HKSAR v. SIU YAM NAM

DCCC 104/2018

[2018] HKDC 842

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 104 OF 2018

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

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

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

Reasons for Sentence

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

1.  The defendant has pleaded guilty today to one charge of causing death by dangerous driving. He was driving a public bus on 15 June 2017 in To Kwa Wan, Kowloon.

2.  The summary of facts are as follows.

3.  Before the tragedy took place, the defendant had stopped his coach at the first lane of Ma Tau Kok Road to let passengers come on board.  After they had all boarded and sat down, suddenly the coach dashed forward.  There was a tour guide on board, a Miss Cheung, who was standing up at the time, when suddenly the coach moved forward quickly.  This caused her to lose balance and almost fall to the ground. 

4.  The coach then hit a bus that was partly straddled in his lane and then hit a traffic signal that was erected before a pedestrian crossing.  This traffic signal controlled traffic and was red at the time, which was why the bus had stopped.  This meant pedestrians had the right of way and at that moment a Miss Lok, who was 85 years old, and her Filipino domestic helper, Mr Villaruel, who was 58, were both crossing the road using the pedestrian crossing. 

5.  After the coach driven by the defendant hit the traffic signal erected before the pedestrian crossing, it continued forward and hit both Miss Lok and Mr Villaruel, trapping them both under its wheels.

6.  The coach continued to move forward.  In fact, it stopped 28.9 metres from its original parking position.

7.  Firemen had to rescue both victims from underneath the coach and Miss Lok was certified dead at the scene and Mr Villaruel was certified dead half an hour later at Kwong Wah Hospital.

8.  Under caution at the scene, the defendant said that the tour guide had told him the coach was ready to go, so he released the handbrake.  Suddenly the coach dashed forward and when he tried to stop the coach, he failed.  He only succeeded in stopping after it knocked down two pedestrians.

9.  CCTV in the vicinity captured the coach suddenly drive onto the pedestrian crossing when the traffic signal was red and hit both the deceased.

10.  There were several witnesses who gave statements to the police.

11.  The driver of the bus which was hit by the defendant said he overtook the defendant’s coach as it was parked in the first lane, but because the traffic light had turned red he had to stop and his bus straddled both the first and second lane.  He had stopped for three to four seconds for the red light when the defendant’s coach suddenly dashed forward and hit his bus on the nearside front but continued forward onto the pedestrian crossing.

12.  Three passengers on the bus gave similar evidence to the bus driver and said they heard a loud noise, a vehicle acceleration before they saw the coach suddenly dash forward in the first lane before it hit the bus.

13.  A minibus driver who was facing the coach and bus saw the accident from a different angle.  He said he saw the coach dash forward at a high speed when it hit the two deceased’s pedestrians.

14.  The vehicle was examined at the scene and later at the Vehicle Detention Centre, with no mechanical defects found.

15.  The defendant is 60 years old and has been a professional driver since obtaining his driving licence in 1985.  He has driven lorries back and forth across the border and then tourist buses.  Since 2008 he has driven Hong Kong tourist buses in the territory only and since 2015 on a part-time basis, which means on the date of the offence he was a part-time driver working between two to four days per week.

16.  He has always been the breadwinner of an intact family.  His wife and two adult children are in court today.  He has five siblings and until recently his 90-year-old mother was living with the defendant before she had to move into an old age home.

17.  The first thing defence counsel, Miss To, did on behalf of the defendant was to apologise to the deceased’s families.  This is his first opportunity to make an apology to them.  He is sorry for the pain and suffering he has caused them.

18.  From mitigation letters, I can glean that he is traumatised by the accident and rarely leaves home and no longer drives any more.  I am told he now no longer earns an income and relies on his savings as well as his children to support himself and his wife.

19.  I have seen many mitigation letters from the defendant, his wife and children.  He himself explains that he has nightmares about the accident and is deeply sorry for the accident and the grief he has caused the families of the deceased.  It would appear that he is still suffering from the accident and I accept that his remorse is genuine.

20.  There are many letters from previous employers, supervisors and colleagues, who ask for leniency on his behalf. 

21.  What does stand out in mitigation is the fact that the applicant has been a professional driver for 33 years and only has two fixed penalty tickets.  Other than those, he has a clean driving record.

