HKSAR v. WU YAT CHEUNG

CACC 450/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 450 OF 2012

(ON APPEAL FROM DCCC 668 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court):

1.  At the outset of the hearing the applicant, who appeared in person in this respect, abandoned his application for leave to appeal against his conviction on 29 October 2012 after trial by District Court Judge Browne of an offence (charge 1) of causing death by dangerous driving, contrary to section 36(1) and an offence of (charge 2) of causing grievous bodily harm by dangerous driving, contrary to section 36 A respectively of the Road Traffic Ordinance, Cap. 374. Accordingly, we dismissed the application.

2.  In his application for leave to appeal against sentence the applicant was represented by Mr Lam Shun Chiu.  The applicant was sentenced to 4 years’ imprisonment in respect of charge 1 and 2 years and 6 months’ imprisonment in respect of charge 2, which sentences were ordered to be served concurrently.  In addition, the applicant was disqualified from driving any class of vehicle for a period of 5 years, after which period of disqualification that the applicant was ordered to pass a test of competence at his own expense before being permitted to drive again.  At the hearing we dismissed the application for leave to appeal against sentence and said that we would give our reasons for so doing in due course.  This, we do now.

THE CHARGES

3.  The two charges arose from the applicant’s driving of a Public Light Bus (“PLB”) on 31 December 2011 at the junction of Kwun Tong Road and Choi Shek Lane.  By charge 1, the applicant was alleged to have caused the death of Chow Yee by driving that PLB on a road dangerously.  By charge 2, the applicant was alleged to have caused grievous bodily harm to Sin Wai Keung, Wong Wai Chun and Chan Ka Ho by the same conduct.

THE TRIAL

4.  There was no dispute at trial that the applicant was the driver of a PLB, with the registration mark EK 3613, which crashed into railings on a pavement and then a bus stop at the junction of Kwun Tong Road and Choi Shek Lane at about 14:42 on the afternoon of 31 December 2012 causing the death of Madam Chow Yee, a passenger on the PLB, and grievous bodily harm to Sin Wai Keung, also a passenger on the PLB, and to Wong Wai Chun and Chan Ka Ho, respectively grandmother and grandson who were pedestrians in the vicinity of the bus stop.  Madam Chow Yee’s death was caused by injuries to her skull sustained in the crash.  The applicant was trapped inside the PLB for some minutes and sustained some injuries, for which he was treated at hospital.

5.  It was an admitted fact, as confirmed by the tachograph recovered from the PLB, that in the 10 seconds prior to the crash the PLB was travelling at the speed of 61-62 km per hour.  The PLB, with about 10 passengers, was being driven by the applicant in an easterly direction along Kwun Tong Road, which road was subject to a 70 km/h speed limit.  As the PLB approached the junction of Kwun Tong Road with Choi Shek Lane, the PLB travelled from the third and fast lane to the nearside lane without warning, at which place it mounted the pavement and crashed into roadside railings and a street sign before smashing into the bus shelter, where it came to a stop.  There were no skid marks on the surface of the road on which the PLB had travelled shortly before the crash.  Subsequent examination of the PLB revealed that it had no relevant mechanical defects which would have contributed to the accident.

The prosecution case

6.  The prosecution adduced into evidence video camera film taken from both the PLB itself and also a passing motor vehicle which depicted the movements of the PLB leading up to the crash.  The former film depicted the PLB moving from the third lane into the second lane and then diagonally across the nearside lane onto the pavement, where the crash occurred, at a constant speed.  The latter film depicted the rear of the PLB and evidenced the fact that no brake light was illuminated or indicator light was used during those manoeuvres.  In the opinion of Mr Li Ka Ho, a driving examiner of the Hong Kong Transport Department, there was nothing to indicate that the vehicle was out of control before it mounted the pavement.

7.  The prosecution adduced into evidence assertions said to have been made by the applicant to SPC 3659 Wong Chi Kin whilst he was in an ambulance, shortly after the former had been freed from where he was trapped in the PLB.  The prosecution said that the applicant’s assertions were lies.  The applicant asserted that whilst he was travelling on Kwun Tong Road eastbound a light goods vehicle had cut in front of him, causing him to manoeuvre the PLB to the left with the result that he had crashed into the pavement.  For the same purpose, the prosecution relied on similar assertions made by the applicant to Dr Cheng Kai Chu at United Christian Hospital sometime after 8 p.m. on the evening of 31 December 2011.

