HKSAR v. LAI SAI MING

CACC 77/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 77 OF 2015

(ON APPEAL FROM HCCC NO. 458 OF 2013)

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JUDGMENT
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Hon Macrae JA (giving the Judgment of the Court):

Introduction

1.  On 14 February 2015, the applicant, who was the 2^nd defendant at trial, was convicted before Deputy Judge Keith and a jury of 39 counts of manslaughter, contrary to the Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap 212 (Counts 42 to 80); and one count of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (Count 81).

2.  Save that each of Counts 42 to 80 identified a different named victim, all were framed in the same way as follows:

“Lai Sai-ming, on or about the 1^st day of October, 2012, in Hong Kong, unlawfully killed (the named victim) by gross negligence in that:-

(i) being the Coxwain of the vessel ‘Sea Smooth’, you owed a duty of care to other vessels and their passengers;

(ii) in breach of that duty of care, you failed to keep a proper lookout and/or take any or any effective steps to avoid a collision with another vessel ‘Lamma IV’, on which (the named victim) was a passenger;

(iii) that breach of duty amounted to gross negligence; and

(iv) that negligence was a substantial cause of the death of (the named victim).”

3.  Count 81 was in the following terms:

“Lai Sai-ming, on the 1^st day of October, 2012, in Hong Kong, endangered or caused to be endangered the safety of other persons, namely the crew and passengers upon the vessels ‘Sea Smooth’ and ‘Lamma IV’, in that being the Coxwain of the said vessel ‘Sea Smooth’, the said Lai Sai-ming by unlawful act or acts, namely by acts in contravention of the Merchant Shipping (Safety) (Signals of Distress on Prevention of Collisions) Regulations, Cap 369 N Laws of Hong Kong in that he:-

(i) failed to maintain a proper lookout by sight and hearing, as well as by radar, so as to make a full appraisal of the situation and of the risk of collision with the vessel ‘Lamma IV’ in contravention of Rule 5; and

(ii) failed to take adequate positive or preventive action, so as to avoid a collision with the said vessel ‘Lamma IV’, in contravention of Rule 6, 8 a - e and 14 a.”

4.  Subsequent to the applicant’s convictions, the judge sentenced him, on 16 February 2015, to concurrent terms of 8 years’ imprisonment for each of the manslaughter counts.  In respect of the count of endangering the safety of others at sea, the judge sentenced the applicant to 18 months’ imprisonment, which sentence was likewise ordered to run concurrently with the sentences for the 39 manslaughter offences, making an overall sentence of 8 years’ imprisonment.

5.  The applicant initially sought leave to appeal against both conviction and sentence.  However, on 1 April 2015, he abandoned his application for leave to appeal against conviction but maintained his application for leave to appeal against sentence.  Although argument has been advanced only in relation to the sentences for the manslaughter offences, the appeal is to be treated by virtue of section 83I(2) of the Criminal Procedure Ordinance, Cap 221 as an application for leave to appeal in respect of all sentences.

Facts of the case

The issues

6.  The prosecution case against the applicant was that he had unlawfully killed the 39 persons named in Counts 42 to 80, his conduct (which was alleged to be a substantial cause of the deaths of those 39 persons) having fallen so far below the standard of professionalism reasonably expected of him as to amount to gross negligence deserving of punishment as a crime (Counts 42 to 80).  It was also the prosecution case that he had failed to keep a proper lookout, as required by Rule 5 of the Merchant Shipping (Safety) (Signals of Distress on Prevention of Collisions) Regulations, Cap 369 N (“the Rules”); had failed to proceed at a safe speed, thereby breaching Rule 6 of the Rules; and had failed to take effective action to avoid the collision, contrary to Rules 8(a) to (e) of the Rules, thereby endangering the safety of others at sea (Count 81).

7.  The substantive issues at trial were as follows: (i) how did the collision take place; (ii) did the applicant’s conduct fall below the standard of professionalism which could reasonably be expected of the sort of mariner he was; (iii) did his conduct fall so far below that standard so as to amount to gross negligence; and (iv) was his gross negligence a substantial cause of the deaths of the 39 persons?

