HKSAR v. Kan Yau Keung

DCCC 68/2020

[2020] HKDC 424

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 68 OF 2020

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of causing death by dangerous driving, contrary to section 36 (1) of the Road Traffic Ordinance, the maximum sentence for which is 10 years imprisonment[1].

2.Full particulars of the offence are set out in the amended summary of facts admitted by the defendant[2].

3.In summary at around 1525 hours on 28 June 2019 the defendant, a minibus driver, was driving a green minibus, registration mark LV 4227 on Town Park Road South in Yuen Long.

4.When the defendant pulled over at a minibus drop–off point to let passengers alight, four passengers alighted from the minibus including Mr Fung Sik On.  Mr Fung was the fourth and last passenger to alight. 

5.When Mr Fung stepped on the first step down, the minibus set off without closing the door.  Passengers shouted to the defendant “Hey, Stop”.  As the minibus moved forward Mr Fung was thrown out of the minibus with the back of his head hitting the ground.  After 2-3 seconds the minibus stopped.

6.CCTV footage captured the minibus stopping and the passengers alighting.  I have viewed the footage which clearly shows that when Mr Fung was alighting from the bus the defendant set off without closing the door[3].

7.The accident was witnessed by Mr Fung’s wife who alighted before Mr Fung; Mr Lam, a passenger on the minibus and two passers-by.  Mr Lam observed that throughout the journey the defendant would start the minibus before passengers were seated and the door properly closed. 

8.The police arrived and conducted a screening breath test on the defendant.  No alcohol was detected from the defendant’s breath. 

9.Under caution the defendant told the police that he set off when he thought no more passengers would alight and that when he realized a man had been thrown out of the minibus he immediately stopped. 

10.An ambulance was called and Mr Fung was taken to the Tuen Mun Hospital.  Shortly after admission Mr Fung’s conscious level dropped.  CT brain scan revealed multiple injuries to the head.  Emergency operations were conducted and Mr Fung remained in intensive care until he sadly passed away on 6 July 2019[4].  

Mitigation

11.In passing sentence, I have carefully considered the oral and written submission of Mr Leung, including that the defendant, aged 70, has worked as a minibus driver for thirty odd years and that prior to the accident he had planned to retire in January this year to look after his wife who has difficulty walking and his grandchild due in August this year[5].

12.I have read the defendant’s mitigation letter in which he expresses his remorse for what happened.  I have also read the letter written by his family members who describe how hard the defendant has worked since leaving primary school and that having reflected on what happened has decided not to drive again.

13.I take into account that the defendant has no criminal record and apart from one fixed penalty in 2015 has a clear traffic record.  

14.I have read the letter from the defendant’s supervisor who describes the defendant as a loyal outstanding worker with a good driving manner.

Dangerous Driving

15.In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[6].  These factors were revised in R v Cooksley[7]. 

16.Whilst in R v Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in R v Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another[8] emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

17.In Secretary for Justice v Lau Sin Ting the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[9].

18.In R v Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has been adopted in Hong Kong[10].

19.In HKSAR v Lee Yau Wing, the court emphasised that the focus on the culpability of the driving has been adopted notwithstanding that it is sad feature of these cases that the offender is usually not a person of a criminal background but is a law abiding citizen of good character[11].

Sentence

20.In Secretary for Justice v Poon Wing Kay the Court of Appeal said: -

“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 when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, 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 can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

21.Mr Leung submits that there are no aggravating features and that the case therefore falls within the first level of culpability[12]. In support Mr Leung refers the court to two sentence cases in the District Court[13].

22.I do not find these cases helpful.  Not only are the facts very different but neither case concerns a bus driver.  Further, from the summary provided by Mr Leung the sentence of the taxi driver who disobeyed a red light and knocked down a pedestrian on a pedestrian crossing appears very lenient. 

23.Where the driver is a bus driver higher sentences have been imposed.  In HKSAR v Chan Kwok Fai the Court of Appeal in emphasising that a bus driver who puts at risk the lives of passengers constitutes a serious aggravating feature said[14]:

“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; 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….”

24.In his supplemental written mitigation Mr Leung submits that the defendant’s driving did not put at risk all the passengers on the minibus[15]. 

25.Although the driving did not put at risk all the passengers on the minibus, as observed by the passenger Mr Lam, throughout the journey the defendant would start the minibus before the door was properly closed.

26.I am satisfied by failing to check whether any passengers were still alighting and failing to close the door before setting off, the defendant’s driving falls into the higher end of the least culpable dangerous driving range.     

27.Taking into account all the circumstances of the accident; the defendant who is 70 has a very good driving record and is genuinely remorseful for what happened, I am satisfied that the proper starting point after trial is 18 months’ imprisonment. 

28.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 12 months’ imprisonment.

Disqualification

29.There is mandatory disqualification of not less than 5 years in the case of a first conviction unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified. I find there are no special reasons.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 5 years.  

30.Section 72A (1A) of the Road Traffic Ordinance provides that a court shall order a person convicted of causing death by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons not to order the defendant to attend and complete a driving improvement course. 

31.The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification expires.  The defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course notwithstanding the disqualification period may already have ended.