HKSAR v. MAN CHUN PUN

DCCC 671/2017

[2018] HKDC 374

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 671 OF 2017

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Reasons for Sentence

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1.  The defendant has entered a plea of guilty to two charges: firstly, causing death by dangerous driving; and secondly, causing grievous bodily harm by dangerous driving.

2.  The facts have been agreed, and I have convicted the defendant of both charges.  The facts of the case show that the accident occurred at Lei Yue Mun Road at a location where there were four lanes going upslope, the lanes divided with a raised kerb ramp between them.  The bus driven by the defendant collided with the raised kerb.  The time was about 8.50 in the evening.  Conditions were generally described as good.

3.  The impact with the lane divider caused the bus to topple over.  The bus was driven by the defendant.  As a result of the impact, one of the passengers was trapped by the bodywork of the bus, leading to severe injuries, and she was pronounced dead at the scene.  Also, a large number of people were injured.  Some 20 other passengers were injured, among them witnesses described as five witnesses who sustained very serious injuries which are summarised in the facts.

4.  Passengers had noted that the bus was travelling at a high speed along the Kwun Tong Bypass, which is part of its route, and also when it went down the slip road to the Lei Yue Mun Road.  The driver of another vehicle, from which a dashcam footage was available, saw the bus veer as it entered the Lei Yue Mun Road and run into the kerbed ramp, and it can be seen from that footage the bus can be seen colliding with the kerbed ramp, the bus toppling over onto its nearside some 30 metres away from the impact point of the kerb.

5.  There was examination of the bus.  It was found to have no defects, but a large amount of data can be taken from the contents of the bus computer and also the CCTV cameras present in the following vehicle and the bus.  Those sources of evidence were capable of detailed forensic examination.  The two sources which were examined were the car camera and the bus speed record.  Information taken from the travel data log from the computer installed in the bus showed that the bus was travelling at a speed about 70 kilometres per hour at 12:50:14 and 12:50:25, slowing down to 60 kilometres per hour at 12:50:34.  As I said, the dashboard camera also provided various information about the bus’ speed and driving, and there was a forensic examination of the video footage from the bus CCTV.  This was done to establish the speed of the bus shortly before the accident and at the time of the accident.  When the bus was at the end of the ramp its speed was described as about 76 kilometres per hour with an excess of plus or minus 8 kilometres per hour.  The bus slowed down to about 59 kilometres per hour with again an error of plus or minus 6 kilometres per hour at 20:53:08, and that was immediately before it crashed into the traffic bollard and kerbed ramp, and that would be in a 50 kilometre per hour area.

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 it would appear the bus proceeded into the kerb at a speed that was too fast for the circumstances, and without any apparent attempt by the driver to avoid the obvious hazard of the kerbed ramp.

7.  The driver of the bus, the defendant, was interviewed.  He had been a driver for some 20 years, driving that route for some 15 years, and the bus was on its return journey to Central.  The defendant said that on nearing Lam Tin MTR he had felt uncomfortable and suffered from moments of dizziness, and he said that he had blacked out when the bus was about 1 foot from the kerb block.  The bus had then rammed into the kerb block.  He had been able to see the kerb block as soon as the bus began to go downslope towards it.  He said although he wore glasses, his vision was fine, and at the time he did suffer from hypertension and high cholesterol and took medication for that.

8.  Those are, essentially, the facts that the prosecution relies upon in establishing the two charges against the defendant, the basis of the charge being that the defendant’s speed was excessive for the circumstances and that his general driving of the bus was inattentive by failing to register the existence of the kerb and failing to take any reasonable driving measures to avoid the collision with it.

9.  As far as the defendant’s background is concerned, he is 62 years old, educated to Primary 2 level, and was obviously at the time working as a bus driver.  He is a single man, living in Kowloon.

10.  He has some convictions relating back to matters in the 1970s and 80s which have no relevance to this particular charge.  As far as his driving record is concerned, it is generally good save for a conviction for careless driving on 8 September 2016, for which he was fined $1,000.