The applicant, coxswain of the Sea Smooth

8.  The applicant had since 1997 been in the employ of Hong Kong and Kowloon Ferries as a coxswain of passenger-carrying vessels. Between July 2008 and September 2012, he had navigated the route between Central and Yung Shue Wan on Lamma Island over 2,300 times; more than 930 of those voyages being made by the Sea Smooth.  Up until the day of the offences averred in the Indictment, the applicant had never been warned, cautioned or prosecuted by any relevant authority for infringement of any Ordinance or Regulation in relation to any marine incident; nor had he been the subject of any disciplinary action by his employer.

Chow Chi Wai, coxswain of the Lamma IV

9.  Chow Chi Wai (“Chow”), who was the 1^st defendant at trial, had since 1992 been working for Hong Kong Electric as a coxswain on passenger-carrying vessels.  He likewise had never been involved in any serious marine incidents up until the date of the incident in question.

The collision on 1 October 2012

10.  On 1 October 2012, the weather between Central and Lamma Island was fine, while the visibility recorded by the Hong Kong Observatory was 9 km at 8 pm, and 11 km at 9 pm.  The prosecution evidence was that since the sea was calm, with no wind or current to speak of, there would have been no significant difference between a vessel’s heading and its course (particularly when the vessel was making a slow turn under its own power rather than drifting), capable of affecting the reliability of any observation of each vessel’s red port-lights and green starboard-lights in navigation at night.

11.  On that evening, the Lamma IV, a 224-passenger launch, of which Chow was the coxwain, sailed from Lamma Island, with staff members of Hong Kong Electric Co Ltd and their family members on board, in order to watch the October 1 fireworks in Victoria Harbour.  For her part, the Sea Smooth, a catamaran ferry capable of carrying 381 passengers, with the applicant as coxswain, had been providing regular ferry services between Central and Yung Shue Wan throughout the day.  Prior to the incident in question, she had left the pier in Central at about 8.00 pm heading for Yung Shue Wan.

12.  Shortly before 8:20 pm, the two vessels were locked in a crossing manoeuvre involving a risk of collision. Under the Rules, the Lamma IV was the ‘give-way’ vessel, whereas the Sea Smooth was the ‘stand-on’ vessel. As the give-way vessel, the Lamma IV’s responsibilities were, first, to take early and effective action to keep out of the way of the Sea Smooth as stand-on vessel and, secondly, to avoid crossing ahead of the Sea Smooth.  Providing that there was sufficient room to do so, the Lamma IV should have turned to starboard in order to keep well clear of the Sea Smooth. Since the manoeuvre took place at night, the Lamma IV’s turn had to be sufficiently sharp so that the Sea Smooth could see both her port-light and starboard-light in order that the Sea Smooth could be sure of the Lamma IV’s change of course to starboard.  On the other hand, as the stand-on vessel, the Sea Smooth had to hold her course and speed.

13.  The prosecution evidence was that the two vessels should never have placed themselves in a situation where they needed to take any drastic action at all in order to avoid a collision.  In particular, if the applicant’s vision was compromised for whatever reason, perhaps because of a blinding fog light at the western side of the entrance to the Lamma Island Power Plant Typhoon Shelter, rendering it difficult to see other vessels in the vicinity, the Rules required him to slow down to a safe speed in order to gain time.

14.  However, as the two vessels approached each other, the Sea Smooth, instead of keeping to its course, as the stand-on vessel was required to do under the Rules, made a discernible turn to port.  The prosecution contended that the applicant should not have altered the course of the Sea Smooth when he did.  If he had seen the Lamma IV but decided to pass in front of her in order to enter Yung Shue Wan, that would have been contrary to ordinary practice and would have amounted to a serious failure to take effective action to avoid a collision.  On the other hand, if the applicant had not seen the Lamma IV until shortly before the collision, that would explain why he turned to port and would have amounted to a serious failure on his part to keep a proper lookout.  There was evidence at trial that had the Sea Smooth stayed on the same course in which she had been proceeding prior to her turning to port, she would have passed the Lamma IV without colliding with her.  The Lamma IV, for her part, also made a slow but discernible turn to starboard.  There was no criticism of Chow for turning the Lamma IV to starboard initially.  The complaint was that the Lamma IV’s turn to starboard had remained a slow one and had not been sharper or positive enough to avoid colliding with the Sea Smooth, when it should have been apparent to Chow that the Sea Smooth had turned to port.  Both the red port-light and the green starboard-light on the Sea Smooth would have, by that time (if not earlier), been visible to Chow who should have realised that the Sea Smooth had turned to port.

