HKSAR v. SO PING CHI

DCCC 338/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 338 OF 2015

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Reasons for Verdict

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1. The defendant pleaded not guilty to one charge of Misconduct in Public Office.

Background

2. This case concerns the defendant’s performance of his duties as an official of the Marine Department.

The new law: 2 January 2007 onwards

3. From 2 January 2007 onwards, in order to be issued with a license to sail within Hong Kong waters, local vessels must satisfy various new legal requirements. The Marine Department is the statutory body responsible for the enforcement of the relevant legal requirements.

4. The legislations relevant to this trial are the Merchant Shipping (Local Vessels) Ordinance, Cap.548, the corresponding Merchant Shipping (Local Vessels) (Safety and Survey) Regulation, Cap.548G; and the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap.548D.

5. The regulation which is a direct subject matter is regulation 32(2)(b) of 548G,  governing the provision of life-saving appliances on local vessels:

“...(b) every local vessel belonging to any class, type, category or description of vessel specified in any Table in Part 2 of Schedule 3 shall comply with the specific requirements as regards the provision of life-saving appliances set out in that Table.”

6. Part 2 of Schedule 3 contains “Specific Requirements” for 4 different classes of vessels in relation to the provision of life-saving appliances. For the purpose of this trial, the relevant appliance is the lifejacket.

7. Under Table 1, for Class I  or IV[1] vessels to operate within Hong Kong waters, there is a specific requirement of the provision of “100% adult lifejacket + 5% children lifejacket” on each vessel (hereinafter ‘the new lifejacket requirement’).

8. Under s.9(1) of Schedule 8 of 548G, for a period of 12 months after the coming into force of 548G and thus section 32(2)(b), the section does not apply to a local vessel to which Table 1 applies. In other words, during this deferment period, Class I or IV vessels do not have to comply with the new lifejacket requirement. This deferment was referred to as ‘the grace period’ during trial.

9. The responsibility of enforcing the new lifejacket requirement in Cap. 548G falls with the Local Vessel Safety Section (“LVSS”) of the Local Vessel Safety Branch of the Marine Department (“MD”). Ship inspectors of the department would conduct inspections on the vessels, record the results and then issue Certificates of Survey when they are satisfied that all legal requirements had been met. Without a certificate, the vessel cannot operate in Hong Kong waters.

The old law prior to 2 January 2007

10. Prior to the enactment of the 548G regulations, the requirement under the old law was lifejackets for 40% of the maximum number of passenger, with the remaining 60% being made up of other lifesaving appliances such as life rafts and buoys.

11. Unlike the new law, there were no specific requirements for children lifejackets. The old law required all lifejackets deployed on local vessels to be suitable for both adults and children.

The non-enforcement instruction that led to the defendant’s present prosecution

12. About 3 months after 548G had come into force, the defendant was posted to the LVSB on 16 April 2007 as the new General Manager (“GM”) and Principal Surveyor of Ships.

13. It is the prosecution’s case that as the GM and Principal Surveyor of Ships of the LVSB, the defendant had issued an instruction for the non-enforcement of the new lifejacket requirement. Specifically, the defendant had instructed his sub-ordinate ship inspectors to follow the old law when inspecting old vessels, and the new law when inspecting new vessels (hereinafter “the non-enforcement instruction”).

14. This instruction was followed by all ship inspectors and the practice continued until sometime after October 2012. It is the prosecution’s case that the defendant had never rescinded his non-enforcement instruction.

15. The event that led to the eventual rescinding of the instruction was the tragic collision of two local vessels in Hong Kong waters on 1 October 2012 where multiple lives were lost. A Commission of Inquiry was set up to look into the incident. Officers of the Marine Department gave evidence at the Inquiry. One of the matters that was mentioned was the ‘old vessels old law, new vessels new law’ instruction issued by the defendant.

16. After the release of the Commission of Inquiry report, the Transport and Housing Bureau (“THB”) conducted an internal investigation on the Marine Department officers. At the conclusion of the THB investigation, a case was referred to the Marine police. The defendant was subsequently arrested for the present offence based on the non-enforcement instruction  he had issued and his failure to rescind it.

17. Evidence suggest that, sometime after October 2012, the then General Manager of the LVSS Mr Leung Wing Fai had given a verbal instruction for the ship inspectors to enforce in full the lifejacket requirements under Cap.548G.

Elements of the offence

18. It is accepted by both the prosecution and defence that the elements of the offence of misconduct in public office are as set out in the Court of Final Appeal case of Sin Kam Wah and Anor v HKSAR (2005) 8 HKCFAR 192:

“ 45. …

(1) a public official;

(2) in the course of or in relation to his public office;

(3) willfully misconducts himself; by act or omission, for example, by willfully neglecting or failing to perform his duty;

(4) without reasonable excuse or justification; and

(5)  where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.”

Issues

19. It is admitted fact that the defendant was a public officer with the Marine Department at all material times.

20. It is not disputed that if the prosecution can prove that the defendant did issue the non-enforcement instruction, he issued it in the course of the performance of one of his duties as the General Manager and Principal Surveyor of Ships of the LVSB.

21. The issues are therefore whether the prosecution can prove beyond reasonable doubt that (1) the issuance of the non-enforcement instruction amounted to ‘wilful misconduct’; (2) the misconduct was serious misconduct; and (3) there was no reasonable excuse or justification for the misconduct.

The voir dire to determine on the admissibility of the defendant’s admissions

22. A voir dire was held before the commencement of the trial proper to determine the admissibility of admissions made by the defendant in the form of answers given in reply to a questionnaire issued by the THB to MD officers for the purpose of the internal investigation; as well as admissions made during a later interview conducted by the THB with the defendant.

23. The admissions were ruled out. The ruling is annexed to this Reasons for Verdict.

Trial proper

24. The prosecution called 8 live witnesses in the trial proper. The witness statement of PW9 was read into evidence pursuant to s.65B of the Criminal Procedure Ordinance.

Summary of the evidence of prosecution witnesses

PW1 Mr Au Yeung Chun Tak: former Chief Ship Inspector

25. Mr Au Yeung was the Chief Ship Inspector (“CSI”) of the MD from 2005 to 2009 when he retired.

26. The CSI was mainly responsible for safety inspection of local vessels. The inspections would be carried out on the safety equipment or appliances on board the vessels in accordance with a Code of Practice of the MD, and in accordance with the safety standard required by the department at the time.

27. If a new vessel passed the inspection, a Certificate of Survey will be issued to allow it to sail. If failed, instructions will be issued to the vessel owner or ship builder for them to do remedial works to get the vessel to meet the MD’s requirement. Only when the requirements are met will a Certificate of Survey be issued.

28. The Local Vessel Safety Section (“LVSS”) within the MD is responsible for the inspection and enforcement of local vessels to the standard required by the MD.

29. Before the implementation of the new law, Cap.548G, Mr Au Yeung was responsible for the assignment of ship inspection to ship inspectors.

30. It was usually the ship owners who would make an application to the MD to have certain items on their vessels inspected. The MD did not take the initiative to push the ship owners or shipyards to apply to have certain items inspected.

31. When the ship owner made an application for inspection, the LVSS would be informed the day before the intended inspection and notification would be given as to where the vessel was located for the inspection to take place. Mr Au Yeung, the CSI, would then arrange for a ship inspector to conduct the inspection the following day.

32. The results of an inspection were recorded in a file for that particular vessel. The recording had been changing over time. When Mr Au Yeung first worked as a ship inspector, they were just simple notes written on the inspection file of the vessel. By the time he became CSI, survey forms were required to be filled out.

33. If the vessel passed the inspection, a Certificate of Survey will be issued and then displayed on the vessel.

34. While Mr Au Yeung was the CSI, there was no requirement for the ship inspectors to report to the CSI on the ship inspections. If the ship inspector found a problem or something that he did not understand, he would seek advice from Mr Au Yeung or other ship surveyors.

35. Mr Au Yeung, as CSI, very rarely conducted ship inspections. He did have a supervisory role over the ship inspectors. The CSI would conduct random checks on the records of ship files to see what the ship inspector had done. If any problem was found, they would question the individual ship inspector about the matter. This could happen both before or after the ship inspection had taken place.

36. After an inspection had taken place, before the time of the new law, there was no specific system on how to supervise the results of the inspection carried out by the ship inspector.

37. After an inspection, the ship inspector would write down in the file the items that he had inspected. If the ship passed the inspection, the ship inspector would then prepare a Certificate of Survey. This Certificate of Survey together with the vessel file will then be given to a ship surveyor. After the ship surveyor had read through the repot in the files and was satisfied with it, he would then sign the Certificate of Survey.

38. If the ship surveyor found any problems, the file would be referred back to the individual ship inspector for him to look into the problems. It was under those circumstances that the CSI would be able to assess the quality of the work of the ship inspectors.

39. In conducting an inspection, reference would be made to the number of safety appliances that were required to be carried on board the vessel according to the law and the Code of Practice.

40. In the days before the new law, there was a requirement in the Code of Practice as to the calculation of the number of lifejackets that were required for individual types of vessels. The calculation of lifejackets was done with reference to the number of passengers allowed to be carried on that particular type of vessel.

41. When asked what the source of the method of calculation of lifejackets requirement was, Mr Au Yeung mentioned that initially there was a set of instructions that they called the Blue Book. The Blue Book was a MD publication and available for sale to the public.

42. From what he can remember, another set of instructions came about in 1995 and they superseded the Blue Book. Then in 2006, there was another book of instructions which superseded the 1995 instructions.

43. As far as Mr Au Yeung can remember, none of the said sets of instructions contained any provisions relating to children lifejackets.

The changing of the law

44. Prior to the enactment of the new law, there were a series of reviews and meetings about changing from a set of instructions to having the requirements put into law. According to Mr Au Yeung, there was no formal notification, but it was said in some informal briefings that some new laws would be enacted.

45. Prior to the new law coming into force, Mr Au Yeung did have occasions to meet with certain organisations about the proposed new laws, but he cannot remember a specific title for the meetings or informal meetings.