11.  The defendant did have some medical difficulties, and medical reports have been prepared on him in February 2018. The defendant was in fact unfit for attending court at the time when this matter was supposed to be sentenced in February.  However, more detailed medical reports have been obtained upon him.  The defendant suffers from hypertension, general chest pain, ulcerative colitis, but these matters do appear at present to be under control, having regard to his current medical treatment.  The defendant was most recently discharged from Queen Elizabeth Hospital on 17 February 2018 suffering from what was described as influenza meningitis, suspected meningitis and alcohol withdrawal.  He has generally followed up now at the Gastrointestinal Clinic at Queen Mary Hospital.

12.  In any event, there is no medical reason why the defendant should not be sentenced today.  It would appear that his medical problems are under control now, and in fact he probably is receiving more attentive medical care now that he is in custody than he was before he entered into custody.

13.  As far as the approach to sentencing is concerned, a detailed approach can be seen in the case of HKSAR v Pang Kun Wah [2004] HKCA 542, where the Court of Appeal provided a resume of the approach to sentencing in these matters, specifically causing death by dangerous driving.  They referred to the case of Cooksley [2003] EWCA Cr Apps 996, and they said:

“When approaching cases like this, it is necessary to take an overview of the case first.”

14.  The maximum sentence for dangerous driving causing death is 10 years’ imprisonment.  The other charge the defendant faces, the maximum sentence for dangerous driving causing grievous bodily harm, is 7 years’ imprisonment.  We know that a person is regarded as driving dangerously if the way he drives falls far below what would be expected of a competent, careful driver, and it would be obvious to such a driver that driving in that way would be dangerous.  That standard is objective.  The case also refers to cases such as Secretary for Justice v Poon Wing Kei [2006] HCA 425, Secretary for Justice v Fung Chai Man [2008] HKCA 587, Secretary for Justice v Law Siu Kuen CAAR 9/2009, and Secretary for Justice v Liu Kwok Chun CAAR 3/2009, where the sentencing guideline in Cooksley for dangerous driving causing death was adopted.  From these cases it is established the two guiding features are the need for deterrent sentence because of the grave consequences caused by dangerous driving and the culpability of the defendant, and the latter is the dominant factor in the sentencing exercise.

15.  In Liu Kwok Chun the court suggested between two extremes of dangerous driving with one being a momentary error or error of judgment on the one hand and the other being selfish disregard by the driver for the safety of other road users or with a degree of recklessness.  It said:

“Between those points there are varying degrees of culpability depending on the presence of aggravating factors such as the consumption of drugs and alcohol, driving at greatly excessive speed, or racing, which would be present in a highly culpable standard of driving.”

And then the court in Liu Kwok Chun suggested four categories of culpability and gave a range of sentencing within those. That is, no aggravating circumstances would be 12 to 18 months’ imprisonment; intermediate culpability, which is where the momentary dangerous error of judgment or a short period of bad driving, aggravated by an habitually unacceptable standard of driving and the death of one or more victims or serious injury of other victims or by the defendant’s irresponsible behaviour at the time of the offence, leading to sentences within a range of 2 to 3 years’ imprisonment; thirdly, higher culpability, where the standard of the offender’s driving is more highly dangerous, referring to the presence of one or more factors of (a) through to (i), where the sentence would range between 4 to 5 years’ imprisonment; and then finally the most serious category, which would be a starting point for sentence of imprisonment of 6 years onwards.

16.  One of the factors in this case, of course, is that the defendant is driving a public service vehicle, a double-decker bus, and that has been described in Hong Kong as being a serious aggravating factor in its own right, and the case that concerns that is HKSAR v Chan Kwok Fai, a Court of Appeal case, Cr App 70/2011 at 25, and the defendant in that case was convicted of dangerous driving causing death.  It concerned a double‑decker bus carrying 35 passengers taking a sharp corner at a roundabout at excessive speed resulting in the bus toppling over.  Two passengers died. 33 others, as well as the defendant, suffered injuries, some serious; passengers being hospitalised for up to 97 days.  The defendant expressed remorse, saying he would never drive again.  One of the factors in the case was the defendant’s speed was excessive.  In that case, the Court of Appeal adopted a starting point for sentence of 4 years’ imprisonment.

