HKSAR v. CHAN KWOK FAI

CAC C 70/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 70 OF 2011

(ON APPEAL FROM DCCC NO. 558 OF 2010)

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BETWEEN

HKSAR Respondent
And
CHAN KWOK FAI (陳國輝) Applicant

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Before: Hon Stock VP and Saw J in Court

Date of Hearing: 17 January 2012

Date of Judgment: 17 January 2012

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1. On 21 January 2011, the applicant was convicted after trial by Judge Remedios in the District Court of an offence of dangerous drivingcausing death contrary to section 36 (1) of the Road Traffic Ordinance, Cap. 374. He was sentenced to a term of 4 years 8 months’ imprisonment and now seeks leave to appeal that sentence.

2. The offence occurred at shortly after midnight on 9 November 2009. The applicant was then aged 37 years and was a bus driver forthe Kowloon Motor Bus company. He was driving a double-decker bus which was then carrying 35 passengers. The facts and the keyfindings are helpfully set out in the judge’s Reasons for Sentence:

“2. At approximately 20 minutes past midnight on 9 November 2009, the defendant was on duty driving a Kowloon Motor Bus double-deckerbus. The defendant was at that time travelling along the first lane of Po Shun Road southbound. Upon reaching the roundabout of PoShun Road and Tong Ming Street, the bus turned left into the east carriageway of Tong Ming Street but went out of control topplingover to the offside with the upper deck mounting onto the central divider of the second lane of Tong Ming Street. The bus was carrying35 passengers at the time and as a result of the accident two female passengers died and all the remaining passengers were injuredincluding the defendant. The bus was severely damaged. The defendant and 11 passengers were discharged from hospital on the sameday after medical treatment. The remaining 22 passengers were hospitalised for periods between 2 and 97 days. Two female passengers,Madam Yip Kwan-wun, was certified dead at 0056 hours on 9 November 2009 and Madam Liu Charmeo Cheuk-miu at 2000 hours on 11 November2009.

3. At the time of the accident the weather was fine, the road surface was dry and in good repair. The street lights were lit and visibilitywas good. About 150 metres before approaching the roundabout of Po Shun Road and Tong Ming Street, the statutory speed limit imposedon Po Shun Road changed from 70 kilometres an hour to 50 kilometres an hour. There was a 50 kilometres an hour speed limit trafficsign erected thereat to remind road users.

4. I found that at the time the defendant was driving the bus and making a left turn around a right-angled left bend the defendantwas driving at an excessive speed. The excessive speed of the bus caused the bus to topple over to its right. I found at the materialtime that the bus was negotiating the bend travelling at a speed of 59 plus or minus 6 kilometres an hour as stated by a prosecutionexpert. On that expert’s estimate of the speed, the lowest speed the bus would have been travelling would have been 53 kilometresan hour and the highest speed at 65 kilometres per hour. Although the speed limit for the road was 50 kilometres an hour, I foundthe bus should have negotiated the bend at a safe speed of 30 kilometres or less. The bus was therefore speeding in excess of atleast 23 kilometres an hour. It mattered not that the legal speed limit on the road was 50 kilometres an hour.”

3. As for the applicant’s personal circumstances, he was at the date of sentencing aged 38 and born in Hong Kong. He has a clearrecord and a clear driving record. He had been recruited as a driver by KMB in April 2006 and was familiar with this route. Inmitigation it was said he felt considerable remorse and believed that he would probably never drive again.

4. We also have the benefit of the Reasons for Verdict. The defence case was that the applicant was not driving at excessive speedat all and that the bus toppled over because of faulty manufacture or design deficiencies. That defence was rejected by the trialjudge. That was hardly surprising in light of the facts which rather spoke for themselves but more particularly in light of theevidence of the driver of a vehicle behind the bus who himself reduced speed when approaching the junction as required by the prevailingspeed limit change, namely, from 70 km/h to 50 km/h. But the bus did not reduce speed. One of the passengers on the bus said thatthe bus started to turn left without slowing down, lost balance and toppled over to its offside.

