HKSAR v. WONG KAM CHING

DCCC 337/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 337 OF 2015

----------------------

----------------------

---------------------

Reasons for Verdict

---------------------

1.   Mr Wong, the defendant, faces a single charge of perjury pertaining to parties’ testimony before a Commission of Inquiry on 18 February 2013. 

2.   On 1 October 2012, two vessels, the ‘Sea Smooth’ and the ‘Lamma IV’, collided in the waters east of Lamma Island.  As a result of the collision, the ‘Lamma IV’ sank.  Thirty-nine persons on board that vessel perished. 

3.   A Commission of Inquiry was appointed to inquire into the collision.  The defendant was a senior ship inspector at the Marine Department of Hong Kong.  On 8 May 2012, he carried out an inspection of the vessel ‘Lamma IV’ in connection with the issuance of its annual certificate of survey. 

4.   The defendant was a witness before the Commission.  On 18 February 2013, he gave evidence as to his issuance of the certificate of survey on 8 May 2012, whereby the ‘Lamma IV’ passed the inspection which, amongst other things, required it to be equipped with all relevant safety appliances, which included a sufficient number of children’s lifejackets, that being 5 per cent of the number of adult lifejackets, or 12.  The defendant told the Commission that he had seen and counted the children’s lifejackets on board the vessel. 

5.   The prosecution say that testimony was false, that there were no children’s lifejackets on board the vessel on 8 may 2012 or at any other time.

6.   The defendant maintains that his evidence before the Commission was not false, that there were indeed the requisite number of children’s lifejackets on board the vessel during the inspection; furthermore, that the children’s lifejackets were brought on board the vessel solely for the inspection on 8 May 2012, this being known as the ‘prop boat practice’.

The Issues

7.   The offence of perjury requires that the prosecution prove to a criminal standard that the accused is a person lawfully sworn as a witness in judicial proceedings who wilfully makes a statement in a judicial proceedings which is material in that proceeding and which he knows to be false or does not believe to be true.  

8.   No issue was taken to the fact that the defendant was lawfully sworn as a witness in a judicial proceeding and that he wilfully made a statement in those proceedings.  Those matters are proved.  The content of the defendant’s testimony before the judicial proceeding is also agreed and not in issue. 

9.   At issue between the parties are, firstly, that the statement made by the defendant was a material statement in those proceedings.  It is submitted that it was not.  Secondly, that the statement made by the defendant was known by him to be false or not believed to be true.  In fact, the defendant says his statement was the truth.  Thirdly, although not raised or argued, I did consider that I should consider whether the defendant honestly but mistakenly believed in the truth of his statement.

The Evidence

10.   A large part of the prosecution case was agreed.  In summary, the facts and circumstances of the collision of the two vessels and the resulting Commission of Inquiry and its terms of reference were agreed.  The defendant’s status as the ship inspector of the ‘Lamma IV’ on 8 May 2012 and his subsequent issuance of the certificate of survey were agreed. The defendant’s evidence and statements before the Commission were admitted, as was the report of the Commission.  Finally, the requirements and implementation of the Local Safety and Survey Regulations was agreed as follows: 

Firstly, the Merchant Shipping (Local Vessels) (Safety and Survey) Regulations 2007, Cap 548G, part 2, table 1 - that is the 2007 regulations - laid down a requirement that class I vessels, which included the ‘Lamma IV’, must carry a number of children’s lifejackets equal to 5 per cent of the maximum number of passengers licensed to be carried on board the vessel. This regulation came into effect in January 2008.

Second, Marine Department ship inspectors were instructed that the 2007 regulations would not be applied to class I vessels which were in existence prior to the introduction of those regulations if those vessels complied with the requirement of the earlier regulations. This was referred to as the ‘non-enforcement policy’.

