HKSAR v. CHAN KAM TONG

DCCC 139/2022

[2022] HKDC 743

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 139 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance.

2.  The amended Summary of Facts admitted by the defendant reveals that the accident location concerned is a light-controlled junction between Tai Chung Kiu Road and Fo Tan Road.  Tai Chung Kiu Road had a central divider separating both bounds.  The relevant section of the Ma On Shan bound carriageway consisted of five lanes, where the rightmost lane (fifth lane)  could only turn right into Sha Tin Road slip road.  The second to fourth lanes could go straight towards Ma On Shan.  The speed limit of the road was 70 kilometres per hour.  At the material time, the weather was fine with sufficient daylight.  The road surface was dry.

3.  At about 1305 hours on 4 June 2021, the defendant drove the subject bus bearing registration number UZ2840 (V1)  with 55 passengers on board, who are mostly Primary 2 students and a school nanny, Madam Lau (PW3), along Tai Chung Kiu Road towards Ma On Shan direction. V1 changed from the second left lane to the third lane before it reached the junction outside Belair Gardens. 

4.  After crossing the Belair Gardens junction, V1 overtook a white private car on the third lane and then changed into the fourth lane.  The fifth lane, which is for right turn only, then emerged and V1 changed into the fifth lane.  There was no vehicle on the fifth lane while there were a number of vehicles on the fourth lane for going straight or turning right, waiting for the light signal to turn green.  A private vehicle bearing registration number JJ2633 (V2)  driven by Mr Poon (PW1)  was the first vehicle before the stop line in the fourth lane, and a light goods vehicle bearing registration number TY2286 (V3)  driven by Madam Yu (PW2)  was behind V2.

5.  As V1 was travelling on the fifth lane and approaching the junction, the traffic light had turned green and V1 continued to travel straight across the junction rather than turning right in accordance with the road marking.  It is to be noted that after passing the junction, there were only three lanes on the relevant section of Tai Chung Kiu Road.  As such, the fifth lane before the junction was partially aligned with the central divider and the opposite lane.  Therefore, after the traffic light turned green, V2 was travelling on the third lane after it crossed the junction. 

6.  At the same time, V1 was travelling ahead across the junction to the right of V2 and it knocked down the traffic light and traffic bollard and 6 metres of metal railing on the central divider.  It then travelled forward towards the left and collided with V2’s offside front and continued travelling forwards towards the left-hand side of the road.  It ran down a slope and eventually stopped on a cycling path to the left of the road. Camcorders on V1 and V3 captured the incident.  The footages were played in court.

7.  PW1, PW3 and 23 students on board V1 were injured as a result of the accident.  All of them were discharged from the hospital later that day.

8.  During preliminary inquiry, the defendant told a police officer, inter alia, that the brake of V1 malfunctioned.  However, motor vehicle examination conducted on 7 June 2021 confirmed all brakes of V1 to be operative.

9.  Upon reviewing the relevant camcorder footages, government chemist opined that:-

(a)  at about 3.3 seconds before impact, V1 was travelling at an estimated speed of 78 ± 8 km/h;

(b)  at about 1.7 seconds before impact, V1 was travelling at an estimated speed of 56 ± 6 km/h.

10.  Three traffic light posts, one traffic bollard and about 6 metres of metal railings installed on the central divider kerb were severely damaged.  One tree near the cycling path was felled. 

11.  The defendant now admits that at the material time of the offence, he drove V1 on the road dangerously, in particular, by driving in contravention of road markings and failing to pay due care and attention to the safety of other road users.

Background and Mitigation

12.  The defendant is now 57 years of age.  He has no criminal record nor traffic conviction except for a fixed penalty ticket for speeding.  In his written and oral submissions, Mr Donald, counsel for the defendant, tells the court that the defendant is a divorced person.  He is a school bus driver by occupation and has been in this profession for 12 years.  He suffered liver cancer which is now in remission after a liver transplant.  At the traffic accident, he suffered serious spinal injuries for which he was in hospital for one month.  He is still in constant pain.  He cannot sit and has great difficulty in sleeping. 

13.  The defendant admits that he made a wrong decision to go faster and to change lanes at the junction.  As a result, following the lane change, he was unable to immediately slow down in time to avoid the accident.  Although the defendant told the police that the brakes of his vehicle malfunctioned, the defendant now accepts the findings of the traffic expert. 