46. Before trying to promote the new law, the MD had conducted many seminars with the representatives of the industry and the shipping firms. Mr Au Yeung did not attend every meeting. Usually the assistant director, the Chief (as translated, should mean General) Manager and the Senior Ship Surveyors of the MD would attend those meetings. The industry was represented by the Hong Kong and Kowloon Motorboat and Tug Boat Association, the Cargo Traders Association, and several fisherman associations.

47. As far as Mr Au Yeung can remember, during the time before the enactment of the new law, the Chief Manager of the MD who attended those meetings was a Mr Lee Kwok Fai Michael, who was also the Principal Surveyor of Ships at the time.

48. Mr Au Yeung recalled that in the meetings that he did attend, the industry was concerned about the impact the enactment of the new law would have on them, in particular the financial burden that would be imposed on them in the event that something would have to be added following the enactment of the new law.

49. In relation to the proposed new requirement that there be children lifejackets under the new law for individual type of vessels, Mr Au Yeung could not remember there being any specific objection from the industry representatives about children lifejackets.

50. From what Mr Au Yeung understood, the following message was conveyed to the objecting parties about the enforcement of the new law. The message that was conveyed by the MD was that following the enactment of the new law, the new law will mainly be directed at new vessels, and there would not be much impact on old vessels. Following the enactment of the new law, the old vessels will only be required to comply with the old law.

51. Mr Au Yeung could not remember clearly who gave that assurance, but the seminars or meetings were chaired by his supervisors.

52. Mr Au Yeung remembered that the new law that came into force on 2 January 2007, Cap. 548G, included a requirement for children lifejackets in relation to Class I vessels.

53. According to Mr Au Yeung, following the enactment of the part of cap.548G that dealt with children lifejackets, the instructions given to them all along were that they would continue to adopt the standard required by the old law when dealing with old vessels. As far as his understanding at that time, a vessel that was licensed before the new laws were enacted would be considered an old vessel. In practical terms, a vessel licensed before 1 January 2007 would be an old vessel.

54. There were no specific instructions as to the lifejackets, or other items, that were required to be carried on board an old vessel. The witness’ understanding was that the old vessel would just be required to comply with the requirements as shown on their Certificate of Survey. It was a general instruction and encompassed everything, therefore would have included lifejackets as well.

55. The said message and the impression Mr Au Yeung had as to the enforcement of the new law were conveyed at the said seminars. There were also LVSS sectional briefings held both before and after the enactment of the new law, where he and his colleagues were informed about how the new laws would be enforced.

Post enactment of new law sectional briefings

56. Mr Au Yeung attended most of the post enactment sectional briefings. It would usually be the General Manager or the Principal Surveyor of Ships who was in charge of the briefings, also referred to as informal discussions.

57. Some of the briefings were convened by Lee Kwok Fai Michael, and then it was the defendant who convened them after Lee’s departure and the defendant’s arrival in April 2007.

58. Matters relating to the LVSS were discussed at the briefings, the colleagues present would exchange their ideas or feedback about the problems that they faced after the enactment of the new law.

59. As far as Mr Au Yeung can remember, there was no specific discussion in relation to lifejackets at the briefings that he had attended. The instruction was that for existing vessels, the inspection were to be done in such a way that the old vessels would be required to carry the old equipment or apparatus.

60. Mr Au Yeung is unable to say which one individual gave the specific instructions. However, it is his evidence that Lee Kwok Fai Michael did say that old vessel would have to follow the old laws.

61. The witness also heard the defendant talk about this matter at the briefings, but he can no longer remember what the defendant said. Mr Au Yeung supposed that a colleague might have talked about a type of vessel or a particular case and asked whether the old vessel would have to follow the old law. It is Mr Au Yeung’s evidence that none of the colleagues at the briefings had raised any objection to that practice. The general impression he still retains is that the defendant had talked about the old vessel would follow the old law and the new vessel would follow the new law.

62. Mr Au Yeung and the other ship inspectors and ship surveyors continued with their ship inspections based on that instruction, that is to say, “old vessels follow old law, new vessels follow new law”.

63. As the CSI, Mr Au Yeung did have to give further instructions to his subordinates in relation to the “old vessels follow old law, new vessels follow new law” arrangement. He told them that the old vessels would be inspected in the old way.

64. In practice, the assigning of tasks to ship inspector remained the same after the enactment of the new law. The main difference was the incorporation of the use of computers after the enactment. Computers were used to assign work, to record information about the equipment or apparatus that was carried on board of each vessel, such as life rafts, life buoys and lifejackets.

65. After the enactment, the actual Certificate of Survey was printed out from information stored on the computer. Once the ship inspector was satisfied with the record as shown on the computer, he would update the information on the computer and the Certificate of Survey will be issued.

66. The Certificate of Survey included information about the number of fire extinguishers, lifejackets, etc.  If there were children lifejackets on board the vessel, the information about children lifejackets would appear on the Certificate of Survey.

67. Supposing the vessel was required to carry children lifejackets under the new law, and following the inspection it was found that the vessel did have children lifejackets on board, such information will be included on the Certificate of Survey.

68. For old vessels, under the old law, there was no requirement to carry a specific number of adult or children lifejackets, what was provided for was a certain percentage of lifejackets. As far as Mr Au Yeung could remember, it was lifejackets for 60% of the number of passenger that can be carried. The remaining 40% related to the provision of life rafts or other buoyant apparatus. This percentage was later corrected in cross-examination to 40% lifejackets.

69. Mr Au Yeung’s monitoring of ship inspectors regarding ship inspections remained the same before and after the enactment of the new laws. The monitoring was by way of random checks of the information in the vessels’ files.

70. As at the time of Mr Au Yeung’s retirement in 2009, there had been no change of the “old vessels follow old law, new vessels follow new law” practice in the MD and was continued to be carried out.

Cross-examination of PW1 Mr Au Yeung

71. In cross-examination, Mr Au Yeung confirmed that several months before the enactment of the new law, he was informed about the proposed contents of the new laws, Cap. 548G, and that they had discussed the matter internally. The witness did receive various drafts of the legislation from a Chan Ming Yau and was given the opportunity to comment on them.

72. Shortly before the passing of the new laws, Mr Au Yeung received information about the final version to be gazetted. He was therefore aware that there was to be a year grace period in relation to several items, including lifesaving equipment.

73. After the new law had begun to operate, it was the witness’ job to communicate with the ship inspectors to ensure that they would comply with the new law. If a subordinate raised a problem about the implementation of the new law, Mr Au Yeung would inform his superiors.

74. Mr Au Yeung confirmed that the “old vessels follow old law, new vessels follow new law” policy was decided under Lee Kwok Fai Michael. When the defendant came to be the General Manager, the matter just carried on as before and the defendant did not say that this practice had to be stopped. The matter was not even raised, it just carried on as an existing policy.

75. Mr Au Yeung confirmed that, even before the new law (regulation 548G) became operative, there was already an arrangement with the industry that the policy of “old vessels follow old law, new vessels follow new law” would apply.

76. Mr Au Yeung was not able to say whether the industry representatives were extremely dissatisfied with the new laws when they saw the contents, but he was able to say that when they became aware of the “old vessels follow old law, new vessels follow new law” policy that will be adopted, they did not raise any objection as to other matters, to put it another way, they were ‘very happy’ about the policy.

77. Mr Au Yeung agreed with counsel for the defendant the following. Since under the old law, there was no provision for 100% lifejackets, but under the new law there was a requirement for 100% lifejackets, if the new law were to apply to old vessels, then first of all they will have to buy more lifejackets and some of the old lifesaving equipment will have to be written off.

78. Mr Au Yeung agreed that on an old vessel, in order to increase the lifejackets percentage from 40% under the old law to 100% under the new law, the vessel might need to alter the seats in order to create storage space for the additional lifejackets. To do that, the vessel might have to be taken out of service for a period. There would be some losses suffered by the ship owner or operator, but the degree depends on the requirement that were imposed on that particular vessel.

79. The witness was shown photos (D-7(1) and (2)) of the upper deck of a Star ferry. Mr Au Yeung confirmed that the racks of lifejackets seen in the photos did not use to be there when he used to inspect this type of ferries.

80. Mr Au Yeung was one of the subjects of the THB internal investigation and had been interviewed by THB officers. According to the record of interview, at page 95, line 35, when asked whether it was feasible to implement the new law entirely on the first day, the witness answered that it was not, and that there might be riots and everyone would come to the MD.

81. Mr Au Yeung explained his then answer as follows. As at 1 January 2007, if there was no grace period, then all the Hong Kong boats would stop at the same time because all the boats will have failed the requirements under the new law and so on that day all the licensed ships in Hong Kong would have to be stopped. If strict compliance was required on day one, then none of the ships will pass the inspections.

82. Mr Au Yeung also said in the interview that the new law will be difficult to implement fully on day one because all the vessels will have to change everything immediately and the possible reaction of the shipowners might be to march to the front door of the MD.

83. Mr Au Yeung confirmed that Lee Kwok Fai Michael instructed them to follow the policy of “old vessels follow old law, new vessels follow new law”, but the witness did not know why Lee Kwok Fai Michael had so instructed. The instruction was not specific to lifejackets but to everything. Lee Kwok Fai Michael did not say when the policy would come to an end. During the time that Lee Kwok Fai Michael was the GM of LVSS, the defendant was not working in LVSS.

84. It is Mr Au Yeung’s evidence that in so far as the topic of “old vessels follow old law, new vessels follow new law” policy, he did not have any contact with the defendant before the enactment of the new law in Cap. 548G.

85. Mr Au Yeung confirmed that, none of the LVSS officers who were present at the briefings or meetings with industry representatives had raised any objection to the instruction of “old vessels follow old law, new vessels follow new law”, or to say that it was against the law.

86. Mr Au Yeung was aware of ‘MD approved lifejackets’. Certain lifejackets manufacturers would give lifejackets to the MD for testing. If passed, the lifejackets would become ‘MD approved lifejackets’.

87. As far as the witness was aware, some of those lifejackets would be suitable for both adult and children. This type of lifejackets had been widely used ‘at the initial stage of the MD’. Over the past 10 or 20 years, many lifejackets manufacturers had joined the competition and many different models have appeared from different manufacturers.

