HKSAR v. MAN CHUN PUN

CACC 83/2018

[2019] HKCA 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 83 OF 2018

(ON APPEAL FROM DCCC NO 671 OF 2017)

_________________

_________________

__________________

J U D G M E N T

__________________

Hon Zervos JA (giving the Judgment of the Court):

1.  On 23 January 2018, the appellant pleaded guilty before District Court Judge Casewell (the judge) to one charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374, (the RTO) (Charge 1), and one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the RTO (Charge 2).

2.  On 12 March 2018, the judge sentenced the appellant to 45 months’ imprisonment and disqualified him from driving for 5 years, with an order that he attend a driving improvement course within the last 3 months of the disqualification period on Charge 1, and to 27 months’ imprisonment and disqualified him from driving for 2 years, with an order that he attend a driving improvement course within the last 3 months of the disqualification period on Charge 2.  He ordered that the sentences be served concurrently which resulted in a total sentence of 45 months’ imprisonment (3 years and 9 months’ imprisonment).

3.  The appellant appeals his sentence with leave of the Court.

The background facts

4.  The appellant was the driver of a double-decker bus carrying 22 passengers which was involved in an accident as a result of his dangerous driving, causing the death of one passenger and very serious injuries to five other passengers. 

5.  The facts outlined to the judge and admitted to by the appellant were as follows.  At about 8:50pm on 14 January 2017, the appellant was driving City Bus No. 681 from Ma On Shan to Central along Lei Yue Mun Road.  The relevant section of this road consisted of four upslope lanes. The first and second lanes were bound for the Kai Tin Road Roundabout, while the third and fourth lanes were bound for the Eastern Harbour Tunnel.  There was a raised kerbed ramp between the second and third lanes.  The speed limit along Kwun Tong Bypass and along the kerbed ramp on Lei Yue Mun Road was 70 kph which reduced to 50 kph about 12 meters beyond the beginning of the kerbed ramp which was about 14 meters where the bus ended up after the accident.

6.  The bus was travelling downslope in the first lane of the Kwun Tong Bypass Flyover Slip Road before moving into the second lane of Lei Yue Mun Road.  The passengers on the bus said that it was travelling at high speed along the bypass and down the slip road, and the appellant had to apply the brakes of the bus suddenly twice during this section of the road.  A driver of a private vehicle that was behind the bus was travelling at a speed of about 60 kph.  He said he saw the bus veer toward the hatched road markings before the kerbed ramp on its offside even though there were no other road users affecting the bus.  The bus continued to travel in this direction for about two bus lengths before ramming into the kerbed ramp. He said the speed of the bus was faster than that of his vehicle and he reduced his speed to 60 kph as he moved off the bypass onto the slip road.  The offside front wheel of the bus crashed into the kerbed ramp causing it to bounce up before it toppled over onto its side ending up about 30 meters from the impact point on the kerbed ramp.  The upper deck of the bus rested on the nearside pavement while the lower deck rested across the first and second lanes.  The dead passenger was trapped by the bodywork of the bus while other passengers, who were variously injured, were screaming for help.

7.  At the time of the accident, the weather was fine and the road surface was dry and in good condition.  The traffic flow was normal.

8.  The admitted facts set out three sources of technical data that addressed the speed and control of the bus at the relevant times: the computer installed on the bus; the dashboard camera of the private vehicle; and the CCTV camera inside the bus. 

9.  Of the data from the computer, it was stated that:

“14. … it appeared that the Bus was travelling at a speed above 70kph between 20:50:14 and 20:50:25 and it slowed down to about 60kph at 20:50:34. The foot brake of the Bus was activated at 20:50:35 and the speed of the bus registered zero at 20:50:37 (based on the time set on the computer).”^[1]

10.  Of the data from the dashboard camera, it was stated that:

“15. …

(a) At 15:10:59 (Camera Time), the Bus just cleared the sharp right bend at Kwun Tong Bypass Slip Road, and the Bus began to travel down slope towards Lei Yue Mun Road.

(b) At 15:11:12 (Camera Time), the Bus merged onto the 2^nd lane of Lei Yue Mun Road and began to travel up slope.

(c) At 15:11:25 (Camera Time), there was no vehicle adjacent to the Bus on the 1^st lane.

(d) At 15:11:25 (Camera Time), the offside front of the Bus collided with the kerb. The front of the Bus was lifted up. Sparks were coming out from the nearside tail of the Bus.