14.  Defence counsel explained that the defendant was only telling the police officer what he felt at the time of accident but he now completely accepts that the brakes were working.  I accept that the defendant did not deliberately lie or mislead the police officer. 

15.  The court has also received mitigation letters written by a parent of two children on board the bus, the children’s school headmaster and class teacher.  In their letters describing the defendant as a responsible person who cares for children, they plead leniency for the defendant. 

16.  Defence counsel put forward the following main mitigating factors.  First, he has previous clear record and a good road traffic record.  Second, no victims sustained serious injuries except the defendant.  Third, he fully acknowledged his responsibility and cooperated with the police.  He admitted the charge from the very outset.  More importantly, the defendant badly injured himself as a result of the accident. 

17.  Mr Donald assisted the court with a case of Court of Appeal, Secretary for Justice v Chu Wing Yin Christine. Counsel for prosecution submitted another case of the Court of Appeal, Secretary for Justice v Wade so that the court can read the case cited by defence counsel in context.  Apparently, the general principles in these two cases are not in dispute.

Background Report

18.  At the request of Mr Donald, quite properly in my view, I called for a pre-sentence background report of the defendant so that the court will have more information about the defendant.  The report is now before the court and I have duly considered the contents.  The background report of the defendant gives detailed information.  Briefly, it reports that the defendant had an uneventful upbringing but his siblings all suffered from different kinds of health issues.  The defendant is divorced, living with his 27 years old son.  He was diagnosed with liver cancer in 2000.  He went to the mainland for liver transplant in 2008.  Thereafter, his health condition became stable with good recovery.  He resumed work as a school bus driver in 2012. Currently, he is on medication, following up at Queen Mary Hospital at a 12-week interval for his liver issue.

19.  During the accident in this case, he suffered from spine fracture and received a surgery.  He had been hospitalised for a month.  He still has to attend follow-up treatment at the orthopaedic clinic of Prince of Wales Hospital at a 17-week interval.  For his difficulties in bending his back, he is unable to put on socks and clothes, etc properly.  He walked slowly with a walking aid.  He also experienced facial spasm for which he is receiving treatment at the facial plastic clinic of Prince of Wales Hospital at a 17-week interval. 

20.  It is reported that the defendant was admitted to hospital on 12 July for investigation of a swelling foot problem which is suspected to be related to renal issue.  Counsel tells the court today that the defendant was hospitalised from the 12^th to the 17^th of this month.  A receipt is produced in support.  He discharged himself from hospital in order to attend court and, hence, the result of the medical investigation is not yet known.

21.  The background report further reveals that the defendant has been on sick leave, receiving $19,000 per month from his employer, which is four-fifths of his salary.  He is also receiving disability allowance amounting to $2,250.

22.  During the inquiry by the probation officer, the defendant expressed his sadness about the accident with deep regret for it. His ex-wife and son were contacted and they found the defendant had strong guilty feeling for causing the accident. 

Reasons for Sentence

23.  Dangerous driving is regarded by the courts as a serious offence.  The maximum penalty on conviction on indictment is a fine at level 4 and imprisonment for 3 years.  The sentencing approach as discussed by the English Court of Appeal in R v Cooksley was endorsed by the Hong Kong Court of Appeal in Secretary for Justice v Poon Wing Kay. In Poon Wing Kay, the Court of Appeal said:-

“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving. It is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving.”

24.  Undoubtedly, the degree of seriousness in each case depends on the precise circumstances of the driving.  A sentencing court must look at the overall circumstances and the overall culpability of the offender.  The general sentencing principles in the two cases relied upon by parties are not in dispute.  In considering the sentence, the offender’s culpability is a dominant factor while the outcome of the offence should not be ignored. 

25.  In the present case, the defendant had been a school driver on the same route for a few years.  It cannot be denied that he was familiar with the route and he intended to overtake the vehicles on the fourth lane.    There were six vehicles on that lane.  He must know the right-turn-only road marking on the fifth lane.  He deliberately disobeyed the road marking with intention to force his way into the lane on his left where the vehicles had started to move after the green light.

