HKSAR v. CHAN KWOK FAI

DCCC558/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 558 OF 2010

----------------------

----------------------

--------------------------

Reasons for Sentence

 --------------------------

1.  I found the defendant guilty after trial of the offence of dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374.

2.  At approximately 20 minutes past midnight on 9 November 2009, the defendant was on duty driving a Kowloon Motor Bus double-decker bus.  The defendant was at that time travelling along the first lane of Po Shun Road southbound.  Upon reaching the roundabout of Po Shun Road and Tong Ming Street, the bus turned left into the east carriageway of Tong Ming Street but went out of control toppling over to the offside with the upper deck mounting onto the central divider of the second lane of Tong Ming Street. The bus was carrying 35 passengers at the time and as a result of the accident two female passengers died and all the remaining passengers were injured including the defendant.  The bus was severely damaged.  The defendant and 11 passengers were discharged from hospital on the same day after medical treatment.  The remaining 22 passengers were hospitalised for periods between 2 and 97 days.  Two female passengers, Madam Yip Kwan-wun, was certified dead at 0056 hours on 9 November 2009 and Madam Liu Charmeo Cheuk-miu at 2000 hours on 11 November 2009.

3.  At the time of the accident the weather was fine, the road surface was dry and in good repair.  The street lights were lit and visibility was good.  About 150 metres before approaching the roundabout of Po Shun Road and Tong Ming Street, the statutory speed limit imposed on Po Shun Road changed from 70 kilometres an hour to 50 kilometres an hour.  There was a 50 kilometres an hour speed limit traffic sign erected thereat to remind road users. 

4.  I found that at the time the defendant was driving the bus and making a left turn around a right-angled left bend the defendant was driving at an excessive speed.  The excessive speed of the bus caused the bus to topple over to its right.  I found at the material time that the bus was negotiating the bend travelling at a speed of 59 plus or minus 6 kilometres an hour as stated by a prosecution expert.  On that expert’s estimate of the speed, the lowest speed the bus would have been travelling would have been 53 kilometres an hour and the highest speed at 65 kilometres per hour.  Although the speed limit for the road was 50 kilometres an hour, I found the bus should have negotiated the bend at a safe speed of 30 kilometres or less.  The bus was therefore speeding in excess of at least 23 kilometres an hour.  It mattered not that the legal speed limit on the road was 50 kilometres an hour.

5.  Mr Oliver Davies, counsel for the defendant, has made full and thorough mitigation on behalf of the defendant.  I have taken into account all that has been said on the defendant’s behalf.  Defendant is aged 38 and born in Hong Kong.  He has a clear record and a clear traffic summons record.  He had been recruited as a driver for KMB in April of 2006. He had been driving this particular route for near to 14 months.  He would have been familiar with the scene and would have been well aware of the safe speed to negotiate the bend. 

6.  Mr Davies’s submissions were short and succinct.  The mitigation advanced on behalf of the defendant was that he had a momentary lapse of judgment, it was a misjudgement going around the corner too fast.  It was a short mistake of going too fast at the material time.  The defendant himself was injured.  He feels very guilty about this incident.  It has been such a tragedy on the defendant that the defendant believes he will probably never drive again.  Mr Davies submits that this offence was completely out of character and he has urged me to consider that this was at the very lowest level of dangerous driving.

7.  As stated in the Secretary for Justice v Wong Wai Hung, AR 7 of 2010, Tang, acting Chief Judge of the High Court said:-

“In England the leading case on sentencing for this kind of offence is R v Cooksley & Ors [2003] 3 All ER 40 where the English Court of Appeal provided sentencing guidelines. Cooksley also explained that causing death is invariably a very serious crime and that even where there are no aggravating circumstances, a short custodial sentence of perhaps 12 to 18 months should be the starting point, progressing through intermediate culpability, 2 to 3 years, to higher culpability, 4 to 5 years, and most serious culpability up to a maximum of 10 years.”

