Bus driver loses appeal of conviction of involuntary manslaughter

Posted on Friday, February 14, 2014 at 10:05 pm

A three-judge panel with the Court of Appeals of Virginia has upheld a Caroline Circuit Court judge’s conviction of the bus driver whose bus crashed and killed four passengers nearly three years ago.

Kin Yiu Cheung, 38, of Elmhurst, N.Y., was convicted of four counts of involuntary manslaughter in November 2012, and he still has the option to appeal his case to the Supreme Court of Virginia.

He could have been sentenced to up to 40 years in prison. However, under the punishment handed down by Caroline County Circuit Court Judge Joseph Ellis on Jan. 23, 2013, Cheung will be incarcerated only six years because of his previously clean record and his remorse.

“I never had any doubt that the conviction would be affirmed,” said Tony Spencer, the Commonwealth’s attorney who prosecuted the case. “The evidence of his indifference to human life was overwhelming.

“This was a tragedy and nothing about our prosecution will bring back the people who lost their lives and the others who suffered serious injury,” Spencer said in an interview. “But justice has been served at least to some small extent. Next he can appeal to the Supreme Court of Virginia. There is no reason for him not to appeal.”

If Cheung wants to appeal to the next level of the state judicial system, his court-appointed lawyer must abide by his wishes, Spencer said. However, the Supreme Court of Virginia will be the last stop for Cheung in the appeals process. After the state supreme court, the next step is the U.S. Supreme Court, but that court hears only cases involving constitutional issues, particularly where a defendant’s constitutional rights may have been violated. But Cheung’s constitutional rights were not violated, Spencer said.

On May 30, 2011, a Sky Express discount bus driven by Cheung departed from Greensboro, N.C., at 10 p.m. and was bound for New York City. The bus was scheduled to make stops in Raleigh and Durham, N.C.; South Hill, Va. and Maryland and arrive in New York City at 8:30 a.m. the next day. The bus had 57 passengers. Cheung fell asleep while driving the bus on Interstate 95 in Caroline County near mile marker 103, and it flipped over onto its roof and killed four passengers and injured most of the other passengers.

During his trial in Caroline County, Cheung pleaded not guilty to each of the four counts of involuntary manslaughter, and Judge Ellis convicted him of all four counts.

Despite the lighter sentence, Cheung appealed Ellis’ decision through his lawyer, Taylor B. Stone, and the case went to the Court of Appeals of Virginia. In the appeal, Stone argued that the evidence presented by the Commonwealth was not sufficient to support Cheung’s conviction.

Stone said the evidence didn’t show Cheung’s actions before the wreck “were so gross and wanton as to show reckless disregard of human life.”

After hearing the case, Appellate Court Judge Teresa M. Chafin handed down an opinion, which reads, “We find that the evidence presented was sufficient to support Cheung’s convictions and affirm the circuit court’s decision.”

The appellate court judge also wrote, “Although Cheung acknowledges that he acted negligently, he contends that his actions do not constitute the degree of criminal negligence required to support his involuntary manslaughter convictions. We disagree.

“Involuntary manslaughter in the operation of a motor vehicle is defined as an ‘accidental killing which, although unintended, is the proximate result of negligence so gross, wanton and culpable as to show a reckless disregard of human life.’ ”

Quoting from a 1989 Virginia appellate court case (Keech v. Commonwealth), Chafin wrote, “ ‘In determining the degree of negligence sufficient to support a conviction of vehicular involuntary manslaughter, the accused’s conscious awareness of the risk of injury created by his conduct is necessarily a significant factor. When the driver proceeds in the face of a known risk, the degree of negligence is increased, and may turn that which would have been ordinary negligence into gross, willful or wanton negligence.’ ”

“Cheung undertook a trip of ‘substantial distance and time’ while in ‘a tired and sleepy condition’ and had ‘been operating his vehicle for a number of hours’ in this impaired state when the bus crashed. At the time of the crash, the bus had been on the road for seven hours and still had at least three and a half hours of travel time left before it would reach its destination.

“Although being confused, agitated, and ill-tempered alone may not necessarily indicate tiredness or fatigue, these behaviors are symptoms of those conditions that at least suggest that Cheung was tired early in the trip,” the appellate court judge wrote. “Multiple passengers also saw Cheung buy and consume coffee and energy drinks before and after the bus left South Hill.”

The judge also wrote that Cheung admitted to authorities after the crash that he was in no shape to drive.

The judge also wrote, “Several passengers, one of them an experienced professional bus driver, testified that Cheung drove erratically for at least an hour before the accident. Cheung changed lanes without signaling, travelled at erratic speeds, and drove the bus in such a way that it swerved and leaned when it changed lanes. One passenger saw other vehicles pull off the highway to avoid the bus. Cheung also drove the bus across the lines marking the lanes of travel on the highway multiple times, and hit the rumble strips on the side of the highway twice before the crash. Immediately before the crash, Cheung’s driving was so erratic and unsafe that a truck driver called 911. Given the difficulty that he had driving the bus during the hour before the crash, Cheung should have realized that his impaired condition was affecting his driving and posing a risk to the safety of those on the bus.”

During court proceedings in Caroline County, Judge Ellis told Cheung through an interpreter, “You have wiped from this planet four good souls.” He also told Cheung he was “not evil” but instead had made a “bad choice” in deciding to continue driving for over an hour, knowing he was too sleepy and tired to drive.

The judge read an earlier statement from Cheung that said, “My mind thought I could complete the trip, but physically I couldn’t. Four people lost their lives due to my inability to use good judgment. I often wish it had been me who died. May my soul be forgiven.”

The judge told Cheung, “You will be haunted for the rest of your life.” The mothers, brothers, sisters, grandparents and children of the four dead passengers will be haunted too. Those four won’t be around to celebrate “birthdays, Christmas or Easter but you will because you won’t be in prison the rest of your life.”

Minutes before, Cheung read slowly in English a note, saying, “I want to apologize to all the passengers…I want to extend my most sincere respect and apology to those who lost loved ones…I would give any one of them my own life” in place of their loved one.

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