R. v. KO YUK-CHING

HEADNOTE

Manslaughter - death occurring as a result of collision between two locomotives. Applicant was the person in charge but not the driver of one of the locomotives and was personally negligent in failing to ensure that the automatic warning system which automatically activated emergency brakes was in operation and in failing to observe signal lights. Applicant is a person of good character whose career as a train driver was brought to an end. Court is gravely troubled by the irreconcilable demands between, on the one hand, criminal behaviour which had to be punished and on the other, the good character of the Applicant and the nature of his acts. Court reduced sentence of one year to one of nine months.

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant was charged with manslaughter, it being alleged that on 8th June1989 at the Kowloon and Canton Railway track, Mongkok, Kowloon, he unlawfully killed CHAN Yau-keung. The applicant having pleaded not guilty was, after trial, found guilty and sentenced to imprisonment for one year.

3. The death occurred as a consequence of an accident on 31st May 1989 when,  just after midnight, locomotive 57 collided with locomotive 56 which was then stationary at the Mongkok Station. The applicant sought leave to appealboth against his conviction out of timeand against sentence. He was unrepresented on the former application but was represented by Mr. Sedgwick Q.C., with him Miss Maggie Poon, on the latter application. The out of time application was without merit and was refused. The Court then proceeded to deal with the application for leave to appeal against sentence.

4. It was the Crown case that on the evening of the 30th May 1989, Mr. Lee Kam-ming, an assistant driver, was at the controls of the locomotive 57 and was seated on the left hand side of the cab. The applicant, a fully qualified driver, was in charge of the locomotive. The locomotive was being driven in long hood mode, i.e. driver's cab at the end of the locomotive, and, as the signals which govern its movement were to the right of the track, it would have been difficult for Mr. Lee to observe them. It was, therefore, the duty of the applicant to observe those signals. The journey from Kowloon to Fo Tan commenced at 11.43p.m. Initially Mr. Lee drove the locomotive to signal 17 and waited. There was evidence whichindicated that this wait was 5-6 minutes. The locomotive was routed to proceed on the down-track and not, as would have been usual for locomotives proceeding to Fo Tan, on the up track. After signal 17, it proceeded past signal 21 to signal 29 where it should have stopped before crossing to the up track, the correct track for its journey. It did not, in fact, stop at signal 29 but proceeded past it and, despite the emergency application of the brakes by Mr. Lee, came into collision with locomotive 56. Mr. Chan Yau-keung who was a fellow employee travelling in the driving cabin of locomotive 57 was flung forward and suffered injuries to which he succumbed on 8th June.

5. The prosecution alleged that the applicant was criminally negligent in that he failed (l) to ensure that the Automatic Warning System (AWS) was in operation; (2) to warn the driver of the signals that were showing at signal 29; and (3) to apply the emergency brake after becoming aware that locomotive 56 was stationary on the track at the Mongkok Station. The failures alleged in (1) and (2) both hinged upon the failure either to heed or to observe that the signal light at signal 29 was red. If it had not been, the locomotive would have been entitled to proceed. If it was, it would not only have been an indication that the train must stop but would also have activated the AWS which would have brought the locomotive to an emergency stop.

6. Two panel operators at Kowloon Station gave evidence saying that their panel showed that locomotive 57 passed through the red light at signal 29. They confirmed that this must be correct saying that the light is always red until a route has been set and that no route had been set for locomotive 57 after signal 29. There was also evidence that a check of the light one to one and a half hours after the accident found it to be red and that there had been no instruction to change the signal prior to that time. There was further evidence that all of the equipment involved was tested and found to be in good working order. Mr. Lee, the assistant driver, said that he had asked the applicant about the signals as they travelled up the down track and was told that there was "a light" which is an indication that it was safe to proceed and that shortly after that, the applicant told him that it was "a single yellow". It seems clear that the AWS was not activated as it should have been when the locomotive passed over a test magnet set in the track shortly after commencing the journey. This test magnet is to see that the system is working properly and drivers are instructed to let the automatically activated brakes halt the train, so as to fully test the system. The train waited at signal 17 which gave a "D" indication meaning that it was to travel on the down track and not the up track as would have been normal. As the train proceeded up the down line it was the applicant's responsibility to look for signals. It was the evidence that signal 21 which was the first signal passed would, if signal 29 was showing red, have been a single yellow indicating that the next signal would be red.

7. As the AWS was not activated by the test magnet, any experienced train driver in the locomotive must havebeen aware that the system was not in operation and any person keeping a proper lookout must have been aware both that signal 21 was a single yellow and that signal 29 was red. The applicant was clearly gravely negligent in allowing the train to proceed with an inoperative AWS and in his failure to observe and warn the driver that signal 29 was red.

