HKSAR v. Chan Ying-keung, Andy

DCCC40/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 40 OF 2009

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Reasons for Sentence

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1. The defendant has pleaded guilty before me to one offence of dangerous driving causing death, the Particulars of the Offence being that on 29 June 2008 at Garden Road, the defendant caused the death of the young girl, Li Cuifen.

2. The defendant accepted the facts put forward by the prosecution.  I considered those facts made out the offence and convicted the defendant accordingly and the defendant now falls to be sentenced.

3. The defendant accepted a set of facts described as a Revised Summary of Facts which clearly set out the way in which the accident occurred.

4. The facts are of some importance so I will set them out.

5. On the day in question, the defendant was driving an Isuzu bus.  The accident occurred on 29 June at about 6.15 in the afternoon.  It was a Sunday.  The accident occurred on Garden Road, which is a one-way carriageway of four lanes.  I am told the weather was fine, the surface was dry and conditions were normal.

6. In June, the representatives of The Incorporated Owners of Siu Hin Court arranged a one day sightseeing tour.  The tour was to include a stop at The Peak. 

7. There were a total of  three buses involved in the tour, each with a seating capacity of 60 persons exclusive of the driver. 

8. The defendant is a 35-year-old man, described as an experienced bus driver.  He had driven this bus on other occasions before 29 June.

9. The tour started as early at 0800 hours in the morning, and after 1600 hours, left The Peak.  The defendant was driving as I said one of the buses following another bus in the tour party.  The party was then headed to Western District.

10. It is agreed that the bus that the defendant was driving was over 3 tonnes in gross weight.  Such vehicles are prohibited from using the long, narrow, steep hill road which is Magazine Gap Road.  At the junction of Peak Road and Magazine Gap Road there are two prominent road signs ensuring that ban is in force.

11. The buses of the type driven by the defendant would be required to descend The Peak via Stubbs Road and there on to Western District.

12. It is common ground that the first bus in the convoy headed on the correct route via Stubbs Road.  The defendant turned left from Peak Road into Magazine Gap Road, drove through the signs which impose a ban on all vehicles over 3 tonnes using that road, then drove all the way down Magazine Gap Road, telling the passengers it was a short cut.  For a considerable period of Magazine Gap Road the 3 tonne ban is in force.

13. There are photographs of the route.  It is clear from those photographs the route has a steep gradient.  The road leads eventually to Garden Road, which then leads down to the seafront.  It is also clear when driving down Peak Road and into Magazine Gap Road that the gradient of the road must be steep.  There is a considerable distance in height between that junction and the sea level at which all these roads obviously end.

14. At the junction with Garden Road, the defendant turned into Garden Road.  In the junction of Garden Road with MacDonnell Road, or near to it, both the defendant and the passengers heard the brake alarm sound.  The defendant concluded from this that the bus had no braking capacity and told them to hold on. 

15. The facts say that at this point the defendant lost all effective control of the bus.  It went out of control down Garden Road and only came to a halt when it crashed into the immovable outer wall of the Central Government House East Wing in Lower Albert Road.

16. During its passage down Garden Road the bus collided with eight cars, causing one to overturn and another to turn on its side.  It struck four pedestrians who were standing on the safety island near the Government House East Wing.  One of those unfortunate pedestrians was killed instantly. 

17. The facts show that this pedestrian was a 15-year-old child, Li Cuifen.  She was a member of a school party of nine from a secondary school in Tan Shiu Kin and she was out that day on a YWCA educational tour.

18. The facts show that as a result of this incident a total of 50 other persons sustained injury, some serious.  These are passengers on the bus, the pedestrians on the safety refuge, the drivers and passengers in eight other vehicles in Garden Road at the time. 

19. The facts detail the vehicles and their occupants and the injuries they received, and obviously that is all agreed, but I think it may be passed as comment that the fact that only one person was deceased on that day is little short of miraculous.

20. Thirty seven individuals on the bus were injured, some more seriously than others.  A gentleman was hospitalised for three days; another gentleman, nine days in hospital with spinal injuries; another lady of 61 years spent 13 days in hospital.  All these persons at the time of the facts being agreed were still undergoing treatment.

