HONG KONG SPECIAL ADMINISTRATIVE REGION v. CHOW CHI WAI AND ANOTHER

HCCC 458/2013

CRIMINAL CASE NO 458 OF 2013

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R U L I N G
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INTRODUCTION

1.  The trial to which this application relates arose following one of the most traumatic events in Hong Kong’s recent history: the collision of two vessels off the coast of Lamma Island on 1 October 2012 which resulted in 39 people losing their lives.  The two defendants were the coxswains of the two vessels.  They were both charged with 39 counts of manslaughter and two counts of endangering the safety of others at sea.  The two counts of endangering the safety of others at sea were alternative to each other, but were not alternative to the 39 counts of manslaughter. 

2.  Both defendants pleaded not guilty to all charges.  Following a trial lasting 60 days up to the retirement of the jury to consider its verdicts, the second defendant, Lai Sai Ming, the coxswain of the Sea Smooth, was convicted on each of the 39 counts of manslaughter, and on one of the two counts of endangering the safety of others at sea.  The first defendant, Chow Chi Wai, the coxswain of the Lamma IV, was acquitted on each of the 39 counts of manslaughter, but convicted on one of the two counts of endangering the safety of others at sea.  In view of his acquittal on all 39 counts of manslaughter, which were by far the more serious of the two sets of offences, he now seeks to recover part of the costs incurred in the proceedings under section 6 of the Costs in Criminal Cases Ordinance (Cap 492) (“the Ordinance”), which provides:

“… where a defendant who is charged with the commission of more than one offence is acquitted of one or more than one but not all of any of such offences, the court may in relation to all or any of such acquittals order that costs be awarded to the defendant.”

Both Mr Chow’s legal team and the prosecution have filed written submissions, and were content for the application to be determined on the basis of those submissions without a hearing. 

THE LEGAL PRINCIPLES

3.  The legal principles governing an application of this kind are well‑established. The costs which may be awarded “shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto”, and “shall be such as a court or a judge considers just and reasonable” (section 15 of the Ordinance). In Tong Cun Lin v HKSAR [2000] 1 HKLRD 113, the Court of Final Appeal considered these principles in the case of a defendant who had been acquitted on all the charges he had faced, and adopted the governing principle applicable in England and Wales at the time, namely that orders for costs in favour of acquitted defendants should normally be made unless there are positive reasons for not doing so.  One example of such reasons is when the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is. 

4.  However, as I read the comprehensive submissions of Mr Andrew Bruce SC for the prosecution, that is not the principal basis on which it is contended that this application should be refused.  In Tong Cun Lin, the Court of Final Appeal did not disagree with the opinion of the trial judge that a relevant factor on an application by an acquitted defendant for his costs was that the evidence relevant to a charge on which the defendant had not brought suspicion on himself would have had to be led in respect of a charge on which the defendant had brought suspicion on himself.  That is apparent from the passage at pp 118H‑119A of the judgement of Litton PJ.  That proposition needs refining in one important respect.  Unlike the defendant in Tong Cun Lin, the present case was one in which Mr Chow was convicted of one offence, despite being acquitted on all the others.  The modified principle to reflect that important consideration is that it would be highly material if much, if not all, of the evidence relevant to the charges on which Mr Chow was acquitted would still have had to be led in respect of the charge on which he was convicted. 

THE APPLICATION OF THAT PRINCIPLE TO THE PRESENT CASE

5.  All the charges arose out of the same incident, and they all related to the way in which the two defendants had navigated their vessels.  In both sets of offences, the prosecution’s case was that the defendants had failed to maintain a proper lookout, and had failed to take adequate action to avoid the collision.  The difference between the two sets of offences related to the degree of the defendants’ culpability (leaving aside, of course, that in respect of the charges of manslaughter, the prosecution had to establish that the negligent navigation of their vessels had been a substantial cause of the deaths of those who died).  So in the case of the charges of manslaughter, the prosecution had to prove that the defendants’ conduct had fallen so far below the standard of professionalism which could reasonably be expected of them that it could be characterised as gross negligence.  On the other hand, in the case of one of the charges of endangering the safety of others at sea, the prosecution had to prove that the defendants’ conduct amounted to a breach of the International Regulations for Preventing Collisions at Sea 1972(“the Collision Regulations”).  In the case of the other charge of endangering the safety of others at sea, the prosecution simply had to prove that the defendants’ conduct had put the safety of people at sea in danger.  It was the first of the two charges of endangering the safety of others at sea on which Mr Chow was convicted. 