5. The judge said that there were aggravating factors in the case “one of which was the excessive speed of the bus”; and that whenhe was driving at speed, the applicant “knowingly put more than one person at risk. The occurrence of multiple deaths and seriousinjury to one or more of his passengers was foreseeable.” That too, she said, was an aggravating feature as was the fact thatas a result of his dangerous driving, two persons died and every single passenger, including the applicant, was injured; some hospitalisedfor a considerable time, that is, between two and 97 days.

6. The judge recognised the difficulty in sentencing defendants for this type of offence since the offenders are usually law-abidingcitizens as indeed is this particular applicant. She noted as well that the applicant enjoyed an impeccable driving record and wasa person of no previous criminal convictions.

7. She took the view that the case warranted a starting point of five years’ imprisonment. Since he had admitted a large portionof the prosecution case and thereby saved much court time she afforded the applicant a four-month discount and sentenced him to aterm of 4 years and 8 months’ imprisonment and ordered that he be disqualified from driving for a period of three years.

8. It is asserted by Mr Ma who appears for the applicant that the speed could not be described as greatly excessive; that there wasno suggestion that any of the injured persons suffered any permanent disabilities; and that the factors identified by the judge asaggravating came nowhere close to those aggravating features which have been identified as highly culpable such as driving havingconsumed drink or drugs; greatly excessive speed; racing; disregard of warnings from fellow passengers; prolonged, persistent anddeliberate bad driving; driving while suffering from lack of sleep; and a host of factors of that kind. The contention in the writtensubmissions is that what happened was a “momentary error of judgment, very likely to be the result of a temporary lapse of concentration.”

9. He refers to criteria and levels suggested by R v Cooksley & Ors [2003] 3 All E R 40 at 46j to 57b, and contends that the sentence imposed in this case was significantly higher than in those envisaged by those criteria.

10. He has taken us also to the judgment of this Court, differently constituted, in HKSAR v Lei Tin Seng [2011] 1 HKLRD 341 at 346, in which it was said, by reference to the fact that in July 2008 the maximum penalty for the offence had been increased fromfive years to 10 years’ imprisonment:

“21. … We agree that the legislature has raised the maximum penalty of the offence to reflect the concern of the general publicon the offence. However it does not mean that all offences of dangerous driving causing death should attract heavier sentences. Thelegislature has increased the maximum penalty of the offence to indicate mainly that the original maximum penalty was inadequateto reflect the criminality in the most serious cases of this type of offence. It has not been suggested that heavy sentences shouldbe imposed in the relative minor cases of the same type. Even though the sentence of this category of cases has been doubled, itdoes not follow that the overall sentences that were imposed in the past should be raised.”

11. Lei Tin Seng was a case in which the accused was found guilty after trial of dangerous driving causing death. On turning left into a particularroad, his goods vehicle suddenly turned sideways and rammed into a pavement and hit four pedestrians one of whom died and the otherswere injured, although none too seriously. The Court of Appeal commented [ paragraph 14 of that judgment] that “the light goodsvehicle driven by the applicant was totally out of control … ” and that “the speed of the applicant’s vehicle was extremelyhigh”; and, further [ paragraph 18], that “the applicant made a sharp turn at high speed in an extremely busy street, killing/causinginjuries to many innocent pedestrians and great pain and distress to the families of the victims”; and said [ paragraph 19] that“the court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death willbe severely punished”. With reference to Cooksley, the Court said, however, that the accused’s “criminality is not on the high side, and does not fall within the extremely seriouscategory.” The sentence was then reduced by the Court from one of 3½ years to 2 years’ imprisonment. There then followed thepassage at paragraph 21 of that judgment which we have already cited. Hardly surprisingly, Mr Ma asks us to compare the sentencesubstituted as a result of that appeal and the sentence imposed in this case.

