HKSAR v. LIN RULIN

DCCC 14/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 14 OF 2014

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Reasons for Sentence

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1.  At around 7.36 pm on 18 April 2013, two vessels collided within the waters of Hong Kong, resulting in six deaths.

2.  The two vessels involved were “Wang Da 6” and “Hai Bang Da 199”.  D1 was the master of “Wang Da 6” and D2 was the master of “Hai Bang Da 199”.  D1 and D2 were each charged with one count of “Endangering the Safety of Others at Sea”, i.e. Charge 1 against D1 and Charge 2 against D2.  The particulars of offence for Charge 1 and 2 are different; the original reference to failing to proceed at a safe speed so as to take proper and effective action to avoid collision with “Wang Da 6” was deleted following an application to re-amend Charge 2.

3.  D1 appeared before me on 19June 2014.  He pleaded guilty to Charge 1 and admitted the facts pertaining to the charge.  I sentenced D1 to 16 months’ imprisonment. 

4.  D2 appeared before me on 28 July 2014.  He pleaded guilty to Charge 2 and admitted the facts pertaining to Charge 2. 

5.  At around 6.10 pm on that fateful day, “Hai Bang Da 199” departed from Tseung Kwan O, Junk Bay, with 11 crew members on board.  The six crew members who perished were crew members of “Hai Bang Da 199”.  In the meantime, “Wang Da 6” entered Hong Kong waters from Hainan Dao and its destination was Fujian, the mainland.  “Wang Da 6” had a total of 14 crew members.  Both vessels were loaded.

6.  At around 7.34 pm, an operator of the Vessel Traffic Centre, Marine Department, observed from the radar system that “Wang Da 6” was approaching from the right front side of “Hai Bang Da 199” and there was a risk of head-on collision. 

7.  At 7:34:14 pm, the operator alerted “Hai Bang Da 199” of the situation through radio.  A crew member on board “Hai Bang Da 199” replied that he was aware of the situation. The operator could not identify “Wang Da 6” at that time as her Automatic Identification System (“AIS”), was not switched on prior to the collision. 

8.  At 7:34:49 pm, the operator issued a second warning and requested “Hai Bang Da 199” to take immediate action.  The reply from “Hai Bang Da 199” was unclear. 

9.  At around 7:36:52 pm, a person on board “Hai Bang Da 199” informed the operator that there was a collision and “Hai Bang Da 199” was sinking. 

10.  The operator heard no response from “Hai Bang Da 199” since 7:37:38 pm.

11.  “Hai Bang Da 199” sank after the collision.  As said, six of its 11 crew members perished.  All 14 members of “Wang Da 6” escaped the collision unscathed. 

12.  Various experts had been engaged to investigate the accident.

Vessel inspection

13.  On 28 May 2013, Mr Cheung Tai-kee, a qualified ship surveyor, conducted a safety inspection and a damaged survey on “Wang Da 6”.  He inspected the navigational items of the vessel and confirmed that they were functioning in good order. 

14.  As “Hai Bang Da 199” sank after the collision, no on-site inspection could be conducted. Information and particulars of the navigational equipment of “Hai Bang Da 199” were provided to the police by the local agent of “Hai Bang Da 199”.

Navigation of the vessels up to the time of collision

15.  Mr Alfred Cheung is the director of a shipping service company and a qualified Master of considerable experience.  He went through the Surveyor’s inspection report and various materials related to the incident, including the radar plots/data and video recordings of marine traffic scenario.  He prepared a report of the navigation of the two vessels between 7:20:02 pm and 7:35:30 pm (the time of collision), covering various positions, courses and speeds taken by each of the two vessels at various timeframes.  What happened at

(1) 7.20.02 pm (ie 15 minutes before collision);

(2) 7.25.02 pm (ie 10 minutes before collision);

(3) 7.30.02 pm (ie 5 minutes before collision); and

(4) from 7.30.02 pm until collision (7.35.30 pm)

are set out in paragraphs 9 to 12 of the Summary of Facts, which I would not recite in detail.