Thirdly, the ‘Lamma IV’ was inspected by a Marne Department inspectors each year between 2008 and 2012. The certificates of survey for 2008, 2009 and 2010 recorded that there were no children’s lifejackets on board the vessel which, nonetheless, was adjudged to have passed those inspections. The certificate of survey for 2011 and 2012, which were in different form, indicated that the vessel carried the requisite number of children’s lifejackets.

Four, the defendant’s clear record is also agreed.

The Defendant’s Evidence before the Commission of Inquiry

11.   The defendant’s evidence before the Commission of Inquiry on 18 February 2013 was admitted.  Initially, the defendant made a witness statement dated 8 February 2013 in relation to the issue of the certificate of survey dated 8 May 2012.  The defendant had said in the statement:  

“Under item (2), I marked ‘*’ against ‘adult lifejackets’ and ‘child lifejackets’ and ‘*’ refers to ‘one lifejacket for each person on board’. This means I have checked that ‘Lamma IV’ had on board the requisite lifejackets for adult (100%) and children (5%).”

He also said, at paragraph 5:

“I should point out that given the numerous inspections I have carried out, I am unable to recall the particular inspection of the ‘Lamma IV’ on 8 May 2012.”

12.   On 18 February 2012, the defendant gave evidence.  In summary, he said that, firstly, he checked the life-saving appliances, that his usual practice would be to count the number of lifejackets on board to see whether they met the statutory code of practice guidelines.  He confirmed that for a vessel like ‘Lamma IV’, that would be one lifejacket for each adult on board and 5 per cent of children’s lifejackets.  The defendant said that children’s lifejackets were easy to spot because they were marked.  The defendant said that in the course of counting the number of lifejackets against the passenger capacity, he would need to see the licence of the vessel.  In this case it was 232 persons.  As to how many children’s lifejackets he inspected on board the 'Lamma IV' on 8 May 2012, the defendant answered that he would calculate the 5 per cent with his mobile phone against the number of persons permitted on the vessel and work out the number.  He said, in the context of 'Lamma IV', that was at least 12 children’s lifejackets.

13.   Specifically, the defendant was asked: 

“Question: What do you remember, Mr Wong?

Answer: I remember that I counted the number of lifejackets on board, children’s lifejackets.

Question: No children’s lifejackets were found on board at the time of the accident.

Answer: I mean that I did see children’s lifejackets on 8 May during the survey.

Question: are you saying that you have a specific recollection of seeing them?

Answer: I have other recollection as well.

Question: But did you have that one, specifically that you saw children’s lifejackets on board 'Lamma IV' when you inspected her on 8 May 2012?

Answer: I did see them.”

The Witnesses

14.   The court heard evidence from eight witnesses.  The six prosecution witnesses consisted of the Marine Manager of Hong Kong Electric (HKE), Mr Tang; the Assistant Engineer of Cheoy Lee Shipyards, Mr Hui; three sailors and an engineer from Hong Kong Electric.  The defendant gave evidence.  He called a character witness who was a senior engineer for New World First Ferry Limited. 

15.   PW1, Tang Wan-on, is the Marine Manager of Hong Kong Electric.  He, together with others, was responsible to look after the 'Lamma IV' along with ‘Lamma II’ and other vessels.  He was responsible to get these vessels ready for their annual survey.  He attended every annual survey from 2009 onwards, including the 'Lamma IV' survey in 2012.  The vessel was taken to Cheoy Lee Shipyard for preparation for the survey, then sailed to Yau Ma Tei for inspection.  Mr Hui, PW2, from Cheoy Lee, would be present at the inspection.  He was asked if, in 2012, lifejackets were inspected on both decks of the vessel.  He said, yes, they were randomly picked out for inspection.  He said that from when the vessel was handed over new to the time of the collision, he did not buy any child lifejackets and none of them were put there.  He never bought any child lifejackets for Hong Kong Electric and there were no child lifejackets on the vessel before the accident happened.

