HKSAR v. KULEMESIN YURIY AND OTHERS

CACC19/2010

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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J U D G M E N T

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Hon Lunn JA (giving the Judgment of the Court):

The judgment is set out under the following headings:

Introduction

1.  At about 21:13:44 on 22 March 2008, the bow of the Chinese flagged bulk carrier Yao Hai collided with the starboard aft quarter of the Ukrainian flagged oil-rig supply vessel, Neftegaz 67 (“N 67”) at the eastern entrance to the Castle Peak (“CP”) buoyed channel a short distance south of the CP1 buoy.  The Yao Hai was on a passage from Dalian and was navigating westbound destined for the port of Shekou, whereas the N 67 was eastbound on her journey to supply an oil rig in the South China Sea.  Each vessel had been aware of the presence of the other vessel for more than 5 minutes.  The sea was calm, the weather was fair and visibility was about 3 nautical miles (“nm”).  The N 67 sank quickly, with the loss of 18 of her 25 crew members.  The Yao Hai sustained a hole to her bow above the water, but suffered no loss to life or limb.

2.  For more than 5 minutes prior to the collision, the N 67 had been navigated by the 1^st applicant, Capt Yuriy Kulemesin, on an easterly course at about 10.5 knots over the ground through the Castle Peak buoyed channel towards its eastern entrance between buoys CP1 and CP2, which are on the 20 metre contour line and between which there is 570 metres of water.  The 15 metre contour line lies 278 metres north of the CP1 buoy.  In its journey from Chi Wan in the Mainland, from which it set sail at about 8:00 p.m. that evening, the N 67 had passed between buoys CP4 and CP5, which are located on and near the 15 metre contour line respectively and between which buoys there was 518 metres of water, and between CP3 and the restricted area to the north of Siu Mo To, between which there is a minimum distance of 417 metres of water.  No other vessel was navigating within that buoyed channel.  The N 67 was 81.37 metres in length, with a gross tonnage of 2,723 tonnes and a draught of 4.8 metres.

3.  For its part, the Yao Hai was under the ‘con’, or direction in respect of navigation, of a pilot assisted by a co-pilot, Capt Tang Dock Wah and Capt Bruce Chun Wah Tak respectively, the 3^rd and 4^th applicants. The master of the Yao Hai, Capt Liu Bo, the 2^nd applicant was on the bridge of the Yao Hai maintaining a look-out.  The Yao Hai, 225 metres in length with a gross tonnage of 36,544 tonnes and a maximum draught aft of 12.01 metres, was carrying a cargo of 57,842 tonnes of corn and was travelling at about 13.5 knots over the ground on an incoming tide towards the eastern entrance of the Castle Peak buoyed channel marked by buoys CP1 and CP2. 

4.  Annexed to the judgment is an excerpt from the ‘Hong Kong Harbour Facilities & Layout 2008’ map (exhibit P21) which, whilst it is not to be used for navigation gives an overview of the relevant area, excerpts from Chart HK 1502 ‘MA WAN AND APPROACHES’ (exhibit P1) and Figure 3, ‘Collision Plot’ of Appendix 2 of Capt Third’s report (exhibit D2).  In the latter the vessels are depicted in positions relative to each other at one minute intervals prior to the time of collision, for example ‘C3’.

The Applications

5.  The four applicants applied for leave to appeal against their respective convictions on 12 January 2010, after trial by Her Honour Judge D’Almada Remedios in the District Court, of an offence committed on 22 March 2008, contrary to section 72 of the Shipping and Port Control Ordinance, Cap. 313 by unlawful acts in contravention of the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) Regulations, Cap. 369N.  Also, they applied for leave to appeal against the sentences of imprisonment imposed on each of them in consequence of their respective convictions.

The 1^st applicant

6.  By Charge 1, the 1^st applicant was convicted of having endangered or having caused to be endangered the safety of the crew of the N 67, of which he was the master, by unlawful acts, namely that in respect of the Yao Hai he failed to maintain a proper look-out, in contravention of rule 5 and that he failed to take action so as to avoid a collision, in contravention of rule 8 and that he had failed to keep to the outer limit of the starboard side of a narrow channel, in contravention of rule 9.

The 2^nd, 3^rd and 4^th applicants

7.  By Charge 2, the 2^nd, 3^rd and 4^th applicants were convicted of having endangered or having caused to be endangered the safety of the crew of the Yao Hai in that, being respectively the master, pilot and co-pilot of the Yao Hai, by unlawful acts, namely that in respect of the N 67 they failed to maintain a proper look-out, in contravention of rule 5 and failed to take action so as to avoid a collision, in contravention of rule 8.

Sentence

8.  The applicants received the following sentences of imprisonment:

· 1^st applicant- 3 years and 2 months;

· 2^nd applicant- 2 years and 4 months;

· 3^rd applicant- 3 years; and

· 4^th applicant-2 years and 4 months.

The Statutory Provisions

9.  By the amended charges, each defendant was charged under section 72 of the Shipping and Port Control Ordinance, Cap. 313. Section 72 states: -

“Any person who by any unlawful act, or in any manner whatsoever without reasonable excuse, endangers or causes to be endangered the safety of any person conveyed in or being in or upon any vessel or in the sea commits an offence and is liable: -

(a) on conviction on indictment to a fine of $200,000 and to imprisonment for 4 years; and

(b) and on summary conviction to a fine of $200,000 and to imprisonment for two years.”  [Italics added]

10.  Section 10(1) of the Ordinance provides that the collision regulations, set out in the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) Regulations, Cap. 369 apply to all vessels, subject to exceptions not applicable here, in Hong Kong waters.  Section 10(3) provides that, in the event of a contravention of the collision regulations, the owner, the master and any person for the time being responsible for the conduct of the vessel shall be guilty of an offence and liable to a fine of $20,000.  Section 10(4) provides a defence, for a person charged with an offence contrary to section 10(3), to prove that he took all reasonable precautions to prevent the contravention of the collision regulations to which the charge relates.

Charge 1: the 1^st applicant

11.  By Charge 1, it was alleged against the 1^st applicant that on 22 March 2008, in Hong Kong he had endangerd or caused to be endangered the safety of the crew of the N 67, of which he was the Master, by unlawful act or acts, namely:

“by acts in contravention of the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) Regulations, Cap. 369N, Laws of Hong Kong in that he:

(a) failed to maintain a proper look-out by sight and hearing as well as by radar so as to make a full appraisal of the situation and of the risk of collision with the vessel “Yao Hai”, in contravention of Rule 5;

(b) failed to take adequate positive or preventive action so as to avoid a collision with the said vessel “Yao Hai”, in contravention of Rules 8 and 9.”

