HKSAR v. CHEUNG MING WAI

DCCC 1060/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1060 OF 2014

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Reasons for Sentence

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1.  The defendant pleaded guilty to the offence of endangering the safety of others at sea, contrary to Section 32 of the Merchant Shipping (Local Vessels) Ordinance, Cap 548, and was convicted accordingly.

Brief Facts of the case

2.  Cheung Chau Ferry Pier (pier) is situated inside Cheung Chau Typhoon Shelter (shelter).  There is a structure called “Dolphin”, labelled as No D6/ID006 in the middle of the shelter.  Vessels are required to navigate past the Dolphin when they approach or leave the pier.  Under normal weather condition and the state of the sea, the course of the vessels steered from the pier to the south of the Dolphin, in general, is 270 degrees.  The prescribed speed limit within the shelter is 5 knots.

3.  At around 0511 hours on 21 October 2011, the defendant, being the Captain cum Coxswain, navigated a high speed ferry “First Ferry IX” (the vessel) out of the pier in the shelter with Central Ferry Pier as the destination. 

4.  The vessel is a local vessel for the purpose of Section 2 of the Merchant Shipping (Local Vessels) Ordinance, Cap 548.

5.  Apart from the defendant, there were three other crew members and around 130 passengers onboard.  The vessel was equipped with Automatic Identification System (AIS) and radars.

6.  At about 0512 hours, the defendant started to navigate the vessel at a course of 244 degrees and at a speed of 0.5 knots. 

7.  The speed of the vessel was escalated to 11 knots with a course of 273 degrees at about 0513 hours. 

8.  And soon after, the speed went up to 13.5 knots at a course of 280 degrees. 

9.  Starting from 05:14:02 hours to 05:14:11 hours, the vessel was navigated at a speed of 14.5 knots, at a course of 284 degrees.

10.  The collision with the Dolphin took place shortly thereafter, when the vessel was steered at a speed of 15 knots and at a course of 284 degrees.

11.  According to the Hong Kong Observatory, there was north to northeast light wind, with a wind force of 6 to 12 km per hour.  The sea condition was calm and the height of waves was in the range of 0.2 metres to 0.3 metre. 

12.  As a result of the collision, 76 passengers onboard were injured.  They received medical treatment, and some were admitted into the hospitals.

13.  The prosecution outlines the injuries of four passengers, namely Chan Lai-hang, Hui Yim-mui, Cheung Sam-mui and Cheung Ka-yee in paragraphs 10 to 14 of the Summary of Facts.  They suffered some relatively minor injuries and some required follow up treatments. 

14.  The vessel was found to be damaged with a dent in the size of about 12 feet times 10 feet.  The damage was about 105 metres above the water level.

15.  It transpired that no speed limit exemption was granted for the vessel to navigate more than 5 knots within the shelter area. The AIS and other aids to navigation were found to be functioning properly.   

16.  Under caution, the defendant admitted, inter alia, the following:

(i) he was the captain cum coxswain of the vessel. He navigated the vessel out of the pier at about 0511 hours on 21 October 2011;

(ii) soon after leaving the pier, the defendant steered the vessel at 270 degrees and travelled at a speed of slightly more than 7 knots;

(iii) he accelerated the speed gradually to around 11 knots and steered the vessel at 275 degrees;

(iv) he claimed that he navigated the vessel at such a speed and course so as to counteract the force of the wind and the tidal current and to keep the vessel within the navigation zone;

(v) at about a minute later, that is, at about 0514 hours, the defendant saw an unlit sampan some 30 to 40 feet away from the vessel, sailing across the front of the vessel from the starboard side to the port side;

(vi) the defendant immediately navigated the vessel to the starboard side at full speed in order to avoid collision with the sampan;

(vii) at this moment, the assistant coxswain shouted out loudly there was a black shadow at the starboard side of the vessel. Defendant tried to reverse the vessel by pulling the two propeller levers backwards, but within three seconds, it hit the black shadow where he later knew is the Dolphin;

(viii)the defendant tracked the navigation equipment before navigation and found everything was in order, save and except that the left steering metre had a minor deviation of 20 degrees;

(ix) the defendant knows that there are 2 Dolphins inside the shelter;

(x) he knows that the maximum speed within the shelter is 5 knots, and he had not obtained approval to exceed the speed limit.

