HKSAR v. KULEMESIN YURIY

CACC 19/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 19 OF 2010

(ON APPEAL FROM DCCC NO. 669 OF 2008)

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BETWEEN

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DECISION

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1.  After a trial which had lasted 91 days, all four defendants were found guilty of a charge under section 72 of the Shipping and Port Control Ordinance, Cap 313 of endangering the safety of others at sea by unlawful acts. They received the following sentences:

D1 - 3 years 2 months

D2 - 2 years 4 months

D3 - 3 years

D4 - 2 years 4 months.

2.  The offence arose out of a collision in Hong Kong waters near Ma Wan within a deep water buoyed channel marked by buoys CP1-CP5 between Neftegaz 67 (“N67”), a Ukrainian oil rig supply boat measuring 81.37 meters in length and the Yao Hai (“YH”), a Chinese bulk carrier measuring 225 metres in length. D1 was the captain of N67. As a result of the collision, 18 members of the crew of N67 died. D2, D3 and D4 were the captain, pilot and co-pilot of YH respectively.

3.  Stated very briefly, the unlawful acts are said to be breaches of International Regulations for Preventing Collisions at Sea (COLREGS), in particular, Rule 5 (Look-out), Rule 8 (Action to avoid collision) and Rule 9 (Narrow channels). D2, D3 and D4 were found to have contravened Rules 5 and 8. D1 was found to have infringed Rule 9 as well. Rule 9 is important to the conviction of D1 because if it applied, N69 should have kept as near to the outer limit of the channel on the starboard side of the channel which admittedly he had not.

4.  Earlier, I have granted bail pending appeal to D2, D3 and D4. This is D1’s application for bail pending appeal.

5.  In Hong Kong, following the decision of the Court of Appeal in England in R v Watton [1978] 68 Cr App R 293:

“... bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard.”

6.  However, as will be seen later, in Hong Kong bail has been granted on the time ground although only half of the sentence would have been served by the time the appeal would be heard.

7.  I granted bail to D2 on both merit and on time.

8.  On merit, because I thought that the learned judge had convicted him on a narrow basis, for example, at para. 586 of the Reasons for Verdict, she said:

“586.  … Although there was limited time for D2 to intervene on the evidence he should have reacted to this developing close quarters situation by challenging or at least querying the actions of D3 which I have found there is no evidence in him so doing. He should have queried the pilot as they were closing. If he had received a perfectly sensible course of events from the pilot D3, D2 could stand back again.”

9.  I was of the view that prima facie D2’s appeal was likely to be successful. I stressed then, and I stress now, that that was necessarily a tentative view. The nature of this kind of applications does not permit or require the court to come to a concluded view on the matter.

10.  I was also of the view that on the narrow basis upon which D2 has convicted, he has:

“… at least a reasonably arguable appeal on sentence …”,

so I also granted him bail on that basis because he will have served a substantial part of the sentence by the time the appeal will be heard.

11.  D3 was the pilot. The learned judge’s reasons for convicting D3 can be found in paras. 685 to 695 of the Reasons for Verdict. Essentially, she was of the view:

“685.  If N67 was in the view of D3 not behaving properly the only sensible course was to keep well clear. D3 should have navigated on what he actually saw and not what he expected.”

12.  She then said that error of judgment was not a defence, it merely went to mitigation and concluded at para. 692 that:

“… D3’s errors of judgment was unreasonable …”.

13.  D3 was sentenced to 3 years’ imprisonment. Although I was not satisfied that prima facie his appeal was likely to succeed, I was satisfied that his appeal against sentence was likely to succeed. I granted him bail on the time basis, that is because I was also of the view that his appeal against conviction was reasonably arguable.

14.  D4 was the co-pilot. I said I found it difficult to decide whether he should have bail on the merit basis but I granted him bail on the time basis as I did to D3.

15.  I turn to the 1^st applicant. Mr Robert Lee, for the respondent, has rightly pointed out that the case against the 1^st applicant is different. He said:

“4.  … D1 was found to have breached initially Rule 9 by not keeping N67 to the starboard side of the buoyed channel after having exited the Restricted Area (Area 6).”