15.  At about 8:20 pm, the Sea Smooth collided into the port side of the Lamma IV off Lamma Island, making a large gash in one of her five under-deck compartments, namely the third compartment from the stern, referred to as compartment D at trial.  The forward momentum of the Sea Smooth carried her along the side of the Lamma IV, which lengthened the gash she had made on impact.  The Sea Smooth came to the bulkhead between compartment D and the next compartment to the stern, compartment E.  The bulkhead at that point was reinforced by the Lamma IV’s hull which the Sea Smooth could not penetrate.  The Sea Smooth slid along the hull and made a hole in compartment E.  Water poured into compartments D and E and then spread into compartment F, the last compartment to stern, since the bulkhead between compartments E and F was not water-tight.  The evidence was that the Lamma IV would have tilted to stern as a result, causing the flooding of compartment C, the compartment next to compartment D to bow; the only buoyancy that remained would have come from the first two compartments to bow, namely compartments A and B.

16.  There was evidence to the effect that as she tilted to stern, all of the seats (except one) in the upper-deck cabin of the Lamma IV, together with the false ceiling panels, were dislodged or came away, and that they could well have rolled to the rear of the cabin and blocked the only exit from the cabin.  The judge reminded the jury in his summing-up that neither Chow nor the applicant should be blamed for this.

17.  Within minutes of the collision, the Lamma IV sank, its stern resting on the seabed with its bow protruding upwards.  There was expert evidence to the effect that had the bulkhead between compartments E and F been water-tight, it was possible that the Lamma IV might not have sunk at all, or at least not as quickly as she in fact did.  Of this evidence, the judge said, in his summing-up:

“And that is the first thing you have to have regard to when you consider whether the shortcomings of Mr Chow and Mr Lai that evening could be said to have caused the deaths of those who died.”

18.  A total of 39 persons on board the Lamma IV lost their lives: one died of multiple injuries, while the remainder drowned; 29 of those who perished being found inside the upper-deck cabin.  Subsequent to the collision, the Sea Smooth disengaged herself from the Lamma IV and headed for the pier at Yung Shue Wan.

19.  The applicant exercised his right not to testify in his own defence before the jury.  By the jury’s verdicts, it is clear that they must have found that his conduct amounted to gross negligence, and that it was a substantial cause of the deaths of the 39 passengers on board the Lamma IV, notwithstanding the existence of other contributing causes.

Reasons for sentence

20.  In sentencing the applicant, the judge prefaced his remarks as follows:

“During the course of the trial, many things were said to have contributed to the deaths of the people who so tragically lost their lives. In particular, the reason why the Lamma IV’s passengers ended up in the water was because the Lamma IV sank within a few minutes of the collision. There is the very real possibility that she might not have sunk at all, or at least that she might not have sunk as quickly as she did, if the bulkhead between the last two compartments in the under-deck had been watertight.

But the jury’s verdicts mean that despite that, you contributed substantially to the deaths of the people who died that night: no one should be surprised by that. But for the collision in the first place, no one would have died at all, and by their verdicts the jury have placed the responsibility for their deaths on your shoulders.

The jury’s verdicts mean something else. This was not a minor error of judgment on your part, nor was it a momentary lapse of attention. Your conduct that night fell way below the standard of professionalism that could reasonably be expected of a mariner navigating a fast ferry in the busy waters of Hong Kong; so far below, that the jury thought that your shortcomings that night should be treated as a crime and deserving of punishment.”