The defence case

8.  The applicant gave evidence in the defence case.  He said that he had obtained a driving licence first of all in 1998/9 and that he had been a PLB driver since 2005.  He had driven the PLB involved in the crash for two years.  He rented the vehicle and, having picked up the vehicle at 05:00 on 31 December 2011 and having had breakfast, he began working at 05:40 that day.  He took a meal break at about 10:30 for about 15-20 minutes.  The journey on which the crash occurred was to have been his last journey before he returned the vehicle at 15:00.  Part of his regular route was to travel from Jordan along Kwun Tong Road, ultimately to Sau Mau Ping.  It was habit to manoeuvre his PLB from the third lane of Kwun Tong Road towards the nearside lane when he reached Choi Shek Lane.  He did so in order to be able to turn into Choi Wan Road in due course.  As he did so, his foot became trapped between the brake pedal and the accelerator and he was unable to break.  There followed the crash.

9.  The applicant agreed that he had not operated the PLB indicator light as he changed lanes nor had he sounded his horn in advance of the crash.  There was no time to do the latter.  The applicant denied telling SPC 3659 or Dr Cheng that he had swerved the PLB in order to avoid another vehicle that cut across his path.

Reasons for Verdict

10.  The judge determined that the applicant had made the assertions to SPC 3659 and his later assertions to Dr Cheng and that they were lies.  He found that the video camera film made it clear that no vehicle had cut across the path of the applicant as he drove the PLB.  However, he said that he treated those lies as going only to the credibility of the applicant.

11.  The judge went on to determine that the applicant’s testimony that his foot had become caught between the accelerator and brake pedal was also a lie.  He noted that not only were none of the passengers of the PLB aware of any problem in driving the PLB but also there was no deceleration of the vehicle, which would have followed removal of the applicant's foot from the accelerator.  The applicant did not sound the horn to alert others that there was anything untoward.  Furthermore, he noted that there was no change in the direction taken by the PLB towards the pavement, observing that there was nothing to stop the applicant from steering the PLB even if he is foot had been stuck.

12.  Having noted the many hours that the applicant had been working that day, interrupted only by a short meal break, the judge determined (appeal bundle, page 41) :

“ I was quite sure that immediately before the accident the defendant had lost concentration due to fatigue. I was sure that this was a physical condition of which he could be expected to be aware and which was within his knowledge. I was sure that it would be obvious to a competent and careful driver driving in these circumstances would be dangerous.”

Reasons for sentence

13.  In his reason for sentence the judge noted that the applicant was a married man of 68 years of age with a grown-up family.  Also, he noted that the applicant had a number of criminal convictions in the period 1974 to 1999, many of which concerned dangerous drugs.  However, he said that there was no evidence that the applicant’s driving in the instant case was in any way affected by his use of dangerous drugs.  The judge observed that the applicant’s driving had attracted 11 fixed penalty convictions in the years 2010 and 2011, six of which were for speeding or failing to observe traffic signs.  Further, he noted that the applicant had been ordered to attend a driving improvement course in 2010.

14.  The judge observed that with effect from 4 July 2008 the legislature had increased the maximum penalty for the offence of causing death by dangerous driving from 5 years’ to 10 years’ imprisonment.  The judge cited with approval observations made by this court, differently constituted, in the Secretary for Justice v Poon Wing Kai [1]:

“ 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……A motor-vehicle, many may often forget, when not driven to the requisite standard, 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 come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

15.  Having noted that the applicant was not exceeding the speed limit at the time of the crash nor was he under the influence of alcohol or drugs, nevertheless, the judge found of the applicant that :

“ …I was sure that the defendant was not concentrating on the road for a significant period of time before the crash into the metal railings on the east side of Choi Shek Lane. I was satisfied so that I am sure that his condition was such that he should not have continued driving and that to continue driving in that condition was obviously very dangerous. I was sure that at the relevant time the defendant was effectively unconscious. I am sure that there was a sustained period of time during which the defendant was not doing what was expected of him: namely, to pay attention, be alert and concentrate on his driving.”

