HKSAR v. Chan Ho Ming

Case No.CACC 109/2020[2021] HKCA 1088

Court

Court of Appeal

Date27 Jul 2021

Judge—

Case Document

100%Judiciary

CACC 109/2020

[2021] HKCA 1088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 109 OF 2020

(ON APPEAL FROM HCCC NO 324 OF 2019)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Chan Ho Ming (陳浩明)	Applicant

________________________

Before: Hon Macrae VP in Court

Date of Hearing: 27 July 2021

Date of Judgment: 27 July 2021

________________________

J U D G M E N T

________________________

1.The applicant was charged with 19 counts of manslaughter, contrary to common law and punishable under section 7 of the Offences Against the Person Ordinance, Cap 212 (Counts 1-19). He faced a further 19 counts of dangerous driving causing grievous bodily harm, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (Counts 20-38).

2.On 30 September 2019, the applicant pleaded guilty to all counts before a magistrate and was committed to the High Court for sentence. On 7 July 2020, the applicant was sentenced by D’Almada Remedios J to 14 years’ imprisonment and disqualified from holding or obtaining a licence to drive all classes of motor vehicles for life.

3.By way of a Form XI Notice, dated 28 July 2020, the applicant applied for leave to appeal against his sentence. His application for Legal Aid having been refused on 24 September 2020, he then applied for the services of the Hong Kong Bar Association Free Legal Service Scheme, which initially assigned him two counsel on 23 November 2020. However, on 21 April 2021, both counsel assigned by the Bar informed the Court that they had discharged themselves, and the applicant now appears in person. I should make clear that I have nevertheless considered the perfected grounds of appeal against sentence, and the written submissions put forward in support thereof, drafted by his assigned counsel.

The Summary of Facts

4.At about 6 pm on 10 February 2018, more than 100 people were queuing for a Kowloon Motor Bus (“KMB”) plying Route 872 at Sha Tin Racecourse Bus Terminal. The vehicle in question was a double‑decker bus, and Route 872 was a special route only operating on race days. As the applicant approached the driver’s seat in order to drive the bus, some passengers swore at him and scolded him for apparently being late. The applicant looked at them but made no response. Some 86 passengers boarded the bus, with almost all seats occupied and some 10 or so passengers standing on the lower deck, after which the bus set off on its journey at about 6:05 pm.

5.At about 6:11 pm, the bus was in the first lane of the Tai Po Kau Section of Tai Po Road travelling in the direction of Tai Po. The section of the road in question consists of a straight downhill carriageway for over 150 meters before it becomes a right bend. There were two signs denoting that the speed limit was 70 km/h positioned about 220 meters before the start of the right bend. A bus stop/lay by was situated on the nearside of the right hand bend. About 20 meters in front of this bus stop/lay by was an uncontrolled cautionary pedestrian crossing. At the time, the weather was fine and visibility was good.

6.As the bus travelled downhill towards the right hand bend, its speed increased from 69.6 km/h (plus/minus 1.5 km/h) to 74.9 km/h (plus/minus 1.5 km/h), without the applicant applying the footbrake or engine brake. As it entered the right hand bed, the bus reached its maximum speed of 75.4 km/h (plus/minus 1.5 km/h), the applicant still did not apply the brake, notwithstanding that the driver feedback device was flashing and emitting a beeping noise. As the bus was gathering speed downhill, some passengers expressed concern amongst themselves and to the applicant that he was driving too fast.

7.The bus began to lose balance and yawed clockwise, leaning to the nearside and away from the right bend. The bus then toppled over, and crashed into the bus stop knocking over another two lampposts in the process, as well as the bus shelter itself. The bus finally came to a stop after having skidded for about 24 meters. Nearly all the nearside windows were smashed and passengers were sent flying.

8.The Summary of Facts admitted by the applicant paints a vivid scene of chaos and destruction: two passengers appear to have become stuck underneath the bus; dead bodies were scattered inside the bus and blood was everywhere. Brain and body tissue, along with broken limbs and someone’s thumb were found on the ground and the head of one of the victims was almost completely severed from her body. Passengers who were able to do so, crawled out from the wreckage. Having done so, some returned to the bus to help others. Subsequently, the rear part of the bus had to be cut open by firemen to rescue those who remained trapped inside.

9.Eighteen passengers were found dead at the scene and one more was certified dead at hospital in the early hours of the following day. Given the number of casualties a temporary morgue was established on site. A further 67 passengers suffered injuries of varying degrees, with extended periods of treatment and recovery being required. 19 of those 67 injured passengers are the victims of the 19 counts of dangerous driving causing grievous bodily harm.

