THE QUEEN v. CLEMENT VIVIAN COUTO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1046 OF 1988

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BETWEEN

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J U D G M E N T

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1. The appellant was convicted by Mr Maharaj at Western Magistrates Court on the following three informations:-

"CLEMENT VIVIAN COUTO for that you on or about the 18th day of July 1987, at Chi Ma Wan also known as Shap Long Bay, off Lantau Island, in the waters of Hong Kong, being the master of the vessel "MADEIRA", call sign ZEKJ, did without reasonable excuse endanger or cause to be endangered the safety of other persons, namely, the passengers and crew in the said vessel and the pleasure vessel "MATHILDA", in that you did fail to proceed at a safe speed in the close proximity of the vessel "MATHILDA" and of the shore, according to the prevailing, circumstances and conditions, and did cause the "MADEIRA" to collide with a vessel attached to the "MATHILDA", contrary to section 72 of the Shipping & Port Control Ordinance, Cap. 313.

CLEMENT VIVIAN COUTO for that you on or about the 18th day of July 1987, at Chi Ma Wan, also known as Shap Long Bay, off Lantau Island, in the waters of Hong Kong, being the master of the vessel "MADEIRA" call sign ZEKJ, did fail to proceed at a safe speed so that the vessel could take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions, contrary to Rule 6 of the International Regulations For Preventing Collisions at Sea, 1972, and section 10 of the Shipping & Port Control Ordinance, Cap. 313.

CLEMENT VIVIAN COUTO for that you on the 18th day of July 1987, at Chi Ma Wan also known as Shap Long Bay, off Lantau island, in the waters of Hong Kong, being the master of the vessel "MADEIRA", call sign ZEKJ, which was involved in a collision with another vessel attached to the pleasure vessel "MATHILDA", did fail to report the occurrence forthwith to the Director of Marine and furnish to the Director of Marine in writing full particulars thereof within twenty four hours after the occurrence, contrary to section 67 of the Shipping & Port Control Ordinance, Cap. 313."

2. The following facts were admitted by the appellant under section 65C of the Criminal Procedure Ordinances:-

"1. Chi Ma Wan, also known as Shap Long Bay, off Lantau Island, is in the waters of Hong Kong.

2. Captain COUTO was in command and master of the jetfoil 'MADEIRA" (call signal letters "ZEKJ") on July 18, 1987 between 0700-1848 hours. The 'MADEIRA' is owned by the Far East Hydrofoil Company Limited of Hong Kong.

3. On July 18, 1987 on trip no 205 between Hong Kong and Macau the 'MADEIRA', carrying 260 passengers, departed the Macau terry Terminal, Hong Kong, at 1439 hours. At 1442 hours the 'MADEIRA' reported to the Assistant Marine Officer/Terminals [Hong Kong Marine Department] that it was clear of the Terminal, and it started the trip to Macau.

4. The Director of Marine, and other persons employed by the Marine Department, Hong Kong, have riot received from the owner, agent or master of the 'MADEIRA' by signals, tele-communication or writing a report and particulars of an alleged collision on July 18, 1987 at Chi Ma Wan, also known as Shap Long Bay, off Lantau island, in the waters of Hong Kong between the 'MADEIRA' and a vessel (a speedboat, licence no. 22088) attached to the pleasure vessel 'MATHILDA'."

3. There was evidence that the Madeira was foil-borne in driving rain and poor visibility, when it narrowly avoided collision with the Mathilda, striking instead, and severely damaging, a speedboat attached to the pleasure vessel. Witnesses said that the Madeira went down on its hull and stopped briefly before resuming its journey to Macau. The accident occurred fairly close to the shore in Chi Ma Wan Bay, which was several miles from the Madeira's proper course. No report of the collision was made to the Marine Department.

4. The first ground of appeal is that the charges were bad, the first for duplicity and the second and third for the omission of material averments.

5. Mr Hampton, who appears for the appellant, submits that 'endanger or cause to be endangered' is duplicitous because different concepts are involved.

6. It was admitted that the appellant was in command of the Madeira and there was evidence that, even if he was not himself steering at the relevant time, he was responsible for the jetfoil. The trial proceeded on the basis that the Crown had to prove an intention to put other persons in danger.