88. Mr Au Yeung could confirm that in addition to ‘MD approved lifejackets’, ‘International Maritime Organisation’ approved lifejackets are also approved by the MD.

The Code of Practice

89. In 2007, after the coming into force of the new law, a ship inspector would refer to the Code of Practice and the new 548G regulations when conducting an inspection.

The morning meetings

90. The morning meetings were from time to time held at MD headquarters in Central. They were mostly organized by the GM of LVSS. The meetings were to allow for interactions between the officers. Those present at the meetings would include the senior surveyor of ships, surveyor of ships, Chief Ship Inspector, ship inspector of different ranks. All or some of them may be present on any occasion. No records were kept of what was said at these meetings.

91. According to Mr Au Yeung’s recollection, before the defendant took up the post of GM of the LVSS, the defendant had not attended any of the said morning meetings with the LVSS.

Re-examination

92. During re-examination, Mr Au Yeung was asked if the instruction for “old vessels follow old law, new vessels follow new law” was still in place and followed when the grace period expired on 2 January 2008. His answer was that the temporary suspension practice continued to be carried out at that time. There was however no specific person who said that it would be carried out, nor did anyone say that it would not be carried out.

93. As far as Mr Au Yeung was aware, up until the time of his retirement in August 2009, the said instruction had not been altered, modified or rescinded.

94. Mr Au Yeung confirmed that at the time when the new law was about to be implemented, it was his concern that there be some form of grace period.

95. After the grace period, he had not heard of any further concern voiced by the industry over the new regulations. To be fair, Mr Au Yeung’s posting at that time may not have  required him to be in direct contact with industry representatives and so the fact that he had not heard of further concern does not necessarily mean that there were none voiced to others.

PW2 Mr Tung Hon Ming: Deputy Director of Marine

96. Mr Tung is a Deputy Director of the Marine Department. He was the Assistant Director in 2009, overseeing 3 different branches within the MD: the LVSS, the Ship Safety Branch, and the Ship Registration and Seafarers Branch. Each of the 3 branches had a GM and they were all under Mr Tung’s supervision.

97. Mr Tung would therefore be the defendant’s immediate superior when the defendant was the GM of LVSS.

98. Mr Tung’s duties included matter of policy and policy development, but he had never dealt with any of the policy or regulations of Cap.548G.

99. It is Mr Tung’s evidence that up to October 2012, he had never heard of an instruction within the LVSS for the implementation of the “old vessels follow old law, new vessels follow new law” policy. He first heard of it when he was being questioned by the interviewer in the internal investigation conducted by the THB.

100. Mr Tung knew that the investigation was at first to be conducted by the MD but later taken over by the THB. He was not involved in any way in the investigation work that preceded the THB investigation.

The March 2013 meeting

101. Mr Tung attended a regular Monday morning meeting in March 2013 where the issue of enforcing lifejackets was discussed. For these regular meetings, usually the Director, Deputy Director, all the assistant directors, department secretary, Chief Treasury Accountant and Principle Information Officer would attend, unless someone was on leave or on a business trip. Mr Tung remembered that the defendant was present at this particular meeting.

102. To the best of his recollection, Liu Hon Por (PW3) asked at the meeting if anyone knew who gave the temporary suspension instruction in relation to the legislation about enforcing lifejackets and the defendant answered that it was he who gave that instruction. Mr Tung can no longer remember what followed that answer or what else did the defendant say. Mr Tung also cannot remember if the defendant was asked why he gave that instruction.

103. Mr Tung first heard about the instruction after some of his colleagues of the MD testified before the Commission of Inquiry. Some other colleagues heard about the evidence and later mentioned it to him. Mr Tung’s immediate thoughts were of how they could remedy the situation.

104. In cross-examination, Mr Tung agreed with counsel for the defendant that the role of the GM of the LVSS is to monitor and perform policy related work. The GM would not go to the wharfs or slipways to check if ship inspections were being done properly, he would rely on the Senior Surveyors on feedback of any problem in relation to  inspections.

105. By the time that Mr Tung was promoted to Assistant Director of Marine (Shipping Division) in 2009, the new law, i.e. Cap.548G, had been in operation for over 2 and a half years. In his time as Assistant Director, he had never heard that any of the ship inspectors or surveyors had any problem with the implementation of the Cap. 548G regulations.

106. It was suggested to Mr Tung that in 2009, around 12,000 vessels were required to be inspected but the witness believed that to be incorrect, because most of the leisure boats for self-use were not required to be inspected and so the number would be less. Mr Tung however cannot remember the number.

107. Mr Tung had not participated in any of the meetings between officers of the MD and industry representatives either before or after the Cap. 548G regulations came into operation.

108. Mr Tung was then asked about lifejackets and their use by adults and children in Hong Kong. It is his evidence that one type of lifejackets approved by the MD was suitable for both adults and children. He doesn’t know if this type of lifejackets was widely used in Hong Kong in local vessel back in 2007. He is able to say that manufacturing of this type of lifejackets had stopped for many years and so most of the lifejackets currently in use in local vessels are not of this type.

109. Mr Tung confirmed that there is currently no legal provisions in Hong Kong for the use of infant lifejackets, and there had never been such provisions.

110. Mr Marash went through previous legislations regarding lifejackets requirements and pointed out to the witness that, up until the enactment of the new law in January 2007, all lifejackets on board Class L Hong Kong vessels were required by law to fit both adult and children. Mr Tung was unable to respond to that because he said he would have to see all the relevant legislations first.

111. If lifejackets suitable for both adults and children were not being used on board local vessels, and if that was an extensive problem, Mr Tung believes that the department head would have told him. During his time at the MD, Mr Tung had never been told about local vessels not carrying the correct type of lifejackets.

PW3 Liu Hon Por Francis: retired Director of Marine

112. Mr Liu was the Director of Marine from 2011 to 2014. He was the Acting Deputy Director in 2007 and was promoted to Deputy Director in 2008. He is now retired.

113. Mr Liu’s main area of business was with the Port Control and Planning and Services Branch, which did not concern areas such as the LVSS. While he was the Director of Marine, the management and operation of the LVSS was mainly handled by the Assistant Director of LVSS (Ship) Branch.

114. Mr Liu confirmed that as Director, he had held regular Monday morning meetings at the headquarters of MD. The meetings were usually concerned with management matters.

The March 2013 meeting

115. During the end of February 2013, while on a few days’ leave, Mr Liu read in the newspapers about some colleague telling the Commission of Inquiry for the Lamma IV incident that he had received certain instructions, which prompted him to ask about the matter upon his return from leave at the morning meeting.

116. As far as Mr Liu can remember, those present at the meeting included Mr Tung Hon Fai and the defendant. At the meeting, Mr Liu referred to the news report he saw and asked what had happened. The defendant replied and said he had given an instruction. Mr Liu can no longer remember the details but the gist of what the defendant said was that he did not totally follow the new requirements on lifejackets in the new legislation, that he had given some instructions in relation to lifejackets.

117. Mr Liu believes that it was as reported in the newspaper, something about new ships following new regulations, and for old ships the regulation would not be applied so strictly. Mr Liu can no longer remember what the defendant said those instructions were.

118. Mr Liu then asked for the reason why the defendant did so and the defendant answered that, as far as Mr Liu can remember, because the industry had reflected to him that the operation cost would increase after the new regulations were implemented and some companies may have to be closed down.

119. Mr Liu asked the defendant if he had sought the opinion of the Department of Justice before making the decision and he replied that he had not.

120. The meeting then proceeded to deal with how they should follow up with the matter, how they could find out the vessels that were not compliant with the regulations and to ask them to comply with the new requirements in relation to lifejackets as soon as possible.

121. Mr Liu cannot remember if he had asked at that meeting if the defendant’s instructions were still in existence. He cannot remember what he had said with respect to the lifejackets question, nor what specific instructions did he give. Mr Liu believes that what he said was that all vessels should comply with Hong Kong law, with no more specificity than that.

PW4 Ms Chui Kit Wan Catherine: Senior Executive Officer, THB

122. Ms Chui is a Senior Executive Officer and was involved in matters in relation to the Lamma IV incident.

123. Ms Chui was in attendance at a meeting held on 6 March 2013 at the MD. Ms Chui was allowed to refresh her memory with the notes (exhibit P-10) that she made after the meeting. Although the notes is dated June 2013, they were made with the aid of the contemporaneous notes that she had kept shortly after the meeting. The contemporaneous notes are however nowhere to be found.

124. In addition to Ms Chui, also present at the meeting from the THB were the Permanent Secretary for Transport, the Deputy Secretary of Division 5, the Principle Executive Officer (Transport) Special Duty, Senior Executive Officer (Transport) Special Duty; and Director of Marine (Liu Hon Por), Deputy Director of Marine (Tung Hon Ming), Assistant Director of Shipping (the defendant), Assistant Director of Port Control, Assistant Director of Maritime Logistics (a Mr Chik) of the Marine Department.

125. Ms Chui’s notes reads as follows:

“3. When asked by the Permanent Secretary whether the non-enforcement of the statutory requirement on the provision of lifejackets enacted in 2007 and to take effect on 2 January 2008 (Cap.548G, Schedule 8), as said by MD colleague at the CoI hearing on 1 March 2013 was known to the MD Management, Mr So [the defendant] admitted the following:

• As stipulated in the Ordinance, the new statutory requirement should apply with effect from 2008 that the local vessels must provide 100% adult lifejackets + 5% children lifejackets on board.

• There was grace period allowed for the vessels already in-service (舊船) to continue adopting the requirement before Cap. 548 came to effect.

• It was he who gave instruction about giving the grace period but no end date was stated, and only verbal instruction was given

• It was his own decision to give grace period and he did not seek legal advice prior to making the decision

•  He said that at that time the trade faced economic downturn and had raised difficulties in running the business and showed reluctant to buy ‘additional’ lifejackets”

126. Ms Chui agreed in cross-examination that the defendant did say words to the effect that the lifejackets on local vessels were suitable for both adults and children.