Details of those alleged failures were set out in Particulars:

“(1) Contrary to Rule 8 (a), failed to take positive action in ample time and with due regard to the observance of good seamanship;

(2) Contrary to Rule 8 (b), failed to make an alteration of course and/or speed large enough to be readily apparent to the said vessel “Yao Hai”;

(3) Contrary to Rule 8 (c), failed to make a substantial alteration of course in good time to avoid a close-quarters situation;

(4) Contrary to Rule 8 (d), failed to take action such as to result in passing the said vessel “Yao Hai” at a safe distance;

(5) Contrary to Rule 8 (f)(i), if and insofar as the vessel “Neftegaz 67” was a vessel which, by Rule 9, was required not to impede the passage or safe passage of the vessel “Yao Hai”, did not take early action to allow sufficient sea-room for the safe passage of the vessel “Yao Hai”;

(6) Contrary to Rule 8 (f)(iii), if and insofar as the vessel “Neftegaz 67” was a vessel whose passage was not to be impeded by virtue of Rules 15 and 17 (a)(i), failed to comply with Rule 5 and 8, when the 2 vessels “Neftegaz 67” and “Yao Hai” were approaching one another so as to involve a risk of collision;

(7) Contrary to Rule 9 (a), when proceeding along the course of a narrow channel or fairway in the Western approaches as defined by buoys CP5, CP3 and CP1 on the northern side and by buoys CP4, CP2 and the intervening prohibited area on the southern side, alternatively the 15 metre depth line on each side, failed to keep as near to the outer limit of the said channel or fairway which lies on the starboard side of the said vessel “Neftegaz 67” as was safe and practicable;”

12.  In the alternative, it was alleged that, “without reasonable excuse”, he had contravened section 72 in the manner alleged above, without reference being made to contravention of specific rules of the Prevention of Collision Regulations (“COLREGS”).

Charge 2: the 2^nd, 3^rd and 4^th applicants

13.  By Charge 2, it was alleged against the 2^nd, 3^rd and 4^th applicants that on the same occasion they had endangered or caused to be endangered the safety of the crew of the Yao Hai in that, being respectively the master and the two pilots in charge of or assisting in the navigation of the Yao Hai, they:

“… by unlawful act or acts, namely acts in contravention of the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) Regulations, Cap. 369N, Laws of Hong Kong in that they:

(a) failed to maintain a proper look-out by sight and hearing as well as by radar so as to make a full appraisal of the situation and of the risk of collision with the vessel “Neftegaz 67”, in contravention of Rule 5;

(b) failed to take adequate positive or preventive action so as to avoid a collision with the said vessel “Neftegaz 67”, in contravention of Rule 8.”

Details of those alleged failures were set out in Particulars:

“(1) Contrary to Rule 8 (a), failed to take positive action in ample time and with due regard to the observance of good seamanship;

(2) Contrary to Rule 8 (b), failed to make an alteration of course and/or speed large enough to be readily apparent to the said vessel “Neftegaz 67”;

(3) Contrary to Rule 8 (c), failed to make a substantial alteration of course in good time to avoid a close-quarters situation;

(4) Contrary to Rule 8 (d), failed to take action such as to result in passing the said vessel “Neftegaz 67” at a safe distance;

(5) Contrary to Rule 8 (f)(i), if and insofar as the vessel “ Yao Hai” was a vessel which, by Rule 15 and 16, was required not to impede the passage or safe passage of the vessel “Neftegaz 67”, did not take early action to allow sufficient sea-room for the safe passage of the vessel “ Neftegaz 67”;

(6) Contrary to Rule 8 (f)(iii), if and insofar as the vessel “ Yao Hai “ was a vessel whose passage was not to be impeded by virtue of Rule 9, failed to comply with Rule 5 and 8, when the 2 vessels “Neftegaz 67” and “Yao Hai” were approaching one another so as to involve a risk of collision;”

14.  In the alternative, it was alleged that, “without reasonable excuse”, they had contravened section 72 in the manner alleged above, but without reference being made to any contravention of the COLREGS.

15.  The COLREGS stipulated in the ‘Particulars of Offence’ were:

“Rule 5: Look-out

Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.

…

Rule 8: Action to avoid collision

(a) Any action to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.

(b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.

(c) If there is sufficient sea-room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation.

(d) Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear.

(f)(i) A vessel which, by any of these Rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea-room for the safe passage of the other vessel.

…

(iii) A vessel the passage of which is not to be impeded remains fully obliged to comply with the Rules of this part when the two vessels are approaching one another so as to involve risk of collision.

Rule 9: Narrow channel

(a)     A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable.”

Other relevant COLREGS are:

“Rule 2: Responsibility

(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.

(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.

…

Rule 7: Risk of Collision

(a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.

(b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.

(c) Assumptions shall not be made on the basis of scanty information, especially scanty radar information.

(d) In determining if risk of collision exists the following considerations shall be among those taken into account:

(i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change;

(ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.

…

Rule 15: Crossing situation

When 2 power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.

…

Rule 17: Action by stand-on vessel

(a) (i) Where one of 2 vessels is to keep out of the way the other shall keep her course and speed.

(ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.

(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.

(c) A power-driven vessel which takes action in a crossing situation in accordance with paragraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.

(d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way.

…

Rule 34: Manoeuvring and warning signals

(a) When vessels are in sight of one another, a power-driven vessel underway, when manoeuvring as authorized or required by these Rules, shall indicate that manoeuvre by the following signals on her whistle:

– one short blast to mean “I am altering my course to starboard”;

– 2 short blasts to mean “I am altering my course to port”;

– 3 short blasts to mean “I am operating astern propulsion”.

(b) Any vessel may supplement the whistle signals prescribed in paragraph (a) of this Rule by light signals, repeated as appropriate, whilst the manoeuvre is being carried out:

(i) these light signals shall have the following significance:

– one flash to mean “I am altering my course to starboard”;

– 2 flashes to mean “I am altering my course to port”;

– 3 flashes to mean “I am operating astern propulsion”;

(ii) the duration of each flash shall be about one second, the interval between flashes shall be about one second, and the interval between successive signals shall be not less than 10 seconds;

(iii)  the light used for this signal shall, if fitted, be an all-round white light, visible at a minimum range of 5 miles, and shall comply with the provisions of Annex I to these Regulations.

(c) …

(d) When vessels in sight of one another are approaching each other and from any cause either vessel fails to understand the intentions or actions of the other, or is in doubt whether sufficient action is being taken by the other to avoid collision, the vessel in doubt shall immediately indicate such doubt by giving at least five short and rapid blasts on the whistle.  Such signal may be supplemented by a light signal of at least 5 short and rapid flashes.

(e) …

(f) ….”