8. The third failure, to apply the brakes, arose from the allegation that the applicant should have been the first to apply the brakes as he was in a better position to observe stationary locomotive 56 than. was the driver. This further allegation of a failure to keep proper lookout is, in our view, dwarfed by the serious misconduct on the part of the applicant not to observe the red light at signal 29 and to allow the locomotive to travel with an inoperative AWS.

9. Mr. Sedgwick referred us to Robert George Morgan (1990) 12 Cr.App.R. (S) 504. In that case the appellant, a train driver, pleaded guilty to two counts of manslaughter. He had driven his train past the yellow warning signal without reducing speed, apparently cancelling an audible warning signal and was, as a result, unable to stop the train at a red stop signal with the consequence that it collided with the rear of another train. Five people were killed and 87 injured. The applicant himself, who was injured in the crash, could give no explanation of the accident. He was an experienced driver with a good record and he accepted responsibility for the accident at first opportunity. He was sentenced to imprisonment for 18 months with 6 to serve and the balance to be suspended. The Lord Chief Justice delivering the decision of the English Court of Appeal held that while the risk. of train driver might be monotonous and repetitive, the risk of death from a disregard of signalling systems and safety devices was so high that the reckless disregard to which the drive had pleaded guilty did appear to deserve punishment. He observed that the sentencer's task was not easy as he had to reconcile the irreconcilable. There was on one hand criminal behaviour which must be punished and, on the other hand, the view that many would take that to send such a person to prison did no good to him and no good to society. He observed that the crime was arguably a crime of omission rather than commission and the results would be on the appellant's conscience for the rest of his life. The conclusion of the court was that a short immediate sentence would more properly meet the situation than a wholly or partially suspended sentence and that the sentence should be varied to a term of four months immediate imprisonment. In his judgment the Lord Chief Justice observed:

"The signalling system was as follows. The track is divided into sections, each section being governed by a signal. The object of the system is that no train should proceed on to a section of track which is already occupied by another train. There are four kinds of light signal. The red signal of course means stop. Preceding that is a single yellow aspect signal. That means, from the driver's point of view, that the next signal ahead will be red, and it puts a duty on the driver to slow his train down in order to give him the opportunity to stop when the red signal appears in his sight. Before the single yellow comes a double yellow aspect signal. That is simply an informative signal. It does not require the driver to reduce his speed at all, but warns him that there is, or there is likely to be, a red light two signals ahead. Finally there is the green aspect which indicates to the driver that the two sections ahead of him are clear of other trains."

We have been told that the signalling system in the present case is the same as that described above. In Morgan's case it was his failure to heed the single yellow aspect which was the root cause of the tragedy. In the present case, it appears that the accident could have been avoided but for the failure to observe the single yellow aspect at signal 21 and the failure to observe the red light at signal 29. The court was impressed in Morgan's case by the fact that the applicant "pleaded guilty to this serious charge of manslaughter at the very first opportunity. In other words subsequent to the accident he did everything that an honest and reputable man should do and that is what he is." The court observed:

"We have been greatly troubled by this case. We have every sympathy with the judge in the task that he faced. We have come to the conclusion that the 18 months' sentence was in the circumstances which we have endeavoured to describe too long. We think the situation could have been more properly met by a short custodial sentence to take effect immediately rather than by a wholly or a partially suspended sentence."

In the present case, Mr. Sedgwick has urged upon us that the applicant is a man of good character, is a family man and that his actions have resulted in his dismissal and that will never be able to pursue his career as a train driver again. He says that the applicant was utilizing almost his whole salary to pay off a family home and that his wife worked to supplement the family income. He says that his wife has lost her job and that the family is now suffering real financial hardship. He also asked that the court take into account that the applicant himself suffered broken ribs and injuries to his back in the accident. He reminds the court that the applicant has had to face a coroner hearing and then, through no fault of his, to undergo two trials. Like the court in Morgan's case, we have been greatly troubled by the conflicting and irreconcilable demands on the sentencing judge in circumstances such as this. We consider the conduct of the applicant was similar in its seriousness to that of Morgan. However, the applicant did not, as did Morgan, immediately accept blame for the incident. A further aggravating feature in the present case was the fact that the AWS was not activated and that he must have known that this was so. We do, however, in the circumstances, consider that the sentence of imprisonment for one year was too severe. Balancing on one side the demands of society that criminal misconduct of this kind be properly punished, and on the other, the character and circumstances of the applicant and the unusual nature of the offence, we are satisfied that a sentence of imprisonment for 9 months would have been proper.

10. We allow the application, treat the hearing of the application as the hearing of the appeal and vary the sentence from one year to 9 months.