PW5 Mr Wong Hon Chung: Chief Ship Inspector since 2009

127. Mr Wong joined the MD in 1984 as an assistant ship inspector of the Ship Inspecting Division. He was later seconded to the Labour Department. He ultimately returned to the LVSS of the MD in 2005 and took up the post of Senior Ship Inspector.

128. The role of a Senior Ship Inspector is similar to that of a ship inspector, but the Senior Ship Inspector would inspect more complicated vessels because he would be more experienced.

129. Mr Wong was promoted to the rank of Chief Ship Inspector in 2009 and remained in that post until he started his retirement leave on 18 January 2016.

130. The role and responsibility of the Chief Ship Inspector is mainly to arrange daily work for the ship inspectors. He would also assist in answering questions at public consultation meetings, as well as assisting the Senior Ship Surveyor in their day to day work in making arrangements. There is no supervisory work involved.

131. At the time the new law came into force in around January 2007, Mr Wong was a Senior Ship Inspector in LVSS. He remembers that because it was the first time inspections were being conducted after the coming into force of the new law, some colleagues asked how they should inspect the existing vessels. The message that Mr Wong got was to follow the old practice, i.e., follow the practice of the last Certificate of Survey.

132. It should have been the morning of 2 January 2007 that Mr Wong first heard of those discussions.

133. The said directions were given at the office. Since they were an open office, once it was said, all the colleagues who had to inspect vessels could hear.

134. Mr Wong explained that the said practice meant that in relation to life safety appliances, they would follow the last Certificate of Survey issued to the vessel when they inspected the vessel.

135. Mr Wong was not informed what ‘existing vessel’ was and had to refer to the definition in the regulations, and he understood that to mean the local vessels that were already licensed before 2 January 2007.

136. There was no specific time frame for the duration that the instruction would operate, just taking the replacement gradually, which Mr Wong understood to mean, for example, one life buoy would be replaced by 2 lifejackets, if say, at the time of the inspection 10 buoys of an existing vessel were damaged and had to be replaced, they will be replaced by 20 lifejackets, until the vessels complied with the requirement of 100% lifejackets.

137. When asked, from 2 January 2007, what would happen if on the inspection of an existing vessel it was found to be non-compliant with the lifejackets requirement under the new law, Mr Wong answered that, according to the said instructions, the inspection would continue to be carried out and gradually the vessel would comply with the requirements under the new law of 100% lifejackets. Meanwhile, a Certificate of Survey would still be issued to that existing vessel.

138. The MD would rely on the full cooperation of the shipowners to gradually reach the new law requirements.

139. Under the new law, there is a 5% children lifejackets requirement for certain type of vessels. When asked if, as ship inspector, Mr Wong had seen this 5% children lifejackets requirement being implemented, Mr Wong replied that, because at that time he inspected only existing vessels, to his understanding the vessels kept replacing according to the old law until they complied with the new regulation under Cap.548G.

140. Mr Wong spoke about the key differences in relation to life saving appliances between the old and new law. Under the old law, there was no requirement to have 100% lifejackets on board and the lifejackets could be substituted by life buoys. The total of life buoys and lifejackets added together should be 100%.

141. Under the new law, 100% lifejackets is required. It is Mr Wong’s evidence that there is little difference between the old and new law. Both required 100%, just that the combination is different.

142. The instructions were not amended, modified or rescinded. Only until after the October 2012 Lamma IV incident, then the management notified Mr Wong and his colleagues that they had to follow the regulations. That notification came from the then GM of the LVSS Mr Leung Wing Fai and it was a verbal instruction.

143. The Defendant was the Principal Surveyor of Ships and the General Manager of the “Local Vessel Safety Branch” between 16 April 2007 and 12 August 2010. The defendant was then replaced by Mr Wong Chi Kin as GM and later Leung Wing Fai took over as GM in 2011.

144. The witness had never had contact with Wong Chi Kin or Leung Wing Fai over, nor had the witness heard them said anything about, the “old vessels follow old law, new vessels follow new law” policy.

145. Mr Wong confirmed in cross-examination that he was aware of ‘HKMD approved lifejackets’, and that they refer to lifejackets which had been tested and approved by the MD. The department would also accept ‘Safety of Life at Sea’ (“SOLAS”) standard lifejackets in addition to HKMD approved lifejackets.

146. Mr Wong confirmed that he did tell the THB officer during the internal investigation that from time to time, he would hear from people in the industry, especially the ones using lots of life buoys, talking to him about how if the buoys were all changed to lifejackets will result in an increase in volume and they will have to find suitable space for the lifejackets.

147. Mr Wong also confirmed that according to section 4 of the Merchant Shipping Local Vessels Safety and Surveyor Regulation, each life buoy is taken to be for use by 2 persons on board the vessel; and in the Code of Practice at 2.5, it is stated that one life buoy is deemed to support two adult persons.

PW6 Mr Yu Kick Chuen Phillip: Senior Ship Inspector

148. Mr Yu was tendered for cross-examination.

149. Mr Yu was referred to the Certificate of Survey of a vessel that he had inspected while he was working as a Senior Ship Inspector at the MD in 2010.

150. According to the 2011 Certificate of Survey of the vessel ‘Tung Fai’, the vessel was built in 1994. Mr Yu believes that the ship would have been in operation perhaps 1 or 2 years after that.

151. At the time when Mr Yu inspected Tung Fai in 2011, he did the inspection by following the Certificate of Survey of the ship that was prepared by another colleague.

152. Mr Yu was asked about an asterisk that was placed next to the item of ‘child lifejacket(s)’ under the heading ‘This vessel is provided with the following life saving appliances and radio equipment:’. Mr Yu said he did count the number of adults and children lifejackets on the vessel in that inspection, he put the asterisk there because when he made reference to the preceding Certificate of Survey, an asterisk was used there as well, i.e., the Certificate of Survey covering the 2010 to 2011 period.

153. The asterisk against the ‘child lifejacket(s)’ indicates that there is one lifejacket for each person. Mr Yu was not able to give a clear answer as to whether that means children lifejackets or adults lifejackets.

154. Mr Yu was then asked if he was aware at the time that it was a legal requirement that there had to be 5% of children lifejackets in relation to the number of passenger the ship was licensed to carry. Mr Yu’s answer was ‘Because at the time I did my work by following the Certificate of Survey’.

155. When asked if he actually checked the number of lifejackets, Mr Yu said that he just took a look to see how many lifejackets there were, since the passenger number was 50, 5% would be around 3 lifejackets. It should be the case that Mr Yu was satisfied that there were sufficient lifejackets.

156. In re-examination, Mr Yu was asked about the asterisks against ‘adult lifejacket(s)’ and ‘child lifejacket(s)’, whether he could have put in a number instead of an asterisk if he wanted to do so. Mr Yu said yes, and added that “because it was like this in the preceding one”, meaning the Certificate of Survey immediately preceding the one in 2011. 

PW7 Mr Yuen Chin Wai: ship inspector

157. Mr Yuen joined LVSS in 2006 as a ship inspector. It is his evidence that, after the enactment of the new law in 2007, for those vessels licensed before 2007, their inspections should follow the old law in relation to safety appliances.

158. Mr Yuen cannot remember the source of those instructions. He had continued to apply the old law standard in the inspection of the old vessels. Mr Yuen left LVSS in 2011.

159. Mr Yuen was shown the Certificates of Survey produced by PW6. It is his evidence that the form was only used in January 2007, after the new law had come into effect.

160. Mr Yuen explained the procedure he adopted as a ship inspector in 2007 when the computer recording system was implemented. Mr Yuen would do the survey, return to the office, enter data into the computer and then print out the Certificate of Survey.

161. In relation to the D-15 Certificate of Survey, a [-] hyphen against an item meant that there was no such item on the vessel. It was a commonly used symbol amongst ship inspectors.

162. Mr Yuen was not able to give a meaningful answer as to the meaning of the asterisks against the lifejackets items.

PW8 Mr Lee Kwok Ching: ship inspector

163. Mr Lee joined the MD in 1988 as a trainee ship inspector. He was then seconded to the Labour Department for about 11 years. He returned to the MD and joined the LVSS in 2009 as a ship inspector. He remained in the post until his pre-retirement leave in June 2013.

164. Since Mr Lee joined the LVSS as ship inspector only in 2009, he had no idea about the previous situation in relation to lifejackets requirements. As for the lifejackets requirement when he joined the LVSS, the new law required 100% adult and 5% children lifejackets. This is applicable to new vessels, meaning vessels that come into being after the enactment of the new law.

165. As for vessels that came into being before the new law, one would usually have to follow the preceding ship inspection report and Certificate of Survey. Mr Lee was however unaware of what the old law was in relation to old vessels. No one had explained to him why that was the case, but when Mr Lee returned to the LVSS in 2009, all or most of his colleagues were doing that. Mr Lee is not able to recall the source of this instruction or practice.

166. As far as Mr Lee can remember, in all the new vessels that he had inspected, they were all in compliance with the new law, in that they all had 100% adult and 5% children lifejackets. 

167. In relation to old vessels, and in particular the inspection of lifejackets, Mr Lee would look at the number of lifejackets stated on the previous Certificate of Survey and then count how many lifejackets there were on the vessel. He would then conduct a random sample check to see if the lifejackets complied with the quality requirements, e.g. whether strings were coming off of the lifejackets, and whether they were of the approved type.

168. Mr Lee recalled that the lifejackets were of different sizes. They were in most cases adult lifejackets, but some of them were suitable for use by both adults and children. That information was not however noted specifically on the Certificate of Survey.

169. This “old vessels follow old law, new vessels follow new law” practice carried on to be applied until after the October 2012 Lamma IV incident. Thereafter changes were made “gradually”. Mr Lee however can no longer remember anything about those changes because many different things were happening at that time.

PW9 Mr Wen Tsz Kit Bondy

170. Mr Wen is the Chairman of Hong Kong & Kowloon Motor Boats & Tug Boats Association Limited. His witness statement was read into evidence pursuant to s.65B of the Criminal Procedure Ordinance, Cap.221.

171. According to Mr Wen, the purpose of his association is to liaise with government departments, mainly the Marine Department, to reflect the opinion of the association and the industry on behalf of their members. The Marine Department would also ‘disseminate information’ to the industry through his association.