(e) At 15:11:26 (Camera Time), the Bus side-turned to its nearside.

It is accepted that the time was not correctly set on this dashboard camera.”^[2]

11.  Of the data from the CCTV camera, it was stated that:

“16. …

(a) At 20:52:20, the Bus merged onto the 1^st lane of Kwun Tong Bypass Slip Road towards Yau Tong. The Bus then entered the sharp right hand bend and headed down slope towards Lei Yue Mun Road. It then cleared the right bend and travelled onto the down slope straight portion towards Lei Yue Mun Road.

(b) At 20:52:50, D was turning the steering wheel as the Bus cleared the right bend.

(c) At 20:52:57, D’s hand was still moving around the steering wheel.

(d) At 20:53:05, despite the Bus starting to veer towards the offside, D did not steer left to keep the Bus within the lane although he appeared to be still in control of the steering wheel.

(e) At 20:53:07, half of the front of the Bus veered over to the offside hatch road marking. D did not steer left to correct its path although he appeared to be still in control of the steering wheel.

(f) At 20:53:09, the offside front of the Bus collided with the kerb between the 2^nd and 3^rd lane. It then turned over onto its nearside.”^[3]

12.  A forensic scientist examined the CCTV footage inside the bus in order to determine and assess the speed of the bus at the relevant times.  His opinion was admitted and summarised as follows:

“17. … When the Bus was at the end of the ramp, its speed was about 76kph±8 (at 20:52:56.00). Then, the Bus slowed down to about 59kph±6 (at 20:53:08:67) immediately before it crashed into the traffic bollard and kerb ramp. The average speed of the Bus was about 67kph±7. The Bus was apparently slowing down gradually when it merged onto Lei Yue Mun Road until reaching the impact point. Neither signs of hard braking nor significant steering input to avert the accident were noted from either the bus or car footage before the offside of the Bus mounted onto the kerb.”^[4]

13.  Also set out in the admitted facts were relevant particulars about the appellant’s background and his response when interviewed by the police about the accident. 

14.  At the time of the offence, the appellant was 61 years of age.  He had been a bus driver for about 20 years and was very familiar with this particular bus route, as he had been driving it for about 15 years.  He had a relatively good driving record except for a conviction for careless driving in 2016, for which he was fined $1000.  When he was interviewed by the police he said that he was driving at a speed of 40 kph along the Kwun Tong Bypass and when the bus reached Lei Yue Mun Road he suffered a dizzy spell and crashed into the kerbed ramp. 

15.  The appellant’s explanation for the accident was summarised in the admitted facts, which included the following passage:

“… He suffered from a moment of dizziness, everything seems blurred and he thought he blacked out for a second and swerved the Bus to the right and caused the outside front of the Bus to collide on the kerb block and then overturn onto its side. When he blacked out, the Bus was about 1 feet from the kerb block. The black-out lasted for about one second. The offside front rammed onto the kerb block. …”^[5]

16.  The appellant had started work at 7:20 pm on the night of the accident, so he had been on duty for only about 1½ hours when the accident occurred.  He was on medication for hypertension and high cholesterol but it was an agreed fact that it had no adverse effect on him at the time of the accident.

17.  A point we need to make at this stage, which we will address in more detail later, is that nowhere in the admitted facts was the key ingredient of the offence of the dangerousness of the driving specifically described and admitted to by the appellant.  Instead, the summary of facts contained a description or account of various matters from which it was intimated that the driving of the appellant was dangerous because he was travelling too fast in the circumstances and did not pay sufficient attention to the road conditions.  However, this stood in contrast with the appellant’s summarised explanation in the admitted facts that he had blacked out momentarily prior to the accident.  It raised the question on what basis did the appellant admit his guilt to the offences.  It appears this was left to the judge to sort out.

The reasons for sentence 

18.  The judge in his reasons for sentence summarised the facts that were admitted, particularly the evidence relating to the speed and control of the bus when it mounted the kerbed ramp and toppled over.^[6] In this regard, he observed:

“6. The average speed of the bus on approach was 67 kilometres per hour. That is plus or minus 7 kilometres per hour. It was concluded that the bus was apparently slowing down gradually when it merged onto Lei Yue Mun Road until reaching the impact point. There were no signs of hard braking or significant steering input to avert the accident, so would appear the bus proceeded into the kerb at a speed that was too fast for the circumstances, and without any attempt by the driver to avoid the obvious hazard of the kerbed ramp.”

