HKSAR v. CHIANG PING FOO

DCCC 387/2020

[2020] HKDC 1214

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 387 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Amended Summary of Facts to a charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (“1^st charge”) and a charge of causing grievous bodily harm by dangerous driving, contrary to section 36A(1) of the Road Traffic Ordinance, Cap 374 (“2^nd charge”).

Facts

2.  A non-signal-controlled pedestrian crossing on a one-lane carriageway at Telford Plaza II Public Transport Interchange, 33 Wai Yip Street, Kowloon Bay, Kowloon, connects a shuttle bus stop (“shuttle bus stop”) to an entrance to Telford Plaza II (“pedestrian crossing”).

3.  Telford Plaza II is close to the Kowloon Bay MTR Station.  Shuttle buses bringing passengers between the shuttle bus stop and MegaBox, 38 Wang Chiu Road, Kowloon Bay.

4.  On 12 September at around 1845 hours, the defendant drove a MegaBox shuttle bus bearing registration mark PU1253 (“shuttle bus”) to the shuttle bus stop and parked the shuttle bus at the lay-by near the shuttle bus stop, at a short distance from the pedestrian crossing to pick up passengers.

5.  At around 1847 hours, after picking up around 50 passengers, the defendant drove the shuttle bus to set off from the shuttle bus stop.  When the shuttle bus was switching from the lay-by to the carriageway, it suddenly accelerated and dashed onto the pedestrian crossing hitting three pedestrians, ie Hui (male, aged 38) (“deceased”), Dao (female, aged 37) (“PW1”) and Chan (female, aged 34) (“PW2”) who were all already walking on the pedestrian crossing towards an entrance to Telford Plaza II.  The shuttle bus came to a halt after slamming into a concrete pillar on the pavement.

6.  PW1’s lower body was hit by the shuttle bus and was pushed to the ground.  PW2 was hit by the shuttle bus from behind and was pushed to the ground.

7.  The deceased was trapped between the concrete pillar and the shuttle bus and suffered serious bodily injuries, including lacerations to his chin, chest, right thigh and abdomen with internal organs exposed.  He was later rescued and was sent to United Christian Hospital in an unconscious state.  He was certified dead at 1928 hours on the same day and the direct cause of death was “multiple injuries”.

8.  The accident caused tenderness to the defendant’s neck and right big toe.  The defendant was sent to Queen Elizabeth Hospital and was discharged on 19 September 2019.  The accident caused minor injuries to 11 passengers of the shuttle bus, who were all discharged on the same day after seeking medical treatment.

9.  The shuttle bus was severely damaged due to the accident.  The offside front bumper, A-pillar and front body panel were all damaged.  The offside front combination lamp and direction indicator were broken and rendered inoperative.  The windshield glass cracked and the offside first window glass was smashed.  The offside rear-view mirror (lower) was detached from its mounting.  The dashboard was also detached from its mounting.  The dashboard and electrical wiring harness were damaged.  The driver’s cab floor deformed.  The brake pedal and accelerator mountings were damaged.  The steering column mounting and steering shaft universal joint was damaged.  The horn and wiper were rendered inoperative.

10.  The concrete pillar damaged by the shuttle bus was repaired at the cost of HK$136,400.

11.  At the material time, the weather was fine, road surface was dry and the road was in good condition.  The traffic volume was normal with sufficient lighting.  The speed limit of the road was 50 km/hour and the shuttle bus had no mechanical defect.

12.  CCTV cameras in the vicinity captured the shuttle bus set off from the shuttle bus stop and switched to the carriageway from the lay-by and 3 seconds later, it dashed onto the pedestrian crossing and hit the deceased, PW1 and PW2, they already walking past the middle part of the pedestrian crossing.  The shuttle bus came to a halt after slamming into a concrete pillar.