172. It was not until 2006 that the Marine Department formally invited Mr Wen’s association to attend meetings in relation to the drafting of 548G, and to inform them and the industry about the contents of the new law.

173. It is Mr Wen’s evidence that, as a result of the late invitation to the drafting process, his association’s knowledge of the new legislation was inadequate when it came into force in 2007.

174. It was not until the boat owners had their boats inspected did they realize the problems, including the new lifejacket requirement by the Marine Department.

175. The boat owners raised their concern to Mr Wen’s association and Mr Wen reflected those concerns on the quantity of lifejackets to the department.

176. The association also held meetings with staff of the Marine Department to discuss the matter.

177. The association related to the department that since the majority of the boats were old, there were difficulties in implementing the new lifejacket requirement on board. Alterations will have to be made and the boat owners might face financial difficulties when making the alterations.

178. It was the association’s view that the old law did not mean to be unsafe. There were other lifesaving equipment available on board, including life rafts and buoys, etc.

179. As far as Mr Wen could remember, during the meetings with the Marine Department, someone mentioned ‘natural elimination’ and ‘new legislation for new boats, old legislation for old boats’. Mr Wen is unable to say when the meetings were held.

180. ‘Natural elimination’ meant that when the equipment on the old boats are subject to normal wear and tear, boat owners will change into new equipment as required by the new legislation.

181. ‘New legislation for new boats, old legislation for old boats’ meant that after the implementation of the new legislation, newly-built boats have to meet the requirements of the new legislation. Whereas for boats built before the implementation of the new legislation, they would be allowed to continue to use the equipment originally available on board.

182. Mr Wen remembers that in early 2010, his association held a meeting with staff of the Marine Department to discuss the issue of lifejacket shortages. At that time, the department dealt with the issue by way of ‘natural elimination’ and ‘new legislation for new boats, old legislation for old boats’.

183. Mr Wen’s association and the industry jointly staged two protests in March and September 2013 respectively. The reason for the first protest was that, after the Lamma IV tragedy, the Marine Department told the association verbally to pass a message to the boat owners and the industry that the 548G new lifejacket requirement were to be strictly followed immediately.

184. Mr Wen remembers that 2,000 odd lifejackets were needed in total at that time and the boat owners were not able to purchase them in such a short period of time. That led to the first protest.

185. The second protest was staged when the Marine Department sought to implement compulsory legislation in accordance with the measures or equipment suggested in the expert report of the Commission of Inquiry of the Lamma IV incident.

186. The industry disagreed with the expert report and was of the view that those measures or equipment were not suitable. There were also ship owners who were simply unable to purchase the equipment or implement those measures. That led to the second protest.

The defendant’s no case submissions

187. At the end of the prosecution case, the defendant made a no case submission on the ground that no properly directed jury could convict the defendant on the charge based on the evidence as presented to the court by the prosecution.

188. Having heard from both parties, I ruled that there was a case for the defendant to answer.

The defendant’s case

189. The defendant elected not to give evidence on the general issue and did not call any defence witnesses.

190. According to Mr Marash’s closing submissions, the defendant’s case is that, if the defendant did issue the non-enforcement instruction and did fail to rescind it, his conduct was not misconduct so serious as to warrant criminal sanctions and as such the seriousness requirement under the Sin Kam Wah formulation would not be satisfied.

191. Furthermore, it is the defendant’s case that he had reasonable excuse to issue and not rescind the non-enforcement instruction, the excuse being the need for the defendant to ensure the ‘smooth implementation’ of the new lifejacket requirements under Cap.548G.

Findings of facts

192. I find first of all that all prosecution witnesses are honest and reliable witnesses.

193. The defendant is of good character and therefore less likely than otherwise might be the case to commit the crime.

194. I find, however, that given the nature of the prosecution case and the defence raised, the defendant’s good character is of minimal relevance when deciding whether he is guilty of the offence.

The non-enforcement instruction

195. Based on the evidence of the prosecution witnesses, I find what the practice of “old vessels follow old law, new vessels follow new law” meant was that, when local vessels that had previously been issued with a Certificate of Survey and had been issued a license to sail in Hong Kong waters are due for their annual (or biannual and quadrennial) inspection, the MD ship inspectors will check if the lifejackets on board were in accordance with the pre-548G legal requirements. If they were, the vessels will be recorded as having satisfied the legal requirements and a Certificate of Survey will be issued on that basis, even if they do not comply with the new lifejacket requirements under Cap.548G.

196. I find that, based on the evidence of PW2 Mr Tung Hon Ming, PW3 Mr Liu Hon Por Francis and PW4 Ms Catherine Chui, the defendant did in fact issue an instruction to his subordinate ship inspectors in April 2007 that they did not have to enforce the new lifejacket requirements under s.548G in relation to local vessels which already held a previously valid Certificate of Survey.

The time of the issuing of the non-enforcement instruction

197. PW1 Mr Au Yeung remembers the defendant did talk about the “old vessels follow old law, new vessels follow new law” practice at the post 548G enactment briefings, but can no longer remember what the defendant said. The general impression he still retains is that the defendant did say that old vessels would follow the old law and new vessels would follow the new law.

198. PW2, 3 and 4 all recall hearing the defendant admitting that he was the person who had issued the non-enforcement instruction at the 6th March 2013 meeting.

199. I find that although the exact time of the issuance of the non-enforcement instruction is unclear, based on the evidence of the prosecution witnesses, it can be inferred that the instruction was issued by the defendant after he had taken up his position in April and that the practice of “old vessels follow old law, new vessels follow new law” had carried on up to the defendant’s departure from the LVSS.

The existence of a similar instruction prior to the defendant’s arrival

200. The evidence of Mr Au Yeung prove that prior to the defendant’s arrival, and even before the enactment of 548G, there had been talks between the then GM of the LVSS Mr Lee Kwok Fai Michael and representatives of the industry, when the representatives voiced their general concern over the difficulties in the implementation of the various new requirements under 548G. The concerns were not limited to lifejacket requirements.

201. I find that an assurance was given by the then GM to the representatives that the old legal requirement will continue to be applied in relation to old vessels.

202. I find however that when the defendant arrived at the LVSS and took up the position of GM and Principal Surveyor of Ships, he must have known about the statutory deferment period, as well as the practice in relation to old vessels that was in place. The reason for this finding is as follows.

203. The new legislation was enacted just 3 months before the defendant was posted to the LVSS. It was impossible for the defendant not to know that there was a new enactment that affected the running of the LVSS so significantly.

204. The defendant was not only the General Manager but the Principal Surveyor of Ships. Although he may not have to conduct day to day ship inspections, it was his duty to know about the work of the ship inspectors and to ensure, through the help of the Chief Ship Surveyor, that the inspectors are doing a proper job.

205. There is no evidence to suggest that the defendant was not aware of the “old vessels follow old law, new vessels follow new law” practice at any time. It was never put to any of the prosecution witnesses that the defendant was not aware of the practice.

206. There is of course the evidence of the defendant admitting at the March 2013 meeting that he was the person who issued the non-enforcement instruction.

207. The only irresistible inference is therefore that the defendant knew about the practice of “old vessels follow old law, new vessels follow new law” when he joined, and that he had issued the non-enforcement instruction nevertheless.

208. The fact that Lee Kwok Fai Michael had issued a similar instruction as the GM of LVSS prior to the defendant’s arrival does not mean that the defendant cannot be guilty of the offence. He had the authority and the opportunity to rescind the previous instruction but he chose to issue the non-enforcement instruction instead.

The reason for the defendant issuing the non-enforcement instruction

209. There is no direct evidence from the defendant to explain his decision to issue the non-enforcement instruction.

210. My finding of the reason behind the defendant’s decision is therefore necessarily by way of the making of an inference, based on what the prosecution witnesses said the defendant had said at the March 2013 meeting, as well as on evidence showing the concern the industry representatives had over the implementation of the new regulations.

211. PW2 Mr Tung attended the March 2013 meeting and gave evidence that the defendant had said that he was the person who issued the non-enforcement instruction.

212. PW3 Mr Liu, the then Director of Marine, was at the same meeting and gave evidence that he had heard the defendant said the same thing. He also heard the defendant answered that the reason why the defendant issued the instruction was because the industry had reflected to the defendant that the operation cost would increase after the new regulations were implemented and some companies may have to be closed down.

213. PW4 Ms Catherine Chui gave evidence that the defendant said he was the person who gave the verbal instruction for a “grace period allowed for the vessels already in-service (舊船) to continue adopting the requirement before Cap.548 came to effect”; that no end date to that practice was stated.

214. There is also the evidence of Mr Au Yeung and Mr Wen (s.65B statement), suggesting that the industry had always been concerned about the cost implications of the new legislations and their resistance against immediate full implementation of the provisions in the new Cap.548G.

215. When the pieces of evidence are put together, what one can deduce is that the defendant seemed to have decided not to apply the new lifejacket requirements because he was told by the representatives that they were either not ready or unwilling to fully implement the new laws.

216. There is no direct evidence as to the thinking process of the defendant, nor the factors that he had taken into consideration before deciding to issue the non-enforcement instruction. All that we have is the said evidence as the basis for inferences as to the defendant’s then state of mind to be drawn.

217. I find that based on the evidence available, the inferred reason as to why the defendant issued the non-enforcement instruction is he wanted to appease the industry representatives who were not happy with the new lifejacket requirements.

Was the defendant’s conduct wilful misconduct?

218. I find that the defendant was a public official at all material times while he was the General Manager and the Principal Surveyor of Ships of the LVSS.

219. I find that when the defendant issued the non-enforcement instruction, and when he failed to rescind the non-enforcement instruction, he was acting in the course of the performance of his public duties as the General Manager of the LVSS.

220. I find that the non-enforcement instruction was in fact followed by all the ship inspectors.

221. I find that the defendant had never rescinded the non-enforcement instruction.

222. Although there is evidence to suggest that the “old vessels follow old law, new vessels follow new law” practice had been in place before the defendant’s arrival at LVSS, I find that the defendant had the power to order the practice to stop at any time after he had been posted to the LVSS.