16.   In cross-examination, Mr Tang said that he had not been aware of the licensing requirements in relation to lifejackets in the 2007 regulations; that a further 140 adult lifejackets had been bought in 2011 as a result of discussions with the Marine Department, but it should be his idea.  He confirmed he had not seen any child lifejackets during the inspection on 8 May 2012.  He said he believed Hong Kong Electric complied with the required crew manning levels, even though it involved rostering of passengers as the fourth crew member.  He said such passengers were only rostered when they had received training. 

17.   PW2, Mr Hui, is the Assistant Engineer of Cheoy Lee Shipyards.  He was present during the 8 May inspection in his capacity as a representative of Cheoy Lee.  He said the vessel was brought to the shipyard prior to the inspection and they would do work according to Hong Kong Electric’s instructions.  He would be present for the inspection. 

18.   He did not think that Cheoy Lee’s maintenance contract included the provision of lifejackets.  Cheoy Lee had not replaced lifejackets on 'Lamma IV' or purchased them.  It was not Cheoy Lee’s responsibility under the maintenance contract to replace lifejackets or inspect them.  He had seen lifejackets on board but had not paid particular attention to whether they belonged to adults or children.  He had not placed any lifejackets on board before the survey.

19.   In cross-examination, he said it was not the responsibility of Cheoy Lee to ensure the vessel passed the survey.  He had not heard of the new regulations for safety that came into effect in 2008.  He was unaware of the requirements of both adult and child lifejackets.  He had never lent or bought child lifejackets for the inspection of 'Lamma IV' on 8 May 2012 and he had never heard of the prop boat system.

20.   PW3 is a retired seaman.  He recalled being present for the 8 May 2012 inspection.  He was sure there were no children’s lifejackets on board the vessel. 

21.   PW4 was a seaman who was present at the time of the 8 May 2012 inspection.  He said there were only adult lifejackets on board the vessel. 

22.   PW5, an engineer of Hong Kong Electric, was present during the 8 May inspection.  He recalled there were no children’s lifejackets on the vessel at that time and that none were shown to the ship inspector. 

23.   PW6, a captain with Hong Kong Electric, could not recall if he had attended a 2012 inspection.  He had never seen child lifejackets on 'Lamma IV'. 

The Defence Evidence

24.   The defendant gave evidence.  He is a retired Senior Ship Inspector, aged 61.  He is a man of clear record.  He joined the Marine Department in 1989.  He had been seconded to the Labour Department.  He had returned to the Marine Department in 2011 to go to the Local Vessels Safety Section responsible for surveying local vessels.

25.   He was aware of the introduction of the 2007 regulations.  He had heard rumours of the non-enforcement policy.  From 2011, he said, he applied the 2007 regulations. 

26.   He gave evidence of the prop boat practice.  He said this was a practice whereby items of equipment are placed on the vessel simply to satisfy the requirements of the inspection and later offloaded.  He had heard it operated in relation to equipment such as fire extinguishers, navigation lights, propeller shafts and lifejackets.  The defendant provided video clips of an inspection conducted by another inspector in Sai Kung in December 2015, on a small fishing vessel.  In the video, an inspection is made of lifejackets, navigation lights and fire extinguishers.  After the inspection, the navigation lights are taken down and the lifejackets are put in a plastic bag but not seen to be removed from the vessel.  The fire extinguishers are replaced by two other fire extinguishers of a different colour, thus providing some evidence of the existence of this practice.

27.   The defendant had said he was aware of the requirements of the 2007 regulations.  He understood the Marine Department policy to be that, if a class I vessel which was in operation before 2008, were compliant with the pre-2008 requirements, then they would be allowed to pass the annual survey but would be encouraged to upgrade and reach the standard set by the 2007 regulations.  Once the vessel achieved compliance with the 2007 regulations, then the vessel would be required to maintain that standard to pass future surveys.  The defendant said he had strictly enforced this policy.

