LEE KWAN YEUNG v. THE PILOTAGE AUTHORITY

1994, MP No. 521

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The Appellant is appealing against the Decision that his licence as a Pilot be suspended for 12 months from the 14 February 1994.

2. The said suspension was ordered consequent upon the recommendations made by a Board of Investigation which was appointed by the Marine Department into a collision between two ships which occurred on the 22 October 1992 approximately 100 metres off the CRC Oil Terminal on Tsing Yi Island.

3. The ships involved were the DSR Atlantic and the Uni Humanity. At the time of the collision which was estimated to be at 2127 local time the Appellant was the Pilot of the Uni Humanity. Captain Wai Ping Nam (Pilot Wai) was the Pilot of the DSR Atlantic. Pilot Wai's licence was suspended for 9 months and one of the main complaints made by the Appellant is that having regard to degree of culpability attaching to both himself and Pilot Wai the penalty imposed upon him was totally disproportionate to Pilot Wai's punishment.

4. The summary of the reasons given for the recommendations relating to the Pilots' licences was contained at pages 35 and 36 of the Report.

"Recommendations Regarding the Pilots' Licences

The Board accepts that legally and because of the importance the Admiralty Court attaches to speed and the interpretation of the Crossing Rules, in any Civil action "DSR Atlantic" would probably be held substantially more to blame for the collision than "Uni Humanity".

However, when considering any period of suspension of licences, the Board does not feel it has to - or should - follow any likely apportionment of liability between the vessels. In particular and so far as the Pilot of "DSR Atlantic" is concerned, the Board has some sympathy for him. He was erroneously under the belief that the recommendations or regulations of 1980 still applied and that thus "Uni Humanity" should give - way to him - at least initially. Furthermore, he was under the impression or appeared to be, that the TYKQ area was to be construed as a narrow Channel (in fact this view shared by the Marine Department) and thus that Rule 9 applied. He was also under the impression (now shown to be wrong in law) that it was a regular and proper habit of Pilots navigating container ships into Kwai Chung to vary the standard port to port passing by agreement and that this could be established on VHF. He also gave a good impression as an honest and highly professional Pilot. In short, apart from his high speed, his late emergency action and his positioning North of Kellet Buoy, he was generally doing everything that he perceived (albeit erroneously) to be correct.

Pilot Lee's faults on the other hand were technically and legally not so serious. However, his action of pressing on and enforcing his rights when he knew the other vessel to be embarrassed, ignoring the VHF and subsequently lying to the Board exacerbate his technical culpability.

In summary, Pilot WAI made a large number of mistakes and errors of judgment. Some arose out of an honest misunderstanding of the law and the prevailing procedures; others, however, were the result of inattention and carelessness, at times extreme. Nevertheless when he realized he was in difficulty, WAI did make considerable and genuine efforts to resolve the situations, which, if he had got the co-operations of Pilot LEE, should have been successful.

Pilot LEE's mistakes were not so numerous or serious - in theory. However in practice they were just as critical - more so in the latter stages. He had the opportunity (from C-4 on) to solve the clearly developing crisis. He deliberately and stubbornly refused to do so and this lack of action critically enhanced the risk of collision - and merits special censure.

After careful deliberation, the Board recommends Pilot LEE's licence be suspended for 12 months and that of Pilot WAI for 9 months."

The Grounds of Appeal are :

"1. The Board of Investigation was wrong in holding that the Appellant had lied as to what he said or did not say on channel 11 VHF and the reasons for his actions or inaction before collision in the light of the evidence before them.

2. The Board of Investigation was wrong in relying on their finding that the evidence of the Appellant was dishonest and therefore took it into account in imposing an excessive penalty over and above that attributable to the Appellant's neglect of duty as a pilot. In any event, the Board of Investigation was wrong in relying on their finding that the evidence of the Appellant was dishonest and/or improperly took that finding into account in imposing an excessive penalty over and above that attributable to the Appellants' neglect of duty as a pilot.

3. The Board of Investigation was wrong to consider that the "distinct possibility" that the wheel of the "UNI HUMANITY" had been put hard to starboard shortly before the collision affected the credibility of Pilot Lee.

3A. The Board of Investigation was wrong in finding that the speed of "UNI HUMANITY" was still 5 knots at collision and wrong in finding (if it so did) that her heading was 316?.