10.Some of the surviving passengers described the manner of the applicant’s driving in the run up to the tragedy as follows:

(a) The applicant applied the brake abruptly about three times even when there was no vehicle in front. At one point when the bus was following a private car, the applicant applied the brake abruptly when it came very close to the tail of the private car;

(b) The applicant drove as if he was throwing a tantrum;

(c) The applicant was driving at a high speed. He had been scolded for driving too fast by some passengers; yet he had no response and continued to drive very fast;

(d) The bus was driven much faster than the usual speed for Route 872 buses. Some passengers were scared and held onto the handle bars and handrails next to their seats tightly;

(e) The applicant did not apply the brake when negotiating some turns or going downhill, despite passengers asking him not to drive so fast.

In addition, the evidence of the ‘black box’ of the bus recorded incidents of “harsh braking” and “harsh acceleration”, as well as “over speeding”, in the minutes and seconds before the disaster.

11.As part of the investigation, the speed at which other KMB buses had travelled over the same route were also obtained. The average speed of other double-decker buses at the start of the right bend was 47.1 km/h. A survey of 20 other buses, which passed through the relevant stretch of the Tai Po Road on 13 March 2018 (after the incident), showed that the average speed of these buses was 43.4 km/h.

12.The applicant, who had suffered relatively minor injuries, was arrested at the scene but remained silent under caution. On 11 February 2018, a video recorded interview under caution was conducted with him. He elected to answer only questions relating to his identity, but refused to answer any other questions put to him.

Mitigation

13.At the time of sentencing the applicant was 32 years of age, with a previous job history of working as a bartender and garage employee. He had acquired his public bus licence in 2013 and joined KMB as a part time bus captain in 2014. He had driven the route in question on two previous occasions^{^[1]}, and had a previous conviction for careless driving in 2014.

14.He produced a number of mitigation letters as well as a personal apology to the victims, which was read out by his counsel in open court, expressing his remorse for the tragedy. It was submitted that the applicant’s plea was entered at the committal stage and was deserving of a full one-third discount. It was argued that the applicant had only gone 5 or 6 km/h over the speed limit.

15.Defence counsel submitted that the applicant was not familiar with the route and that the driving was only marginally over the speed limit, which two factors resulted in him losing control of the bus. He further complained of a lack of training from the bus company concerned but accepted that the most aggravating feature was the tragic outcome of the offence.

The psychiatrist’s report

16.The applicant sought to rely in mitigation on a psychiatric report prepared by Dr Bonnie Siu Wei-man (“Dr Siu”), a visiting consultant psychiatrist at Siu Lam Psychiatric Centre. The report detailed the applicant’s psychiatric history. Dr Siu explained that, according to the electronic patient records of the Hospital Authority, the applicant had previously been diagnosed with Asperger’s Syndrome and had been receiving treatment at the psychiatric outpatient clinic of Prince of Wales Hospital. However, a detailed electronic record was not available. The applicant had produced to Dr Siu a copy of a letter written by an Associate Professor of Prince of Wales Hospital (Department of Psychiatry), dated 1 December 1999, and addressed to the principal of the secondary school where the applicant was then studying, which stated:

“CHAN (at that time 12 years old, studying in Form 1) had been diagnosed to have Asperger’s Syndrome (a variant of autistic disorder), with symptoms including poor social awareness, irritability, difficulty in understanding others’ feelings leading to social relationship problems, restricted range of interests, obsessionality, verbal expression which may be irrelevant and out of context, reflecting his lack of awareness of social cues. Treatment mainly on area of social skills and communication group”^{^[2]}.

17.Dr Siu explained that there were no medical records from 1 January 1997 to 31 December 2002. She then set out some of the information provided to her by the applicant’s parents about his childhood; such as his fondness of traffic vehicles, especially trains and buses. Dr Siu concluded that:

“CHAN had been diagnosed to have Asperger’s Syndrome when he was studying in primary school. Recent mental examinations revealed that he was mentally stable. No psychiatric follow-up treatment are required at this juncture”^{^[3]}.

Dr Siu considered that the applicant’s mood was stable with no psychotic symptoms detected.

18.It was contended in mitigation that the applicant had driven in a way consistent with him having had a tantrum, which is how someone with Asperger’s Syndrome would react. This was said to explain his indifference at being admonished by the other passengers for driving too fast.

The Reasons for Sentence

19.The judge considered that the injuries suffered by the victims were terrible and horrific, while several of their families had been bereaved and particularly distressed. Many of the survivors were scarred and continue to suffer some form of disfigurement and pain, with many suffering from post-traumatic stress disorder. By contrast, the injuries occasioned to the applicant were minor.