28.   When he inspected the 'Lamma IV' on 8 May 2012, he was in possession of a copy of the previous year’s certificate of survey.  This showed that 'Lamma IV' was compliant with the 2007 regulations, namely 100 per cent adult lifejackets and 5 per cent children’s lifejackets. He would have failed the 'Lamma IV' if she had not carried the requisite number of lifejackets, both adult and children, during the inspection.  He firstly checked the documentation and then the life-saving appliances.  He commenced counting the adult lifejackets in the main cabin.  During that inspection, he was accompanied by PW1 and PW2.  In the upper cabin, he also checked the other lifejackets and PW2 drew his attention by saying, “I have something to show you”.  The defendant then saw a number of children’s lifejackets displayed.  He counted them to make sure there were enough to satisfy the 5 per cent requirement.  He found that there were and continued his inspection. 

29.   After this, the defendant filled in the certificate of survey, inserting asterisks against the categories of adult and children’s lifejackets in accordance with the practice introduced by the Marine Department from 2011 onwards.  This was to indicate that the number of lifejackets was compliant with the regulations.

30.   The defendant was referred to his evidence before the Commission of Inquiry, in particular that he was recalled to give evidence on this issue a second time on 5 May 2013 and was given a chance to reconsider his evidence but declined to do so.  He said it had never occurred to him to do so. 

31.   The defendant also called one witness, Mr Pang, the Senior Marine Engineer with the New World First Ferries.  He was known to the defendant through work; they were not personal friends.  The defendant had inspected about 10 of the vessels under Mr Pang’s charge during their annual surveys.  Mr Pang said the defendant was very diligent and took his duties seriously.  He was more demanding than other ship inspectors.  He personally counted the lifejackets on board Mr Pang’s vessels and checked randomly for defects.  He was ‘picky’, said Mr Pang.

The Legal Requirements

32.   The prosecution must prove their case beyond reasonable doubt.  The burden of doing so remains on the prosecution at all times throughout the case.  The prosecution must prove each and every element of the offence charged to the requisite standard.  Section 31 of the Crimes Ordinance sets out the offence charged as follows: 

“If any person lawfully sworn as a witness, either generally or in a particular judicial proceeding, wilfully makes a statement in any judicial proceeding which is material in that proceeding and which he knows to be false or does not believe to be true, he shall be guilty of perjury...”

33.   Thus the defendant must be proved to have, firstly, wilfully made a statement in any judicial proceeding; secondly, that the statement is material in that proceeding; and thirdly, that the defendant knew the statement to be false or did not believe it to be true.

34.   Furthermore, section 43 of the Crimes Ordinance requires an evidential requirement of corroboration, namely, “Persons shall not be liable to be convicted of perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be false”. 

35.   Also the defendant is a man of clear record.  He has given evidence.  His clear record is relevant to consideration of his propensity to commit an offence of this nature and also of the credibility of any explanation or answers given by him. 

36.   The defence correctly conceded that there was no dispute as to the following elements of the offence:  firstly, that the defendant was lawfully sworn as a witness in a judicial proceeding; and secondly, that he wilfully made a statement in that proceeding.  What was at issue was, firstly, whether the statement was material in that proceeding and, secondly, did the defendant know that statement to be false or did not believe it to be true. 

37.   Firstly, materiality.  This issue, as a matter of law, was advanced at the close of the prosecution case as a submission of no case to answer.  It remains an issue throughout the case.  It was submitted that the statements made by the defendant were not statements which would have, or might have, affected the recommendations to be made by the Commission and were thereby not material in those proceedings, more particularly, in respect of the defendant’s statements in respect of having seen and counted children’s lifejackets on 8 May 2012.

38.   The important issues for the Commission were whether 'Lamma IV' was carrying children’s lifejackets at the time of the accident and, if not, why not.  It is said to be clear that the answer to this first question was that there was no children’s lifejackets on the 'Lamma IV' at the time of the accident, the reason for this being the non-enforcement of the 2007 regulations by the Marine Department which enabled the management of Hong Kong Electric to ignore the requirements for the 'Lamma IV' to carry children’s lifejackets.