7. Rule 5 of the Indictment Rules, which apply in the Magistrates Court by virtue of section 33(a) of the magistrates Ordinance, Cap. 227, provides:-

"Where an offence created by or under an ordinance or imperial enactment states the offence to be the doing or omission to do any one of any different acts in the alternative, or the doing or omission to do any act in any one of any different capacities, or with any one of any different intention or states any part of the offence in the alternative, the acts, omissions, capacities or intentions or other matters stated in the alternative in the Ordinance or imperial enactment may be stated in the alternative in an indictment charging the offence."

8. In Ross Hillman Ltd. v. Bond [1974]1 Q.B. 435 May, J. said at 446:-

"Having regard to the ordinary meaning of 'causes' I do not find it surprising that, whereas on given facts a master charged with using will be convicted, on the same facts a master charged with causing that use will be acquitted. Prosecutors must use the correct offence in law with which to charge defendants; if they are genuinely in doubt they can always lay informations in the alternative."

He did not say 'separate informations'.

9. In A.G. of Hong Kong v. Tse Hung-lit [1986]1 A.C. 876 Lord Bridge said at 886:-

"Nor, with respect, can their Lordships accept that there is a 'conceptual difference' between 'causing another to do an illegal act to which one is not a party in the usual sense' and 'being the actual perpetrator of an act which is the cause of an event taking place'........"

10. It would be absurd were it otherwise. The Crown had no way of knowing whose hand was on the wheel at the time. The information recites the words of the section and they are in my judgment clearly not duplicitous.

11. Mr Hampton also complains that the words 'by wilful default' are omitted from the second information.

Rules 3 and 4 of the Indictment Rules provide:-

"3. (1) Subject to rule 4, every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged describing the offence, shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

    (2) An indictment for a specific offence shall not be open to objection in respect of its form if it is framed in accordance with a form of indictment for that offence which has been approved by the Chief Justice.

    (3) Notwithstanding paragraph (1), a judge may order further particulars of an offence stated in an indictment to be delivered in any case in which he deems it expedient to do so.

4. Where the specific offence with which an accused person is charged in an indictment is one created by or under an Ordinance or imperial enactment, then, without prejudice to the generality of rule 3-

(a) the statement of offence shall contain a reference to the provision in the Ordinance or imperial enactment creating the offence;

(b) the particulars shall disclose the essential elements of the offence:

    Provided that an essential element need not be disclosed if the accused person is not prejudiced or, embarrassed in his defence by the failure to disclose it; and

(c) it shall not be necessary to specify or negative an exception, exemption, proviso, excuse or qualification."

12. Although the words 'by wilful default' do not occur in Rule 6, which sets out the prohibited conduct, the latter only becomes an offence under section 10 of Cap. 313 if it is done by wilful default.

13. However, since damage to property - the speedboat towed by the Mathilad - was alleged to have resulted from the appellant's failure to proceed at a safe speed, the damage was deemed to have been caused by wilful default by virtue of secti6h 10(3), unless it is shown that the circumstances made a departure from the regulations necessary.

14. Although it is an element of the offence, there was no need for such technical words to be included in the particulars. R. v. Walker [1934]24 CAR 117 Lomas v. Peek [1947]2 AER 574. The appellant had ample information as to the nature of the charge.

15. Mr Hampton also complains that the words 'without reasonable excuse' are omitted from the third information. It is for the appellant to show that he has a reasonable excuse and Rule 4 specifically condones its omission.

16. Finally, counsel submits that it is a condition precedent of an offence under section 67 that the owner or agent also failed to make a report. The master of a vessel is the person that has direct knowledge of any collision. Section 65 provides a defence if the report is made by the owner or agent. There was therefore no need to refer to the matter in the particulars of the third information.

17. The evidence against the appellant was both direct and circumstantial. Neither he nor any member of the Madeira's crew gave evidence.

18. The direct evidence was given by passengers and crew of the Mathilda and of another pleasure craft anchored nearby, and also by a party of solicitor s clerks who travelled by jetfoil to Macau on 18th July, 1987.

19. The most important eye-witness was Mr John Ellison, a part-owner of the Mathilda, who was on board with his wife and infant son and two friends, Mr and Mrs Hefer. Mr Ellison is a solicitor, who served in the Royal Air Force and who, in his words, has been around and on boats for over 40 years'.