16.  A radar plot chart (Annex 1) prepared by the Marine Department tells us graphically the various positions, courses and speeds taken by the two vessels at different timeframes.  The red course was the course taken by “Wang Da 6”; the blue course was the one taken by “Hai Bang Da 199”.  The point where the two meet was the position where the two vessels collided.

Breaches of the COLREGS

17.  Mr Cheung was of the opinion that, owing to the ways of navigations of the respective vessels, D1 and D2 were in breach of the International Regulations for Preventing Collisions at Sea (“COLREGS”).

“Wang Da 6”

18.  D1, the master of “Wang Da 6”, was in breach of Rules 5, 6, 8(a) to (e), 19(b), 19(c) and 35(a) of COLREGS.

“Hai Bang Da 199”

19.  D2, the Master of “Hai Bang Da 199”, was in breach of Rules 5, 8(a) to (e), 19(c), 19(d)(i) and 35(a) of COLREGS.

COLREGS 35(a): Sound signals in restricted visibility

20.  Both vessels failed to sound their respective fog signals at intervals of not more than two minutes per prolonged blast. 

COLREGS 5: Proper lookout

21.  Due to poor lookout and poor seamanship, both D1 and D2 were not fully aware of the risk of collision with the approaching vessel after radar observations from 7.20.02 pm to 7.30.02 pm.

COLREGS 8(a) to (e), 19(c) and 19(d)(i): Action to avoid collision

22.  Whilst there was no other ship around or other obstruction nearby and knowing that the other vessel approaching was at risk of collision with it (from 7.30.02 until collision), “Wang Da 6” maintained its course and speed and  did not take any action to avoid collision.  “Hai Bang Da 199” did not take any proper action to avoid collision but altered its course to port from 240 to 200 degrees resulting in the collision.

COLREGS 6, 19(b) and 19(e): Safe speed

23.  “Wang Da 6” maintained its speed all the time at an average of 10.5 knots.  It should have reduced its speed but had failed to do so at all until collision.

The opinions of Captain Third

24.  Captain John Third, a maritime expert, gave his opinions as to the navigational conducts of D1 and D2 as follows:

a. Both D1 and D2 did not comply with COLREGS, in particular, Section III, in relation to the conduct of vessels in restricted visibility, and Rules 19 and 35 governing conduct and sound signals;

b. Both D1 and D2 had allowed their vessels to change course to port. Such manoeuvres could and should have been avoided. The manoeuvres to port violated a cardinal rule of seamanship and caused the collision;

c. D1 allowed “Wang Da 6” to change her course to port in the three minutes prior to the collision.

d. Both D1 and D2 did not take proper action to stop and take all the way off their vessels using the engines when it was appropriate to do so;

e. D1 should have ordered his engine astern and performed an emergency stop at about 7.33.32 pm;

f. Likewise, D2 should have ordered his engine astern and stopped his vessel at 7.32.32 instead of turning his vessel to port. Alternatively, D2 could have turned to starboard. The evidence suggested that the manoeuvre to port was conducted blindly because D2 had failed to appreciate the course and speed of “Wang Da 6”;

g. Both D1 and D2 failed to stop their respective vessels when they were or should have been, uncertain of the developing situation ahead, this failure was grossly negligent; and

h. The collision would have been avoided if both D1 and D2 had complied with Rule 19 of COLREGS, in particular, by changing their respective courses to starboard or by reducing their respective speeds to a minimum and navigating with extreme caution until the risk of collision had passed.

Cautioned interview

25.  D2, in his cautioned interview, stated among other things, that:

a. In 1985 he obtained a Coxswain Certificate and became a Master;

b. On this occasion, he was the captain “Hai Bang Da 199” which transported 4,700 tonnes of construction waste from Tseung Kwan O, Junk Bay, at around 6 pm on 18 April 2013 to Taishan, the mainland. There was a total of 11 crew members on board;

c. The vessel was registered in Hong Kong with a local agent;

d. The vessel was equipped with navigation light, radars, GPS and lifesaving appliances;

e. He was at that time navigating at a course of around 200 degrees and at a speed of 6.5 knots. The visibility was around 0.5 knots;