The Trial

16.  The trial commenced on 23 March 2009, and concluded with the delivery of the verdicts and the imposition of sentences of imprisonment on 12 and 15 January 2010, respectively.  In all, there were 91 hearing days. The evidence and closing submissions of the parties concluded on 25 September 2009.

The Prosecution Case

17.  The prosecution case was that in the period of about five minutes before the collision the two vessels were on head-on courses, which were going to result in a collision or a very close-quarters situation unless one or other, or both vessels, changed course substantially and yet neither did so.  Although the risk of collision between the vessels grew more serious as time passed, and they closed upon one another, no collision avoidance action was taken until about one minute before the actual collision.  The culpability of those responsible for the navigation on the two vessels lay in permitting the close-quarters situation to develop between the vessels, rather than in the actions in extremis.  The action taken by those responsible for the navigation of the two vessels was ‘too little, too late’.  Their errors of judgment were gross and serious.

18.  Among the witnesses called by the prosecution were three Marine Department (“Mardep”) officers on duty that evening at the Vessel Traffic Centre and the two pilots on the Berlioz, a vessel of 300 metres in length and a gross tonnage of 73,157 tonnes, which was following about one nm astern of the Yao Hai.  Also, the prosecution called four expert witnesses, three of whom were Master Mariners: Capt Cheung, Dr Li and Professor Ng.  Mr Wong Chun Kit was an electrical engineer attached to Mardep, responsible for maintaining the vessel traffic service (“VTS”), who produced the electronic records in respect of the two vessels recorded at the VTS: the routes and related data of the vessels captured on radar; the VHF transmissions and the conversation on the bridge of the Yao Hai.

Narrow channel/ IALA buoyed channel

19.  The prosecution case was that the Castle Peak buoyed channel is a narrow channel, to which rule 9 of the COLREGS applied, so that the vessels were required to pass port to port, having kept near to the outer limit of the buoyed channel which lay on their starboard side.  The crossing rule, rule 15 of the COLREGS, had no application.  In the alternative, it was contended that if the waters were not a narrow channel, they were an IALA (International Association of Lighthouse Authorities)  buoyed channel, in consequence of which the requirements of good seamanship demanded that vessels navigating in or towards the channel do so on the starboard side of the channel.

The 1^st applicant

20.  The prosecution case against the 1^st applicant was that he had not maintained a proper look-out, as evidenced by his testimony that he had not seen the Aldis Lamp directed at the N 67 from the bridge of the Yao Hai nor had he heard the various short blasts of her whistle, firstly one short blast indicating that she was turning to starboard.  Further, he had not continued to monitor the CPA (“closest point of approach”) of the two vessels and was unaware of how close that was and remained.  He maintained his course because he had completely misjudged the situation, and determined incorrectly that the Yao Hai would cross safely ahead of the N 67 and pass safely down her starboard side.

The 3^rd applicant

21.  The prosecution case against the 3^rd applicant was that, although he was aware that after she had passed the restricted area the

N 67 had maintained her course and speed, contrary to his expectations and those of the 4^th applicant, with the result that the CPA remained at 0.1nm or less he did not take any action at all for some minutes.  Eventually, when he did take action, ordering the 4^th applicant to use VHF radio to contact Mardep, that action was ‘too little, too late’.  Similarly, the orders for substantial changes in the course of the Yao Hai, ‘Starboard 10’ and ‘Starboard 20’ and, finally, the collision avoidance order, ‘Hard Starboard’, were all too late.

22.  It was contended that the 3^rd applicant had committed a gross error of judgment in failing to steer the Yao Hai as close to the CP1 buoy as was required in the close-quarters situation that he had allowed to develop.

The 2^nd applicant

23.  The prosecution case against the 2^nd applicant was that, as the master of the Yao Hai, maintaining a look-out on the bridge of the Yao Hai as the 3^rd applicant navigated the vessel, he should have appreciated that the 3^rd applicant was allowing a dangerous close-quarters situation to develop and should have intervened, questioning his conduct and enquiring why the Yao Hai was not being turned to starboard.  In failing to do or say anything the 2^nd applicant was in breach of his duties as master.

The 4^th applicant

24.  The prosecution case against the 4^th applicant was that, as co-pilot of the Yao Hai, his duties extended first, to appreciating the ever increasing dangers of the developing close-quarters situation between the vessels and second, to intervening and drawing the attention of the 3^rd applicant to those dangers, thereby alerting him to his misjudgements.  There was no discussion between them as to the risk of collision and the need to take avoiding action.  In failing to raise the matter with the 3^rd applicant, the 4^th applicant was in breach of his duties to assist in the safe navigation of the Yao Hai.

The Defence cases

The 1^st applicant’s case

Narrow channel/ IALA buoyed channel

25.  The 1^st applicant gave evidence and called two expert witnesses, Capt Browne and Capt Loynd.  As the judge noted (paragraphs 66-7), it was the evidence of the 1^st applicant, supported by the opinions of Capt Browne and Capt Loynd that the Castle Peak buoyed channel was not a narrow channel.  Accordingly, rule 9 of the COLREGS did not apply and the 1^st applicant was not obliged to navigate the N 67 so as to keep on the starboard side of that channel.  Similarly, even if it was an IALA buoyed channel, rules of good seamanship, under rule 2 of the COLREGS, did not oblige him to keep to the starboard side of the buoyed channel.  Even if the Castle Peak buoyed channel was a narrow channel, it was reasonable for the 1^st applicant to believe otherwise and to comply with the crossing rules.

Crossing rules

26.  It was the 1^st applicant’s evidence, again supported by the opinions expressed by Capt Browne and Capt Lloynd that, as the Yao Hai and the N 67 approached one another, the crossing rules, as provided by rule 15 of the COLREGS, applied.  As the give-way vessel, the Yao Hai was required to alter her course to starboard, so that the vessels would pass each other port to port.  As the ‘stand-on vessel’, the N 67 was required to keep her course and speed.  Even when the 1^st applicant realised that the Yao Hai was not complying with her duties as the ‘give-way’ vessel, and altering course to starboard as required under rule 16, the 1^st applicant believed that the Yao Hai would pass ahead of the N 67’s bow, resulting in a safe starboard to starboard passing.  Accordingly, as ‘stand-on’ vessel, under rule 17, he was obliged to keep his course and speed.

27.  The 1^st applicant said that he had not observed changes of course to starboard by the Yao Hai as the vessels approached.  Such alterations of course that were made were not readily apparent, as required under rule 8(b) of the COLREGS, if they were alterations to avoid collision.