21.  The judge noted that the applicant did not give evidence at the trial.  Accordingly, the jury had never heard from him as to whether he had seen the Lamma IV well before the collision but thought he could enter Yung Shue Wan in front of her, or whether he did not see her at all until shortly before the collision.  The judge noted that the latter was the applicant’s claim and indicated that he would sentence on that basis.  However, that begged the question as to why he had not seen the Lamma IV until it was too late.  Of that question, the judge said:

“Only you know that. Perhaps you saw her originally but got distracted and forgot she was there. Maybe you were just concentrating on taking the most direct route into Yung Shue Wan. Maybe you were looking out for other vessels and you did not see the Lamma IV because she was caught in the blind spot supposedly created by what has been described as the fog lights on the typhoon shelter.

But even if it was the last of those possibilities, this was a journey you had made hundreds of times before. If the fog light was interfering with your view, to the extent that it really did prevent you from seeing vessels which were caught in its glare, you would have known that and you should have taken whatever action was necessary to address the problem.

It may not have been necessary for you to slow down, but you should either have used your radar to make sure there was nothing there, or you should have changed your course so that the light was no longer interfering with your vision.

It is easy for us to say that now with the advantage of hindsight, but you should have realised at the time that that is what you should have done.

I propose to sentence you on the basis that it was your failure to do either of those things which meant that you did not see the Lamma IV until it was too late to take effective action to avoid colliding with her.

These were serious failings on your part. You must have known that there might be vessels there because you must have known about the typhoon shelter and therefore that it was a place from which vessels might emerge. In addition, you were in command of a fast (vast?) ferry, not a small pleasure craft, and you knew that if you did not check for the presence of other vessels you would be risking the lives of the people on any vessel which might have been there.”

22.  The judge accepted that the applicant did not intend the consequences which befell the Lamma IV and its passengers that night but explained that when such serious consequences occur, they must, however unintended, be reflected in a higher sentence.  The judge bore in mind the applicant’s years of unblemished sailing record and noted that he had suffered post-traumatic stress disorder following the incident.  Balancing the level of the applicant’s culpability against the enormity of the consequences of his conduct, the judge passed the sentences to which we have referred.

The appeal against sentence

23.  We have set out the judge’s opening remarks (at para 20 supra) in full, because it was originally submitted by Ms Ip, on the applicant’s behalf, that the judge had failed to acknowledge the other contributing factors to this tragedy in which so many people died, which, had he done so, would have mitigated the culpability of the applicant.  She subsequently modified that contention in the light of the passage cited and suggested that, nonetheless, the judge had failed to give sufficient consideration to other contributing causes of the tragedy, as well as to the failings of others, in assessing the gravity of the applicant’s conduct: as a result, he placed too great a focus on the tragic consequences of the collision rather than on the culpability of the applicant, which should have been the dominant component in sentencing.

24.  This led to the further but related complaint that the judge gave undue emphasis or prominence to the fact that 39 people died as a result of the collision, instead of measuring the applicant’s culpability against the extent to which those consequences could be foreseen. It was submitted that since the applicant was not doing something deliberately dangerous, and since many other factors may have contributed to the high death toll, the applicant could not have foreseen, still less intended, such terrible consequences.

25.  Finally, it was contended that by comparison with other comparable cases, in particular the sentence of 18 months’ imprisonment passed on the captain in R v Kong Cheuk-kwan [1984] HKLR 163, which involved a collision between two hydrofoils resulting in the deaths of two people, the sentence of 8 years’ imprisonment was manifestly excessive.

Consideration

26.  The starting point for any consideration in this case must be, as Mr Bruce SC, with him Mr Cheung, submits, the particulars or components of each of the counts of manslaughter on the indictment, which by their verdicts the jury must have accepted.  Those particulars averred, firstly, that the applicant owed a duty of care to other vessels and their passengers; secondly, that in breach of that duty of care the applicant failed to keep a proper lookout and/or take any or any effective steps to avoid a collision with the Lamma IV; thirdly, that such breach of duty amounted to gross negligence; and fourthly, that such negligence was a substantial cause of the deaths of each of the 39 passengers.