13.  The defendant was later arrested for causing death by dangerous driving and causing grievous bodily harm.

14.  PW1 was admitted to Queen Elizabeth Hospital on 12 September 2019 and was found to be suffering from:-

(a)  right femoral shaft fracture;

(b)  right thigh tenderness;

(c)  left ankle bruising and swelling; and

(d)  right elbow superficial abrasion.

15.  She was put on skin traction on the right lower limb and was transferred to the intensive care unit for further care.  Emergency operation was performed over her right femur.  Braces were prescribed to her right knee and left ankle.

16.  After a period of rehabilitation, Magnetic Resonance Imaging (“MRI”) of right knee shows short head biceps strain and meniscal degeneration.  Ultrasound scan and MRI of the left ankle showed partial tear and sprain of anterior talofibular ligament as well as sprain of posterior talofibular ligament and deltoid ligament.

17.  After further rehabilitation, she was eventually discharged from hospital on 9 November 2019.  Sick leave was recommended from 12 September 2019 until tentatively 16 August 2020.  She still has to walk with elbow crutches and receives regular physiotherapy.

18.  PW2 was admitted to United Christian Hospital on 12 September 2019 and was found to be suffering from:-

(a)  multiple bruises over the chin and upper limb with several loose teeth;

(b)  1 cm laceration over the scalp;

(c)  two subcutaneous haematoma forming over the right occipital and parietal area;

(d)  bruising and swelling over left elbow;

(e)  fracture over the left olecranon;

(f)  1 cm laceration over the left thumb;

(g)  bruising over the right elbow; and

(h)  bruising over both knees.

19.  A longarm slab was applied on her left arm to immobilise the fracture site over her left olecranon.

20.  She was transferred to the Hong Kong Baptist Hospital on 13 September 2019.  She was found to be suffering from comminuted fracture at the proximal ulna and open reduction internal fixation was performed.  She was subsequently discharged from hospital on 22 September 2019.  She was diagnosed with post-traumatic stress disorder in December 2019 and she underwent a follow-up removal procedure in relation to the open reduction internal fixation in July 2020.  Sick leave was recommended from 13 September 2019 until tentatively 18 August 2020 and she is now still receiving regular physiotherapy.

21.  At the material time, the defendant drove the shuttle bus dangerously because, despite knowing that the pedestrian crossing was only a short distance away from the shuttle bus stop and despite knowing that the deceased, PW1 and PW2 were already on the pedestrian crossing, the defendant failed to stop the shuttle bus before the pedestrian crossing and failed to drive and control the shuttle bus properly, thus causing the shuttle bus to dash onto the pedestrian crossing, hit the deceased, PW1 and PW2 and slam into the concrete pillar on the pavement.

22.  As a result of the defendant’s dangerous driving of the shuttle bus, it caused the death of the deceased and caused grievous bodily harm to PW1 and PW2.

Criminal Record

23.  The defendant has a clear record.

24.  As for the traffic record, the defendant first obtained his driving licence in year 1992.  He was ordered to attend driving improvement course by the Transport Department, which he completed in October 2011.

25.  He has a careless driving conviction in August 2019 for an offence committed in March 2019 for which he was fined $1,000.

Mitigation

26.  The defendant was born in March 1967 in Burma. He moved to Hong Kong in the year 1978. 

27.  He is now aged 53.  He has received education up to early secondary.

28.  He is single.  His parents had passed away and he had three brothers and two elder sisters.

29.  The defendant started working as a professional driver when he was aged 40, ie year 2007.  At first, he worked for Kowloon Motor Bus.  On the date of incident, he was working for the tour bus company as a shuttle bus driver. 

30.  The defendant said at the time of the offence, he was tired and he has been on duty for nearly 10 hours by then.  It was said on his behalf that it was only after the defendant had released his brake and the coach was driven on the carriageway that he realised that there were pedestrians on the pedestrian crossing.  He therefore stepped hard on the brake but mistakenly step on the accelerator causing the coach to rush forward with no warning signal.  The incident happened within seconds until the coach hit the pillar and stopped.