28.  The 1^st applicant said that he had ordered a course change to the port of the N 67 when he judged that the Yao Hai had crossed the bow of the N 67.  He did so to create more sea room between the vessels as they passed starboard to starboard.  It was the alteration of course by the Yao Hai to starboard, unknown to him when he altered the course of the N 67 to port, which caused the collision.

The case of the 2^nd, 3^rd and 4^th applicants

29.  The 2^nd applicant did not give evidence, but did call Capt Third as an expert witness.

The 3^rd applicant gave evidence and called Capt Chen, the Chairman of the Hong Kong Pilots Association.

The 4^th applicant gave evidence and called Capt Simpson.

Narrow channel

30.  The case of the 2^nd, 3^rd and 4^th applicants occupied considerable common ground: the Castle Peak buoyed channel was a narrow channel.  That was the evidence of the 3^rd and 4^th applicants, together with Capt Third and Capt Simpson.  Also, that was the evidence of the pilots on the Berlioz.  Capt Chen produced a letter from a huge majority of the pilots in Hong Kong who supported the contention that the Castle Peak buoyed channel was a narrow channel.  Accordingly, they argued that rule 9 of the COLREGS required vessels navigating within the channel to keep to the outer limits of the starboard side of the channel.  In consequence, the 1^st applicant was in breach of his obligations under rule 9 when, having passed the restricted area as he travelled east, he continued navigating in the channel but did not keep N 67 to the starboard side of the channel.  The significance of that breach was compounded by the fact that obviously the Yao Hai was shaping to enter the eastern entrance of the narrow channel, marked by buoys CP1 and CP2.  The crossing rules, rule 15 of the COLREGS, had no application.

IALA buoyed channel

31.  Even if the Castle Peak buoyed channel was not a narrow channel, it was an IALA buoyed channel, in consequence of which the rules of good seamanship required vessels to keep to the starboard side of the channel and pass one another port to port.

The case of the 2^nd applicant

32.  Although the 2^nd applicant did not give evidence, he did rely on an account of events that he had given to the police in an out-of-court statement on the morning of 23 March 2008, the day after the collision.  It was contended that the detail contained in the statement of his observations of events in the period leading up to and after the collision showed that he was keeping a proper look-out and appreciated what was going on.

33.  In that statement he said that the 3^rd and 4^th applicants had boarded the Yao Hai at about 8 pm on 22 March 2008 and navigated the vessel thereafter.  The helmsman took the instructions of the 3^rd applicant, although the 2^nd applicant remained on the bridge as a look-out.  After the Yao Hai navigated beneath the Tsing Ma Bridge, at 9 pm the N 67 had been identified as a target on the radar of the Yao Hai.  The pilots used the VHF radio unsuccessfully to try to contact the N 67 and then contacted Mardep.  At 21:12 the pilot gave the order ‘Starboard 10’ followed by the order ‘Starboard 20’.  Then, he saw the N 67 less than 100 metres away changing course to port.  After 10 seconds, the pilot of the Yao Hai gave the order ‘Hard Starboard’, followed by an order to turn to port, in face of the continued course change of the N 67 to port.  Then, the vessels collided.  After the pilot ordered the Yao Hai to be stopped, the 2^nd applicant resumed command of his vessel and ordered the engines put astern.

34.  In addition to relying on his out-of-court statement, the 2^nd applicant relied on the evidence of the 3^rd and 4^th applicants to confirm those assertions that he had acted as a look-out as part of a team on the bridge of the Yao Hai.  Reliance was placed by the 2^nd applicant on the fact that the two pilots were specialists in navigating in the waters of Hong Kong.  They had navigated the Yao Hai competently and safely through difficult manoeuvres in the period of one hour before the N 67 was sighted.  There was limited time for him to intervene and question or make suggestions to the pilots in respect of their navigation of the Yao Hai.  The pilot had correctly positioned the Yao Hai on the starboard side of the approaches to the entry to the Castle Peak buoyed channel.  If the applicant was in error, it was an error of judgment, but not one which rendered him culpable for the offence alleged.  In all the circumstances, he had taken all reasonable precautions to prevent a breach of the COLREGS.

The case of the 3^rd applicant

Proper look-out

35.  It was the 3^rd applicant’s case that throughout he had maintained a proper look-out and made an appropriate appraisal of the information he had received.  After the 4^th applicant had identified a vessel, which turned out to be the N 67, on the Yao Hai’s radar he and the 3^rd applicant discussed its movements at about 21:08:15.  He saw the 4^th applicant make a light signal of two flashes directed at the N 67 with the Aldis Lamp.  Then, he acquired the target on ARPA (Automatic Radar Plotting Aid) and at about 21:09 received detailed information about it, including the CPA and the TCPA (“time of the closest point of approach”).  The former was 0.1 nm and less thereafter.  He accepted that, if neither vessel altered course, a collision or near miss between the vessels would occur.  He expected the N 67 to alter course once it had passed the restricted area, either to go north out of the channel or to keep to the starboard side of the channel.  However, it did not do so.  His passage plan was to enter the Castle Peak buoyed channel south of buoy CP1.  He did not think it would be good seamanship to navigate the Yao Hai north of the CP1 buoy, in case N 67 altered course to the north of the channel and the Yao Hai encountered her in the restricted area of water between the CP1 buoy and the 15 metre contour line.

An overtaking ferry

36.  At about 21:10:00, the 3^rd applicant observed an overtaking ferry approaching on the port side of the Yao Hai.  As the ‘stand-on’ vessel he maintained his course.  By 21:10:40, the ferry crossed the bow of the Yao Hai.  He judged that the N 67 would pass 0.1 nm south of the buoy CP1 and determined to pass between it and CP1.  Once he was clear of that buoy he would make a large alteration of course to starboard to get close to the buoy.

Discussions about the N 67

37.  Between 21:10:43 and 21:11:24 the 3^rd and 4^th applicants discussed the fact that, to their surprise and concern, the N 67 was continuing to navigate in the middle of the Castle Peak buoyed channel without any change of course.

VHF

38.  At 21:11:41, the 3^rd applicant instructed the 4^th applicant to contact Mardep on the VHF radio and tell them that the vessels were to pass port to port.  The 4^th applicant contacted Mardep and at 21:12:13 passed on the message that the passing was to be red to red.  Then, Mardep embarked on trying to contact the N 67.  At 21:12:22, the 3^rd applicant ordered the 4^th applicant to desist in his VHF radio transmissions.

Helm orders and whistle blasts

39.  He now realised that, given the N 67 was not altering course as he had expected, he had to alter course on the Yao Hai. At 21:12:25 he gave the order ‘Starboard 10’, followed by the order ‘Starboard 20’ at 21:12:32.  At the latter time the 4^th applicant sounded one short blast on the whistle of the Yao Hai, indicating her change of course to starboard.  At 21:12:43, the 3^rd applicant gave the order ‘Hard Starboard’ and at the same time the 4^th applicant sounded five short blasts on the whistle of the Yao Hai, indicating her uncertainty as to the intentions of the N 67, and repeated that signal at 21:12:57.