f. He and Jin Xianyu were inside the wheelhouse. Jin was steering the vessel while he sat by the side observing the radar. He noted from the radar that there was another vessel approaching. The other vessel was 1 nautical mile away and was at a course of around 70 degrees on the starboard side of “Hai Bang Da 199”;

g. He immediately alerted Jin to reduce the speed to the minimum speed and to issue two long sound signals. At the same time, he got out of the wheelhouse and used the searchlight to issue signals for around 2 to 3 minutes. He then saw a vessel appearing at the course of around 80 to 90 degrees on the starboard side of his vessel, that vessel was around 0.5 nautical mile away and was dashing towards his vessel;

h. He shouted at Jin and told him to quickly steer the vessel to the starboard side, but he was not sure whether Jin heard what he said. He did not pay attention whether the vessel was indeed steered to the starboard side. He kept on issuing signals through the searchlight, but the other vessel did not stop and kept dashing towards him;

i. The other vessel then rammed into the starboard side of “Hai Bang Da 199”. He immediately asked Jin to report to Marine Department and he alerted the other crew members to evacuate. “Hai Bang Da 199” sank subsequently and he was saved.

26.  Shortly before and at the time of the collision, visibility of the area navigated by the two vessels was extremely low due to heavy fog.  Both vessels were equipped with radar system which should have allowed their masters to note the presence of the other vessel well in advance before collision and thus able to avoid collision.  

27.  The track report and radar plots at the material times show that both vessels made little or no substantial alteration of courses.  D1 and D2 should have realised that the actions taken by them were not sufficient to avoid the risk of collision.  In the case of “Hai Bang Da 199”, D2 even made the incorrect alteration of course to port near to the time of collision.

28.  According to the track report, “Hai Bang Da 199” maintained a speed of around 6.5 knots while “Wang Da 6” travelled at a speed of around 11 knots throughout.  They should have avoided the risk of collision by reducing the speed of the vessels substantially.

29.  Subsequent enquiries revealed that Jin was not a qualified and experienced Coxswain.

30.  At the material times, D2’s conduct (whether by his act or omission), endangered or caused to be endangered the safety of the crew upon the vessel “Wang Da 6” and “Hai Bang Da 199”.

31.  D2 is 60 years of age.  He resides with his family on the mainland and has a clear criminal record in Hong Kong.

32.  I am grateful to Mr Bullett for his skeleton mitigation submissions.  In his submissions, Mr Bullett accepts that the turn to port on the part of “Hai Bang Da 199” at about 7.32 pm took the vessel across the path of “Wang Da 6” and the collision occurred.  Mr Bullett submits, however, that the two vessels were in any case on a collision course and the collision would only have been avoided had both vessels either taken all the way off or turned to starboard.  The consequence of “Hai Bang Da 199”’s turn to port was simply that she was struck abeam rather than head-on or at an oblique angle. 

33.  Mr Bullett complains that D2 had been hampered in his ability to assess the situation and the risk of collision by the fact that “Wang Da 6” was navigating without switched on her AIS system with which she was equipped.  He also complains that “Wang D 6” navigated blindly at the time when the fog was thick and he had no clear idea of the developing close-quarters situation.  Mr Bullett submits that the speed of “Wang Da 6” was excessive in the circumstances.  Mr Bullett argues that the act of pulling back by “Wang Da 6” accelerated the sinking of “Hai Bang Da 199”.

34.  In considering the sentence for D2, I have borne in mind the facts as admitted by D2, the fact that six seamen were killed, that the perished seamen were fellow seamen of D2 and all the matters urged on D2’s behalf by Mr Bullett.

35.  In Kulemesin, CACC 19/2010, the Court of Appeal says at paragraph 24 of the judgment:

“Any sentencing exercise must have regard to the maximum penalty provided by the legislature for the category of offence. The prosecuting authority chose to bring these prosecutions for offences carrying a maximum term of 4 years’ imprisonment so it is in that context and in the context of more serious and highly reckless breaches of the regulations that may readily be envisaged that the sentences in this case must be assessed. And, further, as regards the 1st appellant, his sentence is to be assessed in light of the rather benevolent view taken by the trial judge of what he saw and heard.”