17.  The allegation of dangerous driving was based on excessive speed for the circumstances and obviously failure to negotiate the obvious hazard.  So there are similarities to the driving that would be the defendant’s driving in this case.  The Court of Appeal noticed and they said at page 31:

“It is true there is absent from this case all the aggravating features to which R v Cooksley refers, but there is one feature that does constitute a serious aggravating factor, and it is the fact that the applicant - that is, the appellant - was a bus driver who put at risk the lives of nearly three dozen people who were passengers on his bus. R v Cooksley specifically refers to the suggestion by the Sentencing Advisory Panel that a specific aggravating factor is where more than one person is killed as a result of the offence.”

18.  They went on to say:

“A very substantial portion of the population of this territory rely on buses to travel to and from work and to their family and social destinations, and in so doing, they are expecting to be carried safely from one place to another, and 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. In this case - that is, the instant case - there appeared to have been no attempt by the applicant to slow down. The lives of two people were lost and injuries caused to some 30 people. Whilst culpability is a 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.”

19.  So the fact that this was a passenger-laden bus taking a corner at too fast a speed resulting in two deaths and many injuries was an aggravating factor.  I take it from that authority that it would normally place a case such as this, the description of a case such as the one I am dealing with, into the third category of higher culpability where the standard of the defendant’s driving is more highly dangerous because of the presence of one or more of factors (a) to (i) and the presence in this case being the factor that we are dealing with of a public service vehicle being driven too fast and without sufficient attention.  I would take it from that that it places the sentencing range for the 1st charge in the range of 4 to 5 years’ imprisonment as a starting point.

20.  Having regard to the fact in Chan Kwok Fai, a similar case, a starting point of 4 years’ imprisonment was taken by the Court of Appeal as the starting point for the 1st charge.

21.  On the 2nd charge, that of causing grievous injury by dangerous driving, there is no defined starting point for sentence. The same factors that may aggravate the fact that the offence exist in that case.  Clearly, even on a plea of guilty, the court must consider an immediate sentence of imprisonment on the 2nd charge.

22.  The defendant places in mitigation for consideration that he attributes the offence to his non‑concentration on the road.  It is pointed out that he has been co‑operative, he is remorseful, and the medical reports that I have referred to show that he has generally endured episodes of poor health over the last few years.

23.  I must now proceed to determine starting points for sentence on both charges and then any necessary disqualification from driving and any ancillary orders that are to follow beyond that, taking regard of the matters I have already set out as being the principles I must decide this case upon.

24.  I do bear in mind the court’s approach in the case of Chan Kwok Fai and the determined starting point for sentence there.  In this case, I consider the driving to be actually worse in this case than it was in the case of Chan Kwok Fai.  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 at too high a speed.  It would be, I think, properly described as both continuous and reckless.

25.  I see no reason why I should not maintain the higher point of the starting point for that third category.  That is, a starting point of 5 years’ imprisonment on the 1st charge.  That is 60 months’ imprisonment.  That will be discounted because of the defendant’s plea of guilty on that charge.  The defendant indicated a plea of guilty prior to the first day of trial but after the plea date.

26.  Having regard to the case of HKSAR v Abdul Karim 481/2014, that would place the discount in the range of between 25 to 20 per cent from that sentence.  I will adopt a discount for the plea of guilty of 25 per cent.

27.  That leads to a final sentence on the 1st charge of 45 months’ imprisonment.

28.  There is a compulsory and mandatory 5 years’ disqualification for driving on that charge, and the defendant must also take and complete a driving improvement course within the last 3 months of that period of disqualification if he wishes to retain his licence.

29.  On the 2nd charge, I determine that again a prison sentence is appropriate.  I bear in mind the starting point of 7 years’ imprisonment.  There were a large number of people injured, many seriously.

30.  I take a starting point of 36 months’ imprisonment on that charge.  I reduce that to 27 months’ imprisonment by way of a 25 per cent discount.

31.  There is a 2-year disqualification from driving, and again, the defendant must take and complete a driving improvement course in respect of that matter within the last 3 months of his period of disqualification.

32.  The charges relate to the same event, so the sentences will be served concurrently; an overall total sentence of 45 months’ imprisonment.