26.  The defendant was driving a huge vehicle at high speed.  From the footage recorded by the camera of the school bus, it had been travelling at a speed much higher than the other two school buses.  When he approached the junction, he even accelerated in order to overtake.  Allowing for the calculation error for ± 8 kilometres per hour in favour of the defendant, the bus was still being driven at a speed of 70 km/h, which was the speed limit of the road, at 3.3 seconds before impact.  At such a speed, the defendant must be aware that he would be unable to immediately slow down the bus safely in case of emergency.  Neither could he turn right safely at such a speed.  But if he drove straight on, the bus would collide with the central divider and the opposite vehicles.

27.  In all the circumstances, I find the defendant’s conduct of driving most reckless and indeed a blatant disregard of the traffic law, demonstrating a wholly selfish disregard for safety of others.  An aggravating feature in the case is that the defendant, as a professional driver, was driving a school bus with a bus nanny and 55 pupils on board.  The dangerous driving of the defendant put the safety of 56 passengers on board at risk.

28.  Moreover, the pupils are all of tender age who are too small to know whether the driver is driving safely.  They need protection of adults.  They placed their trust and indeed their parents placed their trust in the defendant driving them home safely.  Driving dangerously as he was in this case, the defendant can be regarded as in breach of the trust placed in him.

29.  The multiple injuries as a result of the collision further aggravated the defendant’s culpability.  As a result of his reckless conduct, 25 people were injured.  The prosecution did not submit any medical reports of the injured persons.  They were all discharged on the same day.  I will take it that they all had sustained minor injuries.  In such a serious traffic accident, it was by sheer luck that only 25 people were injured and they did not suffer more severe injuries.

30.  In the accident, the school bus seriously damaged three traffic light posts, one traffic bollard and 6-metre-long railing on the central divider kerb.  A big tree was even knocked down when the school bus was running down the slope.  Given the bus was a huge vehicle travelling at a high speed, the severe impacts were unsurprising.  One can also imagine how frightened the 55 children were at the time of the accident. 

31.  The defendant’s conduct was most reckless, endangering the lives of the people on board the vehicles on his left as well as the passengers on his vehicle.  He was in breach of trust placed in him as a professional driver.  He put 55 minors in panic.  Twenty five people were injured with serious damage to properties as a result of the defendant’s conduct of driving.  All these victims are innocent. 

32.  In all the circumstances of the case, the only appropriate sentence is imprisonment and I take 9 months’ imprisonment as a starting point. 

33.  Insofar as mitigation is concerned, he has no previous convictions.  He entered a timely plea of guilty, indicating his genuine remorse.  Giving him full credit for his plea of guilty, I reduce the sentence by one-third to 6 months’ imprisonment.

34.  I accept that the defendant was seriously injured in the accident, which is a mitigating factor, but he has only himself to blame.  I note that he had a liver transplant with his liver cancer in remission.  He needs to attend frequent medical appointments for his various health issues.  He has no previous conviction and has a rather good driving record.  Consideration is also given to the mitigation put forward by the school and a parent.

35.  Having evaluated all these matters in his favour, I will give him another 1-month reduction in sentence.  Community service order is not a viable option because of his health condition and indeed inappropriate in my view in the circumstances of this case. 

36.  I have carefully considered whether the custodial sentence should be suspended for special circumstances, in particular for his physical ailments.  Mr Donald has done his best in his mitigation on behalf of the defendant, requesting for a suspended sentence.  There is no evidence that the defendant is now in a serious medical condition.  In any event, the Correctional Services Department will provide medical services to him and make suitable arrangements for his necessary medical treatment in hospitals.  Indeed, I have reflected this factor in the sentence reduction on top of the one-third discount. 

37.  It must be emphasised that the courts take a very serious view in cases involving dangerous driving.  In particular, professional drivers must be acutely aware of the necessity to be safe and not to risk people’s lives and safety.  In all the circumstances, I am afraid that a suspended sentence is not appropriate. 

38.  For these reasons, the defendant is sentenced to immediate imprisonment for 5 months.

Disqualification

39.  There is mandatory disqualification for dangerous driving unless the court, for special reasons, decides not to make such an order.  Defence counsel fairly makes no submission on this.  I find no special reasons not to disqualify the defendant.  I note that he is a professional driver, he may need his driving licence to make his living.  For his health condition, it may not be easy for him to change his job. 

40.  In all the circumstances, the defendant is disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 18 months.

41.  It is also mandatory that a court shall order a person convicted of dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  There is no special reason not to do so and I make this order accordingly.