20. His evidence was that the Mathilda was anchored about 100 yards off shore in Chi Ma Wan Say and the speedboat was about 30 feet astern. At 3.00 p.m. there was a heavy rain squall. Three minutes later he saw a red and white jetfoil approaching from his port side, travelling straight for the Mathilda on its foils. It turned slightly to starboard to avoid the Mathilda, but struck the speedboat - Mr Ellison heard but did not see the impact - before turning hard to port to avoid running aground and disappearing into the squall; visibility was 150 yards.

21. As the jetfoil passed on the starboard side, Mr Ellison saw the name 'Madeira' on the stern. He estimated the jetfoil was in his view for seven seconds. When the rain cleared he saw it stationary 400-500 yards away. Someone came out of the wheelhouse and looked towards the Mathilda but, in spite of efforts to attract his attention, the jetfoil moved off, accelerated on its foils and left the bay.

22. With the help of someone on another boat, Mr Ellison managed to beach the damaged speedboat, which had sunk. Later that afternoon he reported the incident to the Marine Police.

23. Mr Ellison was very positive that he had correctly identified the jetfoil e "I saw the name. I took particular notice and I saw the name, nearly having been killed."

24. Mr Ellison's evidence concerning the approach of the jetfoil, the collision and subsequent events was largely confirmed by Mrs Ellison, Mr and Mrs Hefer and the coxswain, Mr Lai Kung. Mr Lai was the only other witness who purported to identify the jetfoil. He, however, only saw the Chinese characters on the stern of the jetfoil. He made a note of these characters, which resemble those on the jetfoils Madeira and Flores but, since Mr Lai's eyesight is unreliable when he is not wearing spectacles, "his evidence must be discounted accordingly.

25. Evidence was given by three witnesses who were on board another pleasure craft, the Sea Lion, which was also anchored in Chi Ma Wan Bay. Mr William murray, Mr Allan Marshall and Mr Cheung Hing-lam, the coxswain, all saw a red and white jetfoil on its hull in the bay in rain and poor visibility at about 3 p.m.

26. Mr Marshall saw it enter the bay 'on its stilts' and then come down on the water and drift for a while before slowly moving out of the bay. Mr Cheung only noticed the jetfoil 'simply floating there', but Mr Murray said it circled and left the bay on its hull. Both the latter witnesses had earlier noticed another pleasure craft at anchor in the bay. They said that, 15-30 minutes after they had seen the jetfoil, this vessel approached and they were asked to tow the wreckage of its speedboat to the beach.

27. All the Mathilda and Sea Lion witnesses subsequently picked but, from a selection of photographs of hydrofoils and jetfoils, a photograph of a Far East Hydrofoil Co. jetfoil as the type of vessel responsible for the accident.

28. The solicitors' clerks (the Woo & Woo witnesses) boarded a jetfoil for Macau between 2:15-2:45 p.m. that day. They were first interviewed a year later. It is only to be expected that none of them remembers the name of the jetfoil and that there is a big variation in the estimated time of departure.

29. Although these witnesses were sitting in different parts of the jetfoil, there is considerable agreement in their account of an accident in which their vessel was involved and its aftermath. Their estimated time of the accident and their description of the pleasure boat and its damaged speedboat, in particular, indicate that the only realistic conclusion is that they were talking about the same incident as the Mathilda witnesses.

30. Only two jetfoils left Hong Kong between.2:15 - 3:00 p.m.; the Madeira and the Terceira. Their departure times were 2:39 p.m. and 2.53 p.m. respectively. The master of the Terceira gave evidence, as did the masters of all the other jetfoils operating on 18th July. They all denied having been involved in an accident that day, or having strayed from their course into Chi Ma Wan Bay.

31. During that period the Adamasta Channel between Lantau and Cheung Chau, which was the usual jetfoil course to and from Macau, was closed to shipping on account of dredging operations. On 18th July the course lay south of Cheung Chaup the nearest point to Chi Ma Wan being 4.2 nautical miles away. As the jetfoils passed Cheung Chau Rock, the masters were required to radio their times to the company headquarters and these times were entered in the deck log and the engineer's log.