40.  The 3^rd applicant said that at 21:13:06 he was able to see both sidelights of the N 67 and then her red light disappeared, indicating that she had turned to port.  Immediately, he ordered ‘Port 10’ to reduce the swing of the Yao Hai and then ‘Midships’ at 21:13:26.  Then, the vessels collided.  The collision was caused by the unexpected turn of the N 67 to port.

Reasonable precautions

41.  Finally, it was contended that if the 3^rd applicant had committed an error(s) of judgment, in all the circumstances, in particular given the conduct of the 1^st applicant in navigating the N 67, they did not constitute conduct that rendered the 3^rd applicant culpable of the offence alleged.  He had taken reasonable precautions to avoid a breach of the COLREGS.

The case of the 4^th applicant

42.  The 4^th applicant’s case was that he had done all that he could do independently and had carried out all the orders that he was given by the 3^rd applicant.  The 4^th applicant had been a pilot for only 15 months.  He was not qualified to navigate the Yao Hai and had no seagoing experience as a navigational officer or master of a bulk carrier the size of the Yao Hai.  On his own initiative, he had signalled the N 67 with the Aldis Lamp, having identified the target on radar and passed on the information to the 3^rd applicant.  He identified the N 67’s masthead lights with his binoculars.  He was aware of the fact that a fast ferry had overtaken the Yao Hai.  Then, he had discussed with the 3^rd applicant the fact that the N 67 had not altered course as expected.  Since the 3^rd applicant gave no orders for an alteration of course he was aware that he was persisting with the original passage plan, namely to pass south of buoy CP1.

VHF and whistle

43.  On the instructions of the 3^rd applicant he had contacted Mardep on the VHF radio and passed on to them the message that the vessels were to pass one another red to red.  He desisted in the radio communications when ordered to do so by the 3^rd applicant.  When the latter ordered a course change, ‘Starboard 10’, he sounded one short blast on the whistle of the Yao Hai, to indicate the vessel was turning to starboard.  At the same time the 3^rd applicant ordered ‘Starboard 20’.  Having noticed that the N 67 did not respond to the one short blast on the whistle, on his own initiative the 4^th applicant gave five short blasts, to indicate that the Yao Hai was uncertain as to the intentions of the N 67.

THE REASONS FOR VERDICT

The nature of the offence

44.  The judge noted (paragraph 19) that the International Regulations for Preventing Collisions at Sea are incorporated into Hong Kong law by the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) Regulations Cap. 369N (COLREGS). Further, that section 10(3) of the Shipping and Port Control Ordinance, Cap. 313 provides that a breach of the COLREGS is a criminal offence and hence an unlawful act.  Breaches of the COLREGS were the unlawful acts particularised in the charges.  However, the judge also noted (paragraph 21) that section 10(4) of Shipping and Port Control Ordinance provided a defence for a defendant, namely that he took all reasonable precautions to prevent the contravention of the COLREGS.  Further, if there was a breach of any of the COLREGS, proof was required that the breach endangered or caused to be endangered the safety of the crew.

Out-of court statements of the applicants

45.  Out-of-court statements made by the four applicants to the police on 23 March 2008 were adduced into evidence by the prosecution.  The judge noted (paragraph 101) that the 1^st, 3^rd and 4^th applicants, all of whom gave evidence at the trial, acknowledged readily that some of the assertions of facts made by them in those statements were incorrect.  She found (paragraph 102) those retractions to have been inevitable in face of the recorded data in respect of the vessels.  In the result, the judge determined to place little weight on the contents of those statements, noting (paragraph 104):

“The defendants had a long evening awake with no sleep. I accept that the defendants may not have had a clear mind the morning after the collision as the dramatic and tragic events of the previous evening may have had an effect on the precise recollection.”

The judge noted (paragraph 105) that by contrast, the 2^nd applicant relied upon the contents of his statement.

Expert evidence

46.  The judge found (paragraph 296) that Capt Browne and Capt Loynd were biased towards the 1^st applicant and determined (paragraph 300) that she was unable to rely on their evidence. On the other hand, she found (paragraph 295) Capt Third to be “the most comprehensive, independent and fair expert”, and determined him to be an “...impressive and reliable witness.  He was clear in his thinking process, explanations, opinions, knowledgeable and fair.  I found him to be impartial and unbiased.” Of Capt Simpson, she said that he was “reliable and sensible”.

Narrow channel

47.  Having addressed the issue of the status of the Castle Peak buoyed channel at very considerable length, the judge determined that it was a narrow channel (paragraph 387):

“... on the grounds of it being physically narrow geographically, bathymetrically and in the manner that seamen in fact navigate in the channel.”

Accordingly, rule 9 of the COLREGS applied.  Furthermore, she determined (paragraph 402-3) that the narrow channel rule applied to the approaches to the narrow channel.

IALA buoyed channel

48.  The judge accepted (paragraph 328) that, irrespective of whether or not the Castle Peak buoyed channel was a narrow channel, it was good seamanship, under rule 2 of the COLREGS, to navigate to the starboard side of the channel.

Risk of collision

49.  The judge determined (paragraph 142 and 153) there was a risk of collision between the N 67 and the Yao Hai from 21:09.  However, she said (paragraph 153) that at 21:10, when the vessels were four minutes and 1.4 nm apart, there was no ‘real’ risk of collision, “... but a risk of collision was developing.” At 21:12:00, when the vessels were 0.6 nm apart, she determined (paragraph 160) that there was, “a real risk of collision.”

The 1^st applicant

Breach of rule 9

50.  In the context of the judge’s determination that the Castle Peak buoyed channel was a narrow channel to which rule 9 of the COLREGS applied, so that vessels proceeding in the channel were required to keep as near to the outer limits of the channel as is safe and practicable, and in light of the undisputed evidence that the N 67 had navigated throughout in the middle of the narrow channel the judge noted of the navigation of the N 67 (paragraph 490):

“… The last thing she should have done was to remain in the middle of the channel which made it difficult for any westbound large vessel to enter it safely.”

In consequence, the judge determined (paragraph 739) that the 1^st applicant was, “... clearly in breach of Rule 9”.

The 1^st applicant’s unreasonable beliefs

51.  In light of her finding that the 1^st applicant was in breach of rule 9 of the COLREGS, the judge went on to determine (paragraph 451) that :

“It was unreasonable of D1 to believe that the buoyed channel is not a narrow channel where Rule 9 applied.”