21. Of the pedestrians, obviously there was the deceased.  There were also classmates of the deceased.  One of them remained in hospital for 14 days and is still undergoing treatment.  Another one was in hospital for three days.

22. As I have said already, eight other vehicles were damaged as a result of direct collisions and subsequent chain reaction collisions.  There were five taxis and three private cars.  The injuries sustained by other persons in those cars are also detailed.

23. There was an examination of the bus, and the braking system of the bus is quite important for the purposes of how the accident occurred.

24. The bus was equipped with drum brakes operating on a compressed air brake system, an exhaust brake and a parking brake.

25. As far as the drum brakes are concerned, when the foot brake is depressed by the driver, compressed air in the brake line flows to the brake pumps and activates the brakes.  For the drum brakes to function properly, there has to be sufficient compressed air in the system.  There is an air pressure gauge on the dashboard which enables the driver to monitor the air pressure in the brake system.  Clearly this has to be monitored at all times. 

26. The use of brakes throughout a journey means the air pressure level gradually falls.  If a bus is driven downhill with more frequent use of the brakes, then clearly the air pressure will deplete more quickly.

27. Subsequent examination of the braking system found it to be in good working order.  There was no air leakage in the brake lines. 

28. In normal operation, an alarm sounds when the air pressure in the braking system falls to 5 or below on the gauge.  That is within the red zone on the gauge.  An alarm also sounds to indicate to the driver that there is insufficient air in the brake system and that the driver has to stop the bus.  If the bus is not stopped immediately there is a risk of loss of braking.  If the bus is stopped, then the compressor in the engine can be used to build up the compressed air level to a level above 5.

29. The initial inspection of the bus after the accident showed that the needle on the air pressure gauge was pointing between levels 3 and 4.  This means that at the time of the accident there was insufficient air pressure.

30. This vehicle is also fitted with an exhaust brake.  This is designed to relieve the burden of the normal braking system and the brake is said to be effective when the vehicle is driven in low gear.

31. After the accident, the vehicle was found to be in 3rd gear.  Apparently a more appropriate gear when driven downhill would have been 2nd gear.

32. An examination of the braking system led Dr Cheng to opine that the bus brakes had failed due to brake fade.  This is a temporary loss or reduction of braking efficiency caused by the overheating of the brake drums and brake shoes of the bus through inappropriate and prolonged application of the brakes by a driver.

33. Dr Cheng considered that the brake fade had occurred on this occasion because the defendant had driven the fully loaded bus down Magazine Gap Road, applying the brakes inappropriately in a continuous and prolonged fashion which resulted not only in the loss of air pressure but in brakes overheating and brake fade occurring.

34. The facts agreed by the defendant include the following:  that an experienced driver of buses such as the defendant should not have taken the Magazine Gap Road route down from The Peak in the first place.  Having done so, should have taken all necessary steps to ensure at all times that there was sufficient compressed air in the brake system so that the bus brakes worked effectively and that brake fade did not occur.

35. It was also the case that the defendant should have made use of the exhaust brake in Magazine Gap Road.  This would slow the bus down and reduce the burden on the foot brake.

36. The conclusion is in paragraph 61 the defendant drove dangerously, which in this case is driving far below the standard of a competent and careful driver.

37. All that is clearly made out on these facts.

38. The defendant himself was trapped in the driver’s seat.  An alcohol breath screening test showed that no alcohol was detected.

39. When interviewed, the defendant said he had not seen the relevant road sign warning of the ban on taking 3 tonne vehicles down Magazine Gap Road.  He admitted he had taken a route different to the other bus in the tour party which had gone down from The Peak.

40. During the course of sentencing, I was referred to the defendant’s antecedents, I had a Background Report upon him, and I had mitigation from counsel.

41. The defendant does have a criminal record.  He has served 120 hours community service for driving-related offences but they are forgery of documents, driving an unlicensed vehicle and using a vehicle without Third Party Insurance.  His other convictions are not relevant.

42. As far as the defendant’s driving record is concerned, he has three convictions which may be considered to be relevant.  In 1999, again in 2004 and again in 2007 he has been convicted of careless driving, and was fined on those occasions.  I think one could describe the defendant’s driving record as not good.

