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

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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 driving causing 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 for the Kowloon Motor Bus company. He was driving a double-decker bus which was then carrying 35 passengers. The facts and the key findings 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-decker bus. The defendant was at that time travelling along the first lane of Po Shun Road southbound. Upon reaching the roundabout of Po Shun Road and Tong Ming Street, the bus turned left into the east carriageway of Tong Ming Street but went out of control toppling over to the offside with the upper deck mounting onto the central divider of the second lane of Tong Ming Street. The bus was carrying 35 passengers at the time and as a result of the accident two female passengers died and all the remaining passengers were injured including the defendant. The bus was severely damaged. The defendant and 11 passengers were discharged from hospital on the same day 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 November 2009.

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 visibility was good. About 150 metres before approaching the roundabout of Po Shun Road and Tong Ming Street, the statutory speed limit imposed on Po Shun Road changed from 70 kilometres an hour to 50 kilometres an hour. There was a 50 kilometres an hour speed limit traffic sign 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 defendant was driving at an excessive speed. The excessive speed of the bus caused the bus to topple over to its right. I found at the material time that the bus was negotiating the bend travelling at a speed of 59 plus or minus 6 kilometres an hour as stated by a prosecution expert. On that expert’s estimate of the speed, the lowest speed the bus would have been travelling would have been 53 kilometres an hour and the highest speed at 65 kilometres per hour. Although the speed limit for the road was 50 kilometres an hour, I found the bus should have negotiated the bend at a safe speed of 30 kilometres or less. The bus was therefore speeding in excess of at least 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 clear record and a clear driving record. He had been recruited as a driver by KMB in April 2006 and was familiar with this route. In mitigation 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 speed at all and that the bus toppled over because of faulty manufacture or design deficiencies. That defence was rejected by the trial judge. That was hardly surprising in light of the facts which rather spoke for themselves but more particularly in light of the evidence of the driver of a vehicle behind the bus who himself reduced speed when approaching the junction as required by the prevailing speed 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 that the 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 when he was driving at speed, the applicant “knowingly put more than one person at risk. The occurrence of multiple deaths and serious injury to one or more of his passengers was foreseeable.” That too, she said, was an aggravating feature as was the fact that as a result of his dangerous driving, two persons died and every single passenger, including the applicant, was injured; some hospitalised for 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-abiding citizens as indeed is this particular applicant. She noted as well that the applicant enjoyed an impeccable driving record and was a 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 portion of the prosecution case and thereby saved much court time she afforded the applicant a four-month discount and sentenced him to a term of 4 years and 8 months’ imprisonment and ordered that he be disqualified from...