39.   It was submitted that the defendant’s statements, even if false, did not touch any of those areas.  It was concerned only with the very small part of what he did and saw during a survey six months before the accident.  It was barely relevant to the Commission’s proceedings and was not material in them.  It was not capable of affecting the decisions of the Commission as embodied in their recommendations.

40.   I resolve this issue as follows. Materiality is an essential element of the offence of perjury.  Its inclusion in the definition of the offence indicates that perjury is something more than merely a crime against the administration of justice at the most abstract level.  The question to be determined is how broadly the standard of materiality is to be defined.  

41.   In the course of submissions, I was referred to a number of authorities.  In the Hong Kong case of The Queen v Lai Tai Ming, the court considered the false statements material in that case as it tended to influence the judge in believing or disbelieving whether the accused was involved in prostitution and that it would have affected the other evidence of the defendant and other witnesses at the trial.  In Crown v Millward [1985], the submission was rejected whereby it was argued that a statement is only material if it would have affected the outcome and not merely might have done so.

42.   In Mellifont v The Attorney General, an Australian case, [1991] 173 CLR 289, when considering the slightly differently drafted defence of perjury in section 123 of the Criminal Rules of Queensland, the court addressed the issue of materiality by approving the answer to the question of materiality as formulated by the Court of Appeal, namely, the relevant question in relation to materiality is whether the false evidence pertained or related to a matter, namely the opening of bank accounts, which was capable of affecting the decision of the Commission on the subject of unlawful gambling. 

43.   From this, I find that the correct formulation of the requirement of materiality in the offence is whether the false statement would or might affect the decision of the tribunal, and the test, furthermore, is not whether the false testimony did influence the Commission but whether it was capable of doing so at the time it was given.  In fact, in submission, the parties did not substantially dispute that this was the test; they disagreed about its application.

44.   I found that the question of materiality had to be approached in the light of the Commission’s terms of reference and how they resolved themselves into issues that were determined by the Commission.  The findings or decisions of that tribunal are helpful in identifying the issues; however, those findings were predicated on the basis of facts and evidence the Commission found established by its own standards of proof, on the balance of probabilities and, of necessity, exclude evidence they found to be untrue, which it did in the defendant’s case.

45.   The terms of reference of the inquiry tasked the Commission to inquire into the facts and circumstances leading to and surrounding the collision of the two vessels that took place near Lamma Island, Hong Kong, on 1 October 2012, to (a) ascertain the causes of the incident and make appropriate findings thereof; (b) consider and evaluate the general conditions of maritime safety concerning passenger vessels in Hong Kong and the adequacy of otherwise of the present system of control; and (c) make recommendations or measures, if any, required for the prevention of the recurrence of similar incidents in future. 

46.   It can be seen that the spectrum of potential issues before the Commission is broad and, of necessity, expansive. This contrasts with the narrowing of issues usually associated and occasioned by the particulars of a charge in a criminal proceeding or pleadings in a civil proceeding.  The admitted evidence of the defendant’s statement is as to the presence of children’s lifejackets on board 'Lamma IV' on 8 May 2012.  This was considered as part of the Commission’s deliberations on the presence or absence of children’s lifejackets on board the 'Lamma IV' at the time of the collision, this being relevant to the loss of life and the scheme of control in maritime safety.

47.   The defendant’s evidence was that 'Lamma IV' had been properly surveyed and certified, that there were 12 children’s lifejackets on board on 8 May 2012.  From the Commission report, it could be seen that the Commission considered this evidence in relation to heading IV, “Why were so many lives lost?’, particularly at (3), the absence of children’s lifejackets and particularly the defendant’s evidence at paras 371 to 376, together with a specific finding about that evidence at 410 and a finding, at 413, that the failure to carry children’s lifejackets on the vessel on 1 October 2012 played a contributing part in the loss of life among passengers on the vessel.  Furthermore, a reference about the provision of children’s lifejackets also formed part of the recommendations of the Commission, at Recommendation No 6.

