HKSAR v. Man Chun Pun

CACC 83/2018

[2018] HKCA 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 83 OF 2018

(ON APPEAL FROM DCCC NO 671 OF 2017)

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BETWEEN

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J U D G M E N T

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1.On 23 January 2018, the applicant was convicted on his own plea before Judge Casewell (the judge) in the District Court of one charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374, (the RTO) (Charge 1), and one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the RTO (Charge 2). On 12 March 2018, the judge sentenced the applicant on Charge 1 to 45 months’ imprisonment and disqualified him from driving for 5 years, with an order that he attend a driving improvement course within the last 3 months of the disqualification period, and on Charge 2 to 27 months’ imprisonment and disqualified him from driving for 2 years, with an order that he attend a driving improvement course within the last 3 months of the disqualification period. He ordered that the sentences be served concurrently which resulted in the sentence on Charge 1 reflecting the total sentence.

2.The applicant was the driver of a bus carrying 22 passengers which was involved in an accident as a result of his dangerous driving, causing the death of one passenger and very serious injuries to five other passengers.

3.At about 8:50 pm on 14 January 2017, the applicant was driving City Bus No. 681 from Ma On Shan to Central along Lei Yue Mun Road.  The relevant section of this road consisted of four upslope lanes. The first and second lanes were bound for Kai Tin Road Roundabout, while the third and fourth lanes were bound for the Eastern Harbour Tunnel.  There was a raised kerb ramp between the second and third lanes.  The speed limit along Kwun Tong Bypass and along the kerb ramp on Lei Yue Mun Road was 70 kph which became 50 kph about 12 meters beyond the beginning of the ramp which was about 14 meters where the bus ended up after the accident.

4.The bus was travelling downslope from the first lane of the Kwun Tong Bypass Flyover Slip Road before moving into the second lane of Lei Yue Mun Road.  The passengers on the bus said that it was travelling at high speed along the bypass and down the slip road, and the applicant had to apply the brakes of the bus suddenly twice during this section of the roadway.  A driver of a private vehicle that was behind the bus was travelling at a speed of about 60 kph.  He said he saw the bus veer towards the hatched road markings on its offside even though there were no other road users affecting the bus.  The bus continued to travel for about two bus lengths before ramming into the kerb ramp.  He said the speed of the bus was faster than that of his vehicle and he reduced his speed to 60 kph as he moved off the bypass onto the slip road.  The offside front wheel of the bus crashed into the kerb ramp causing it to bounce up before it toppled over onto its side ending up about 30 meters from the impact point on the kerb ramp.  The upper deck bus rested on the nearside pavement while the lower deck rested across the first and second lanes.  The dead passenger was trapped by the bodywork of the bus while other passengers were screaming for help.

5.At the time of the accident, the weather was fine and the road surface was dry and in good condition.  The traffic flow was normal.

6.The applicant at the time of the offence was 61 years of age.  He had been a bus driver for about 20 years and have been driving the bus route in question for about 15 years.  He had a relatively good driving record except for a conviction for careless driving in 2016 for which he was fined $1000.  When he was interviewed by the police he said that he was driving at a speed of 40 kph along the Kwun Tong Bypass and when the bus reached Lei Yue Mun Road he suffered a dizzy spell and crashed into the kerb ramp.  He was on medication but it was an agreed fact that it had no adverse effect on him. 

7.Mr Anthony Lai, counsel for the applicant, advances three grounds of appeal.  The first ground is that the judge erred in principle in holding that a defendant driving a bus with passengers would normally place the case for the purposes of sentencing in the higher level of culpability as laid down in R v Cooksley [2003] 3 All ER 40.  The second ground is that the sentence was manifestly excessive because the judge erred (1) in holding that the present case was worse than HKSAR v Chan Kwok Fai [2012] 2 HKLRD 25; (2) in holding that the applicant’s dangerous driving was continuous and reckless; (3) in finding that the point of impact was in the 50 kph zone; and (4) in failing to take into account the applicant’s claim that he suffered from dizziness immediately before the accident.  The third ground is that the imposition of orders to attend a driving improvement course for both Charges 1 and 2 was inconsistent with the provisions of section 71(1B) of the RTO.  The respondent concedes that the judge erred as complained in this last ground.

8.The offences are serious ones because it involved the applicant, a driver of a public service vehicle, putting the lives of his passengers at risk through his dangerous driving.  This is reflected by the two charges.  When sentencing for offences of this type, the degree of the offender’s culpability and the outcome of the offence are dominant factors.

9.The judge, in a comprehensive and considered set of reasons, addressed the relevant issues and matters in determining the sentence that the applicant should serve for the tragic consequences flowing from these two offences.  He based his sentence on the fact that the applicant was driving a public service vehicle which he drove too fast and without sufficient attention.  He found that the applicant drove the bus at a high speed which he described as “both continuous and reckless” and that placed him in the highest level of culpability as laid down in Cooksley. 

10.The judge noted the penalty provision for each offence with a maximum sentence of 10 years’ imprisonment on Charge 1 and 7 years’ imprisonment on Charge 2.  On Charge 1, he adopted a starting point for 5 years’ imprisonment which he reduced by 25% for the applicant’s guilty plea to 45 months’ imprisonment.  On Charge 2, he adopted a starting point of 3 years’ imprisonment which he reduced by 25% for the applicant’s guilty plea to 27 months’ imprisonment.  He made the sentences on each charge concurrent on the basis that the charges related to the same event.  There is an issue as to whether that was correct given that these are separate offences that sometimes will occur together.  It will then be a matter of applying the totality principle. 

11.Mr Lai questions the judge’s findings as to the speed of the bus and the applicant’s inattention to the road conditions at the time of the incident.  He also questions whether the judge has correctly considered and applied the criteria for the high level culpability category in Cooksley.

12.I consider that the matters raised by these grounds are reasonably arguable where they address the level of culpability of the applicant, and the presence and degree of any aggravating factors.  Leave is therefore granted to the applicant to appeal against his sentence. 

Mr Ivan Cheung, SPP(Ag) of the Department of Justice, for the respondent

Mr Anthony Lai, instructed by Poon & Cheung for the applicant