THE QUEEN v. LAW FO TI

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BETWEEN

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J U D G M E N T

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1. This is an appeal from a decision by Mr. Andree Wiltens at Kwun Tong Magistrate's Court.

2. The appellant was charged with an offence under Section 72 of the Shipping and Port Control Ordinance which I do not read in full but sets out two offences which people may commit. If a person who by any unlawful act endangers or cause to be endangered the persons safety in any vessel, he can be convicted of an offence or alternatively, if he in any manner whatsoever without reasonable excuse endangers their safety, he can similarly be convicted.

3. This appellant was charged with two offences, one of beaching a vessel, and one of endangering persons safety by driving a vessel in an erratic manner at high speed. That in my judgment, would fall within the ambit of one or both those limbs. It appeared to me from the facts that it would fall within the limbs of "in any manner whatsoever without reasonable excuse". In those circumstances, the charge should have had the words "without reasonable excuse" within it, but that is not fatal to a charge in the Magistrate_'s Court, and I would have power, at any rate, to amend the charge.

4. When this appellant first appeared, he wanted to admit the offences. The brief facts were these that the Marine Police were on patrol at Rocky Harbour in Sai Kung, and they were proceeding along without lights at some 30 knots, apparently they would be permitted not to have lights on their boat, and they say they chanced upon a small motorised sampan. It was travelling without lights, and it was a dark night.

5. The police boat turned on its spot-light, so that the small sampan would stop. The sampan driver who was a qualified coxswain saw this unlit vessel, and he did not know what it was, so he tried to get away from it. He said that he did not know it was a police vessel. Anyway there was a certain amount of manoeuvring going on, and ultimately both vessels ran aground.

6. The prosecution witnesses on the police vessel said that this boat was travelling without lights, and the Magistrate believed them and accepted their evidence. Quite obviously, I cannot interfere with that. The appellant gave some story that he had a torch in his hand and it had dropped, and he was disbelieved. I cannot interfere with that finding; it seems to me that the appellant was telling a pack of lies. What he was doing was driving his sampan along without lights and taking a risk. In fact, that is what he said when he initially came before the Magistrate.

7. However, it is difficult to see on what basis the prosecution put their case. The words "without reasonable excuse" do not appear to find their way into the statement of findings at all, or indeed into any portion of this hearing. There could indeed be cases where one does have a reasonable excuse for travelling along without lights, for example, the lights may have suddenly gone out, or for driving at an excessive speed because there was some immediate urgency.

8. What the Magistrate found was that because he did not have lights on, he was taking an unnecessary risk. But he was not charged with that at all, and it may well be as Mr. Forlin has pointed out, there is some international regulation that he should have a white light showing so it can be seen, but the basis of the Crown's case was that he was coming out a zig-zagging manoeuvre so as to endanger the persons safety.

9. The findings were these - the Magistrate said the dangers were obvious in travelling without lights and when he ran aground that confirmed it. He said he manoeuvred his boat in a zig-zag manner, and he was trying to stop being intercepted. There was no finding that by that course of driving, he was endangering the safety of anyone, either on the police boat or on his own sampan. It seems to me that he should have been convicted of the first offence for which he was properly charged, namely beaching a boat without reasonable excuse. The Magistrate for some reason acquitted him of that. It would appear to me that if he acquitted him of that, he must have found either that there was a reasonable excuse for beaching the boat, or that he was not doing anything wrong, and in my judgment, on that basis alone the finding he made on the offence under Section 72. It cannot be read alongside the acquittal under Section 72A. However, it would also appear as Mr. Hampton has very ably pointed out that there is no specific finding that the zig-zag manoeuvre manner did cause or was likely to endanger the safety of any persons on that vessel, and it was on this basis that the charge was framed.

10. The circumstances of this case are, in my judgment, rather unusual, in that when the Defendant appeared he admitted everything, but said that it was just an accident. The Magistrate very properly said he would not accept that plea and entered a verdict of not guilty. When the case was conducted on his behalf it seems to me that none of the matters were placed before the Magistrate to justify either the reasonable excuse or other relevant matters. In all the circumstances of this case, whilst I accept from Mr. Forlin that I do have power to correct a charge which may be potentially bad, I consider on any view this was an unsafe and unsatisfactory conviction.

11. The sentence which was passed was 3 months imprisonment. In my judgment, it is excessively high. This would appear to me to have equated with a bad case of dangerous driving on a road and this Defendant was a man of good character, a qualified coxswain and, in my judgment, that sentence could not have stood if I had not allowed the appeal.