48.   Thus the defendant gave evidence, in fact, on two occasions.  Five paragraphs are devoted to his evidence alone in the Commission report.  A further paragraph is devoted to the specific consideration of his evidence.  The defendant’s evidence of seeing children’s lifejackets on 8 May 2012 was clearly capable of influencing and affecting the court’s decision on whether such lifejackets were present on 1 October 2012. The evidence of compliance with the 2007 regulations on 8 May 2012 was capable of influencing the Commission’s findings on the implementation of the non-enforcement policy.

49.   I found, therefore, that the defendant’s statements on 18 February 2013 were material in that they might, or would, be capable of affecting the decisions of the tribunal when inquiring into the facts and circumstances leading to and surrounding the collision of the two vessels and their consideration of the general conditions of maritime safety concerning passenger vessels in Hong Kong and the adequacy or otherwise of the present system of control.

50.   The other issue that presented itself was did the defendant know his statement of 18 February 2013 was false, or not believe that statement to be true.  In their analysis, the defence said this issue came down to the resolution of one very simple question, namely, was the defendant shown children’s lifejackets on board the 'Lamma IV' during his inspection on 8 May 2012?  If it is possible that he was, or if the court considers it might have happened, then the defendant must be acquitted.

51.   The defence case was also more broadly put, that it was the case that Hong Kong Electric found the licensing conditions for the 'Lamma IV' too onerous, that Hong Kong Electric did not consider that the requirement for four crew members was necessary to properly man the 'Lamma IV' and also the requirement for 12 children’s lifejackets was not necessary as the 'Lamma IV' did not normally carry any children, being simply a ferry for the power station workers.

52.   If Hong Kong Electric knew that the certificate of survey and inspection required that these two matters be presented to the inspector as if there were compliance, in order to do this, it was arranged for there to be four crew members present for the inspection, including PW1, and for there to be at least 12 children’s lifejackets brought on board purely for the inspection; that PW2, who had been responsible for ensuring 'Lamma IV' passed its survey, was tasked with this and showed the defendant the children’s lifejackets in the upper cabin; that in accordance with the prop boat practice, the children’s lifejackets would later be removed from the boat.

53.   The defendant does not challenge the evidence the 'Lamma IV', in its day-to-day operation and up to and including the accident, did not and never had children’s lifejackets.  The defendant could only say that during the inspection on 8 May 2012, while tied up to the pier at Yau Ma Tei, the children’s lifejackets had been present on board the vessel; that the provision of the children’s lifejackets had been in the nature of a prop boat practice and that PW2 had been the practitioner along with the connivance of PW1.  The defence submitted that neither PW1, PW2, or other crew members present, should be believed when they said that no children’s lifejackets were present, and in particular that PW1 and PW2 were clearly untruthful and unreliable witnesses.

54.   In respect of PW1, it was said he was evasive, that he had lied about why 140 adult lifejackets had been ordered in 2011; that he was not to be believed when he permitted a normal manning level of three crew, yet required at least four crew for the inspection; that he was instrumental in Hong Kong Electric’s practice of deceiving the inspector. 

55.   It was said that PW2 was tasked to get the 'Lamma IV' through the inspection.  His evidence that he purely fulfilled the contractual requirements of the maintenance of 'Lamma IV' should be rejected. 

56.   Finally, the defendant should be believed as he had no motive or reason to lie about this matter.  Were he mistaken, he could have easily admitted this to the Commission, yet he declined to alter his evidence when he was recalled in March.  Furthermore, he could simply say he followed the non-enforcement policy in passing the 'Lamma IV' without the children’s lifejackets.

My Assessment of the Witnesses

57.   It was necessary to assess the credibility of the witnesses.  Both PW1 and PW2 denied the elements of prop boat practice that they were alleged to have used to deceive the defendant. 