31.  It is said that the defendant is now deeply remorseful and feel extremely guilty, he offer apologies to the deceased, the injured and members of their family.  He urges this court for leniency.

32.  Defence counsel referred this court to various authorities including Secretary For Justice v Liu Kwok Chun, CACC 34/2009, HKSAR v Lam Ying Yu, CACC 320/2012, Secretary For Justice v Chu Wing Yin Christine, CAAR 5/2018 and HKSAR v Lui Chung Tak, CACC 221/2012 and HKSAR v Chan Chi Chiu, Louis, CACC 249/2012.

Discussion

1^st charge

33.  In the case of Secretary For Justice v Poon Wing Kay and another [2007] 1 HKLRD 660, the Court of Appeal affirmed that deterrent sentence is called for in sentencing a defendant convicted of dangerous driving causing death because of the grave consequence flowing from the offence.  At the same time, the Court of Appeal recognised that the culpability of the defendant is a dominant factor in the sentencing exercise. 

34.  The maximum sentence for the charge is 10 years’ imprisonment.

35.  The defendant is a professional driver of a shuttle bus which brings passengers between the shuttle bus stop and the MegaBox Shopping Centre.

36.  In this case, one pedestrian died, two pedestrians severely injured and 11 passengers on board of the shuttle bus slightly injured.

37.  The accident arose because the defendant had only noted, according to him, the presence of the pedestrians on the pedestrian crossing after he set off the shuttle bus from the lay-by onto the carriageway and he failed to stop his shuttle bus in time.

38.  The shuttle bus therefore hit the deceased and the two severely injured pedestrians then on the pedestrian crossing.

39.  It is noted that the pedestrian crossing from the CCTV footage is in fact very close to the shuttle bus lay-by where the shuttle bus stopped and picked up the passengers.

40.  According to the CCTV footages, the accident happened within 3 to 4 seconds’ interval counting from the moment when the shuttle bus started off from the lay-by till it hit the victims and later hit the pillar and stopped.  Clearly the pedestrians on the pedestrian crossing was clearly visible to the defendant in the shuttle bus as they were only about 15 feet from the lay-by and there was nothing in between blocking his view.

41.  In the case of Secretary For Justice v Lam Siu Tong and Others [2009] 5 HKLRD 601, the court held that where the offence of dangerous driving causing death is established and which involves running over persons at pedestrians crossing, then for the purpose of sentencing, that would be a serious aggravating feature that the accident occurred at such a location.  The degree of seriousness would depend on the precise circumstances.

42.  In the case of HKSAR v Man Chun Pun, CACC 83/2018, Zervos JA at paragraph 48 of the judgment said that:-

“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 of the laws of the road but also the care and responsibility that they may 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.”

43.  According to the Road Traffic Ordinance, “public service vehicle” means any motor vehicle registered as a public bus, public light bus or taxi, or as a private car in respect of which a hire car permit is in force.

44.  This court has no hesitation that the shuttle bus in question falls within the meaning of the “public service vehicle”.

45.  In this sentencing exercise, while the dominant factor is defendant’s culpability, one must also assess the actual harm and potential harm caused.

46.  In HKSAR v Lee Yau Wing, CACC 282/2012, the Court of Appeal emphasised that in sentencing the focus is on the culpability of the defendant’s driving, therefore his clear record and general good character carries little weight.  The dominant sentencing principle is general deterrence with principles of retribution and denunciation being also of relevance.

47.  The defendant was at the material time the shuttle bus driver taking passengers between the shuttle bus stop and the MegaBox Shopping Centre.  He was no doubt familiar with the layout of the lay-by and the pedestrian crossing which is very close to the lay-by.

48.  This court noted from the CCTV footage that the speed of the shuttle bus exiting from the lay-by was excessive in the circumstances, even before the sudden acceleration that followed, as there were already several pedestrians crossing the pedestrian crossing which is just about 15 feet from where the shuttle bus stopped at the lay-by and they were all clearly within the clear view of the defendant at the time.