4. The Board of Investigation was wrong in finding that the Appellant knew the other vessel to be embarrassed or in some navigational difficulties when there was no or sufficient evidence upon which the Court could come to such a finding.

5. The Board of Investigation was wrong in finding that the "DSR ATLANTIC" could not avoid the collision by her own action 4 minutes before the collision in view that on the evidence she could have avoided the collision if she had turned substantially to starboard.

5A. The Board of Investigation was wrong to find that "DSR ATLANTIC" was not required to keep to her starboard side of the waters South of Tsing Yi.

6. The Board of Investigation was wrong in finding that the Appellant was under an obligation to depart from Rule 15 Crossing Situation of the Regulations for Preventing Collisions at Sea.

7. The Board of Investigation wrongly and unjustly recommended that the period of the suspension of the Appellant should be 12 months as compared to 9 months for Pilot Wai Ping Nam having found that the Appellant's faults were technically and legally not so serious as Pilot Wai Ping Nam.

8. The suspension of 12 months was excessive in all the circumstances."

5. The main gravamen of the complaint made against the Appellant is that he failed to satisfactorily respond to messages transmitted by Pilot Wai shortly before the collision occurred.

6. In addition to this it was found by the Board that he lied in his testimony to them on this subject.

7. Mr. Steel, Q.C. for the Appellant submitted that the Board's findings on this could not be supported by the evidence which was before the Tribunal.

8. The Board was greatly assisted by a plot which was maintained by the Vessel Traffic Centre. By means of Radar the Centre was able to provide a record of the movements of both ships and their geographical position at any given point of time up to the time of collision. A chart was attached to the Report indicating the positions of the ships each minute up to 11 minutes prior to the collision. One result of this was to severely circumscribe the areas of controversy.

9. The Uni Humanity had been moored at Buoy A28. It cast off from the buoy at C-17 or 18 and proceeded along the Northern Fairway on a course of 296?. According to the Appellant he first sighted the DSR Atlantic at C-11 to the west of the Western Quarantine Anchorage. It was proposed that the Uni Humanity would at the end of the Northern Fairway turn to port and then pass the Western Quarantine and Immigration Anchorage.

10. The DSR Atlantic was an inbound ship. It arrived off Green Island at about the same time as another ship the "Norasion A1 Mansoorah". Pilot Wai boarded the DSR Atlantic at C-21 and it was agreed that the Mansoorah would follow the DSR Atlantic. Both ships would go south of Tsing Yi Island to the Kwai Chung Container Terminal.

11. Pilot Wai first observed the Uni Humanity coming out of the Northern Fairway shortly before C-4. He claimed that it was at this time that he attempted to communicate with the DSR Atlantic by means of VHF radio. It is common ground that Pilots use channel 11 for the purpose of communications with each other.

12. Put shortly it was the Appellant's evidence that he answered Pilot Wai's message at about this time and that he identified himself. He agreed that Pilot Wai attempted to transmit further repeated messages and that he did not answer them until very shortly before the collision occurred. He attempted to justify this by claiming that as there had been no response after the initial exchange he had assumed that the messages were addressed to some other Pilot. In particular he suggested the exchange might be intended to be between the DSR Atlantic and the ship which was following her.

13. This evidence was in conflict with Pilot Wai's evidence. He said that he made numerous attempts to contact the Pilot of the ship coming out of the Northern Fairway but these were unavailing until very shortly before the collision.

14. I have no doubt whatever that there were ample grounds for the Board to reach the conclusion it did that the Appellant had told lies when giving evidence before it. Perhaps the most significant evidence related to the reconstruction of the exchange which took place almost immediately before the collision.

15. At the beginning of the exchange Pilot Wai remonstrated with the Appellant and said that he had made numerous attempts to contact him earlier. The Appellant was recorded as replying "so what we are speaking now". He did not attempt to resile from this when giving evidence before the Board. This reply seems to me to be entirely consistent with Pilot Wai's evidence that this was the first occasion when contact was established between the two men.

16. In addition to this the explanations given for not answering the earlier messages must have appeared to be unconvincing to the Board. There could be no doubt from the messages that Pilot Wai was seeking to establish contact with the ship coming out of the Northern Fairway and the Appellant had earlier agreed in evidence that the Uni Humanity was the only ship answering to that description.