36.  The 1st appellant in CACC 19/2010, the Master of the vessel “N67”, was found guilty of endangering the safety of the crew of his vessel in that, by unlawful acts, he failed to maintain a proper lookout and failed to take action so as to avoid a collision and he failed to keep to the outer limit of the starboard side of a narrow channel.  The Court of Appeal had regard to all the circumstances and took a starting point of 21 months for sentence for the 1st appellant.

37.  In the present case, there were clear breaches of COLREGS by D2:

i. COLREGS 35(a) — “Hai Bang Da 199” failed to sound her fog signal at interval every two minutes;

ii. COLREGS 5 — due to poor lookout and poor seamanship, D2 failed to appreciate the risk of collision with “Wang Da 6” after radar observations between 7.20.02 pm and 7.30.02 pm. It is true that “Wang Da 6” had not turned on her AIS system. To some extent, D2 had been hampered in his ability to assess the situation and the risk of collision. But still, D2 could have made full use of the radar system of “Hai Bang Da 199” to find out the dynamic information as to the position, course and speed of the approaching vessel. D2 had failed to make full use of the radar system of “Hai Bang Da 199”, this failure on the part of D2 was inexcusable;

iii. COLREGS 8(a) to (e) and 19(c) and 19(d)(i) — at the time when there was no other ship around or obstruction nearby and knowing that the other vessel approaching was at risk of collision with it, “Hai Bang Da 199” did not take any proper action to avoid collision, instead it altered its course to port from 240 to 200 degrees resulting in the collision. The turn to port on the part of “Hai Bang Da 199” at 7:32:32 was conducted blindly, obviously, D2 had failed to appreciate the course and speed of “Wang Da 6”. The manoeuvres to port violated a cardinal rule of seamanship. Instead of turning to port, D2 should have ordered his engine astern and stopped his vessel;

iv. COLREGS 19(b) — failed to slow down at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility.

38.  D2 should not have left the command of the wheelhouse to Jin, who was not a qualified and experienced Coxswain.  At a time when it was crucial to turn the vessel to starboard, D2 was not even sure if Jin had heard what he said.  D2 claimed he had alerted Jin to reduce the speed to the minimum speed from the speed of 6.5 knots, but the track report shows that “Hai Bang Da 199” maintained a speed of 6.5 knots. Either Jin had not followed D2’s instructions and D2 failed to notice that or that D2 had not asked Jin to reduce the speed at all.

39.  D2’s failure to stop “Hai Bang Da 199” when he was, or should have been, uncertain of the developing situation ahead, was grossly negligent.  The calamity which claims six lives would have been avoided if both D1 and D2 had changed their respective courses to starboard or by reducing their respective speeds to a minimum and navigated with extreme caution until the risk of collision had passed.  D2 had failed to comply with various requirements of COLREGS.  His grossly negligent acts and omissions contributed to the disaster.  In my judgment, D2 was just as culpable as D1, the master of “Wang Da 6”. 

40.  D2, as the master of “Hai Bang Da 199”, was in ultimate command of the vessel.  He was responsible for its safe and efficient operation.  All crew members on board “Hai Bang Da 199” were under D2’s authority and their safety was also D2’s ultimate responsibility.  D2 also owed a duty to other seafarers in that he should navigate his vessel in a safe manner. In the present case, although the speed of “Hai Bang Da 199” was not dangerously fast, D2’s command of “Hai Bang Da 199” failed far below what good seamanship required of him.  D2 failed in this important duty.  Six of his fellow seamen perished as a result.  I accept what Mr Bullett said, how the effect of the deaths of the seamen has been affecting D2, he is still being tormented by the loss of his fellow seamen. 

41.  Charge 2 calls for a term of imprisonment.  On the facts before me, a starting point of 2 years’ imprisonment is appropriate.  D2 is entitled to the customary one-third reduction for his guilty plea and clear record.  Mr Bullett asks me to suspend the sentence, but I can see no exceptional or humanitarian grounds to suspend the sentence.

42.  For the reasons given, on Charge 2, I sentence D2 to 16 months’ imprisonment.

Annex 1. Radar Plot Chart