17.  The assistant coxswain, Lo Chi-wing, gave a different version of events stipulated in paragraph 18 of the Summary of Facts. Lo maintained that the vessel as navigated at around 10 knots, which was faster than normal, and was heading towards the right‑hand side of the shelter exit, not directly towards the exit.  He saw a sampan at a distance of about 120 feet and took the view that the sampan posed no danger to the vessel.  He shouted to alert the defendant when he suddenly saw the black shadow at the starboard side front of the vessel.

18.  The defendant tried to reverse the vessel, but he collided with the Dolphin within three seconds.    

19.  The maritime expert, Mr Cheung, provided his expertise opinion on the navigational conduct of the defendant as follows:

(i) between 05:12:14 hours and 05:14:14 hours, the defendant was the only person navigate the vessel and conducted the lookout. The chief engineer and the assistant coxswain were on the bridge doing their own accord, and was not instructed to act as a lookout at all. The defendant was in breach of Rule 5 of the Merchant Shipping (Safety) (Signals or Distress and Prevention of Collision) Regulations Cap 369N;

(ii) the restricted speed inside the typhoon shelter is 5 knots. The vessel was not proceeding at a safe speed during the material time, as the vessel was travelled from 11 knots to 14.5 knots. Accordingly, the defendant was in breach of Rule 6 of the said regulations, Cap 369N;

(iii) from the time the vessel departed from the pier till the time of collision, given the weather condition, the state of the sea and the current status, the safety of the navigation of the vessel would not be affected, had it been steered at a course of 270 degrees and at a speed of 5 knots;

Mitigation

20.  This morning, this court received a mitigation bundle containing written mitigation, a mitigation letter from the defendant’s wife and the chairman of the Seaman’s Union, various certificates to show the defendant’s competence and achievements and a list of eight authorities.  The bundle is marked as MFI-1. 

21.  Defence counsel submitted that it was all due to the defendant’s misjudgment that caused the accident.  At the material time, it was the last journey of the defendant’s night shift on the day.  He started the shift from 6 pm on the previous day and the shift was to last for 8 to 9 hours.  The defendant had no rest during his whole shift, as he was required to be on standby even though he was not sailing.  The defendant could not have breaks and could only have quick dinner.  The defendant had been on this night shift for two years. 

22.  The defendant admitted that his ‘excuse’ of committing the present offence was not reasonable and was wrong.  The defendant in his cautioned interview mentioned about the unlit sampan which travelled from right to the left of the vessel, and the sampan partially contributed to this accident.

23.  It was also submitted that nearly all the passengers onboard did not suffer serious injury and were discharged within one day.  The injured passengers had made full recovery.  There was no death, and this incident was at the lowest scale of gravity. 

24.  Counsel also submitted that the defendant considered that being a captain is not just a job.  He took the initiative to better equip himself, and there are various certificates of attainment and licence. 

25.  Although there is no complaint of inordinate undue delay, defence counsel highlighted the various anxiety that the defendant and his family have to bear over the past 42 months.  During this period, the defendant’s second son was born.  The defendant now got a new stable job and works as a captain of non‑passenger-carrying ship.  It was submitted that the defendant has rehabilitated himself, and the chance of reoffending is very low.

26.  There is no evidence to show that it was a deliberate attempt of the defendant to cause injuries to the passengers onboard.  The accident was all about misjudgment which caused an unintentional outcome.

27.  It was further submitted that given the defendant’s remorsefulness is mitigating grounds, and the delay of 42 months before he was brought it court, these special circumstances call for a short sentence and the sentence be suspended.

Sentence

28.  The defendant is now aged 42, married, with two children.  He was educated up to Form 1 level, and had a clear record.  It is fortunate that in this incident, no passenger suffered permanent injuries, and the prosecution could only list out four passengers whom suffered relatively minor injuries.

29.  The prosecution alleged that the defendant navigated the vessel at a speed exceeding the speed limit of 5 knots in the shelter and failed to maintain a proper lookout.  At one stage, the defendant steered this vessel at a speed of 14.5 knots.  The defendant put part of the blame on the unlit Sampan, which was around 30 to 40 feet away from the vessel.  He had to navigate the vessel to the starboard side at full speed in order to avoid collision. 

30.  The defendant is familiar with the surroundings of the shelter.  He knows that there are two Dolphins in the shelter.  The defendant claimed that he navigated the vessel at around 11 knots and in a course of 275 degrees in order to counteract the wind force and the tidal current, so as to keep the vessel within the navigation zone.  