27.  The jury can, in our judgment, have been under no misapprehension as to the seriousness of their task or as to the gravity of the conduct which would constitute the offence of manslaughter by gross negligence.  They were directed in terms by the judge in the summing-up that for the applicant’s conduct to come within the definition of gross negligence in law, they had to be sure (i) that “as a result of the (applicant’s) failure to keep a proper lookout, or to take effective action to avoid the collision, there was a serious and obvious risk of a collision, and that, in the event of such a collision, there was a serious and obvious risk, not just that someone might be injured, but that someone might die”; (ii) that “he realised, or shut his eyes to the obvious possibility, that if he failed to keep a proper lookout or to take effective action to avoid the collision, there was a serious and obvious risk of a collision, and that in the event of such a collision, there was a serious and obvious risk, not just that someone might be injured, but that someone might die”; and (iii) that “what the (applicant) failed to do was so serious that that failure should be regarded as a crime and deserving of punishment”.

28.  When one acknowledges the gravity of the conduct upon which the jury must have based their verdicts, Ms Ip’s submission that the applicant was not deliberately doing something which he knew to be dangerous, with respect, rather misses the point.  Nevertheless, the judge accepted that the applicant did not intend the consequences of his actions, however serious and obvious the risk that someone might die ought to have appeared to him.

29.  We do not accept that the judge overstated the gravity of the applicant’s negligence, which led to the deaths of 39 passengers on board the Lamma IV.  The grossness of his negligence was implicit in the verdicts reached following the judge’s directions.  Nor can we accept that the applicant’s conduct was anything less than a substantial cause of the deaths of those 39 passengers.  That too was implicit in the verdicts reached following the judge’s directions.

30.  As for the lack of foresight of the actual consequences, anyone who pilots a twin-hulled vessel weighing 274 gross tons, with a capacity to carry 389 persons on board, at a speed of 20-22 knots, through the busy waters of Hong Kong must appreciate that any negligence on his part which results in a collision will run the serious and obvious risk of loss of life, whether to the passengers of his own vessel or of the vessel with whom he collides.  That too was implicit in the verdicts reached following the judge’s directions.

31.  Ms Ip has conceded, as she must in the light of 39 separate verdicts of manslaughter, that if there was in the circumstances of this case an obvious and serious risk of loss of life as a result of the applicant’s negligence, then there was an obvious and serious risk of more than one loss of life.  The significance of this matter is that where there is “more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable)”[1], an offender’s culpability is considerably aggravated: see R v Cooksley and others [2004] 1 Cr App R (S) 1.  Although, of course, Cooksley was a case of causing death by dangerous driving, the same principle would apply to what is sometimes referred to as ‘motor manslaughter’, or any other form of manslaughter caused by gross negligence.  The “Overarching Principles: Seriousness” guidelines issued by the Sentencing Guidelines Council of the United Kingdom in December 2004, which followed Cooksley but applied to crimes generally, state, in relation to the assessment of culpability and harm, that:

“1.18 Where unusually serious harm results and was unintended and beyond the control of the offender, culpability will be significantly influenced by the extent to which the harm could have been foreseen.”

We would adopt this principle in the present case.

32.  Having said that, we acknowledge that 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.  As the Court in Cooksley emphasised[2]:

“Even where there is no reason to suggest that the defendant is knowingly putting more than one person at risk, the fact that the consequences of dangerous driving are particularly serious, for example, involving multiple deaths is a relevant factor as to the length of sentence. However, we are certainly not suggesting that the sentence should be multiplied according to the number of persons who sadly lose their life. It is still necessary to regard the offender’s culpability in relation to the driving as the dominant component in the sentencing exercise. While the sentence is increased to reflect more than one death sentence must remain proportionate to the nature of an offence which does not involve any intent to injure.”

Similarly, in the same guidelines of the Sentencing Guidelines Council, it is made clear in Section D that, when dealing with the assessment of culpability and harm in crimes generally:

“The culpability of the offender in the particular circumstances of an individual case should be the initial factor in determining the seriousness of an offence.”