22.  He does have a criminal record, but I can effectively ignore those.  They include gambling offences and an assault, for which he was bound over.  They were all committed in 1980 - many, many years ago.

23.  Ms To has said all that she can say on the defendant’s behalf in mitigation.  She has produced several authorities in mitigation, including Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 and R v Cooksley & Ors ([2003]) 3 All ER 40.  She has also submitted several District Court sentencing cases for similar charges for my consideration.  Obviously they are not binding on me. 

24.  She urges me to consider the categories of culpability on the Cooksley scale and submits that the facts of this case and the driving manner of the defendant show there are no aggravating circumstances, therefore putting this case in the lowest category of culpability.

25.  The authority of Poon Wing Kay reiterates that deterrent sentences are called for because of the grave consequences that flow from this offence, but Ms To urges the court not to only consider the sad outcome of this tragedy as a dominant factor in sentencing.  In order to arrive at an appropriate sentence, the culpability of the defendant is the dominant factor in sentence in the sentencing exercise.  Therefore, the defendant’s driving manner comes under close scrutiny.

26.  In assessing the degree of culpability, I must consider whether there are any aggravating factors to take into account.  The Hong Kong courts have adopted the Cooksley range of four categories of culpability (namely no aggravating circumstances, intermediate culpability, higher culpability and most serious culpability), but not the Cooksley range of sentences as the tariff here in Hong Kong.

27.  I have taken into account in this case the defendant’s mitigating factors, such as the defendant’s exemplary driving record, the absence of previous similar convictions, his timely guilty plea and his genuine remorse.  However, this accident happened at a pedestrian crossing and more than one person was killed as a result of the offence.

28.  The defendant may not have given an explanation for his driving manner to the police, but several witnesses in the bus, which was practically next to the coach, heard the loud noise of vehicle acceleration and the tour guide felt the effect of vehicle acceleration when she nearly fell over, which meant the defendant accelerated and must have accelerated hard to not stop after hitting the bus and the traffic signal.

29.  Moreover, the defendant continued for quite a distance after hitting both the deceased before coming to a standstill, which meant very little chance of survival for them.  There appears to have been no effort to immediately brake by the defendant.

30.  Today there is an explanation by Ms To and the defendant admits that when he released the handbrake he felt the coach move forward, so he went to step on the brake but instead stepped on the accelerator.  His coach did shoot forward and hit the bus, but because he thought he was stepping on the brake he did not release the accelerator immediately, which meant that the coach continued to move forward.  By the time he realised his mistake and released the accelerator and hit his brake, it was too late - he had knocked down the pedestrians.

31.  This happened in a matter of seconds.  I accept Ms To’s submission that he had no intention for this tragedy to happen, but it did happen because of a monumental, momentary fatal error and lapse of judgment by the defendant.

32.  It is not easy to sentence someone like the defendant, who has a clear driving record and obviously had no intention to hit the victims on the pedestrian crossing.  But, at the same time, I must consider the deceased and their families who have suffered needlessly because of the defendant’s inexplicable momentary lapse of judgment behind the wheel.

33.  In the course of sentencing, I need to bear in mind the principles of retribution and deterrence in order to arrive at a punishment which is balanced and proportionate.  The court must remind the general public that vehicles can be lethal weapons and drivers must bear the responsibility for their driving manner on the roads.

34.  In assessing the defendant’s degree of culpability, here there was a momentary error of judgment which, in my view, has been aggravated by the fact that there were two people who have lost their lives on a pedestrian crossing.  I consider the present facts falling at the lowest end of the intermediate culpability category of the Cooksley scale.  It involved a momentary dangerous error of judgment.

35.  Therefore, having considered all mitigation, especially the defendant’s impeccable driving record, and other relevant factors, I will adopt a starting point of 24 months’ imprisonment.

36.  Defendant is entitled to a discount of one-third for his guilty plea, which will reduce this sentence to one of 16 months’ imprisonment.

37.  In addition to imprisonment, I make a disqualification order for a period of 5 years.  That is a disqualification from driving all types of vehicles and it will take effect from today.

38.  I order the defendant to complete a driving improvement course at his own expense within the last 3 months of that disqualification period.