Further, that it was unreasonable that the 1^st applicant did not believe that (paragraph 467):

“… at least that under the rules of good seamanship that the vessels would keep to the starboard side of the buoyed channel and pass port to port.”

Similarly, she determined that (paragraph 466):

“… it was wholly unreasonable and erroneous for D1 to believe that the crossing rules applied.”

Proper look-out: rule 5

Whistle blasts and Aldis Lamp

52.  Of the look-out of the 1^st applicant, the judge appears to have accepted the 1^st applicant’s evidence as to what he saw and heard in respect of sound and light signals.  In her analysis of his evidence she said (paragraph 509):

“D1 failed to hear any of the whistle blasts, which were undoubtedly made by the YH which can be heard on the VDR. The rules provide for the whistle blasts to be audible for 2 miles, yet quite incredibly he was unable to hear them despite being less than half a mile away.”

She made a similar statement in respect of the light signal made by the Aldis Lamp of the Yao Hai and directed at the N 67. The judge noted (paragraphs 192 and 202) that it was 1^st applicant’s evidence that he had not seen the light signal made with the Aldis Lamp from the Yao Hai at the N 67.  On the other hand, the judge clearly accepted that the 4^th applicant had used the Aldis Lamp to make a light signal directed at the N 67 (paragraph 604).

53.  Of the 1^st applicant’s failure to hear any of the 3 sets of blasts on the whistle of the Yao Hai, the judge said (paragraph 509):

“His reason that he had a noisy bridge is not a reasonable excuse for not hearing the whistle blasts.”

She added (paragraph 516):

“D1 shockingly did not hear the whistle blasts or see the light from the Aldis Lamp.”

54.  In the result, the judge determined (paragraph 746):

“D1 did not keep a proper lookout because of his inaction. By failing to keep a proper lookout D1 did not appreciate the situation and consequently failed to take proper action. D1 failed to hear or respond to the whistle blasts from the YH.”

Radar-ARPA and CPA

55.  Of the 1^st applicant’s evidence that after the vessels reached a position about one nm apart he had not used the radar on the N 67, the judge said that she accepted (paragraph 512) the evidence of Capt Third that a mere glance at the ARPA on the radar would have confirmed that the vessels were on a near collision course.  In the result, noting that the 1^st applicant’s evidence was that he had relied only on his visual observation, aided by binoculars, from a distance of one nm apart the judge determined (paragraph 745):

“It would have been sensible to at least check with the radar with a quick glance every now and again to see whether it accorded with what D1’s eyes were apparently telling him.”

Action to avoid a collision: rule 8

The navigation of the N 67 in the middle of the channel

56.  The judge determined (paragraph 775) that in navigating the N 67 in the middle of the narrow channel, the 1^st applicant was in breach of rule 8(f)(i) of the COLREGS, the N 67 being “a vessel required not to impede the passage or safe passage of another vessel”, in consequence of which it shall, “when required by the circumstances of the case, take early action to allow safe sea room for the safe passage of the other vessel”.

Time of the order ‘Hard port’ by the 1^st applicant on the N 67

57.  The judge rejected the case advanced on behalf of the 1^st applicant that he had given the order ‘Hard Port’ as early as 21:12:30 (paragraph 767).  She said that the suggestion that it would take 50 seconds for vessels such as the N 67 to respond to such an order, “...  flies in the face of common sense, apart from anything else.”  On the contrary, she accepted the opinion of Capt Third and determined that the order had been given at about 21:12:50/55.  The judge found (paragraphs 748-9) that the 1^st applicant’s turn to port on the N 67 was made “far too late”, when the vessels were 0.3 nm apart.  She determined that manoeuvre to be “most appalling and in error”.

Alternative: if the crossing rules applied

58.  Notwithstanding her primary finding that the Castle Peak buoyed channel was a narrow channel to which rule 9 of the COLREGS applied, the judge went on to consider the 1^st applicant’s conduct on the basis, contrary to that finding, that the ‘crossing rules’ applied.  The judge noted that as soon as it became apparent to the 1^st applicant that the Yao Hai, as the ‘give-way’ vessel, was not altering course to avoid a collision the 1^st applicant was entitled (rule 17 (a)(ii)) and then required (rule 17 (b)) to alter course on the N 67.  Of the 1^st applicant’s conduct in not doing so, the judge determined (paragraph 501): “It was wholly unreasonable for D1 to stand on and hold her course and speed.” The judge accepted (paragraph 502) the evidence of Capt Cheung, Professor Ng and Capt Simpson that the N 67 should have made a substantial change of course to starboard by 21:12.

59.  The judge rejected (paragraph 506) the 1^st applicant’s case that, as the ‘stand-on vessel’, he would have been in breach of the COLREGS if he had altered course to starboard or left the channel.

The 2^nd applicant

60.  At the outset of her consideration of the case in respect to the 2^nd applicant the judge adverted to the undisputed fact that throughout the 2^nd applicant retained overall responsibility for the safety of his vessel, although she accepted (paragraph 568) that responsibility was “diluted” by the fact that there were two pilots on board the Yao Hai.

Look-out: rule 5

61.  The judge noted that the 2^nd applicant had remained on the bridge of the Yao Hai and acted throughout as a look-out.  She found (paragraph 577) that his inability to speak Cantonese, in which dialect the two pilots spoke to one another and in which conversations were conducted on the VHF radio, did not lead to any lack of comprehension in the 2^nd applicant of what was going on, as was evidenced by the detailed account of events in his out-of-court statement.  In the result, she determined (paragraph 582) that the 2^nd applicant was able to “decide that night upon his observation if D3 was complying with the collision avoidance rules.” She found that it was clear by sight and from the radar that the two vessels were heading for the same spot in the water.  Nevertheless, she found (paragraphs 509-517, 588 and 783) that the 2^nd applicant was in breach of rule 5 of the COLREGS, in that he had failed to maintain a proper look-out.

Action to avoid a collision: rule 8

62.  Although the judge determined (paragraph 586) that the 2^nd applicant was entitled to rely upon the 3^rd applicant, “as a more experienced mariner in these waters” she determined that, as it became obvious that the two vessels were heading for the same spot in the water, the 2^nd applicant should have queried the 3^rd applicant as to whether the manoeuvres that the 3^rd applicant was taking were sufficient to avoid a collision with the N 67.  There was no such conversation.  The judge accepted that there was a limited period of time available to the 2^nd applicant to query the 3^rd applicant. Nevertheless, she rejected the suggestion (paragraph 588) that it was an emergency, finding that for at least four minutes before the collision the radar showed the two vessels were heading directly at each other.