19.  He noted that the basis of the case against the appellant was that the speed of the bus was excessive in the circumstances and that his general driving of the bus was inattentive by failing to register the existence of the kerb and to take any reasonable driving measures to avoid the collision with it. 

20.  After an extensive review of the sentencing authorities, the judge concluded:

“24. … The facts that have been agreed and the evidence from the CCTV and the bus computer show that generally the bus was being driven at a high speed throughout and certainly the last part of the journey into the kerb was taken too high a speed. It would be, I think, properly described as both continuous and reckless.”^[7]

21.  The judge had found that the appellant lacked control of the bus, driving it at too high a speed in the circumstances, and crashing into the kerbed ramp.  In coming to this conclusion, he implicitly rejected the appellant’s explanation that he had blacked out momentarily.

22.  The judge reasoned that the case fell into the highest level of culpability as laid down in R v Cooksley,^[8] having examined in some detail the case of HKSAR v Chan Kwok Fai,[9] where the defendant, a bus driver, was convicted of dangerous driving causing death.  In that case, the bus the defendant was driving was a double-decker bus carrying 35 passengers which took a sharp corner at a roundabout at too fast a speed, resulting in the bus toppling over.  Two passengers died and 33 others as well as the defendant suffered injuries. 

23.  The judge noted that the Court of Appeal in that case adopted a starting point for sentence of 4 years’ imprisonment, having stated that a bus driver who put at risk the lives of his passengers because of his dangerous driving constituted a serious aggravating factor.  He considered that the present case fell into the category of higher culpability where the standard of the driving was more highly dangerous because of the presence of one or more of the aggravating factors, particularly in the case of a public service vehicle being driven too fast and without sufficient attention.  He concluded that this placed the starting point on Charge 1 in the range of 4 to 5 years’ imprisonment and that the driving in the present case was worse than that in the case of Chan Kwok Fai. 

24.  The judge noted that the penalty provision for each offence was a maximum sentence of 10 years’ imprisonment on Charge 1 and 7 years’ imprisonment on Charge 2.  He also noted that the appellant had only indicated his plea of guilty after the plea day and just prior to trial. He determined that he should receive a 25% reduction to his sentence for his late plea of guilty. 

25.  On Charge 1, he adopted a starting point of 5 years’ imprisonment which he reduced by 25% for the appellant’s guilty plea to 45 months’ imprisonment. 

26.  On Charge 2, he adopted a starting point of 3 years’ imprisonment which he reduced by 25% for the appellant’s guilty plea to 27 months’ imprisonment. 

27.  The judge made the sentences on each charge concurrent on the basis that the charges related to the same event.  He disqualified the appellant from driving for 5 years on Charge 1, and 2 years on Charge 2, and also ordered that he attend a driving improvement course within the last 3 months of the disqualification period on both Charges 1 and 2.

The appellant’s submission

28.  Mr Anthony Lai, counsel for the appellant, advances three grounds of appeal.  The first ground is that the judge erred in principle in holding that a defendant driving a bus with passengers would normally place the case for the purposes of sentencing in the higher level of culpability as laid down in Cooksley.  The second ground is that the sentence was manifestly excessive because the judge erred (1) in holding that the present case was worse than Chan Kwok Fai; (2) in holding that the appellant’s dangerous driving was continuous and reckless; (3) in finding that the point of impact was in the 50 kph zone; and (4) in failing to take into account the appellant’s claim that he suffered from dizziness immediately before the accident.  The third ground is that the imposition of orders to attend a driving improvement course for both Charges 1 and 2 was inconsistent with the provisions of section 71(1B) of the RTO.  The respondent concedes that the judge erred as complained in this last ground.

29.  Mr Lai questions the judge’s findings as to the speed of the bus and the appellant’s inattention to the road conditions at the time of the accident, and whether the judge had correctly considered and applied the criteria for the high level culpability category in Cooksley.

30.  The judge in his reasons for sentence considered that on the authority of Chan Kwok Fai the present case fell into the third category of high culpability because the appellant drove a public service vehicle too fast and without sufficient attention.  On this basis, he concluded that this placed the starting point for this case in the range of between 4 to 5 years’ imprisonment. 