32. The logs of all the jetfoils operating that afternoon were put in evidence under section 76 of Cap. 313. These indicate that the average journey time to Macao that day for all vessels, except the Madeira, was 62 minutes; the slowest was 64, the fastest was 59. The Madeira's previous trip to Macau that morning had taken 63 minutes and the following trip that evening 62 minutes. Yet the Madeira's logs show that on trip No. 205 she took 86 minutes.

33. The only reasonable, innocent, explanation for such a slow time is that the Madeira was on hull, or stopped, because of poor visibility caused by heavy rain. If so, it is remarkable that none of the other jetfoils - in either direction - was affected by the weather.

34. The Mathilda, Sea Lion and Woo & Woo witnesses put the accident at about 3 p.m. A witness from the Royal Observatory told the court that the Cheung Chau whather station records showed that at 3 p.m., when the Madeira should have been in the vicinity of Cheung Chau Rock, the weather in that area was clear. Where had been 7.6 mm of rain between 2:45-2:55 p.m. - a very heavy shower. A south-east wind would, however have blown such squally showers towards Chi Ma Wan Bay.

35. The engineer's log also provided, relevant evidence concerning fuel consumption. On arrival in Macau 3000 litres were taken on board in order to bring the tanks up to the same percentage level as that recorded when leaving Hong Kong. All the other jetfoils needed only 2000 litres.

36. At 7:15 p.m. on the evening of l8th July a telephone call was made to the Marine Department Headquarters, which was taped. The caller identified himself as "Couto, the Captain on the Madeira". The marine officer who took the call told him there had been a report that he had collided with a pleasure vessel. The caller said there was poor visibility and heavy rain. He had turned to starboard to avoid two fishing vessels. Then he saw the pleasure craft very close in almost zero visibility, but he altered course and passed clear of the vessel - to the best of his knowledge he did not touch her.

37. Evidence was given for the prosecution by Capt. P. Owen, a former master of the Madeira, who is now employed by the Marine Department. He identified the appellant's voice on the tape, to which he had listened at least 10 times. He was familiar with his voice from his own days with Far East Hydrofoil Co. and had no doubt that it was the same man.

38. He also gave evidence as to the duties of master and crew of Far East Hydrofoil Co. jetfoils. He had done approximately 1000 voyages between Hong Kong and Macau in 1980-81, when a jetfoil master, including 336 as master of the Madeira.

39. Capt Owen said, that the mimimum foil-borne speed of a jetfoil is 33 knots and the emergency stopping distance of the Madeira, when travelling at 40 knots with 260 passengers on board, is 500 feet.

40. Having studied the charts of the area and being familiar with the construction of the Madeira, he was satisfied that it was possible for the latter to have entered Chi Ma Wan Bay foil and hull-borne.

41. Capt Owen's conclusion was as follows:-

"For the jetfoils I have referred to and their journey times and taking into consideration the speed capability of each and the usual journey times Hong Kong Macau or Macau Hong Kong, the jetfoil that could divert from track E or F and go in to Chi Ma Wan Bay, go on hull for 1 to 3 minutes, then go hull borne to foil borne return to their proper track and continue this journey to their destination, only the Madeira could have done."

42. The defence called Capt. Quincy Lloyd, a marine surveyor with seagoing experience, which included two years as master of a Far East Hydrofoil Co. hydrofoil in 1973-75. He had no experience of jetfoils, although he had attended a course on jetfoils and had studied the operating manual.

43. Captain Lloyd gave evidence at length, but its effect was threefold:-

(1) From the charts of the area and the training manual he calculated that, if the Mathilda was 100 yards from the shore, a jetfoil performing the manoeuvre described by the eyewitnesses would have run aground.

(2) The Madeira was not the only jetfoil that could have been in Chi Ma Wan at about 3 p.m. that day. The logbook of the Terceira showed that it left Hong Kong at 2.53 p.m. and arrived in Macau at 3.53 p.m.

(3) Although he had not carried out any tests, the training manual indicated that the emergency stopping distance of a jetfoil travelling at 33 knots was 340-350 feet.

44. The magistrate made the following principal findings:-

(1) The prosecution witnesses were honest and credible in spite of minor and insignificant inconsistencies.

(2) Capt. Quincy Lloyd's evidence was worthless.

(3) The telephone call to the Marine Department was made by the defendant.

(4) The accident was caused by a jetfoil, which was identified from a set of photographs by the eye-witnesses.

(5) Mr Ellison and Mr Lai Kung identified the name of the jetfoil independently.