16.  He also submitted:

“5.  D1 then failed to keep a proper lookout, thereby breaching Rule 5, in that he failed to:

(a)  hear the whistle blasts sounded by Yao Hai,

(b)  observe, make a full appraisal of the situation, and conclude that N67 was embarking on a collision course with Yao Hai, and further by maintaining their respective courses, the 2 vessels would end up with a starboard-to-starboard passing at a very close shave of just 22 meters apart.

6.  Ultimately, D1 failed to take proper actions to avoid collision [Rule 8] and he wrongly ordered a port turn … at a grossly late stage.”

17.  Mr McGowan, counsel for the 1^st applicant, has prepared a 22-page skeleton submission for which I am grateful. Whilst I appreciate the strength of his arguments, I am unable to say that it appears prima facie that the appeal is likely to be successful. On the other hand, I am unable to agree with Mr Lee that D1’s appeal is not reasonably arguable. So I proceed on the basis that he has a reasonably arguable appeal.

18.  I turn to consider bail on the time basis. The 1^st applicant was sentenced to imprisonment for 3 years and 2 months. The maximum for the offence is 4 years. The loss of life was substantial. 18 of 25 crew members on board N67 died. In HKSAR v. Chow Tin Shing [2007] 4 HKLRD 991, a sentence of 18 months was considered appropriate. There the defendant was the master and helmsman of a 23-meter long motorised oil barge. The oil barge was empty and as a result of its bow riding high out of the water, forward visibility from the helm position was restricted to an extent that the 1^st applicant was unable to see small craft less than 200 metres from its bow. While proceeding on the wrong side of the fairway, the oil barge collided with a small stationary fishing sampan sinking it and killing one person.

19.  Here, there is a much greater loss of life and importantly the 1^st defendant was in charge of a much more substantial vessel. Obviously, the consequence of any mistake is likely to be so much more serious.

20.  The 1^st applicant was convicted on 12 January 2010 and sentenced on 15 January 2010. This appeal is unlikely to be heard before January 2011. By which time, he would have served 12 months which with the usual one-third remittance for good behaviour would be equivalent to a sentence of 18 months. So even on the existing sentence, he would have served approximately half of his sentence.

21.  In R v Tang Chung-sing [1988] 2 HKLR 214 and R v Oscar Lai Ka To, unreported, CACC 229/1992, dated 14 September 1993, bail was granted on the time ground although the applicants would have served only a substantial part of their sentences by the time the appeal would be heard (two-thirds and a half respectively).

22.  The 1^st applicant is Ukrainian. Obviously, there is a risk of his absconding. But this is not an offence involving dishonesty or moral turpitude. Having regard to his background I believe he would be anxious to clear his name and that even if that fails, he is likely to wish to take his punishment rather than to live the rest of his life as a fugitive. No doubt the loss of his crew weighs heavily on him and I do not believe that in such circumstances, he could face their families, if he should return as a fugitive from justice. So I think I should grant bail.

23.  Mr Lee further submits that even if bail were granted, the 1^st applicant should be required to stay in Hong Kong.

24.  As Mr McGowan pointed out, the applicant has spent almost all of his working life with his current employer, and his employment had continued right up to his conviction and that he continues to receive support from his employer. Also whilst on bail awaiting trial he was allowed to leave Hong Kong and had returned whenever required. Also as a professional seaman, he will be at risk of apprehension in the different parts of world if he were to become a fugitive of justice from Hong Kong.

25.  The 1^st applicant has no connection with Hong Kong. His family is in Ukraine. As I have said the offence does not involve moral turpitude or dishonesty. I have no reason to think that he is not a person of integrity. Also to require him to stay in Hong Kong where he is a total stranger is, in my view, punishment in itself. So in all the circumstances, I am going to grant him bail and I am not going to impose a condition that he should remain in Hong Kong. Otherwise, bail on the terms offered, namely, cash HK$100,000 and a cash surety deposit of $200,000.