58.   I note that PW1, although he was the Marine Manager of Hong Kong Electric, his knowledge of the life-saving equipment required appeared to be not current.  He had ordered adult lifejackets in 2011 which had made the 'Lamma IV' compliant in that area; however, he said he was unaware of the necessity for children’s lifejackets.  This is credible, firstly, because the vessel had always passed inspection without them and continued to do so and, secondly, because if he had known, the actual cost of 12 children’s lifejackets would have been, at most, $960.  That is based on the cost of $70 for each adult lifejacket found in the Commission report at paragraphs 390 to 398 on page 153.  This would be negligible when considered with the other costs of the inspection. 

59.   I also did not consider that PW1 or Hong Kong Electric deliberately inflated the number of crew on 8 May 2012 to deceive the inspector.  In fact, there had been three crew members plus PW1 and staff from the maintenance department, totalling, it is said, six persons from Hong Kong Electric at the inspection, more than would be necessary to deceive the inspector.

60.   I do consider, however, that in its daily operation, 'Lamma IV' did breach its licence requirement for crew members.  Mr Tang genuinely appeared to consider that the rostering arrangement was sufficient compliance, although it clearly was not.  In respect of crew manning levels in its daily operation, there was an unsatisfactory semblance of compliance by Hong Kong Electric.  This, however, is very different from carrying out a prop boat in respect of children’s lifejackets which required PW1 and PW2 to combine together to deceive the inspector over 12 lifejackets.

61.   PW2, furthermore, denied it all.  He was present at the inspection.  He in fact had not paid attention to the lifejackets as he maintained it was not part of his remit.  However, he did deny bringing any on board.  Clearly, this must be correct.  It must be that if Hong Kong Electric wanted 12 child lifejackets on board, Cheoy Lee would source them and present a bill.  I was satisfied Mr Hui was entirely correct when he said that his role was to conduct specific aspects of maintenance as required by Hong Kong Electric and did not concern himself with the provision of the lifejackets in 2012.

62.   The other crew members on board did not see child lifejackets on board but did not accompany the inspection.

63.   The defendant surmised he was the victim of a prop boat practice.  He surmised this from the fact that he saw the child lifejackets on board, yet they were not present on any other occasion.  The defendant relied on his video-recorded evidence of malpractice on a fishing vessel in Sai Kung in December 2015.  However, this is a long way from the inspection of a class I vessel owned by a major company and serviced by a major shipyard, a practice which would necessitate the representative of the shipyard agreeing to involve himself in a conspiracy to defraud in respect of items that could easily and cheaply be bought and stored permanently on the vessel. 

64.   Furthermore, an analysis of the defendant’s evidence of the inspection shows that it has varied over time. Initially, in his statement of 5 February 2013, he said:  “I am unable to recall a particular inspection of 'Lamma IV' on 8 May 2012”.  In oral testimony on 13 February, he said this did not mean he had no recollection of the inspection.  He added he counted the number of lifejackets on board and remembered doing so.  However, he could not recall where the lifejackets were when he inspected them.  He was asked where the children’s lifejackets were when he inspected them.  He said he could not recall.  This was asked again. The defendant could not recall on two further occasions. 

65.   In his evidence before this court, the defendant now elaborated in respect of the child lifejackets that when he was in court, he could not recall:  “However,” he said, “when I went back, I retrieved my record and refreshed my memory.  I recall at that time,” he said -

“...after I checked the information against the lifejackets, I saw there were two asterisks against adult lifejackets and child lifejackets. I was puzzled as someone told me he would show me something. I do not recall who it was now, I think...”

That is what he said. He said:

“He was the one who followed me and showed me the documents and communicated for me with the crew. After I learned this was Hui Sum-wai. Then I saw child lifejackets. Then he took me to see the child lifejackets.”

There was a question:

“Where were they?.

Answer: I do not have a strong recollection. As far as I can recall, they were put at the upper deck of the vessel, near the life-raft, maybe inside the cabin or saloon, or outside. I might have confused it with a similar class I vessel inspected by me on the same date.”

He said later.