223. Furthermore, based on the evidence of Ms Chui, the defendant had confirmed that he was the person who had issued the non-enforcement instruction at the March 2013 meeting. This is proof that the issuing of the instruction was deliberate and not inadvertent.

224. I find that the defendant’s decision to instruct his subordinates to not enforce the new law on lifejacket requirements is obviously a misconduct.

225. I find that the defendant’s issuance of the non-enforcement instruction was a wilful misconduct in the sense that he issued the instruction deliberately.

226. In relation to the defendant’s failure to rescind the non-enforcement instruction, I find first of all that there is no direct evidence to prove why the defendant did not rescind his non-enforcement instruction.

227. There is also no evidence to suggest that the defendant had forgotten to rescind the non-enforcement instruction. Furthermore, given that one of the main duties of the defendant as the General Manager and the Principal Surveyor of Ships is to oversee the work of the ship inspectors in their ship inspection, I find it impossible that the defendant could have forgotten about his decision to instruct his subordinates not to follow the new lifejacket requirements.

228. I therefore find that the defendant’s failure to rescind the non-enforcement instruction also a wilful misconduct in the sense that it was deliberate and not inadvertent.

Was the misconduct so serious as to warrant criminal sanctions?

Legal principles

229. In the case of HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525, the Court of Final Appeal considered the element of seriousness in a misconduct of a public officer charge.

230. There the appellant was a doctor employed by the Hospital Authority working at an out-patient clinic. On 16 occasions the doctor booked appointments in the names of his parents and 6 year old son for consultation at the clinic. On each occasion, he bought tickets for consultation, wrote out consultation summaries and prescribed medication on the computer and later obtained the medicine. The total cost of all the medicines to the Government was $247.

231. The parents were in Australia and the son was attending kindergarten at the time of these consultations and they never attended the clinic.

232. The appellant's family members were entitled to public medical services when they were in Hong Kong and had previously made use of the services at the clinic.

233. There is no express rule set by the Hospital Authority which required that a doctor must diagnose his patients inside the clinic, although generally expected to do so.

234. The appellant explained that the diagnoses of his parents were conducted over long-distance telephone calls while that of his son were done at home. He thought that in order to obtain medicines for his family members he had to follow the procedure at the clinic. Some of the medicines obtained were either mailed to his parents or delivered to them by relatives. Other medicines were placed at home for future use. He conceded that he could not personally verify his parents' symptoms without seeing them face to face or his son's condition without the necessary equipment.

235. The appellant was charged with 2 counts of misconduct in public office (Charge 1 and 5), 3 counts of fraud (alternatives to charge 1), and 22 counts of gaining access to computers with criminal or dishonest intent (alternatives to charge 5).

236. He was convicted by the Deputy Magistrate of charge 1 and acquitted of charge 5, the other charges were left on file and no verdict was given. His conviction on charge 1 was upheld on appeal by Deputy High Court Judge A Wong (as he then was).

237. The issue on appeal to the Court of Final Appeal is succinctly set out in paragraph 11 of the judgment:

“11. The common law offence of misconduct in public office was affirmed in Shum Kwok Sher and the ingredients of this offence were reformulated in Sin Kam Wah: the offence is committed where a public officer in the course of or in relation to his public office wilfully and intentionally misconducts himself by act or omission, without reasonable excuse or justification and the misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

12. The crucial question to be decided in this case was whether what he did amounted to misconduct which was so serious as to constitute the offence of misconduct in public office. The Magistrate and the Judge took the view that it was.”

238. In deciding whether the appellant's conduct was serious misconduct, Chan PJ referred first of all (at paragraph 25) to the following remark of Sir Anthony Mason NPJ in Shum Kwok Sher:

“69. The difficulty which has been experienced in defining with precision the elements of the offence stem not so much from the various ways in which they have been expressed as from the range of misconduct by officials which may fall within the reach of the offence. This is because, to quote the words of PD Finn, “Public Officers: Some Personal Liabilities” (1977) 51 ALJ 313 at p.315:

The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position. It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.” [Chan PJ’s emphasis]

239. At paragraph 26, Chan PJ made the following remark:

“26. In considering this important question, one must not lose sight of the object of this offence. It is clear from a review of the authorities that this offence is aimed at punishing an abuse by a public officer of the power and duty entrusted to him for the public benefit or of his official position.

27.In Shum Kwok Sher, when he was formulating the ingredients of the offence of misconduct in public office, Sir Anthony Mason NPJ considered that to constitute the offence, the conduct in question must be serious misconduct, not trivial and this is to be determined having regard to: (i) the responsibilities of the office and the office holder, (ii) the nature and extent of the departure from those responsibilities. He regarded that this is consistent with the concept of abuse of office. But he acknowledged that there would be borderline cases between this common law offence and disciplinary offences.”

240. Chan PJ then went on to the English Court of Appeal case of Re A-G's Reference (No 3 of 2003) [2005] QB 73 and cited the following remarks of Pill LJ:

“...Having considered the authorities, we agree that the misconduct complained of must be serious misconduct. Whether it is of a sufficiently serious nature will depend on the factors stated by Sir Anthony Mason NPJ along with the seriousness of the consequenceswhich may follow from an act or omission. An act or omission which may have as its consequence a death, viewed in terms of the need for maintenance of public standards to be marked and the public interest to be asserted, is likely to be more serious than one which would cause a trivial injury. This factor is likely to have less significance where, as in Shum Kwok Sher, the allegation is of corruption where the judgment upon the conduct may not vary directly in proportion to the amount of money involved.” (Chan PJ’s emphasis)

241. Chan PJ went on to consider cases where corruption, dishonesty or other illegal practices are not involved:

“30.In other cases, where corruption, dishonesty or other illegal practices are not involved, the consequences of the misconduct may not be obvious. Nevertheless, this must be a factor which is also relevant when considering whether the misconduct is serious enough as to merit criminal sanction. I do not think the prosecution is disputing the relevance of this factor. Nor can this be disputed. This factor was not mentioned in the discussion of this offence in Shum Kwok Sher. That was a case of granting preferential treatment to a close relative in relation to some government contracts and the seriousness of such misconduct and its consequences could be readily seen. I also do not think the list of factors mentioned in that case was intended to be exhaustive. Further, in most cases, the consequences of the misconduct will usually have been considered when one is examining the nature and extent of the departure from those responsibilities.”

242. Chan PJ then referred to the following passage of Bokhary PJ’s judgment in the case of Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745, where he discussed the approach to be adopted in considering whether any misconduct was serious enough as to call for condemnation and punishment.

“...trivial misconduct will of course not support a charge of misconduct in public office. That said, the question is whether the offence is serious having regard to - as stated in that item (5th item of the reformulation) - the responsibilities of the office and the office holder, the importance of the public objects which they serve and the extent of the departure from those responsibilities. It is in that way - and not by saying that it must be sufficiently serious since it is not trivial - that one goes about deciding whether the necessary seriousness exists.”

243. It is Chan PJ’s view that “One must consider all the circumstances of the case including the factors mentioned above. It would be wrong simply to conclude that if the misconduct in question is not trivial, then it must be serious enough to merit criminal sanction. It is a high threshold for the prosecution.”

244. Chan PJ went on to cite from Pill LJ's decision in Re A-G's Reference (No 3 of 2003), at paragraph 56:

“It supports the view expressed in the criminal cases, from R v Borrow to Shum Kwok Sher that there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public's trust is abused by the conduct.”

Motive not an element of seriousness

245. In the case of Chan Tak Ming v HKSAR mentioned above, one of the certified questions of law for the Court of Final Appeal to answer was, “to what (if any) extent is a significant personal benefit to the defendant a part of the element of seriousness in the definition of the offence of misconduct in public office?” Bokhary PJ gave the Court's answer as follows:

“26. I turn now to the second certified question of law. As to this question, it is to be noted that the Sin Kam Wah re-formulation makes no mention of personal benefit to the defendant. And that is for a very good reason. Misconduct in public office may be committed for personal benefit to the defendant or for motives other than that one. It may be committed, for example, to benefit others or to harm others. Indeed, it may be committed for no discernible or provable motive. That is how the second certified question of law should be answered.” (my emphasis)

Applying the legal principles to our present case

246. In our present case, the factors that I find relevant when considering whether the defendant's conduct was so serious as to warrant criminal sanction are as follows.

247. The defendant issued an instruction which directly contradicted the legal requirements under the new law. In situations of vessels licensed before 2 January 2007, in the period from the expiration of the deferment period onwards, instead of the statutory requirement of 100% adult plus 5% children lifejacket, they would still be allowed to operate in Hong Kong waters if they met the requirement of the old law, that is to say, 40% lifejacket, with no specific requirement for children lifejacket.

248. According to prosecution witnesses’ evidence, it would seem that in following the defendant’s non-enforcement instruction, the MD ship inspectors were relying on the ship owners or operators to voluntarily update the lifejackets they carry on the vessels. There was mention in evidence of replacement based on wear and tear, but no time frame was imposed on the ship owners or operators for such replacements.

249. Without an end date on the non-enforcement instruction, it would appear that a ship owner or operator could have continued to be in breach of the new lifejacket requirements (subject to the grace period) indefinitely if they considered that the original pre-548G lifesaving appliances were still in working order.

250. Although there is no evidence to suggest that the old law had been dangerous or that it had led to any loss of lives or hindered rescue efforts as a result of the old lifejacket requirement, I find that it can be inferred that the updating of the old law implied that the legislature considered it necessary to make the amendments in relation to lifejacket requirements on local vessels to ensure the safety of passengers on local vessels.

251. There was a 12-month period of deferment of the application of the lifejacket requirement for certain classes and types of vessel. Although this court is not told the reasoning adopted by the legislature behind the deferment, it can be inferred that there appeared to have been no immediate urgency in the enforcement of the lifejacket requirement under s.32(2)(b) at the time.

252. Having said that, I find that whether there is urgency in the enforcement of a law is not a factor open to consideration for the public official tasked with the enforcement of that law. It is not for the official to decide that, since there was no urgency in the matter, he could choose not to enforce certain parts of the enactment.