(6) The six other crossings by the Madeira on 18th July took 61-63 minutes, which was similar to the average time taken by the other jetfoils that day.

(7) On trip 205 the Madeira took 86 minutes.

(8) In both the deck log and the engineers' log the journey times between check points were inaccurately totalled as 76 minutes; there was accordingly a 'cover-up' by the Master and Chief Engineer of the Madeira.

(9) The loading of 1000 litres more than the average 'top-up'' of fuel led to the irresistible inference that the Madeira did more than the average mileage on trip 205.

(10) In order to be foil-borne a jetfoil must have reached a speed of 33fknots.

(11) If visibility is very poor, a jetfoil should go down on its hull.

(12) The defendant was driving the jetfoil on a suicidal mission under the conditions, failed to travel at a safe speed and failed to report the accident within 24 hours.

45. The main thrust of the appeal has been directed at the evidence of identification. The weakness of Mr Lai Kung's evidence has already been noted. The magistrate was entitled to place considerable weight on Mr Ellison's evidence. Nevertheless, this was a `fleeting glimpse' situation - which the magistrate recognised - and therefore required a warning on the lines of R. v. Turnbull [1976]1 Q.B. at 225.

46. The admissions in the tape were very damaging. Although the appellant might have been referring to some other pleasure craft, in some other location, it would have been an incredible coincidence if there had been a similar incident involving a jetfoil at the same time of day.

47. The only other jetfoil that might have been involved, having regard to the times of departure from Hong Kong, was the Terceira. The latter's deck log states that she arrived in Macau after a trip lasting 60 minutes. If that is accurate, the Terceira did not go via Chi Ma Wan. The master of the Terceira said he did not go near Chi Ma Wan on 18th July and he was not cross-examined. Moreover, section 76 of the Shipping and Port Control Ordinance, Cap. 313 provides:-

"(1) In any legal proceedings for a contravention of this Ordinance, any entry in the official log book of a vessel, deck log book, engine room log book or other similar document, or a document purporting to be a copy of any such entry and to be certified as a true copy by any person specified in subsection (2), shall, until the contrary is proved - "

(a) be admitted in evidence and be sufficient evidence of the matters stated therein; and

(b) in the case of such-a copy, be presumed that it is so certified.

(2) ................"

48. In the absence of evidence to the contrary, the magistrate was entitled to be satisfied that the Terceira was not involved.

49. The relevance of much of Capt Lloyd's evidence depended a great deal on Mr Ellison's estimate that the Mathilda was only 100 yards off shore. Judgment of distance at sea is notoriously difficult, as the magistrate recognised. Objects invariably appear to be nearer than they are. Unless the eyewitnesses were lying - which was not suggested the manoeuvre they described must have taken place, although the Mathilda may have been further out to sea than Mr Ellison thought. This reduces to practically zero the materiality of Capt Lloyd's evidence.

50. Had there been no other evidence except that of the eyewitnesses, a conviction might have been unsafe. However, there was a great deal of other evidence, all of which pointed in the same direction and which, when considered together, amounted to overwhelming, evidence against the appellant. In the absence of evidence from the appellant, or any crew member of the Madeira, there was nothing to contradict the inevitable conclusion that the jetfoil involved was the Madeira.

51. The magistrate's findings that there had been a cover-up by the appellant, officers and crew of the Madeira flowed logically from his finding that the Madeira was the jetfoil in question. The identical error in both logs, relating to the calculation of the time taken for the trip, is consistent with such a cover-up.

52. The magistrate was in error when he ruled that defence counsel was not entitled to take instructions from the appellant when cross-examining Capt Lloyd. The witness was giving evidence about the amount of helm required to change course. Having regard to the irrelevance of this evidence, the magistrate's ruling did not amount to a material irregularity.

53. There was ample evidence to support the findings of the magistrate, which established that all three offences were proved beyond reasonable doubt.

54. For these reasons I dismissed the appeal.

55. In conclusion I am bound to add that the task of the magistrate was made more difficult by the vast quantity of evidence led by the Crown, much of which was, in my view, unnecessary; and also by the acrimonious squabbling between counsel that took place throughout the trial. Both factors contributed substantially to the length of the case, apparently the longest hearing ever to take place in a Hong Kong Magistrates Court.