31.  Mr Lai acknowledges that a driver of a public service vehicle is an aggravating factor in cases of this type, but argues that Chan Kwok Fai is not authority for the proposition that this factor alone puts the case into the third category of high culpability, warranting a starting point of 4 to 5 years’ imprisonment.  He contends that there are many cases where the drivers of public service vehicles have been convicted for either dangerous driving causing death or dangerous driving causing grievous bodily harm, who have not received terms of imprisonment with a starting point as high as 4 to 5 years’ imprisonment.  He makes the point that the dominant factor of sentencing in cases of this type is the culpability of the defendant and the sentencing court looks at the overall circumstances.  He also argues that in Chan Kwok Fai the Court endorsed the high sentence in that case because there was more than one person killed as a result of the offence. 

32.  Mr Lai also takes issue with the judge’s finding that the bus was being driven at a high speed during its journey, particularly when it crashed into the kerbed ramp, which the judge described as “continuous and reckless”. 

33.  Mr Lai submits his own analysis of the speed of the bus but in doing so overlooks one significant point.  It is not a question of whether the bus was travelling at or below the speed limit.  But rather, whether the bus was travelling too fast in the circumstances.  This very much depends on the prevailing circumstances and the road conditions at the relevant time. He refers to the empirical data and to the forensic evidence concerning the speed of the bus, and notes that the bus had slowed down to about 60 kph before it crashed into the kerbed ramp.  He therefore contends that the judge’s description of the speed of the bus as “continuous and reckless” was wrong and factually inaccurate. He submits that a more accurate description of the appellant’s driving was that it was a result of “momentary error”.  He argues that the circumstances of the present case were less serious than those in Chan Kwok Fai where the defendant in that case was over the speed limit of 50 kph when he made a sharp turn toppling the bus he was driving, resulting in the death of two passengers and injuries to 33 others.  He points out that the Court in Chan Kwok Fai reduced the sentence in that case from 4 years and 8 months’ imprisonment to 4 years’ imprisonment.  We note that the sentencing judge in that case adopted a starting point of 5 years imprisonment which she reduced by 4 months for the fact that the defendant admitted a large portion of the prosecution case and thereby saved court time. 

34.  Mr Lai complains that the judge was wrong to place emphasis on the speed of the bus and treat it as an aggravating factor. He contends that this was not a case of the appellant breaching the speed limit or driving at an excessive speed that would have aggravated his offending conduct, and that this was the point made in Chan Kwok Fai that the excessive speed by the bus driver in that case was the act of dangerous driving and not an aggravating factor.[10]

The respondent’s submission

35.  Mr Ivan Cheung, for the respondent, submits that the dominant factor in sentencing an offender for causing death or causing grievous bodily harm by dangerous driving is the culpability of the driving misconduct, although the harm caused is also an important consideration.  He further submits that to drive a public service vehicle dangerously is a serious aggravating factor.  He refers to the circumstances of the case in Chan Kwok Fai, which as we have already noted concerned a bus driver driving at an excessive speed when negotiating a roundabout, and notes that Stock VP, giving the judgment of the Court, described the fact that the bus driver had put at risk the lives of nearly three dozen passengers on his bus as constituting “a serious aggravating factor”. [11]

36.  Mr Cheung points out that the bus driver in Chan Kwok Fai, like the appellant, had no criminal convictions and a relatively good driving record, and the Court still considered that a substantial term of imprisonment of 4 years was warranted in all the circumstances.   He notes that the sentencing judge in that case had given a 4 months reduction to the sentence of the bus driver for saving court time. 

37.  In addition to the line of authority on this issue in Hong Kong, Mr Cheung also relies on the decision of the English Court of Appeal in R v Topsana.[12] In that case, the Court affirmed a sentence of concurrent terms of 5 years’ imprisonment upon a plea of guilty to five charges of causing death by dangerous driving as a result of an accident which arose by the driver of the bus pressing the accelerator rather than the brake and panicking thereafter, causing the bus to move off and strike five people who were killed.  The sentencing court had adopted a starting point of 7 years and 6 months’ imprisonment on each charge.  However, we point out that the term of imprisonment for this offence in the United Kingdom had been increased from 10 years to 14 years’ imprisonment on 27 February 2004.  The offences in this case occurred on 18 October 2005 when the new sentencing regime had come into effect. 