20.The judge noted that in Secretary for Justice v Law Siu Kuen[4], the Court of Appeal had held that motor manslaughter was a more serious offence than causing death by dangerous driving and was reserved for particularly serious cases. She made clear that the culpability of an offender should be the initial factor in determining the seriousness of the offence^{^[5]}, that multiple deaths were an aggravating feature^{^[6]} and that it was significant that the bus was laden with passengers^{^[7]}. The judge made reference to the recent decision in HKSAR v Man Chun-pun[8], where the Court held that the starting point for a charge of dangerous driving causing a single death was 4 years’ imprisonment and for dangerous driving causing grievous bodily harm, 2½ years’ imprisonment. The Court reiterated that the reasoning which underlay sentencing in such cases was that “ a driver of a public service vehicle, who by his dangerous driving puts at risk the lives of his passengers, is a serious aggravating factor, which may, depending upon the circumstances of the case, warrant a starting point in the higher category of offending”^{^[9]}.

21.The judge found that the evidence from the ‘black box’ clearly demonstrated the applicant’s erratic driving had begun a few seconds after the bus began its journey^{^[10]} and was more than likely his response for having been reprimanded by passengers for being late. However, this could not provide an excuse for his conduct^{^[11]}. The judge believed that the applicant had “relished” the alarm he knew he was causing to his passengers^{^[12]}. Significantly, in light of the ground of appeal advanced by the applicant’s previously assigned counsel, she found there was no justification for suggesting that the applicant drove in the manner he did because he was in some way “socially inept to accept the criticism of his driving”^{^[13]}. The driving, which was “a prolonged, deplorable and deliberate escalation of bad and appalling driving until the tragic end”[14], was intended “to make this short journey as uncomfortable and disconcerting for his passengers from the beginning”[15]. The judge found that the passengers would have been “distressed, disturbed and frightened for their lives”[16]. Indeed, the “waiting catastrophe did not take long, it occurred within 6 minutes”[17] from setting off. The speed at which he approached the right bend was grossly excessive and aggressive^{^[18]}. The judge found^{^[19]}:

“The defendant’s driving showed an utter and selfish disregard and contempt, for the safety and well-being of all his passengers. Their cries that he was driving too fast was met with defiance by continuing to drive fast. His contumacious conduct was spiteful and done to deliberately scare them.”

22.The judge distinguished the applicant’s case from HKSAR v Lai Sai-ming[20], since she considered that the applicant bore far greater culpability in taking a conscious and deliberate decision to drive in the manner he did^{^[21]}. The most serious aggravating feature was the number of deaths and injuries (in this regard she also noted the on-going injuries still being suffered by many of the victims at the time of sentence, some 2½ years after the tragedy^{^[22]}). The judge found the only mitigating factor was the applicant’s plea of guilty made at the earliest opportunity, which entitled him to a full one-third discount[23].

23.Although the judge did not explicitly state her starting point, in keeping with the previously stated principle applicable to manslaughter cases, by allowing a full one-third discount, it is clear that she must have settled for an overall starting point of 21 years’ imprisonment when she sentenced the applicant to 14 years’ imprisonment on Counts 1-19. In respect of Counts 20-38, the judge adopted a starting point of 6 years’ imprisonment, which was reduced to 4 years’ imprisonment after the one‑third discount. The sentences on all counts were, in consideration of the principle of totality, ordered to run concurrently with one another, resulting in a total overall sentence of 14 years’ imprisonment. The applicant was further disqualified from holding or obtaining a licence to drive all classes of motor vehicles for life. The judge explained this was after having considered the applicant’s “background particularly that as mentioned in his medical report in respect of his character”^{^[24]} and so as to protect the public from the defendant, who was “an enormous danger on the road”^{^[25]}.

The applicant’s submissions

24.The argument of counsel assigned by the Bar, which has been adopted by the applicant, was that the judge’s approach to the applicant’s mental condition was inconsistent: it is said that she took into account his mental condition when considering disqualification, but did not do so when sentencing him to a term of imprisonment. It was contended that if a crime or offence may have been committed or attributed to a defendant’s pre-existing mental disorder then this should be taken into account by a sentencing judge. That it was not taken into account amounted to a reasonably arguable ground of appeal against sentence. In fact, the applicant’s submission to me this morning is rather different to that drafted by counsel. His complaint is that there is nothing wrong with him mentally at all; consequently, there is no justification for the life-time driving disqualification. It is fair to say that the main concern of the applicant in this application is the disqualification period to which he is subject.