31.  I do not accept such ‘excuses’ from the defendant.  The assistant coxswain, Lo Chi-wing stated clearly that he saw the sampan at a distance of around 120 feet, which was navigated away from the vessel, and took the view that the sampan posed no danger to the vessel.  Lo had to shout to the defendant to alert the latter when the vessel was so close to the Dolphin.  Apparently the defendant failed to notice the distance between the Dolphin and the vessel, nor did he use the navigation aids or equipment to assist the navigation when he steered the vessel in early hours.  Lo also noticed that the defendant steered the vessel at a faster speed right after leaving the pier. 

32.  This court asked and was told that there was no breath test from the defendant at the scene.  There is a standard procedure for conducting breath test under the Road Traffic Ordinance, Cap 374, when an accident occurred on a road.  I am puzzled why there is a difference between an accident on a road and at sea.  The principle is the same, that is, to check if the one who was driving or attempts to drive or in charge of the motor vehicle on a road has consumed alcohol or even drugs prior to the accident.  It is obvious that it can be an aggravating factor, and even an offence, if it was found that the alcohol level in the accused’s body exceeds the prescribed limit.  I have no clue as to any valid and good reasons for not taking similar screening breath test when incidents or accidents happen at sea. 

33.  The defendant said he was on night shift for a straight 8 to 9 hours without a real break.  That means he was easy to feel fatigue when being on night shift.  I have no information as to the ordinary and standard arrangement involved when ferry captains or crews working onboard on long shifts.  I recall that similar complaints had been made by public bus drivers, but I am of the view that there is no role for this court to play in these sentencing proceedings.

34.  In her mitigation letter, the defendant’s wife said that over two years, the defendant and the family has to bear the anxiety of this accident, so much so that she was suffering from insomnia.  The defendant has the guilty feeling and has the sincerity to improve his navigation skill.  She pleads for leniency.

35.  The chairman of the Hong Kong Seaman’s Union said the defendant had been a good captain, and this was an isolated incident over the defendant’s past 10 years of experience.  It was said he is the first offender, and the incident adversely affects the defendant’s family.

36.  Defence counsel started his written submission by saying, “This is a case which a man whose misjudgment caused danger at sea where 78 people were injured.  There is simply reasonable excuse for the defendant’s action.” 

37.  Without approval, the defendant, as the captain cum coxswain, navigated a high speed ferry with 130 passengers and three crewmembers onboard at a speed within the shelter well above the 5 knots limit. 

38.  He failed to maintain a proper lookout, nor did he ask other crewmembers to do so. 

39.  He failed to notice the whereabouts of the Dolphin until he was alerted by his assistant coxswain, but it was too late. Collision happened in three seconds.  A large number of passengers were injured. Fortunately, no one suffered fatal injuries and the vessel only had a dent and did not capsize.

40.  This case has to be distinguished from the offence of endangering other’s safety offence, whereby unauthorised entrants and illegal immigrants were involved, and the arrest was the result of a chase by the police launch. 

41.  There is no sentencing tariff for this offence. In determining the level of sentence, the court has to look at the degree of danger created as a result of the acts or omissions of the defendant. 

42.  I accept that by pleading guilty to the charge, the defendant shows his remorsefulness and the chance of his reoffending is slim.

43.  I also accept that the facts of the case did not show that the defendant performed a deliberately dangerous manoeuvres, and that he had risked the life and safety of others in a calculated and/or deliberately reckless manner, see HKSAR v Chow Ting Shing [2007] 4 HKLRD 991 at page 1000, paragraph 35 to 37. 

44.  As the captain cum coxswain of a public ferry, it carries an onerous duty not only to ensure the safety of the passengers onboard, but also those users on channel or route at sea. 

45.  Taking all factors into consideration, I will be lenient to the defendant.  I would adopt a starting point of 6 months.  It is a wise move for the defendant to plead guilty to the charge, for which he is entitled to a one-third discount in sentence, otherwise he would have to face a longer sentence.  With his plea, his sentence is reduced to 4 months. 

46.  I have also considered the long time gap of some 42 months between the collision and the present proceedings, even though there is no complaint of inordinate delay on the part of the prosecution.  To that extent, and taking into account of his low chance of reoffending, I exercise my discretion to further reduce 2 months from the sentence.  Accordingly, I sentence the defendant to an imprisonment term of 2 months. 

47.  I have to balance public interest and the interest of the defendant, and consider that a suspended sentence in this matter is not appropriate.