33.  We do not think, however, that the judge in this case was under any misconception as to the significance to be attached to the fact that 39 people lost their lives as a result of the applicant’s gross negligence, or as to the relationship between culpability and harm in the offences of which he was convicted.  He said, in sentencing the applicant:

“I recognise that you are having to be sentenced for an outcome which you never intended. But the law is that the more serious the consequences of what someone has done, however unintended those consequences may have been, the greater the punishment should be.

…..

Taking all the considerations I have mentioned into account and balancing, in particular, the level of your culpability as I have described it against the enormity of the consequences of your actions, I have concluded that you should go to prison for eight years.”

34.  Indeed, in our view, there can be no valid complaint by the applicant about the way the judge went about his sentencing task in what was obviously a difficult case.  He had the singular advantage of having seen and heard all of the evidence called or produced in evidence, much of it of a highly technical nature, over the course of a 3-month trial.  He was in the best possible position, therefore, to judge the applicant’s culpability and the extent to which the appalling consequences of his negligence should have been reflected in the sentence that he passed.  We do not think it can sensibly be said that he failed in that exercise.

35.  We can dispose very simply of the submission that the judge should have passed a sentence commensurate with that which was passed on the captain in R v Kong Cheuk-kwan, namely 18 months’ imprisonment after trial. With respect, the submission was wholly unrealistic.  As the judge himself observed of that case, when it was referred to him in mitigation by the applicant’s then leading counsel, there was never any appeal against sentence, so it is unknown what the appellate court thought of the sentence passed.  All that can be said is that it was a sentence passed at first instance by a judge in different circumstances with very different consequences, for reasons which, it would seem, are no longer available.  Moreover, the facts in Kong Cheuk-kwan took place more than 33 years ago, when harbour traffic may have looked very different to its modern appearance.  Like the judge, we do not find the case of any assistance in this particular case.

36.  There is, however, one matter, which we feel we must address, although it does not assist the applicant.  We drew to the parties’ attention the fact that no consideration had been given by the judge to the element of deterrence when sentencing the applicant.  The reason for this appears to have derived from an exchange during mitigation between the applicant’s leading counsel and the judge, as follows:

“LEADING COUNSEL: If your Lordship is thinking that this matter is a case which is suitable for a sentence which has a deterrent element, I will address your Lordship on that. But if your Lordship takes the point made in Kulemesin already about the paucity of cases and certainly the paucity of gross negligence manslaughter cases on maritime law, then I won’t address your Lordship any further.

COURT: When it comes to the issue of deterrence, I take the same view as the Court of Appeal took in Kulemesin.

LEADING COUNSEL: Then I’m much obliged for that, my Lord.”

37.  The case to which reference was there being made was HKSAR v Kulemesin Yuriy and others (unrep., CACC 19/2010, 15 February 2012).  And the passage in the judgment, which leading counsel and the judge had in mind, was at para’s 19-20, under the sub-heading ‘Deterrent sentence’:

“19. As we indicated to counsel in the course of oral argument, we are satisfied that the judge fell into error in determining that the “serious errors of navigation” of the appellants called for a “deterrent sentence”. The judge did not condescend to any particularity as to why it was that she made that finding, in particular as to whether it was individual or general in nature. However, given her acknowledgment of the fact that neither appellant had a criminal record, the positive good character of the 3^rd appellant, and the exemplary maritime records of both the 1^st and 3^rd appellants it is clear that the judge did not conclude that an individual deterrent sentence was required.

20. The relative paucity of cases in which prosecutions were brought under section 72 of the SPCO (Shipping and Port Control Ordinance), to which the judge made reference, in particular in which the conduct endangering the safety of others at sea was other than intentional or reckless, is powerful evidence of the fact that there was no need to impose a sentence the purpose of which was, in part, to deter others from the commission of this offence. Furthermore, the circumstances of the commission of this offence, albeit that they led to the loss of 18 lives, did not require the imposition of a deterrent sentence to reflect the denunciation of the conduct of the appellants by the community. Neither of the appellants navigated their respective vessels intending to endanger the safety of others at sea. Further there was no need in this case to introduce a deterrence against these offenders from offending in the future.”