16.  The judge stated that he took a starting point of 4 years’ imprisonment in respect of charge 1 and 2 years and 6 months’ imprisonment in respect of charge 2, which sentences he imposed on the applicant.  He ordered the sentences to be served concurrently.  Accordingly, the total sentence of imprisonment imposed on the applicant was 4 years.

Ground of appeal against sentence

17.  In his grounds of appeal against sentence Mr Lam Shun Chiu submitted that the judge erred in placing undue weight on the fact that the applicant had been found to lie in the trial, which factor he contended ought to have been regarded as subsumed in the fact that the applicant was sentenced having been convicted after trial.  Also, it was submitted that the sentence imposed was manifestly excessive having regard to the fact that the applicant’s conduct did not involve an extremely dangerous act of driving.  Rather, the crash occurred as a result of inadequate attention and concentration because of the applicant’s fatigue.  He submitted that fatigue was not brought about by the applicant driving for an obviously excessive period of time, he was merely at the end of his routine daily shift.

18.  Mr Lam submitted that the applicant’s culpability falls to be regarded as similar to that of the appellant in HKSAR v Lei Tin Seng[2]. In that case the appellant had driven light goods vehicle onto the pavement hitting 4 pedestrians, killing one of them, as he made a sharp left-hand turn at speed at a junction.  Noting that the manner of the appellant driving did not involve any extremely dangerous acts, which posed definitely foreseeable risk to other road users, and the appellant did not have any previous convictions or road traffic violations this court quashed a sentence of 3 years and 6 months’ imprisonment imposed on the appellant after trial for an offence of causing death by dangerous driving and imposed a sentence of 2 years’ imprisonment.  In doing so, the court observed (paragraph 20) that there was an absence of the aggravating factors identified in R v Cooksley[3].

A CONSIDERATION OF THE SUBMISSIONS

19.  During the hearing of the application the court watched the video recordings from the PLB itself and from Madam Cheung Siu Mei’s motor car, the latter having been recorded as she drove for some distance in the same direction as the applicant but at some distance behind the PLB.  Both videos bring into focus dramatically the circumstances and manner in which the PLB was driven by the applicant leading up to the crash.  It was a fine, dry day and there were no vehicles in any of the lanes immediately next to or in front of the PLB.  The PLB is seen to move at a constant speed in a diagonal path from the third lane to the nearside lane and then into the junction of Choi Shek Lane before crashing violently into and through the metal railing protecting pedestrians on the pavement on the far side of the junction and then through the structure of the bus stop.  Although the PLB struck only Madam Wong and her grandson on the pavement, it came extremely close to having struck four other pedestrians, who had just passed Madam Wong as they walked in the opposite direction.

20.  As Mr Isaac Tam pointed out in his written submissions, in sentencing the applicant the judge did not rely on his finding that the applicant had “lied in the trial”.  There is no merit in the submission to the contrary.

21.  In Poon Wing Kai this Court noted with approval the factors of aggravation of the commission of the offence of dangerous driving causing death identified by the Court of Appeal of England and Wales in R v Cooksley.  In Cooksley, it was noted that the aggravating factor of driving when knowingly deprived of sleep or rest,

“ usually involves a period during which a driver is conscious of drowsiness and difficulty keeping his or her eyes open and the fact that the proper course for a driver in such a position to adopt is to stop driving and rest.”

22.  It is clear from the judge’s reasons for sentence that he had these feature of aggravation of the commission of the offence very much in mind in determining the applicant’s culpability.  The judge found that the applicant had lost concentration due to fatigue and that this was a physical condition which was “within his knowledge”.  On any view, the applicant had worked a long and demanding day by the time of the crash at 14:42.  His day had begun at 05:00 and he had driven soon thereafter with only a 15-20 minutes break until the crash.  Clearly, the applicant ought to have stopped driving and taken a rest.  In Poon Wing Kay this court said that the realisation by a driver that his driving is dangerous is relevant to an assessment of the culpability of the applicant, in particular that in those circumstances the driver falls to be “punished accordingly”.