253. The defendant had suggested that as long as lifejackets were MD approved, dual purpose lifejackets are as safe as children lifejackets when used by a child. There is however no expert evidence before me to allow me to make a decision on the matter. There is also no evidence that the defendant had consulted any experts on the matter prior to his making of the decision to issue the non-enforcement instruction.

254. In any event, I find that it is not for the defendant to supplant the decision of the legislature and decide himself that the new lifejacket requirements were just the same as the old ones, that it would not make any difference to safety, and order that the new law not be implemented regarding certain type of vessels. 

255. I have given specific consideration as to whether the defendant’s non-enforcement instruction was merely negligent and came to the conclusion that it was not. It could arguably be so had the non-enforcement been a one-off incident directed at one vessel. It is not merely negligent when the instruction is a blanket one applying to all old vessels.

256. I find that the defendant’s departure from his duty not merely negligent but amounted to an affront to the standing of the public office held.

257. The seriousness of the defendant’s misconduct lies in his decision to disregard the will of the legislature and replace it with his own.

258. Although I find that there is no evidence to suggest any dishonest, corrupt or malicious motives behind the defendant’s decision to issue the non-enforcement instruction, nor behind his decision to not rescind it afterwards, the answer given by the Court of Final Appeal in Bokhary PJ’s judgment in Chan Tak Ming is unequivocal, which is that the motives behind the commission of the offence of misconduct in public office is not part of the element of seriousness.

259. Therefore, even though there is no evidence to suggest that the defendant harboured any dishonest, corrupt or malicious motives behind his decisions, his misconduct is still capable of being so serious as to attract criminal sanctions.

260. I am aware that the threshold of seriousness is a high one, but I  nevertheless find that the defendant’s conduct in the issuance of the non-enforcement instruction and his failure to rescind it thereafter was conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the defendant as a senior public officer.

261. The defendant’s instruction was a blanket one covering all local vessels licensed prior to the enactment of the new law. I find that it can be inferred that the vessels affected must be numerous, given that by definition local vessels included ferries, multi-purpose vessel and stationary vessels[2]. The extent of the defendant’s departure from his responsibility to enforce the relevant provisions is large and the nature serious.

262. Lifejackets are lifesaving equipment. They are placed on vessels to enhance the chance of someone overcoming a life threatening situation at sea should an accident occur. For the defendant to instruct his subordinates to ignore the regulations governing the provision of lifejackets on a certain category of local vessels, he was acting against the the explicit requirements of the legislation. I find that the consequences of the defendant’s non-enforcement instruction potentially serious.

263. Having taken into consideration all the circumstances, I find that the defendant’s misconduct is serious enough to warrant criminal sanctions.

Was there a reasonable excuse?

264. Mr Andrew Bruce for the prosecution conceded that the defence had satisfied the evidential burden required for the raising of the defence of having a reasonable excuse for the defendant’s misconduct. It is Mr Bruce’s submission that the prosecution had proved beyond reasonable doubt that the excuse put forward is not a reasonable excuse.

265. As I found above, the excuse put forward by the defendant for issuing the non-enforcement instruction is the ‘smooth implementation’ of the Cap.548G regulations, in particular the new lifejacket requirements.

266. When stripped down, I found that the reason behind the defendant’s issuance of the non-enforcement instruction was to appease the industry representatives. I find that this is the excuse that the prosecution has to prove unreasonable.

267. For the following reasons, I find that this excuse does not amount to reasonable excuse or justification for the defendant to issue the non-enforcement instruction and to not rescind it afterwards.

The duties of the defendant

268. It was the duty of the defendant as the Principal Surveyor of Ships and General Manager of the LVSS to supervise the ship inspection work of the ship inspectors. I find that it was the duty of the defendant to ensure that the inspections were carried out in accordance with the relevant legislations, in particular Cap.548G.

What the defendant should reasonably have done

269. I find that if the defendant encountered problems with the implementation of the new lifejacket requirements, the reasonable step to take was for him to discuss the matter with his superior and state his opinion that more time should be given to the industry beyond the grace period. It would then be for the Director of Marine to decide whether to act on the defendant’s opinion.

270. What the defendant could not and should not have done was to make the decision that there was no need to comply with the new law in relation to old vessels, and to instruct his subordinates not to enforce the law.

271. The defendant must have been aware that he had no statutory power to exempt vessels from compliance with the new law (subject to the statutory deferment period). The defendant must also have been aware that the Director of Marine does have the power to exempt vessels from compliance; to allow alternative apparatus; or even to extend the deferment period, being powers granted to the Director under sections 69(1) and 83 of Cap.548, and section 87 of Cap.548G respectively.

272. According to the evidence of the defendant’s then immediate superior Mr Tung (PW2), the defendant had never brought up the issue of non-enforcement with him, nor was he aware of any non-enforcement instruction.

273. The defendant did not consult his superior, did not obtain legal advice before he decided to issue the non-enforcement instruction. He also did not notify his superior nor sought legal advice on the matter after the issuance of the non-enforcement instruction.

274. I find that I cannot agree with the defendant’s proposition of ‘smooth implementation’ being a reasonable excuse for non-enforcement of the law.

275. The defendant’s non-enforcement instruction was not a qualified instruction. There is no evidence to show that the defendant had ordered his subordinates to make clear to the ship owners during inspections that they should gradually comply with the new lifejacket requirements.

276. There is no evidence to suggest that there was a time frame for the operation of the non-enforcement instruction. The non-enforcement instruction was a simple instruction to ignore the legal requirements and carry on as before in relation to certain local vessels.

277. The defendant chose to instruct his subordinates to not enforce the relevant lifejacket requirements. He chose to allow this instruction to continue to be in operation even beyond the deferment period. He did not instruct the General Manager taking over the LVSS from him to consider whether it was necessary to continue with or rescind the non-enforcement instruction.

278. I find that it was not for the defendant to second guess the intentions of the legislature. It was not for the defendant to decide which law should or should not be enforced. It was not for the defendant to choose appeasement over enforcement.

279. I find that taking into consideration the importance of lifesaving equipment requirements and the 12-month deferment period already given to the industry to comply with the new legal requirements, the appeasement of the industry is not a reasonable excuse for the defendant to decide to issue the non-enforcement instruction to his subordinates, nor is it a reasonable excuse for his failure to rescind the instruction at any time thereafter.

280. I find that the prosecution had proved beyond reasonable doubt that the defendant did not have any reasonable excuse or justification to issue the non-enforcement instruction, nor did he have any reasonable excuse or justification to not rescind the instruction thereafter.

Conclusion

281. I find that the prosecution had proved beyond reasonable doubt all the elements of the offence and convict the defendant accordingly.

Annex

Ruling on the admissibility of

the defendant’s admissions made in answer to a questionnaire

and the subsequently derived evidence

Monday, 18 April 2016 at 2:30pm

Background

1. A collision between two local vessels took place on the evening of 1^st October 2012. Many lives were lost. A Commission of Inquiry was established and a report prepared and released. The Commission was critical of the operation of the Marine Department.

2. Subsequent to the release of the report of the Commission of Inquiry, an internal investigation was conducted by the Transport and Housing Bureau on the officers of the Marine Department.

3. Questionnaires were devised and sent out to various officers of the MD, including the defendant.

4. The defendant completed the questionnaire. Some of the answers related to a verbal instruction supposedly to have been given by the defendant to his subordinates. The instruction was for them not to enforce a regulation regarding children lifejackets on local vessels.

5. The completed questionnaire was sent to the THB. A few days later, officers handling the internal investigation conducted an interview with the defendant.

6. The defendant took part in the interview and was asked, among other matters, about the answers he gave in the questionnaire. The defendant made further admissions and gave his own explanations.

7. The THB considered the defendant’s conduct improper and decided to refer the defendant’s case to the Marine Police. The Marine Police did take over the investigation and commenced criminal investigations into the defendant’s conduct.

8. The defendant was subsequently asked to take part in Police interviews. The defendant was properly cautioned and he exercised his right to silence.

9. The defendant was later charged with the common law offence of misconduct in public office, which is the subject matter of the present trial.

10. The prosecution sought to adduce the defendant’s answers given in response to the questionnaire, and the contents of the interview conducted by the THB with the defendant as evidence in support of the prosecution case.

11. The defendant objected to such production, arguing that the answers were not given voluntarily. Furthermore, even if they were given voluntarily, the circumstances of the making of the admissions was unfair and the court ought to exclude the evidence in exercise of its residual discretion on the ground of unfairness.

Applicable legal principles

12. The defendant has a right against self-incrimination. The admissions would only be admissible if the prosecution can prove that they were made voluntarily. Voluntariness would not be proved if the admissions were made in situations of inducement or oppression.

13. There is a residual discretion to exclude the admissions on the ground of unfairness even if they were made voluntarily.

Issues

14. Can the prosecution prove that the answers given by the defendant in the questionnaire were given voluntarily, in the sense that there was no inducement or oppression that had coerced the defendant into give those answers.

15. If the prosecution cannot so prove, then the admissions in the questionnaire and at the THB interview ought to be excluded.

16. If the defendant did make the admissions voluntarily, should the court exclude them in exercise of its residual discretion on the ground that due to the circumstances of the obtaining of the admissions, to allow them to be adduced as evidence would mean that the defendant will not be able to have a fair trial.

Findings

17. I find first of all that there is no evidence to show that inducements had been offered to, or oppression applied on the defendant to cause him to give the answers he did give in the questionnaire and during the interviews.

18. I find, however, that given the circumstances of the obtaining of the answers to the questionnaire, I should exercise my discretion so as to exclude the defendant’s admissions and their derived evidence on the basis that the defendant will not be able to have a fair trial should they be admitted into evidence.

19. My reasons are as follows.

Facts

20. I find the following facts to have been proved.

21. At question 12 of the questionnaire, the THB specifically mentioned the assertion made in front of the Commission of Inquiry by Mr Wong Wing Chuen about a Mr So giving the verbal instruction not to enforce a regulation relating to children lifejackets on local vessels. The THB was therefore aware of the allegation when the questionnaire was being prepared.

22. Before the questionnaires were sent out and during their preparation, the THB also had reason to believe that the defendant had made admissions to his superiors about the said non-enforcement verbal instruction.