“Question: Did you check to make sure they were child lifejackets?.

Answer: Yes. There are labels on child lifejackets with the wording ‘SOLAS’.”

Meaning Saving of Lives at Sea.

“Question: Did you count the child lifejackets to ensure there were 12?

Answer: At least 12.”

66.   The degree of detail provided by the defendant has expanded from no recollection to a detailed recollection involving Mr Hui showing him the child lifejackets in a specific location, although that was hedged with uncertainty in his answers. 

67.   I am fully aware of the defendant’s clear record and the conscientious nature of his other inspections as detailed by DW1.  However, the defendant’s testimony before this court shows a clear narrative of an exaggerated and expansive nature.  I find it is indicative of untruthfulness.  I reject any possibility of there being a prop boat practice in respect of the 8 May 2012 inspection of the 'Lamma IV'.  I found it to be a farfetched, impractical speculation.  It was decisively disproved by the evidence  of PW1 and PW2 and the other witnesses on board. 

68.   It was apparent to me that the defendant had found himself caught by his initial statement which, although denying any specific memory of the inspection, the logic of the statement that the asterisk in respect of the child lifejackets in the certificate of survey represented compliance, ie, 5 per cent or 12, meant that the lifejackets had been counted. By the time of the defendant’s evidence before the Commission, the defendant had gained sufficient recollection to elaborate and provide evidence of his competence and compliance with his duty, to confirm the number of child lifejackets by counting them.  Naturally, to fail to have done this may have led to the conclusion that his original statement had been false. 

69.   At this trial, the defendant’s evidence needed not only to establish his inspection but also had to provide a theory as to why those child lifejackets did not remain on the vessel.  This required a further recollection and elaboration to implicate Mr Hui in the production and display to the defendant of the child lifejackets.  It is clear to me within the defendant’s written and oral evidence in respect of the presence of lifejackets on the 'Lamma IV' on 8 May 2012, the defendant has yet to give a truthful account of what happened.

70.   I found that PW1 and PW2 were truthful witnesses.  I was prepared to place full reliance upon their evidence.  I made the same findings in respect of the other prosecution witnesses, Prosecution Witnesses 3 through to 6.  PW3 was present on 8 May and saw no child lifejackets.  PW4 was also present on 8 May and only saw adult lifejackets. PW5 also did not recall that there had been any child lifejackets on board the vessel.  These witnesses were truthful in their recollections; they had no reason to mislead the court.

71.   I found the defendant to have been untruthful in his evidence for the reasons given.  I found his evidence untruthful at this trial.  I rejected the evidence given by him in its totality.  Thus, the prosecution has established to a criminal standard by way of admitted facts and facts established by their witnesses that the defendant had given evidence particularised in the charge before the Commission on 18 February 2013.  The statement was given wilfully and in a judicial proceeding.

72.   I found that on 8 May 2012, there had been no child lifejackets on board the 'Lamma IV' when it was inspected by the defendant.  Therefore, I draw the unassailable conclusion, by way of an irresistible inference, that the defendant’s testimony before the Commission that he had seen and counted those lifejackets was false, that being the only inference that could be reasonably drawn from the primary facts that had been proved.

73.   I also found that when the defendant gave his testimony before the Commission, he knew that it was false.  I found the defendant had needed to maintain the fiction that he had seen and counted the children’s lifejackets in order to provide evidence that he had properly certified the 'Lamma IV' as being compliant.  This was a deliberate act and must have been known by him to have been false.  There was no possibility of him being mistaken about this matter when he gave his evidence on 18 February 2013. 

74.   I found the evidence of PW1 to PW6 that there were no child lifejackets on board 'Lamma IV' on 8 May 2012 provided the necessary corroboration of the falsity of the defendant’s statement.

75.   I also note that conclusions of fact, of course, drawn by way of an inference, I find that the irresistible inference is the only inference that can reasonably be drawn from the primary facts that have been proved.

76.   I therefore convict the defendant of the offence charged.