43. As far as his background is concerned, he is a 34-year-old man.  He had been living with his family at a public housing estate since 1980.  The defendant has been employed as a shop assistant, a delivery worker, and an office assistant.  In about 2005 he became a green minibus driver and then later worked for the Samus Transportation Company as a coach driver.  He worked for them for about 6 months before the accident in June 2008.  He has been running  a small telephone shop in Tuen Mun since then.

44. Clearly from the Background Report the defendant shows great remorse and expresses regret for the death of the young girl. 

45. Certain matters were put forward in mitigation by counsel. 

46. It was said that the defendant had not seen the signs banning 3 tonne vehicles from going down Magazine Gap Road, so it was said this was not a case of him deliberately flouting the restriction.  It was said there had been no planned route and it had not been discussed with the defendant which route he should take down from The Peak.

47. It was also said that the defendant did not know about the exhaust brake.  This had not been part of his training on the vehicle. 

48. It was said the defendant had driven the coach as slowly as he could down the steep part of Magazine Gap Road using the parking and foot brakes.  He said he had used 2nd gear on the road.  He does not dispute that the vehicle was left in 3rd gear after the accident.

49. There was also reference made to a statement made by another person on the bus who referred to the slow progress of the bus down Magazine Gap Road and the use of the 2nd gear during that time. 

50. The defendant said he had had no intimation of the fact that brake fade would occur until it actually did occur, that he panicked when the brake fade occurred, applying the foot and hand brake repeatedly.  He believes this decreased the air pressure to well below the 5 where the alarm sounds, and he could not stop the bus by any means other than driving into the wall of the Central Government offices.

51. The defendant says he is remorseful.  He offers his apologies to the deceased and her family. 

52. It was submitted this was not the most serious type of dangerous driving case that could occur, although it was conceded the accident would become almost inevitable after the decision to take Magazine Gap Road was used.

53. I was also referred to some mitigating letters asking for leniency from the defendant.

54. There are certain principles the courts have to apply when sentencing defendants in dangerous driving cases and certainly where death occurs.

55. The guideline case is Secretary for Justice v Poon Wing Kay.  There have also been certain further observations made on that case in reviews in 2009 in Lam Siu Tong v Wong Ton Fan.  They set out certain principles.

56. This case is similar to those cases in that the maximum term of imprisonment that can be imposed is 5 years’ imprisonment.  The maximum has been increased since 4 July 2009 to 10 years’ imprisonment for conviction on indictment.  That increased maximum is not applicable to this case, so in this case the statutory applicable maximum is one of 5 years’ imprisonment, but again, the courts cannot ignore the fact that the legislature has seen to double the sentence for this offence.

57. Certain principles are set out in Poon Wing Kay that are worthy of review.  It is said that, “In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly.” 

58. Despite some of the mitigation that was advanced, I find that to be the case on these facts.  Secondly, “Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased.”

59. Now, that must be the case where such a young girl has been taken from her parents. 

60. Now, it said, “It is important for the courts to drive home the message there may be extremely grave consequences flowing from acts of dangerous driving and it is necessary to have in mind a deterrent effect when sentencing.”  It said that, “Motor vehicles can kill or maim.”

61. Clearly, that is somewhat inadequate to describe what may happen when a fully loaded bus, over 3 tonnes, is driven down a steep hill.  Such an act could cause great devastation and large loss of life.

62. It says, “While a list can be drawn up of aggravating and mitigating factors, the court must look at the overall circumstances and overall culpability of the offender.  In assessing the overall seriousness of a crime, culpability is often the dominant factor.”  It said, “Heavier sentences can be justified where there is a selfish regard to the safety of other road users or passengers or a degree of recklessness.”

63. The court makes certain other observations which reinforce the observations of the court in Poon Wing Kay.  It says that “good character and deep remorse are common in these cases.”  It said, “One must not overlook that an innocent life has been taken away as a result of an act or omission that could or should have been avoided.”  Now, “dangerous driving”, it says, “invariably involves the taking of a risk or risks and the courts will not show leniency to any driver who has endangered the lives and safety of other road users.”  Reference is made to the increase of the maximum sentence from 5 to 10 years.