6.  It follows that even if Mr Chow had not been charged with the 39 counts of manslaughter, the prosecution would, in my opinion, still have had to lead the same — or at least substantially the same — evidence against him.  Indeed, even if he had only been charged with the two alternative offences of endangering the safety of others at sea, his defence would have been the same — namely that he had kept a proper lookout at all times, that he had taken adequate action to avoid the collision, but that what he had done to avoid the collision had been neutralized by the dangerous navigation by Mr Lai of the Sea Smooth.  At the trial, expert evidence was called on Mr Chow’s behalf to demonstrate that he had taken earlier and more effective action to avoid the collision than the prosecution alleged.  There is no reason to suppose that that evidence would not have been called if Mr Chow had only faced the two alternative charges of endangering the safety of others at sea.  It follows that this application should be refused on the basis that the costs which were incurred in Mr Chow’s defence would have been incurred even if he had only been charged with those two alternative offences, unless there is merit in any of the arguments advanced on Mr Chow’s behalf. 

THE ARGUMENTS ADVANCED ON MR CHOW’S BEHALF

7.  A number of wide‑ranging arguments were advanced on Mr Chow’s behalf, but I bear in mind the comments of Litton PJ in Tong Cun Lin at p 119C‑E that:

“ … [a]n application for an order for costs … is a summary process, brought before the very judge who had presided over the whole case, and is not amenable to much elaboration and argument. It is not intended that, in the discharge of his function …, the judge should add substantially to the costs by entertaining lengthy submissions. His reasons for exercising his discretion — one way or the other — must necessarily be brief.”

Of course, I have had no control over the length of the written submissions, and I shall do what I can to comply with Litton PJ’s view that the reasons “must necessarily” be brief, but I still have to explain the route by which I have reached my decision.  Three arguments were advanced on Mr Chow’s behalf, and I deal with each of them in turn. 

Ground 1:The inappropriateness of the charges of manslaughter

8.  The core argument advanced on Mr Chow’s behalf is that the charges of manslaughter should never have been laid against him.  The expert witness appointed by the Commission of Inquiry into the collision thought that it was Mr Lai’s navigation of the Sea Smooth which had been primarily responsible for the collision, and Mr Chow had managed to alter the course of the Lamma IV quite considerably before the collision.  The prosecution’s primary expert witness at the trial on the navigation of vessels agreed with that in his report prior to the trial.  As for Mr Chow’s navigation of the Lamma IV, he said that Mr Chow had initially taken appropriate action to avoid the collision, and his criticism of Mr Chow in his report was limited to a period of 47 seconds prior to the collision. 

9.  In my opinion, these considerations did not make it inappropriate for Mr Chow to be charged with manslaughter.  The fact that it was appreciated before the trial that Mr Lai had to bear by far the greater responsibility for the collision did not necessarily mean that Mr Chow should not face charges of manslaughter as well.  In particular, the fact that the critical time during which Mr Chow was thought to have failed to take appropriate action to avoid the collision was relatively short did not mean that that failure was of a little consequence.  The Commission of Inquiry had found that Mr Chow had “failed to take positive action in ample time and to alter course sufficiently”.  The fact that those failings did not last very long did not necessarily mean that they could not have amounted to negligence of such severity as to justify his prosecution for manslaughter.  Indeed, that was the basis on which a submission at the close of the prosecution’s case that Mr Chow had no case to answer on the charges of manslaughter was rejected.  

Ground 2:The possibility of trial in the District Court

10.  The argument here is that if Mr Chow had only been charged with the alternative offences of endangering the safety of others at sea, he would have been tried in the District Court where the costs would have been less.  Again, I do not agree.  Mr Chow would have had to be tried with Mr Lai even if he had not been charged with manslaughter.  For there to have been two separate criminal trials would have made no sense at all.  The overall costs would have been greater, witnesses would have had to give evidence twice, and there would have been the risk of inconsistent verdicts.  Once the decision had been made for Mr Lai to face trial on charges of manslaughter — a trial which would inevitably have had to take place in the High Court — Mr Chow had to be tried there as well even if he faced only charges of endangering the safety of others at sea. 