38.  We do not believe that the Court in Kulemesin was intending to say of someone responsible for the multiple deaths of passengers as a result of a collision caused by his gross negligence in piloting a ferry, albeit that he did not intend such consequences, that there was no need for any element of deterrence.  If the Court had said that, we would have respectfully disagreed.  However, the Court was there dealing with a conviction in the District Court for an offence under section 72 of the Shipping and Port Control Ordinance, Cap 313, the allegation being that the appellant, the captain of a cargo vessel, had endangered or caused to be endangered the safety of his crew by virtue of various specified unlawful acts, for which offence the maximum sentence on indictment was a fine of $200,000 and imprisonment for 4 years.  It was not dealing with convictions for manslaughter by gross negligence arising out of the collision of two passenger vessels, on one of which there were 124 passengers, of whom 39 lost their lives, for which offence the maximum penalty was life imprisonment.

39.  The difference in culpability between the two types of offence is further made evident by the fact that Chow, the coxswain of the Lamma IV, was convicted of the section 72 offence (Count 40) but, unlike the applicant, acquitted of all the manslaughter counts against him (Counts 1 to 39).  Count 40 against Chow, was in identical terms, save for the change of names, as Count 80 against the applicant; while the manslaughter counts against Chow (Counts 1 to 39) were in identical terms, save for the change of names, as the manslaughter counts against the applicant (Counts 42 to 80).

40.  Ms Ip nevertheless argued that since such offences at sea were not prevalent, there was no need for any deterrent element in sentencing.  However, although prevalence might be a factor indicating the need for deterrence (or, perhaps, greater deterrence), lack of prevalence does not militate against deterrence.  The two issues address logically different aspects of sentencing.  In our judgment, there must be an element of deterrence, particularly for those who are entrusted with the carriage of passengers, whether they be the pilots of ferries or aeroplanes, or the drivers of vehicles, trains or trams, so that they will be deterred from conducting themselves in such a grossly negligent way that the lives of those who are in their charge are imperilled.  It is vital that those so entrusted should be reminded by the courts of the gravity of their responsibilities, because the consequences for their passengers and others affected by their conduct, if they do not take those responsibilities seriously, can be catastrophic.

41.  Mr Bruce has brought to our attention the case of HKSAR v Chan Kwok Fai [2012] 2 HKLRD 25, a case of dangerous driving causing death in which two passengers died, where the Court said, at 31:

“A very substantial proportion of the population of this territory relies on buses to travel to and from work and to their family and social destinations and in doing so they expect to be carried safely from one place to another; and the bus companies hold out the promise that that expectation will be fulfilled. Dangerous driving by bus drivers has firmly to be deterred by sentencing policy and it is apparent from the reasons for sentence that this was, rightly so, the factor uppermost in the Judge’s mind.”

The same in our view may be said of the countless ferries, both public and private, large and small, which daily ply the waters of Hong Kong carrying passengers from one place to another.  We might also observe that the Court in Chan Kwok Fai applied the principles in Cooksley, which had earlier been approved in this jurisdiction in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.

42.  With respect to the judge’s otherwise faultless and careful approach to sentence, we think that he yielded too easily to the submissions of leading counsel on the question of deterrence, which submissions were not derived from a correct reading and application of that which was said in Kulemesin. However, as we have already made clear, our view of this matter does not assist the applicant, but nor should the fact that the sentence did not address the question of deterrence at all disadvantage him either.

Conclusion

43.  Notwithstanding our concerns about the absence of any mention of deterrence in the judge’s reasons for sentence, the overall sentence of 8 years’ imprisonment passed upon the applicant was, in our judgment, neither manifestly excessive nor wrong in principle.  There is ultimately no merit in any of the grounds of appeal, valiantly and eloquently put forward by Ms Ip, and the application for leave to appeal against sentence must be refused.

[1] R v Cooksley and others [2004] 1 Cr App R (S) 1, at 12

[2] ibid., at 13