64. I note in these cases where a bus driver drove through a red light and a pedestrian was killed and the court appeared to accept that the bus driver may not have been aware of the fact there was a red light, that a starting point of 36 months’ imprisonment was adopted.

65. As I said, there were a number of points made in mitigation that were said to impact upon the culpability of the defendant in this offence. 

66. As the cases appear to show, culpability is quite widely drawn in cases of dangerous driving.  Clearly, if one intentionally set out to kill someone with a car it is a homicide, but in these cases one has to deal with what is defined as “danger”, and “danger” involves the exposure to harm and risk, and that exposure can be done knowingly or the person may be in a position where he ought to have known, and all these factors are broadly brought in within the head of culpability for the purposes of sentencing.

67. One point that was made was that the defendant says in his record of interview, and subsequently through counsel, that he was not aware and did not see the signs indicating that a vehicle over 3 tonnes should not proceed down Magazine Gap Road.

68. Now, at the time when that was advanced, I think I said the words “I found that difficult to believe”.  The defendant had said to the passengers that he was taking a short cut.  That would appear to involve at least a knowledge by him of the route he was taking, and also the other bus concerned had gone off down Stubbs Road.  In any event, it is very quickly obvious that this road is a road that is not suitable for taking any large vehicle down.  The road is steep; it is winding; the bus, even on the evidence of the passenger’s statement I have seen, had to stop frequently; had to be ridden down on the brakes; put in a lower gear simply to negotiate the bends; and, as I said, it must have been obvious that the bus should not be going on that route, and it must have been obvious to anyone driving that bus that they would put heavy demands on the braking system and the risk of brake failure must have been quite clear.

69. Another point that was made was that the defendant did not know about the exhaust brake and he thought it was used only when the normal braking system was not working. 

70. The defendant is described in the facts as being an experienced bus driver.  It is difficult again to see how an experienced bus driver does not know the use of an exhaust brake and, in any event, the defendant should have, certainly if he was an experienced bus driver, made himself fully conversant with the braking systems of  the vehicle.

71. It was also said that the defendant had tried his best to prevent the bus going out of control by his frequent use of the braking system on the descent through Magazine Gap Road.

72. Again, it must have been obvious to the defendant that the air brake was being depleted at a fast rate.  What he should have done at that stage was stop the vehicle and recharged the brakes, and certainly within that system of roads that the defendant proceeded down there would have been the opportunity to do that.

73. In sentencing, I also have to have regard to the effect caused by the accident. 

74. This accident led to one fatality but the photographs make it quite clear that what actually had occurred was mayhem.  Vehicles were smashed out of the way, some overturned.  Large numbers of civilians - over 50 people - sustained injuries.  Vehicles were damaged and smashed.  As I said earlier, it was very fortunate that further casualties were not caused in this incident, and in any event, it led to the tragic death of this young girl.

75. The cases make it clear that the courts must balance all these factors together in determining the starting point of sentence in any particular case.

76. I take the view that the defendant’s decision to drive the vehicle down Magazine Gap Road is more serious than a person driving a vehicle through a red light.  This is not a commonplace accident and the facts are quite unique.  It was clearly a very poor decision and a decision that must obviously have been very poor very quickly to the driver.  Having made that decision, he failed to mitigate the effects of that decision-making, so this is not just an instant of poor driving or dangerous driving, it is a consistent course of dangerous driving, a course that led to considerable damage when the accident finally occurred.

77. The maximum sentence permissible to the courts is one of 5 years’ imprisonment and that must be reserved for the worst possible case which would involve highly culpable driving, large damage to property and persons, and multiple death.

78. At the other sentencing level, we have the case which establishes that a bus driver who drives through a red light killing a person can expect a sentence of up to 36 months’ imprisonment.

79. It seems to me that this case must lie somewhere between those two points of reference.

80. After considering all the factors, I consider that the appropriate starting point for sentence in this case is one of 48 months’ imprisonment.  I shall reduce that by one-third for the defendant’s plea of guilty.  That leads to a sentence of 32 months’ imprisonment. 

81. I shall order that the defendant also will be disqualified from driving for 4 years.