11.  In any event, I do not believe that the costs incurred in Mr Chow’s defence would have been significantly less if he had been tried in the District Court.  It may well be that Mr James Turner QC (who represented Mr Chow along with Mr Gerard McCoy SC and junior counsel) would not have been instructed had the case been tried in the District Court.  It may also be that the case would not have lasted as long in the District Court because the experts’ reports could have been treated as their evidence‑in‑chief, and the additional time a trial takes with a jury would have been avoided.  But I do not think that the saving in costs would have been that significant, and in any event it is beside the point if Mr Chow would still have had to be tried with Mr Lai in the High Court even if he had not faced the charges of manslaughter.  

12.  For these reasons, despite the grounds elegantly advanced by Mr McCoy, I remain of the view that the costs incurred in Mr Chow’s defence would still have been incurred even if he had been charged only with the two offences of endangering the safety of others at sea. 

Ground 3:The prosecution’s conduct of the trial

13.  The final argument advanced on Mr Chow’s behalf had nothing to do with the decision to prosecute him for manslaughter, but everything to do with the way the prosecution had conducted the trial, especially as Mr Chow’s legal team had acted responsibly throughout (as the prosecution accepts) by co‑operating with the prosecution by agreeing facts making it unnecessary for the prosecution to call evidence to prove those facts — at least in his case.  The prosecution’s conduct of the trial which is said to have unnecessarily increased the costs incurred in Mr Chow’s defence consisted of two things: the decision to call two expert witnesses on issues of navigation rather than just one, and the change in the prosecution’s case on the angle at which the Sea Smooth collided with the Lamma IV. 

14.  I deal first with the decision to call two expert witnesses on issues of navigation.  This was a highly complex case in which even the prosecution acknowledged that different views could be taken.  For example, one of the experts thought that the vessels had been in what the Collision Regulations called a “crossing situation”, whereas the other thought that the vessels had been in what the Collision Regulations called a “head‑on situation”.  What the defendants had been required to do depended on what situation they had been in.  That depended in part on the proper construction of the relevant regulations, which was a matter for the court.  In those circumstances, it would have been unwise for the prosecution to call only one expert and nail its colours to one particular mast: it ran the risk that the judge’s ruling on the proper construction of the relevant regulations might contradict that expert’s view.  The safer course was to call both experts and advance the case on the basis that on either view the defendants’ navigation of their vessels had been grossly negligent. 

15.  The change in the prosecution’s case on the angle at which the Sea Smooth collided with the Lamma IV was the result of the re‑assessment of the angle during the course of the trial by the expert called by the prosecution whose expertise was in naval architecture.  His original assessment had been made using the data in what came to be known in the course of the trial as the track tables, but having heard the cross‑examination of two of the other expert witnesses called by the prosecution, he revisited his earlier calculations, and came up with an angle of blow which was more consistent with what Mr Chow’s legal team had been contending for all along.  I am prepared to acknowledge that his initial opinion may have caused Mr Chow’s legal team to obtain their own expert’s report on the topic (which did not have to be used in the light of the revision of the prosecution’s expert’s opinion), but this was a case in which no costs were being spared, and I strongly suspect that the defence would have commissioned their report on the topic, even if the prosecution’s expert’s report had contained his revised opinion.  In any event, the cost of this additional report would, I imagine, have been a drop in the ocean compared with the expenditure on Mr Chow’s defence as a whole. 

16.  In the circumstances, I do not believe that the way the prosecution conducted the trial unnecessarily increased the costs incurred in Mr Chow’s defence to such a degree as should be reflected in even a modest award of costs in his favour. 

CONCLUSION

17.  For all these reasons, this application for the recovery of part of the costs incurred in Mr Chow’s defence must be refused, but I should add two things.  First, this application was lodged as long ago as 6 March 2015.  It was thought appropriate that it be determined by me as I was the trial judge.  However, I am not resident in Hong Kong, and the need to maintain the confidentiality of sensitive court documents meant the papers could not be sent to me in the UK.  The determination of the application therefore had to await my return to Hong Kong.  I regret that delay, but I hope the parties understand that it was unavoidable. 

18.  Secondly, the prosecution took the point that costs could only be awarded in favour of Mr Chow if they had been incurred by him.  It is said that they were not incurred by him because his costs were underwritten either by his employers or their insurers.  Whether that would have disentitled him to an award for costs would have depended on the terms of his solicitors’ retainer, and the prosecution asked me to order its disclosure.  I would have been inclined to make such an order had I thought that, but for that issue, an award of costs should be made.  In the event, it is unnecessary for me to do so in view of the conclusion I have reached on the merits of the application.