17. The next matters which have to be considered are the consequences flowing from this. Mr. Huggins, Q.C. who represented the Respondent conceded that it would be quite wrong to punish the Appellant for telling lies. The correct course would be to institute independent disciplinary proceedings which could be directed towards this. Such proceedings were never taken. However Mr. Huggins argued that the Board had punished the Appellant for the conduct the lies had sought to conceal.

18. This I think leads to the root of this appeal which is the complaint made in Ground 4.

19. Was there any evidence to support the very serious finding made by the Board to the effect that when the Appellant disregarded Pilot Wai's communications he was aware that the DSR Atlantic was embarrassed or in some navigational difficulties?

20. Although these embarrassments or navigational difficulties were never satisfactorily defined by the Board I have no doubt on reading the Report as a whole that what was being referred to was the speed and position of the DSR Atlantic shortly before the collision occurred.

21. I do not think that there can be any doubt that the Board was entirely correct in finding that the DSR Atlantic's speed was excessive and that it should have given way to the Uni Humanity. Also there can be no doubt both ships should have kept to the right and have passed each other 'port to port'.

22. Pilot Wai's VHF communications sought to elicit the identity of the ship coming out of the Northern Fairway. There was nothing in his message to indicate that he was in any difficulty. Nor was there anything in the message to indicate that he may be in a position or a predicament which may require a departure from normal crossing rules.

23. The Appellant had no reason to suppose that the messages were in any way out of the ordinary or urgent or that if he failed to attend to them and take appropriate action untoward consequences may ensue. Also I do not think that there was sufficient evidence of the physical situation at that time that it would have been manifest that the DSR Atlantic was in a perilous position.

24. I do not think that it would have been fair or just to assume that simply because the Appellant chose to tell lies to the Board he was necessarily attempting to conceal a knowledge that the Pilot of the DSR Atlantic was embarrassed or in difficulty and that he had deliberately evaded an opportunity to solve a clearly developing crisis.

25. There may well be other explanations for his mendacity. It may be the case that he told lies in an endeavour to conceal mere dereliction of duty in attending to the VHF radio. Certainly it is dangerous to indulge in speculation on what the Appellant's motives may have been.

26. Having said this I am satisfied that the Appellant must succeed on Ground 4.

27. I am equally satisfied that the consequences of this mistake on the part of the Board are sufficiently serious to justify me in interfering with the recommendations which were made. I consider that this would be in conformity with the views expressed by Roberts C.J. in Chan Chung v. Pilotage Authority 1979 HKLR 562.

28. I do not though consider that any of the other grounds of appeal can be sustained if I adopt what I consider to be the correct criteria in determining the extent to which it is proper for me to interfere with the findings in the Report. All of the other criticisms which were directed against the Board relate very much more to matters of form rather than matters of substance. Reading the Report as a whole it is evident that considerable care and attention was given to its preparation and that all of the relevant issues were adequately canvassed before it.

29. It may be the case that there are several passages which could have been more felicitously expressed but this of itself would certainly not warrant an interference with the substance of the Report subject to the observations I have made concerning Ground 4.

30. The result of all of this is that I have no doubt whatever that the Appellant was derelict in his duties in failing to respond to Pilot Wai's attempts to communicate with him on the VHF radio.

31. The Board was fully justified in talking a serious view of the matter and imposing a fairly severe sanction.

32. I do not though consider that the Board were justified in viewing the Appellant's conduct as being more reprehensible than the conduct of Pilot Wai.

33. Once a conclusion is reached that it was unfair to attribute to the Appellant knowledge of Pilot Wai's difficulties at the time when he attempted to relay the messages the whole matter becomes far less serious. Indeed I have come to the conclusion that the Appellant will have been sufficiently punished if his licence is now restored to him. That would mean that the period of the suspension will have been approximately 3 months.

34. I realise that such a period would be at variance with the very helpful opinion provided by Mr. Huggins. I consider though that he may have taken a rather different view to my view on the issues ventilated in Ground 4.

35. I would accordingly order that the period of suspension be reduced to such a period that on the handing down of this judgment the Appellant's licence should be reinstated to him. I would further make an order nisi that the Appellant should have his costs. In conclusion I would like to express my gratitude for the assistance I have received from counsel on both sides on this application.