23. The contents of the questionnaires were ‘tailor-made’ for individual officers of the Marine Department. In other words, the questions were specific to the role and function of the individual recipient of the questionnaire. The questionnaire sent to the defendant was tailor-made to include specific questions on the non-enforcement instruction.

24. The THB investigation team had obtained legal advice from the Department of Justice as to the wordings to be used in the letter accompanying the sending out of the questionnaire and the opening remarks to be used when they interviewed the defendant.

25. It was pointed out by the prosecution in the cross-examination of the defendant when he gave evidence in the voir dire that it was impossible that the defendant would not have appreciated that he might be subjected to criminal investigation. The basis of this proposition is common sense and the fact that the matter was widely reported and commented on in the media.

26. Applying the same logic, I find that it would have been an irresistible inference that the THB, when they were tailor-making the questionnaires for the officers of the MD, would have anticipated that the internal investigation would likely lead to criminal proceedings against the subjects of the questionnaires, that is to say, any of the MD officers.

27. The THB must have known that, if what Wong Wing Chuen said at the CoI was true, and if the defendant answered truthfully, the defendant’s answer would be a self-incriminating admission.

28. There was no mention in any of the correspondence between THB and the defendant that he might become the subject of a criminal investigation. There was also no mention at all in the questionnaire, nor its accompanying letter, that the defendant might become the subject of a criminal investigation.

29. There was also no mention of whether the defendant could have chosen not to answer the questions in the questionnaire.

30. Although nowhere in the questionnaire or the accompanying letter does it say that the defendant is required or commanded to answer, given the fact that the THB was the governing body of the MD and therefore the request or invitation to answer came from someone in authority, and given the fact that the defendant was a Civil Servant bound by the Civil Service Regulations to follow reasonable orders given by his superiors, it is not unreasonable for the defendant to believe that he had no choice but to answer the questionnaire.

Wordings of the 22 ^nd August 2013 accompanying letter

31. It is stated at the first paragraph of the accompanying letter that the defendant was ‘especially invited’ to ‘provide information in relation to the attached investigation questionnaire’.

32. The defendant was also invited to meet with investigating unit of the THB on 25^th September 2013.

33. Having extended the ‘invitation’, the THB then proceeded to ‘formally remind’ the defendant that he should answer the questionnaire by himself, and should not discuss the questionnaire and the contents of the response with any persons who are or may be required to be investigated.

34. The wording of this ‘reminder’ seems to suggest that the defendant could not even answer the questionnaire with the assistance of his legal advisor, should he chooses to engage one. 

35. The THB then informed the defendant as to the possible use of the information that he was going to provide:

“The information you are providing on the questionnaire is collected for the THB’s investigation against MD’s officers or relevant purposes, and may be used in actions against relevant persons later (including disciplinary actions).”

36. I find that the wording of this sentence, in particular the failure to mention any possible criminal proceedings and the specific mention of disciplinary actions, tends to suggest to the reader that the worst that could happen was disciplinary action against the provider of the information.

37. The THB then gave instructions as to what the defendant was permitted to do with the questionnaire and response:

“As regards the current investigation’s questionnaire and response, you can only use them in the current investigation and relevant purposes; and you cannot disclose or use them for any other purpose. Also, the information involved in the current investigation may also include confidential information. You shall not use/disclose these information for other purposes without authorisation.”

38. What constituted ‘relevant purposes’ was not defined or explained in the letter. The wording of the first sentence is such that the reader is left to guess what the THB meant by the defendant using them in the current investigation since it was the THB that was going to be using the information.

39. The reader might have understood the first sentence to mean that the THB did not want the contents disclosed to the press. But then the second and third sentence together warned the defendant about the same thing, that is to say, the information in the questionnaire and the responses may be confidential and therefore not to be disclosed ‘for other purposes’ without authorisation, from the THB presumably.

40. The THB thanked the defendant ‘for sincerely cooperating with us by providing information to the Investigating Unit’ at the closing of the letter.

41. The letter was copied to the Director of the Marine Department, the superior of the defendant.

Wordings in the 19^th July 2013 letter from the THB

42. The 22^nd August 2013 accompanying letter was preceded by a shorter letter dated 19^th July 2013 sent from the THB to the defendant.

43. In the 19^th July letter, the THB informed the defendant that a comprehensive investigation on whether MD officers misbehaved in their work had commenced based on the ‘Report of the Commission of Inquiry into the Collision of Vessels near Lamma Island on 1 October 2012’.

44. The THB mentioned about future interviews and use of questionnaire to collect information, and then stated that they ‘hope all people can fully cooperate with the [Investigating] Unit and provide truthful information’.

Wording of the preamble at the 25^th and 26^th September interview

45. At the first day of the interview, Mr Wong for the THB informed the defendant that the information collected at the interview may be used for actions against relevant people, including disciplinary proceedings. This part of the preamble is similar to the wordings used in the 22^nd August accompanying letter.

46. There was mention of the information collected being forwarded to different government departments for follow up action, including the Department of Justice. There was no mention of the possibility of criminal proceedings against the defendant.

47. Mr Wong then purported to inform the defendant of his rights, but he started out by telling the defendant that the interview was to clarify the answers given by the defendant in the questionnaire, that the THB officers may feel that they wanted more information from the defendant, or ask him about information they obtained from other sources during their investigation.

48. The defendant was then told that if he did not know the answer or was not sure about the answer to their questions, or that he could not remember clearly, all he had to do was to tell the truth. If the defendant did not understand the question or was unclear about it, he could ask the officers to repeat or clarify and the defendant can take time to think before answering. The defendant must answer loud and clear so that everyone in the room could hear him and so that his answer could be properly recorded.

49. The defendant was then informed that during the whole of the interview process, he ‘may choose to keep silent’. Mr Wong however immediately notified the defendant that should the defendant so chooses, ‘the investigation unit will continue with the inquiry of the incident based on all the relevant information’.

50. Mr Wong eventually finished up the preamble with wordings similar to that in the 22^nd August accompanying letter, that is to say, to remind the defendant that in relation to the matters touched on in the interview, he ‘can only use them in this particular investigation and you must not disclose to – or use for other purposes. The current investigation may involve confidential information. Well, you cannot use or publicize these information before you obtain the authorization to do so.’

51. I find that although Mr Wong did purport to inform the defendant of his rights, the only right he informed the defendant was his right to remain silent. The informing comprised of 10 Chinese characters (你可以選擇保持緘默嘅 ), which was then immediately followed by a reminder that should the defendant chooses to remain silent, the Unit will continue to investigate the matter with the relevant information. Mr Wong did not make clear what the relevant information may be. It would not be unreasonable to infer that the defendant would have understood that the relevant information would include the answers he had given in response to the questionnaire.

52. I find that the reminder of the defendant’s right to silence inadequate and misleading in that Mr Wong seemed to have qualified the right with an implicit warning that even if the defendant chose to remain silent, they will still use the material they obtained via the questionnaire against the defendant.

Wordings of the prepared declaration in the reply to the questionnaire

53. The response to the questionnaire carried a pre-printed declaration, which is a regurgitation of the warning about usage of the information in the 22^nd August accompanying letter.

54. There was also a pre-printed declaration that the defendant understood that the information he was to provide was for the investigation against MD officers and relevant purpose, and may be used for actions against relevant people (including disciplinary proceedings).

55. There is no mention of possible criminal proceedings in the declarations.

The overall effect of the wordings in the materials relating to the THB investigation and the collection of information and finding of unfairness

56. Taking the 19^th July, 22^nd August 2013 letters, the prepared preamble in the reply to the questionnaire and the preamble in the interview, I find that it is an irresistible inference that those preparing the material were fully aware and mindful of the possibility of infringing the defendant’s privilege against self-incrimination if the defendant was told that he had no choice but to answer truthfully.

57. I find the material was therefore drafted in such a way that they did not explicitly force the defendant to give his answers, but at the same time did not explicitly remind him of his right to silence.

58. I find an irresistible inference that those THB officials preparing the materials already had in their minds possible criminal proceedings in the future based on the answers they are going to get back.

59. I find that those who drafted the questionnaire and the accompanying letter had deliberately chosen not to inform the recipients about the right against self-incrimination. I find that they had deliberately chosen not to tell them that they could exercise their right to silence by not answering the questionnaire.

60. I find that the THB’s failure to expressly state in the materials that criminal proceedings is a possibility and their failure to remind the defendant of his rights, coupled with the position of authority that they were in, did lull the defendant into a false sense of security that he was not and will not be the target of a criminal investigation, and did cause the defendant to honestly believe that he had no choice but to answer the questions.

61. I find it unfair that the THB did not warn the defendant that the answers he gave in the questionnaire might be used in criminal proceedings against him.

62. I also find it unfair that the THB did not inform the defendant of his right against self-incrimination.

63. Given the gravity of the accusation against the defendant, that is to say, misconduct in a public office, I find it unfair that the defendant was not given an option to choose whether to  answer or not the questions set out in the questionnaire.

64. As at the time of the interview, the defendant had already been coerced into making the admissions in response to the questionnaire as described above. I accept the defendant’s evidence as to his state of mind when he decided to confirm the admissions he had made in the questionnaire, which was that since he had already made the earlier admissions, there was no point in exercising his right to silence at the interview. To exclude the questionnaire answers but not the interview admissions would therefore also be unfair.

Conclusion

65. I have carefully considered the evidence and submissions from both parties and find that the defendant did make the various admissions voluntarily. I find however that given the circumstances of the obtaining of the admissions, this is a proper case for me to exercise my discretion to exclude the admissions on the basis of unfairness against the defendant, and I do so exercise my discretion to exclude the questionnaire, the defendant’s reply given in response to the questionnaire and the audio recording of the interviews on 25^th and 26^th September 2013 together with their transcripts.

[1] The classification of vessels is found in Schedule 1 of Cap.548D. Class I vessels are ferry vessels, floating restaurant, launch, multi-purpose vessel, primitive vessel and stationary vessel. Class IV vessels are auxiliary powered yacht, cruiser and open cruise.

[2] See Schedule 1 of Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap.548D