23.  The fact that by his manner of driving the applicant had put at risk the lives and safety of multiple other road users is another factor of aggravation in the commission of the offence to which the judge did and was entitled to have regard.  In HKSAR v Chan Kwok Fai[4] this court was concerned with a bus driver, convicted after trial of causing death by dangerous driving, who had driven a double-decker bus at excessive speed into a roundabout causing it to topple over, with the result that 2 passengers died whilst 33 others were injured.  The appellant had no criminal convictions and a clear driving record.  This court substituted a sentence of 4 years’ imprisonment for that of 4 years and 8 months imposed by the judge at trial.  In the judgment of the court, Stock VP described as a “serious aggravating factor” the fact that the applicant had put at risk the lives of nearly three dozen passengers on his bus.  He went on to say (page 31, paragraph 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 at; and the bus companies hold out the promise that that expectation will be fulfilled. Dangerous driving by bus drivers has firmly to be deterred by sentencing policy…...”

Those observations in respect of bus companies apply in equal measure to those who operate, drive and use PLBs.

24.  It is to be noted that the resolution of the appeal in Lei Tin Seng, upon which authority Mr Lam places reliance, was disapproved in the judgment of this court in Chan Kwok Fai, where the sentence of 2 years’ imprisonment substituted by this court for that imposed by the judge after the appellant was convicted after trial was described as “remarkably light on the facts”.  As noted earlier, in Lei Tin Seng no fewer than four pedestrians had been hit on the pavement, one of whom had died, as the appellant turned the light goods vehicle to the left at a junction at excessive speed.

25.  Another factor relevant to sentence identified by the courts is the “impact on people’s lives” (see Poon Wing Kay, page 667 I-J).  Here, the applicant caused the death of one person and caused grievous bodily harm to three other persons.  The audio track of the video film taken on board the PLB bears eloquent testimony to the pain, shock and terror caused to the passengers on board that vehicle in the immediate aftermath of the crash.  Ninety year-old Madam Chow Yee, who was travelling with her daughter as a passenger on the PLB, died on 1 January 2012 at Queen Elizabeth Hospital of severe head injuries sustained in the crash.  Mr Sin Wai Keung, who was another of the passengers on the PLB, sustained three separate 5 cm lacerations to his forehead and a depressed fracture of the anterior cortex of his skull.  A craniectomy was performed.  Fortunately, when seen as an outpatient on 27 January 2012 he was found to be “well and seizure free”.  Five other passengers on the PLB sustained minor injuries.

26.  Madam Wong Wai Chun, who was struck from behind as the PLB crashed through the metal railings that protected pedestrians on the pavement at the far side of the junction of Kwun Tong Road and Choi Shek Lane, was walking with her grandson on the pavement towards the bus stop.  She sustained multiple injuries, including a fracture to her right proximal femur.  An operation was performed to remedy the latter injury and Madam Wong was discharged on 9 January 2012.  However, as the judge noted of her when she was called as a witness at the trial in October 2012, she was still walking with a stick.  By contrast, she testified that her grandson had recovered from his injuries.  He had sustained a laceration over the occipital scalp which had been sutured and a non-displaced fracture of the right iliac bone and had been discharged from hospital on 6 January 2012.

Conclusion

27.  The applicant’s culpability for failing to respond appropriately to the onset of fatigue such that, in the result, he became unconscious/asleep for a period of about 10 seconds as the vehicle travelled across no less than three lanes of a road, into and across two lanes of a junction and into railings on the pavement was serious.  He put many people at grave risk of life and limb.  Sadly, he killed one person and injured many others, some seriously.  We endorse the observations made by the judge in imposing sentence :

“ Road accidents can cause immense human suffering. Vehicles are potentially lethal machines. Those who are in charge of vehicles must bear in mind the duty they owe to other road users.”

The offences called for deterrent sentences.

28.  We were satisfied the sentences imposed upon the applicant were entirely appropriate.  Accordingly, the application for leave to appeal against sentence was refused.

[1]  Secretary for Justice v Poon Wing Kai [2007]1 HKLRD 660 at page 668 B-C (appeal bundle, page  49)

[2]  HKSAR v Lei Tin Seng [2011] 1 HKLRD 341.

[3]  R v Cooksley [2003] 3 All ER 40.

[4] HKSAR v Chan Kwok Fai [2012] 2 HKLRD 25.