years.  There was nothing new or unusual on the road to him;

56.  Before the bus hit the road divider, there was no cars in front of the bus, the road surface condition was in good repair, weather was fine, lighting condition was also good.  In a gist, there was nothing to block the view of the defendant to the road divider;

57.  He could see the road divider ahead of him;

58.  The road divider is a substantial, concrete hard object which would not be easily missed by any careful and competent driver especially for the defendant who has driven along this route several rounds a day for some time, when came to this section of the road, he would have known that there was a road divider ahead of him;

59.  No vehicle could positively be driven on this road divider, as I say, it is a big and substantial one;

60.  In reality, the defendant did not register that there was a road divider ahead of him after he had dozing off for that 16 seconds.  There was no sign of avoiding that road divider by the defendant;

61.  In that 19 seconds before he rammed into the road divider, he had been driven for some distance;

62.  Against this background, I disagree with the defence that it was a momentary misjudgment which caused this car accident.

Aggravating Factor

63.  The defendant was a public bus driver. It has been emphasized in many cases that a vehicle can main or kill as vehicles are potential lethal machines.  Driving a vehicle comes with great responsibility.

64.  As said in the judgment of Man Chun Pun that “dangerous driving involving a public service vehicle which put at risk the lives of passenger’s, was a serious aggravating factor which, depending upon the particular circumstances, warranted a starting point in the higher category of offending.”

65.  The passengers on board the bus have a legitimate expectation that they could arrive at their destinations safely.

66.  When I pass sentence on the defendant, I also have to take into account of the grave distress caused to the families of the deceased and the 2 seriously injured passengers.

a. I have seen the video clip from the upper deck of the bus. At the time of impact and when the bus was toppled to the left, the deceased was flown away from his seat to the left.

b. He was struck between the bus and the ground, his head was deformed. Basically, he died immediately.

c. One can easily imagine that his family must be in a state of shock when the police broke the news to them. They expected the deceased to come home, never expected or prepared to receive such a tragic news.

d. They must have lived with anger and anxiety for the loss of Mr. Ng.

e. Their pain and sufferings are beyond measurement.

67.  The rest of the passengers on board of the bus also suffered injuries, two were particularly serious.

a. PW1 is a 63 old woman.

b. The photos show both of her knees are deformed. She was hospitalized for 3 months.

c. As of last month, she still has persistent pain on her waist and leg. That affect her to walk stably. She has to rely on walking sticks. She can only walk very slowly. Therefore, she could not go back to work. She lost her job as a cashier in a supermarket.

d. More importantly, because of her physical health condition, she stays at home most of time. As a result of which, reduce her social interactions and activities with friends and family members.

e. Understandably, she remains in low mood.

f. PW2 is a 20 years old young woman. Apart from multiple liver lacerations, I can see from the photos that there is a prominent long scar on the underside of her chin from left to tight.

g. There were also numerous scares on her limbs and she is required to wear compression sleeves to protect the wounds from being infected. That affect her mobility on her limbs.

h. Those scares affect her appearance and her confidence as a whole in her daily life.

i. Today, she has to attend the hospital for laser treatments as to her scares.

j. She is required to attend the hospital for follow up treatment in every 3 months.

68.  What I can see was that apart from the physical injuries of these 2 victims, psychologically, there is a huge impact on them as a result of this accident.

69.  In passing sentence on the defendant, his personal circumstances carry very little or even weight at all.

70.  Having said that, this Court still oblige to take into account of the following mitigating factors: -

a. The defendant is now 59 and has a clear record.

b. He obtained the driving license in 1983, he had an unblemished record until 2021. That was 10 months before this accident.

c. His timely plea.

d. He has been a bus driver for 18 years.

e. All the mitigating letters told me about his attitude in performing his works and his character of being a good person.

Sentencing principle

71.   As said in the judgement of HKSAR v Chan Kwok Fai that

“dangerous driving by bus drivers had firmly to be deterred

by sentencing policy.”

The Sentence

72.  With all this information in mind, I consider that the starting point for each charge is as follows: -

a. Charge 1:- is 4 years, reduce to 32 months’ imprisonment after 1/3 discount.

b. Charge 2:- is 2 years 6 months, reduce to 20 months’ imprisonment after 1/3 discount.

Totality

73.  Although the 2 offences arose from the same incident, the culpability of the second offence was not reflected in the first offence, as such, I order 10 months from the second charge to run consecutively to charge 1.

74.  The total sentence arrives at 42 months’ imprisonment.

Disqualification

75.  I also order the defendant to be disqualified from driving all vehicles: -

a. for a period of 5 years in charge 1.

b. for a period of 2 years in charge 2.

c. the disqualification periods are to run concurrently.

Driving improvement course

76.  I further order that the defendant to attend and complete a driving improvement course at his own cost for both charges within the last 3 months of the disqualification period.

77.  He only requires to attend one driving improvement course for both charges.