8.  I bear in mind that the maximum sentence for dangerous driving causing death is now 10 years’ imprisonment.  As stated in Cooksley, “Culpability is the determining factor”.  It is important for courts to drive home the message that there may be extremely grave consequences flowing from the acts of dangerous driving and it is therefore necessary to have in mind the deterring effect when sentencing in many cases involving dangerous driving.  One major factor to be considered as an aggravating factor justifying a heavier sentence is where a person has driven with selfish disregard for the safety of other road users or his passengers or with a degree of recklessness. 

9.  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 the type of driving the defendant displayed.  There is a need to deter those who place at risk the lives of members of the public who entrust their safety to drivers of public transport vehicles.  Drivers, particularly those of public transport vehicles, must know that they are not allowed to endanger others by speeding or in any other way.  If an accident happens, extremely grave consequences can occur. 

10.  In the present case, when the speed limit reduced from 70 to 50 kilometres the defendant did not appear to slow down to the required speed of 50 km/h as witnessed and evidenced by Mr Leung, the driver in the car immediately following the bus.  I do not accept Mr Davies’s mitigation that the defendant was only about 3 kilometres or so over the legal speed limit.  Although technically that is correct, I did find that the defendant was over the bus’s safe speed limit of at least 23 kilometres.  I also do not consider this to be a momentary error of judgement or misjudgement as the defendant has shown his lack of reducing speed from 70 to 50 and thereafter from 50 to 30.  As mentioned, culpability is the determining factor when sentencing the defendant for dangerous driving causing death.

11.  This is not a case where there are no aggravating factors.  There were aggravating factors in this case, one of which was the excessive speed of the bus.  The defendant driving at this speed, he knowingly put more than one person at risk.  The occurrence of multiple deaths and serious injury to one or more of his passengers were foreseeable.  These are again aggravating features.  In the present case, as a result of his dangerous driving two females died.  Every single passenger, including himself, was injured.  Although 11 were discharged from hospital on the same day after medical treatment, 22 passengers were hospitalised for periods between 2 and 97 days, that is a considerable time, 97 days equates to over three months of hospitalisation.  There is therefore a presence of more than one aggravating factor.

12.  Even though it might be submitted, as Mr Davies had, that the defendant had only for a short period of time driven at excessive speed, the defendant knew that he was approaching a right-angled sharp left bend as he was very familiar with this route.  The defendant should have appreciated that when he was approaching this sharp corner, going around this bend at high speed it was very dangerous.  The public are entitled to require the courts to reflect the loss of life and to demonstrate that dangerous driving is a serious social evil which if death results leads to a substantial custodial sentence. 

13.  I accept that drivers like the defendant are people who usually are law‑abiding.  They are not your ordinary criminal.  In this case, the defendant has never committed any crime at all.  He has to be put behind bars because of his acts of improper driving having caused death. However, the courts cannot overlook the fact that although these drivers did not intentionally cause the deaths and injuries to others, their irresponsible driving manners have resulted in extremely grave consequences including causing deaths of innocent people and grave distress to their families.  I have borne in mind the principles as laid down in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 66D. 

14.  In respect of the mitigating factors for the defendant, he has a impeccable driving record.  He has a clear record, having no previous criminal convictions.  Although he sustained some injuries they cannot be considered very serious injuries.  As I see it, his injuries do not have a life changing significant effect.  He is 38 years of age.  He does not have the benefit of a timely plea of guilty.

15.  Having regard to all the circumstances of this case and of the mitigation put forward by the defendant, I am of the view that the overall culpability of this case warrants a sentence of 5 years’ imprisonment.  Defendant, you have admitted a large portion of the prosecution’s case and saved a lot of court time.  In those circumstances I think it appropriate for me to discount from your total sentence 4 months for the time saved.  In the circumstances, defendant, you shall be sentenced to imprisonment for 4 years and 8 months and be disqualified from driving for a period of 3 years.