Reasonable precautions

63.  The judge determined (paragraph 588) that on all the evidence the issue of reasonable precautions taken by the 2^nd applicant did not arise but, if that determination was incorrect, she found that the prosecution had proved beyond reasonable doubt that the 2^nd applicant had not taken reasonable precautions to avoid a contravention of the COLREGS.

The 3^rd applicant

Look-out

64.  Of the look-out maintained by the 3^rd applicant on the bridge of the Yao Hai, the judge determined (paragraph 638):

“Although I accept that D3 was paying a lookout he was not maintaining a proper look because he did not appreciate what was actually happening. He did not appreciate the close CPA, he did not appreciate the close quarters he was getting himself into and although he was using his binoculars he wholly misjudged what he was seeing. D3 was not keeping a proper look-out as no avoiding action was taken until 21:12:25. If D3 was keeping a proper look-out D3 would have taken action earlier to avoid a collision.”

ARPA and CPA

65.  Earlier, the judge noted of the 3^rd applicant’s evidence that, after he had acquired the N 67 as a target on ARPA on his radar set at about 21:09 (paragraph 607):

“He continued to watch ARPA and his radar thereafter and the radar trail. At times the CPA was less than 0.1 nm. He admitted that the information was indicating to him that if neither he (YH) nor N 67 changed course there was going to be either a collision or near miss.”

Risk of collision

66.  Of the time at which the 3^rd applicant accepted that a risk of collision existed between the two vessels, the judge determined (paragraph 644):

“D3 wrongly and belatedly determined that a risk of collision existed only when N 67 turned to port which was at about 21:13:00. D3 erroneously thought that at 21:12:00 there was a close quarters situation and not a risk of collision.”

As noted earlier, the judge had determined earlier that the risk of collision existed at 21:09:00 and that it had become a ‘real risk’ of collision by 21:12:00.

The whistle of the Yao Hai

67.  In face of the fact that the N 67 had not altered course having passed the restricted area, the judge determined (paragraph 697) that the 3^rd or 4^th applicants should have sounded five short blasts on the whistle of the Yao Hai at 21:10:30/45 to indicate that they were uncertain of the intentions of the N 67.

Action to avoid collision: rule 8

68.  Having noted that the 3^rd applicant took no avoiding action in the two minutes after 21:10:43, the judge found (paragraph 595) that the order that the 3^rd applicant gave at 21:12:32, namely ‘Starboard 20’ was about a minute too late.  She found that a manoeuvre to starboard was required in order to show a red light to the N 67 (paragraphs 669 and 697).  Such actions as the 3^rd applicant took to change the course of the Yao Hai were not made in ample time (paragraph 688).

Reasonable precautions

69.  The judge determined (paragraph 693) that the 3^rd applicant had not taken all reasonable precautions to prevent a contravention of the COLREGS.  The judge found that the prosecution had proved the case against him beyond a reasonable doubt (paragraph 785).

The 4^th applicant

70.  The judge accepted the testimony of Capt Simpson and Capt Chen that the duties of the 4^th applicant, as co-pilot, required not only that he carry out the orders of the 3^rd applicant but also that he should (paragraph 701), “... watch listen and make his own judgment as to whether D3 acted correctly or not.”

71.  The judge determined (paragraph 717) that as a pilot, Class 2C, it would have been obvious to the 4^th applicant that in maintaining the course of the Yao Hai as he did, the 3^rd applicant was putting the Yao Hai at risk of colliding with the N 67.  In those circumstances, the 4^th applicant ought to have expressed concerns to the 3^rd applicant.  The judge noted (paragraph 710) that although for about 40 seconds beginning 21:10:43 the 3^rd and 4^th applicants had discussed their growing concerns about the failure of the N 67 to alter course, it was “… self-evident to D4 that D3 was to continue his passage as planned.”

The whistle

72.  The judge found (paragraph 697) that in the period 21:10:30/45 the 3^rd or 4^th applicants ought to have given five short blasts on the whistle of the Yao Hai to indicate their uncertainty as to the intentions of the N 67.  The 4^th applicant was at least two minutes late in sounding those five short blasts.

VHF

73.  The judge said that she rejected Capt Simpson’s evidence that the 4^th applicant was required to wait until he was ordered by the 3^rd applicant to contact Mardep on the VHF radio.  She determined (paragraph 719) that the 4^th applicant could have contacted Mardep soon after the N 67 was identified as a target, by radar and visually, in order to establish her identity and particulars, so as to reduce the length of any subsequent VHF traffic.  Of the time at which the 4^th applicant did attempt to contact Mardep, namely shortly after he had been ordered so at 21:11:41, the judge found (paragraph 763):

“D4’s communication with Mardep at the time he did in asking for particulars of N 67 was useless, it should have been done earlier. The attempt at identifying the eastbound vessel N 67 was too late.”

Reasonable precautions

74.  The judge noted (paragraph 719) that the 4^th applicant had acted independently of the 3^rd applicant in using the Aldis Lamp to send a light signal to the N 67 and in sounding the three separate sets of blasts on the whistle of the Yao Hai.  Nevertheless, she determined that he was culpable of (paragraph 720):

“… an abject failure to appreciate the gravity of the developing situation on the night and to give appropriate advice to the chief pilot…he failed to see that D3 was making a serious error of judgement and that the navigation of D3 was leading to a collision. No discussion took place about taking avoiding action.”

75.  She determined (paragraph 721) that this failure of look-out and omission to draw the attention of the 3^rd applicant to the need for collision avoidance action caused the endangerment of the crew.  In the result, she concluded (paragraph 785) that the prosecution had proved beyond all reasonable doubt that he, together with his co-defendants at trial, had not taken all reasonable precautions to prevent a contravention of the COLREGS.

GROUNDS OF APPEAL AGAINST CONVICTION

Common grounds/issues

(i) Construction and interpretation of section 72

76.  By an additional Perfected Ground of Appeal, served on the court and the other parties on the fourth day of the hearing of the applications for leave to appeal, Mr McCoy SC, on behalf of the 4^th applicant, submitted that the judge had erred in her construction and interpretation of both the mens rea and actus reus of section 72. These were fundamental and important submissions and it was not a happy fact that they were presented so late.  Counsel for all the other applicants adopted and supported those submissions.  It was contended that the judge had erred, in particular:

(i)   in determining that it had two separate limbs, namely “any unlawful act” and “in any manner whatsoever without reasonable excuse”;

(ii)   in not determining that the word ‘unlawful’ required proof of full mens rea;

(iii)   in ruling that section 72 was a strict liability offence with a statutory defence of “reasonable excuse” provided for the second limb only;

(iv)   in determining that the defence of taking reasonable precautions, provided by section 10(4) of the Ordinance, applied to the unlawful acts particularised, namely breaches of the COLREGS, it being a defence to a charge contrary to section 10(3) only which offence was not charged;

(iv)   in determining that ‘unlawful act’ encompassed omissions;  and

(vi)   in not determining that only intentional and reckless positive acts (not negligence) can form the basis of an offence contrary to section 72.