38.  It is worth noting the following observation of the Court concerning the application of Cooksley and the view it took in relation to the circumstances of the case:

“ It is important to remember that Cooksley, whilst providing valuable assistance to sentencers in determining where in the spectrum of sentencing a particular case falls, was, and remains, a guideline case. It is therefore of assistance to a sentence but it is not prescriptive.

It may be that in one sense there is justification in the submission that this case could be looked at as a case of intermediate culpability with aggravating features, the aggravating features being, it seems to us, the matters identified by the sentencing judge in relation to the period over which the appellant remained of the view that he was applying the brake without appreciating that it was, in truth, the accelerator, but, perhaps most important, the multiple deaths and injuries which ensued.”[13]

Discussion

39.  In sentencing an offender, it is always prudent to note the head sentence of the offence and the date when it came into operation.  Such information not only indicates the level of sentence for the offence as fixed by the legislature, but also the applicability of any sentencing principles and tariffs as laid out in past cases.

40.  The maximum term of imprisonment for the offence of causing death by dangerous driving upon conviction on indictment was increased from 5 to 10 years on 4 July 2008.  This is an important factor to take into account when considering past cases to which different sentencing tariffs may have applied.  The legislature by enhancing the penalty has raised the level of seriousness for the offence, and as a matter of principle this should be appropriately reflected in sentences that follow.  As noted in Chan Kwok Fai, the increase in the maximum sentence meant that appropriate proportionality required that given the level of sentences in cases of the upmost gravity was significantly increased, there should be some corresponding increase in sentences immediately below this level of gravity, continuing down the scale to the cases where there were no aggravating features at all.[14] 

41.  On 17 December 2010, the offence of causing grievous bodily harm by dangerous driving was enacted with a maximum term of imprisonment of 7 years upon conviction on indictment.

42.  As defined under the RTO, driving will be dangerous when the way a person drives falls far below what would be expected of a competent and careful driver; and it would be obvious to such a driver that driving in that way would be dangerous.  In this context, “dangerous” refers to danger of injury to a person or of serious damage to property.  In determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard should be had to all the circumstances of the case including:

“(a) the nature, condition and use of the road concerned at the material time;

(b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.” [15]

It is also specifically provided that a person commits the offence in circumstances of aggravation if at the time he exceeds the blood alcohol limit or there is the presence of a specified illicit drug in his bodily system.[16]

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.[17]

44.  In Secretary for Justice v Poon Wing Kay,[18] 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 VP 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.[19]  Relying on this statement, Mr Lai argues that to constitute an aggravating factor there had to be more than one person killed, and as only one person was killed in the present case, this was not a circumstance of aggravation.  This submission ignores the important aspect of sentencing for this offence of the risk of death to other persons, and of making an overall evaluative assessment of the gravity of the offence from all the circumstances. 

47.  It is significant that Stock VP 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 company 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.

19. The culpability of the standard of driving at the time of the offence, viewed on its own – the taking of a corner at too fast speed, which caused a fatality – and divorced from any aggravating factors, would have warranted a sentence significantly less than the 5-year starting point adopted by the Judge.  But the fact that this was a passenger-laden bus taking a corner at too fast a speed resulting in two deaths and many persons injured makes a material difference.  However, that said, it is apparent that the Judge slipped into error when she referred to the excessive speed as an aggravating factor.  The excessive speed was itself that act of dangerous driving and not an aggravating factor.  The applicant’s driving did not fall into the category of ‘greatly excessive speed; racing; showing off; competitive driving’ to which the judgment in R v Cooksley refers at para. 15.  Having regard to that error and to the facts as a whole, and the applicant’s particular background, the sentence should in our judgment be reduced to one of 4 years’ imprisonment.”

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.

49.  Prior to this tragic accident, the appellant had been a bus driver for 20 years and had driven the particular bus route where the accident happened for 15 years.  He was therefore very familiar with this stretch of road.  He would have known that he was approaching a divided road separated by a kerbed ramp and that the speed limit would drop from 70 kph to 50 kph.  Yet, the empirical data that was retrieved showed that immediately prior to the collision the speed of the bus was 59 kph plus or minus 6 kph.  In our view, the judge was correct to find that the speed was excessive in the circumstances.  But, speed alone was not the cause of the accident.