12. We start by making a comment in relation to paragraph 21 of the judgment in Lei Tin Seng which suggests, so it would seem or so it has been taken, that one should not necessarily assume that the legislature intended byits increase in the maximum penalty available to visit correspondingly heavier sentences for offences other than those in the mostserious cases. If that was what the court meant, we respectfully and firmly disagree. With great respect, it does not flow fromthe logic of the matter or, indeed, accord with a judgment of the Court in Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318 delivered a few months later in which the Court, at para 45, specifically endorsed the approach of Sir Igor Judge, Chief Justiceof England in Richardson [2007] 2 All E R 601 at para 13, where in reference to an increase in maximum penalty in the United Kingdom for the like offence said:

“… the principle to be derived from [the authorities] is that the primary object of increase in maximum sentence was to addresscases of the most serious gravity, so as to permit the sentence to be greater than before, and in an appropriate case to be as longas or longer than the previous maximum. However, even in such cases it was not intended that the increase in sentence should reflectthe consequences of the increase from ten years to fourteen years in a strictly mathematical proportion. It has long been recognizedthat mathematics does not provide the appropriate answer to a sentencing decision. That said, appropriate proportionality betweenthe huge variety of offences which come within the ambit of these crimes leads to the conclusion that if the level of sentence incases of the utmost gravity is significantly increased (as it should be) there should be some corresponding increase in sentencesimmediately below this level of gravity, continuing down the scale to the cases where there are no aggravating features at all. …”

13. That approach seems to us to be unimpeachable and is the approach which should henceforth be followed in relation to the increasein the maximum sentence for this offence which took effect in July 2008.

14. Furthermore it seems to us, with respect, that the sentence substituted in Lei Tin Seng was, whether by approach to the maximum available or to sentences imposed in other cases, remarkably light on the facts. It was,after all, described as a case of causing death by turning into an extremely busy street at an extremely high speed and was saidto be a sentence appropriate after trial. It may be that the Court was driven to that result by the notion, erroneous in our respectfulview, that the legislature intended the increase to apply only to the most serious type of offence within this category.

15. The suggestion by Mr Ma that the driving in this case was a momentary error of judgment is not, in our judgment, tenable. It isnot a mere error of judgment to fail to slow down when driving a bus round a bend.

16. It is true that there was absent from this case almost all of the aggravating features to which Cooksley refers: for which reason, if there were nothing more that fact would render the sentence clearly far too high. But there is onefeature that does constitute a serious aggravating factor and it is the fact that the applicant was a bus driver who put at riskthe lives of nearly three dozen people who were passengers on his bus. Cooksley specifically refers [para 15] to the suggestion by the Sentencing Advisory Panel that a specific aggravating factor is where “morethan 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)”. [Emphasis added].

17. A very substantial proportion of the population of this territory rely on buses to travel to and from work and to their family andsocial destinations and in doing so they expect to be carried safely from one place to another; and the bus companies hold out thepromise that that expectation will be fulfilled. Dangerous driving by bus drivers has firmly to be deterred by sentencing policyand it is apparent from the Reasons for Sentence that this was, rightly so, the factor uppermost in the judge’s mind.

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 injuriesoccasioned to some 30 persons. Whilst culpability is the dominant factor to be taken into account – the impact on the familiesof those killed is nonetheless a matter that should certainly be taken into account: see 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 fastspeed, which caused a fatality – and divorced from any aggravating factors, would have warranted a sentence significantly lessthan the 5 year starting point adopted by the judge. But the fact that this was a passenger-laden bus taking a corner at too fasta speed resulting in two deaths and many persons injured makes a material difference. However, that said, it is apparent that thejudge slipped into error when she referred to the excessive speed as an aggravating factor. The excessive speed was itself the actof dangerous driving and not an aggravating factor. The applicant’s driving did not fall into the category of “greatly excessivespeed; racing; showing off; competitive driving” to which the judgment in Cooksley refers at paragraph 15. Having regard to that error and to the facts as a whole, and the applicant’s particular background, thesentence should in our judgment be reduced to one of four years’ imprisonment.

20. Accordingly, we grant the applicant leave to appeal against sentence, treat the hearing of the application as the appeal, allowthe appeal, set aside the sentence of four years and eight months’ imprisonment and substitute therefor a sentence of 4 years’imprisonment. The period of disqualification will remain undisturbed.

(Frank Stock)
Vice-President
(Darryl Saw)
Judge of the
Court of First Instance

Mr Martin Hui, SADPP of the Department of Justice, for the Respondent

Mr David Ma, instructed by Messrs C.L. Chow & Macksion Chan, for the Applicant