49.  Accordingly, in relation to this charge, the 38-year-old victim met his unexpected death whilst he was properly crossing the pedestrian crossing.  No doubt his family felt aggrieved and devastated by his death.

50.  Considering the overall circumstances of the case, including the resulting death, this court considers the culpability of the defendant under this charge falls near the top end of the intermediate culpability category and accordingly this court adopts the 2 years and 6 months’ imprisonment as a starting point for this charge.

51.  This court notes that the most valid mitigating factor is defendant’s timely guilty plea, for which he is entitled to a full one-third sentencing discount.  Accordingly, the defendant is sentenced to 1 year and 8 months’ imprisonment for this charge.

Disqualification

52.  Section 36(2A) of the Road Traffic Ordinance, Cap 374 dictates that if a court convicts a person of this offence, the court shall disqualify the person in the case of a first conviction for a period of not less than 5 years unless there are special circumstances.

53.  There is no special circumstance in this case, accordingly the defendant is disqualified for 5 years from holding or applying for any driving licence of any class commencing from the date of conviction.

54.  The defendant is further ordered to attend and complete a driving improvement course pursuant to section 72A(1) of the Road Traffic Ordinance at his own cost, the same to be completed within the last 3 months of the disqualification period.

55.  This court warns the defendant that if he fails to complete the course within the specified period, he might have breached section 72A(9) of the Road Traffic Ordinance and is liable to a fine of level 2 and to imprisonment for 1 month, and that, even on the expiry of the disqualification period he would not be allowed to apply for, or obtain or hold, any driving licence of any class until he has completed that driving improvement course.

2nd Charge

56.  A person convicted on the indictment of this charge is liable to imprisonment for 7 years. 

57.  The facts reveal that both victims in this case were seriously injured.

58.  In short, for PW1 Dao, she had emergency operation performed on her followed by a long period of rehabilitation treatment.  She was discharged 14 months after the accident and she still needs to walk with elbow crutches and to take regular physiotherapy treatment.

59.  For PW2 Chan, another young woman, apart from numerous bruises and lacerations and loose teeth, she had fracture over the left olecranon, comminuted fracture at proximal ulna and open reduction internal fixation was performed.  She was discharged ten days after hospital but was diagnosed with post-traumatic stress disorder and she had sick leave until tentatively August 2020.

60.  Considering the sentencing principle mentioned earlier in relation to the 1^st charge, the culpability of the defendant, the extent and effect of the injuries to the two victims, both young women, and the overall circumstances of the case, this court considers sentencing starting point for this charge at 2 years and 3 months’ imprisonment appropriate.  As a result of the guilty plea for which the defendant is entitled to a one-third sentencing discount, the defendant is sentenced to 18 months’ imprisonment for this charge.

Disqualification

61.  Under section 36A(3) of the Road Traffic Ordinance, Cap 374, as this is the defendant’s first conviction, the defendant is qualified from holding or obtaining a driving licence of any class for a period of 2 years from the date of conviction.  This disqualification order is to run concurrent to the disqualification order under the 1st charge.

Overall sentence

62.  In Man Chun Pun, it was said that the death of the passenger and the injuries to other passengers were dealt with by separate charges as prescribed by law.  The culpability encompassed by the 2^nd offence was not therefore incorporated into the 1^st 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 just and fair sentences are passed on the defendant.

63.  Adopting the same approach as in the Man Chun Pun case in our case here, considering the culpability of the defendant in the whole case, the ensuing death and injuries to the victims and effect on their families and the totality principle, a just and fair total sentence on the defendant should be 2 years and 3 months’ imprisonment.

64.  Accordingly, 7 months of the sentence of the 2^nd charge shall run consecutive to the sentence in the 1^st charge, and the rest of the sentence of the 2^nd charge is to run concurrent to the sentence in the 1^st charge.

65.  The defendant is therefore sentenced to a total of 2 years and 3 months’ imprisonment.