50.  From the film footages and the accounts of the passengers and the owner of the private vehicle, the bus was being driven erratically, with the brakes being applied suddenly on several occasions, and later veering toward the offside for no apparent reason.  According to the owner of the private vehicle, the bus veered toward the hatch markings leading up to the kerbed ramp and continued in the direction of the kerbed ramp for about two bus lengths.  This was not a momentary lapse of concentration as claimed by the appellant.  It was rightly rejected by the judge. 

51.  We have viewed the relevant film footages of the incident and entirely agree with the judge’s description of the appellant’s driving.  The appellant was driving at a high speed which, in the circumstances, was “continuous and reckless”.

52.  We do not agree with Mr Lai’s submission that the judge erred in his analysis of the evidence.  It is clear from the judge’s analysis of the present circumstances of the case that the appellant’s driving was very dangerous in the circumstances because of a combination of the speed at which he was travelling, his prolonged inattention and the road conditions that put at risk the lives of all of his passengers and indeed resulted in the death of one and serious injuries to five others.  We cannot say what caused the driver’s inattention but it lasted sufficiently long for him to be quite oblivious to the fact that he was driving headlong into the dividing ramp.

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.  This was not done by the judge. 

55.  The difficulty we face in the present case is in not knowing what caused the appellantnot to realise he was driving into the kerbed ramp.  On its face, this conduct is inexplicable.  What we do know is that the appellant was familiar with the road, it was a straight road, the kerbed ramp was clearly visible and the appellant was driving erratically just before the accident.  We can only assume that there was prolonged inattention to the road, but we do not know why.  There could be various reasons explaining his lack of attention, ranging from the highly culpable to the less culpable.  There is a claim by the appellant that he suffered dizziness before the accident.  We simply do not know the reason for his inattention and this lack of information affects our assessment of the culpability of his driving.

56.  Taking into account all the circumstances, we consider that the starting point adopted by the judge on Charge 1 of 5 years’ imprisonment was too high.  In our view, the appropriate starting point is one of 4 years’ imprisonment and after reduction of 25% for the appellant’s guilty plea, the resultant sentence is 3 years’ imprisonment.  We considered that the starting point adopted by the judge on Charge 2 of 3 years’ imprisonment was also too high.  In our view, the appropriate starting point is one of 2 years and 6 months imprisonment and after a reduction of 25% for the appellant’s guilty plea, the resultant sentence is 1 year and 10 months’ imprisonment.  Taking into account the totality principle, we would make 9 months of the sentence on Charge 2 consecutive to the sentence on Charge 1, and this would result in a total sentence of 3 years and 9 months imprisonment, which is the same total sentence as passed by the judge. 

The summary of facts

57.  As we indicated, we wish to comment about the summary of facts.  We found that it was not as clear and precise as it should have been in order to explicate the pleas of guilty by the appellant and to assist the court in sentencing him.  The key ingredient of the offence as to the dangerousness of the driving was not specifically dealt with, and instead was left to be assessed from a descriptive outline of an assortment of evidence, such as, the indications of the speed and control of the bus from the bus computer, the dashboard camera from the private vehicle, the CCTV inside the bus and the accounts of the driver of the private vehicle and the passengers on the bus.  The summary of facts also included the appellant’s explanation that he blacked out at the time of the accident.  If this explanation had been accepted as being the case then it brought into question the appellant’s guilt for the offences.  He had pleaded guilty to the offences, and by doing so he had acknowledged his wrongdoing that he had driven the bus dangerously, which should have been reflected in the summary of facts.  A defendant cannot, for the purposes of mitigating his conduct, rely on facts which would constitute a defence to his criminal liability for that conduct.

58.  We take the opportunity to stress the importance of ensuring that a true and accurate summary of facts is submitted to the court when a defendant pleads guilty to an offence.  The facts admitted play a fundamental and vital role in the acceptance of the guilty plea and in the sentence of the guilty person.  For this reason, a summary of facts should represent a full and accurate synopsis of the case, addressing the ingredients of the offence and the criminality involved, setting out the nature and basis of the offender’s guilt, together with any other factors reflecting the gravity of the offence and the culpability of the offender. 

Conclusion

59.  It follows from the reasons we have given that the appellant’s appeal against sentence is allowed to the extent that we have explained, even though the total sentence of 3 years and 9 months’ imprisonment remains the same.  The disqualification periods on Charges 1 and 2 and the requirement to attend a driving improvement course on Charge 1 also remain the same, except that we set aside the order on Charge 2 for the appellant to attend a driving improvement course within the last 3 months of the disqualification period.