The respondent’s submissions

25.Mr William Siu, with him Ms Cherry Chong, on behalf of the respondent, submitted that at no point did the judge accept, or make a ruling to the effect that, the applicant’s manner of driving or conduct was, or may have been related to or affected by, his alleged mental disorder. On the contrary, the judge was of the view that the applicant was deliberately driving in an erratic and irresponsible manner, as distinct from being affected by any mental disability. The respondent further argued that it would in principle be wrong for a court to disregard the principle of general deterrence when sentencing, on account of the applicant’s alleged mental or personality disorder (if indeed he had one). He relied upon the principle established in Cooksley that the main purpose of disqualification is forward-looking and preventative rather than backward-looking and punitive. It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads. That risk is best reflected in the level of culpability attached to the conduct in question, which Mr Siu described as a prolonged course of deliberate and appalling driving intended to terrorise his passengers, and resulting in the deaths of 19 passengers and grievous bodily harm to a further 19 passengers.

Consideration

26.I do not see any difficulty or inconsistency with the judge’s reasoning. So far as the applicant’s earlier diagnosis of Asperger’s Syndrome is concerned, it hardly constituted valid mitigation for causing the deaths of 19 people and grievous bodily harm to another 19: however, if it was still a mental condition, it was clearly a relevant issue, albeit by no means the only one, for the future protection of the public and the consideration of whether he should ever drive again.

27.Apart from the perfected grounds of appeal, which I do not find reasonably arguable, I have been concerned whether there is nevertheless a reasonably arguable ground of appeal that 14 years’ imprisonment on a plea of guilty is manifestly excessive. Although the starting point for sentence was not specified by the judge, it is obvious that it must have been in the region of 21 years’ imprisonment. However, I do not think this matter is reasonably arguable either. As in the case of Lai Sai-ming, the starting point for any consideration of sentence in gross negligence manslaughter cases must be the particulars or components of each of the counts of manslaughter, which the applicant must have accepted by pleading guilty[26]. Those particulars averred that: (i) the applicant owed a duty of care to the deceased; (ii) in breach of that duty, he failed to take reasonable care for the safety of each deceased passenger by: (a) driving a bus at an increasing and excessive speed along a downhill carriageway; (b) failing to slow down when negotiating the right bend; (c) failing to apply the footbrake or engine brake sufficiently or at all when approaching or negotiating the right bend; (iii) the breach of duty resulted in the bus toppling over; (iv) the breach of duty amounted to gross negligence; and (v) such negligence was a substantial cause of death of (all nineteen) deceased. As the Court in Lai Sai-ming went on to say[27]:

“…culpability must remain the principal consideration in the sentencing process where multiple deaths may be unintended but are nevertheless a foreseeable consequence of grossly negligent conduct”.

28.The judge concluded that the applicant had no regard whatsoever for the feelings of the 86 passengers for which he was responsible, and who were in his care. His driving, on the judge’s findings, was deliberate, dangerous, spiteful and selfish. As she found, the applicant had “flagrantly and deliberately put at risk the life and limb of his passengers and other road users. There was an obvious risk of death from the defendant’s conduct. He showed an obvious indifference and determination to take that risk. His standard of driving was extremely grave. This was serious culpable driving. It was outrageously appalling, unacceptable and intolerable”[28]. And, as a result, 19 innocent people had needlessly lost their lives.

29.I cannot see any Court of Appeal disagreeing with the judge’s entirely justifiable reasoning and findings. Nor can I see any argument that 14 years’ imprisonment was manifestly excessive and/or wrong in principle, or that the individual sentences in respect of all 38 counts were manifestly excessive and/or wrong in principle.

30.In relation to the life-time disqualification order made by the judge, these same considerations of culpability are also relevant to how much of a risk the applicant poses to other road users in the future. Whether the applicant still suffers from Asperger’s Syndrome or not, the fact is that his character is such that he was able, deliberately and intentionally, to terrorise 86 passengers over a prolonged period despite their pleas and protestations, despite the warnings inherent in the driver feedback device and despite the obvious catastrophe that was looming as he allowed the bus to career downhill at speed and out of control, resulting in the deaths of 19 passengers and grievous bodily harm to a further 19 passengers. The public would want to be satisfied that such conduct can never be allowed to happen again. I cannot see any Court of Appeal being willing to take such a risk by removing the life-time disqualification order.

31.The application for leave to appeal against sentence is refused. The applicant is advised that he has the right to renew his appeal against sentence to the Court of Appeal, but he is also warned, should he do so, that the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of such application.