Hksar v Man Chun Pun

CACC 83/2018

[2019] HKCA 159

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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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1. On 23 January 2018, the appellant pleaded guilty before District Court Judge Casewell (the judge) to 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).

2. On 12 March 2018, the judge sentenced the appellant 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 on Charge 1, and 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 on Charge 2. He ordered that the sentences be served concurrently which resulted in a total sentence of 45 months’ imprisonment (3 years and 9 months’ imprisonment).

3. The appellant appeals his sentence with leave of the Court.

The background facts

4. The appellant was the driver of a double-decker 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.

5. The facts outlined to the judge and admitted to by the appellant were as follows. At about 8:50pm on 14 January 2017, the appellant 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 the Kai Tin Road Roundabout, while the third and fourth lanes were bound for the Eastern Harbour Tunnel. There was a raised kerbed ramp between the second and third lanes. The speed limit along Kwun Tong Bypass and along the kerbed ramp on Lei Yue Mun Road was 70 kph which reduced to 50 kph about 12 meters beyond the beginning of the kerbed ramp which was about 14 meters where the bus ended up after the accident.

6. The bus was travelling downslope in 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 appellant had to apply the brakes of the bus suddenly twice during this section of the road. 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 toward the hatched road markings before the kerbed ramp on its offside even though there were no other road users affecting the bus. The bus continued to travel in this direction for about two bus lengths before ramming into the kerbed 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 kerbed ramp causing it to bounce up before it toppled over onto its side ending up about 30 meters from the impact point on the kerbed ramp. The upper deck of the 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, who were variously injured, were screaming for help.

7. 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.

8. The admitted facts set out three sources of technical data that addressed the speed and control of the bus at the relevant times: the computer installed on the bus; the dashboard camera of the private vehicle; and the CCTV camera inside the bus.

9. Of the data from the computer, it was stated that:

“14. … it appeared that the Bus was travelling at a speed above 70kph between 20:50:14 and 20:50:25 and it slowed down to about 60kph at 20:50:34. The foot brake of the Bus was activated at 20:50:35 and the speed of the bus registered zero at 20:50:37 (based on the time set on the computer).”^[1]

10. Of the data from the dashboard camera, it was stated that:

“15. …

(a) At 15:10:59 (Camera Time), the Bus just cleared the sharp right bend at Kwun Tong Bypass Slip Road, and the Bus began to travel down slope towards Lei Yue Mun Road.

(b) At 15:11:12 (Camera Time), the Bus merged onto the 2^nd lane of Lei Yue Mun Road and began to travel up slope.

(c) At 15:11:25 (Camera Time), there was no vehicle adjacent to the Bus on the 1^st lane.

(d) At 15:11:25 (Camera Time), the offside front of the Bus collided with the kerb. The front of the Bus was lifted up. Sparks were coming out from the nearside tail of the Bus.

(e) At 15:11:26 (Camera Time), the Bus side-turned to its nearside.

It is accepted that the time was not correctly set on this dashboard camera.”^[2]

11. Of the data from the CCTV camera, it was stated that:

“16. …

(a) At 20:52:20, the Bus merged onto the 1^st lane of Kwun Tong Bypass Slip Road towards Yau Tong. The Bus then entered the sharp right hand bend and headed down slope towards Lei Yue Mun Road. It then cleared the right bend and travelled onto the down slope straight portion towards Lei Yue Mun Road.

(b) At 20:52:50, D was turning the steering wheel as the Bus cleared the right bend.

(c) At 20:52:57, D’s hand was still moving around the steering wheel.

(d) At 20:53:05, despite the Bus starting to veer towards the offside, D did not steer left to keep the Bus within the lane although he appeared to be still in control of the steering wheel.

(e) At 20:53:07, half of the front of the Bus veered over to the offside hatch road marking. D did not steer left to correct its path although he appeared to be still in control of the steering wheel.

(f) At 20:53:09, the offside front of the Bus collided with the kerb between the 2^nd and 3^rd lane. It then turned over onto its nearside.”^[3]

12. A forensic scientist examined the CCTV footage inside the bus in order to determine and assess the speed of the bus at the relevant times. His opinion was admitted and summarised as follows:

“17. … When the Bus was at the end of the ramp, its speed was about 76kph±8 (at 20:52:56.00). Then, the Bus slowed down to about 59kph±6 (at 20:53:08:67) immediately before it crashed into the traffic bollard and kerb ramp. The average speed of the Bus was about 67kph±7. The Bus was apparently slowing down gradually when it merged onto Lei Yue Mun Road until reaching the impact point. Neither signs of hard braking nor significant steering input to avert the accident were noted from either the bus or car footage before the offside of the Bus mounted onto the kerb.”^[4]

13. Also set out in the admitted facts were relevant particulars about the appellant’s background and his response when interviewed by the police about the accident.

14. At the time of the offence, the appellant was 61 years of age. He had been a bus driver for about 20 years and was very familiar with this particular bus route, as he had been driving it 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 kerbed ramp.

15. The appellant’s explanation for the accident was summarised in the admitted facts, which included the following passage:

“… He suffered from a moment of dizziness, everything seems blurred and he thought he blacked out for a second and swerved the Bus to the right and caused the outside front of the Bus to collide on the kerb block and then overturn onto its side. When he blacked out, the Bus was about 1 feet from the kerb block. The black-out lasted for about one second. The offside front rammed onto the kerb block. …”^[5]

16. The appellant had started work at 7:20 pm on the night of the accident, so he had been on duty for only about 1½ hours when the accident occurred. He was on medication for hypertension and high cholesterol but it was an agreed fact that it had no adverse effect on him at the time of the accident.

17. A point we need to make at this stage, which we will address in more detail later, is that nowhere in the admitted facts was the key ingredient of the offence of the dangerousness of the driving specifically described and admitted to by the appellant. Instead, the summary of facts contained a description or account of various matters from which it was intimated that the driving of the appellant was dangerous because he was travelling too fast in the circumstances and did not pay sufficient attention to the road conditions. However, this stood in contrast with the appellant’s summarised explanation in the admitted facts that he had blacked out momentarily prior to the accident. It raised the question on what basis did the appellant admit his guilt to the offences. It appears this was left to the judge to sort out.

The reasons for sentence

18. The judge in his reasons for sentence summarised the facts that were admitted, particularly the evidence relating to the speed and control of the bus...