COURT: Lai Sai-ming, would you stand up, please, as I propose to deal with you first.
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 her 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.In the event, 39 people lost their lives, and that is something which you are going to have on your conscience for the rest of your life.
You did not give evidence in the trial. That was your right. But it meant that the jury never heard your side of things. In particular, the jury never heard from you about whether you saw the “Lamma IV” well before the collision but thought you could get into Yung Shue Wan in front of her, or whether you did not see her until shortly before the collision.Captain Third assumed that you did not see her, and I know that that is what you claim. I think that that is likely to be the case, and that is the basis on which I propose to sentence you.
That raises the question of why you did not see the “Lamma IV”. 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 light 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 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.Having said that, your failings should not be exaggerated. Your case does not have the aggravating features which one sometimes sees, for example, in cases of causing death by dangerous driving. It was not as if you were racing or in a particular hurry to get to Yung Shue Wan, or deliberately doing something which you knew was dangerous.
In addition, of course, though, there are the number of people who died. 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.
I take into account, of course, as I shall with Chow chi‑wai, that you have never been involved in a serious marine accident before, that you have never received a warning or a caution for any contravention of any rules governing the navigation of vessels or the avoidance of collisions at sea, that you have been working as a coxswain on passenger-carrying ferries for very many years, that you have never been the subject of any disciplinary action at work, that you have never been convicted of a criminal offence before, that you have had the worry and anxiety of this trial for a long time, and that you yourself were so traumatised by the events of that night that you have been diagnosed as suffering from post-traumatic stress disorder with symptoms as diverse as depression, insomnia and irritability. This case has been a personal tragedy for you and your family, but that cannot, of course, begin to compare with the unimaginable grief of those who lost loved ones in this tragedy.
Because of the large number of people who died, there are no comparable cases to this which might have given me some guidance about the appropriate sentence in your case. Nor have I been particularly assisted by the general level of sentencing in cases of manslaughter, because sentences for manslaughter have been imposed, for the most part, for a different kind of manslaughter from manslaughter by gross negligence.Moreover, manslaughter is a crime which has been said to “vary so greatly in gravity and can be affected by so many considerations, both adverse and favourable to the defendant, that [identifying] a starting point becomes a hindrance and an irrelevance in the quest for a just resolution” to a task which is recognised to be exceptionally difficult.
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 8 years. The sentence on each of Counts 42 to 80 of the indictment, those are the 39 counts of manslaughter on which you have been convicted, will be 8 years’ imprisonment to be served concurrently with each other. The sentence on Count 81 of the indictment, which is the first of the two counts of endangering the safety of others at sea, will be 18 months’ imprisonment, which I have discounted from 24 months’ imprisonment to reflect the mitigation available to you, that term to be served concurrently with the sentences of 8 years’ imprisonment on Counts 42 to 80, making 8 years’ imprisonment in all.
You may sit down.
Chow Chi-wai, would you stand up, please.
The criticism of your navigation on the night in question was very limited. It related only to your failure to react when the “Sea Smooth” turned to port.I have no doubt that you had seen the “Sea Smooth” some time before then. Not only was its yellow flashing light very obvious, but Captain Third accepted that it was more likely that your earlier turn to starboard at about 20:18:53 had been made because you had seen the “Sea Smooth” rather than for purely navigational reasons. The best estimate of when the “Sea Smooth’s” turn to port could have been seen by anyone on the bridge of the “Lamma IV” was at about 20:19:10. That was approximately a minute and 10 seconds before the collision.
It is accepted that it may have taken up to 10 seconds for you to realise that that was what the “Sea Smooth” had done, and the criticism of you, at least by Captain Third if not by Captain Cheung, is that you should then have turned further to starboard.
However, the prosecution opened the case to the jury on the basis that no criticism could have been made of you prior to 20:19:30. So the jury in deciding whether you were guilty of any of the charges you faced had to be loyal to that despite the evidence they heard. I have to be loyal to that as well.
Dr Goralski thinks that you initiated your further turn to starboard at about 20:19:38. That was just 8 seconds after the prosecution say you should have turned further to starboard.If the jury had thought that Dr Goralski might have been correct, I doubt whether they would have thought that a delay of only 8 seconds would have meant that you had failed to adequate action to avoid the collision. I therefore propose to sentence you on the basis that you did not turn further to starboard when Dr Goralski says you did, and that you only turned further to starboard later on, by which time it was too late to avoid the “Sea Smooth” colliding with your vessel.
One thing needs to be added to that. The jury’s verdict in your case means that not only did you not keep a proper lookout.In the opinion of the jury you also failed to take adequate action to avoid the collision. I have taken the effect of that to be that not only did you not see that the “Sea Smooth” had turned to port when you should have done, but also that when you became aware that she had turned to port you did not turn further to starboard sufficiently quickly.
I do not know why you did not do that. Maybe Captain Third was right when he said you just froze. He said that he had seen that before when mariners were confronted with something they could not believe was happening. I accept that your culpable inaction could not have lasted for very long, but the fact remains that you have to be punished for putting the safety of your passengers and crew in danger by not turning further to starboard when you should have done.
That mirrors what I told the jury about the crime of endangering the safety of others at sea. Unlike manslaughter, it does not focus on the result of what you did.Instead it focuses on the risk of people being put in danger by what you did. The sentence to be passed has to be calibrated to reflect the degree of the danger which you created. The danger here was created primarily by what Lai Sai-ming did, and your culpability arose only because of your failure to react quickly enough to a wholly unexpected manoeuvre by another vessel. Your actions were very far removed from those cases in which the safety of others was endangered by defendants acting in a calculated way.
What I said to Lai Sai-ming about the things I took into account in his favour apply to you as well, including the fact that you have been so haunted and affected by what happened that night that you too have experienced the symptoms associated with, and you have been diagnosed as having, post-traumatic stress disorder and clinical depression. Like Lai Sai-ming, this case has been a personal tragedy for you and your family, even though, as I have already said, that cannot begin to compare with the terrible anguish of those who lost loved ones in this disaster.
The maximum punishment for your crime is 4 years’ imprisonment, and in determining the appropriate sentence in your case I have been assisted by the decisions of the Court of Appeal in Chow Tin Shing [2007]4HKLRD991 and particularly Yuri Kulemesin[2012]HKBL218. The latter was another case in which very many people died as a result of a collision at sea.Your culpability is, at first sight, not dissimilar from that of the 3rd appellant in that case. He had had to be sentenced for reacting “too little too late” to what was described as “the developing risk of collision posed by the navigation” of the other vessel. The Court of Appeal took the view that the appropriate starting point for sentence in his case was 4 months’ imprisonment.
But that was thought to be the appropriate starting point for an offence for which, at the time, it was wrongly thought that the prosecution did not have to prove that a defendant either realised that he was putting the safety of others in danger, or did not have reasonable grounds for not realising that. That turned out subsequently not to have been the law, and for the jury to have convicted you on Count 40 they had to have concluded either that you realised that your shortcomings would endanger the safety of others at sea, or that your belief that they would not was not a reasonable one for you to have had at the time.
Balancing all the considerations I have mentioned, I have concluded that I should take 12 months’ imprisonment as my starting point in your case. I reduce that by one-quarter to reflect the mitigation available to you. A sentence of immediate imprisonment is called for in your case, and so the sentence cannot be suspended. Accordingly, the sentence which I pass on you on Count 40 of the indictment, the only count on which you have been convicted, is one of 9 months’ imprisonment.
They may be taken away.