77.  Mr McCoy submitted that the judge fell in to some of those errors by accepting the prosecution’s submission and applying a literal interpretation to the punctuation of “… any unlawful act, or in any manner whatsoever without reasonable excuse,”.  It was contended that removing the comma after ‘act’, by way of ‘rectifying construction’, allowed for the correct interpretation of the section in which unlawful applied to both ‘unlawful act’ and ‘in any manner whatsoever’, as did the defence of “reasonable excuse”.

The Reasons for Verdict

(i) unlawful act

78.  In her consideration of the nature and ambit of the alleged offence as particularised in respect of the ‘unlawful acts’, namely contraventions of the COLREGS, the judge stated in her reasons for verdict:

“19 … These rules are for the safety of navigation which are applicable and obligatory to all vessels at sea to avoid the risk of collision. By virtue of section 10(3) of the Shipping and Port Control Ordinance Cap. 313, a breach of the COLREGS is a criminal offence and hence an unlawful act.”

(ii)     in any manner whatsoever

79.  Of the alternative manner in which the prosecution advanced the respective charges against the applicants, the judge noted that, although the same particulars were relied upon by the prosecution, the conduct was impugned, (paragraph 20)

“… not as unlawful acts or breaches of the COLREGS but expressed as conduct that was dangerous.”

Defences

80.  The judge went on to identify the available defences:

“21. The defence available to the defence on the unlawful act part of the charge is that as laid down in section 10(4) of SPCO Cap.313 “that the defendant took all reasonable precautions to prevent the contravention of the unlawful act.” The defence of “without reasonable excuse” is as laid down in s.72 SPCO for the limb of in any manner whatsoever.

22. Hence the defence available to the defendants is that they took all reasonable precautions to prevent the contravention of the unlawful act or in the alternative they had a reasonable excuse for their conduct.”

The issues of law

81.  In consequence of that analysis, the judge identified the issues of law arising in the case in a series of rhetorical questions.

(a) Of the ‘unlawful act’ limb she said, (paragraphs 24-27):

Did the applicant(s) breach the COLREGS “as charged”?  If there was such a breach, did it “… cause or create a danger to the safety of the crew of N 67”?  If so, did the applicant(s) take “all reasonable precautions to prevent the contravention” or, “have the prosecution proved beyond all reasonable doubt that it was not a reasonable precaution.”

(b) Of the alternative limb, she said (paragraphs 28-30):

Had the impugned conduct of the applicant(s) endangered the safety of the crew?  If so, had the applicant(s) raised a “reasonable excuse” for his/their conduct?  If so, had the prosecution proved “beyond a reasonable doubt that it was not a reasonable excuse”?

The original charges

82.  At a very early stage of the trial in the lower court, the judge had ruled on a challenge to the validity of the statutory provision, section 72, in respect of which the original charges against the applicants were framed.  Each of those charges alleged that “without reasonable excuse” the 1^st applicant (charge 1) and the 2^nd, 3^rd and 4^th applicants (charge 2) had endangered or caused to be endangered the safety of the crew of N 67.

(a) The Particulars of Offence of Charge 1 alleged that the 1^st applicant’s failure was to maintain a proper look-out, alter course to starboard in a head-on situation with Yao Hai and to take adequate positive or preventative action to avoid a collision with that vessel.

(b) The Particulars of Offence of Charge 2 alleged that the 2^nd, 3^rd and 4^th applicants had failed to take adequate positive or preventative action to avoid a collision with N 67.

No reference was made in those Particulars to breaches of the COLREGS.

The challenge to the validity of section 72

83.  The judge identified the challenge to the validity of the charges, as framed by section 72, as being based on two main grounds:

(i)   that the provision in section 72, that the offence could be committed “in any manner whatsoever”, was too vague and failed the test of legal certainty;

(ii)   that the due diligence defence of reasonable excuse imposed a persuasive burden on the applicants, which failed the application of a proportionality test in infringing the presumption of innocence.

The judge’s ruling

History of section 72

84.  In her ruling, rejecting the challenge to the statutory provisions, the judge had regard to the history of the offence now provided by section 72 (T. 149 to 151).  Its original predecessor was an amendment by way of an addition made in 1949 to section 26 of the Merchant Shipping Ordinance, 1899, namely:

“4) Every person who by any unlawful act, or by any wilful omission or neglect, endangers or causes to be endangered the safety of any person conveyed or being in or on any vessel, or aids or assist therein, shall be liable to imprisonment…”

The penalty provided was a term of imprisonment not exceeding six months or a fine of $1,000 or both.

85.  The judge noted that Bill Number 9 of 1965, introduced into the Legislative Council that year, proposed an amendment to that provision in the following terms:

“Any person who by any unlawful act, or by any omission or neglect, endangers or causes to be endangered…”

However, the amendment as enacted in 1965 was in the following terms:

“Any person who by any unlawful act, or in any manner whatsoever without reasonable excuse, endangers or causes to be endangered the safety…”

86.  In consequence, the phrase by any “wilful omission or neglect” was deleted from the section and replaced by the phrase or “… in any manner whatsoever without reasonable excuse”.  Of that, the judge observed:

“19. No enlightenment or assistance can be gained from reading Hansard as to this eventual amendment. There is notably a significant difference from how it started to where it is now.”

87.  Although the judge noted that the penalty applicable to a commission of a contravention of section 72 at the time of the commission of the offence on 22 March 2008 was a maximum sentence, on conviction on indictment, of four years imprisonment and a fine of $200,000 she observed (T.151C):

“No light has been thrown for the change and increase of penalty to the present one.”

The mental element of section 72

88.  In the “Conclusion” of her ruling, the judge addressed the mental element in the commission of an offence contrary to section 72 (T.167 D-S):

“67. What is the mental element required to constitute the commission of the section 72 offence? Prior to 1965, this offence could have been construed as one requiring mens rea, as the word “wilful” was used. Most notably, the word “wilful” was deliberately excised from the section as long ago as 1965.

68. The word “wilfully” signifies knowledge or advertence to the consequences, as well as an intent to do an act or refrain from doing an act. “Wilfully” means that the act is done deliberately and intentionally, but not by accident or inadvertence, so that the mind of the person who does the act goes with it. (R v Senior 1899, 1QB 283, at 290-291).

69. The word “wilful” not being employed therefore signifies these are not the elements of the offence. At paragraph 35 and 36 in Chow Tin-sing, the Court recognised that the section 72 covered acts of endangerment which were deliberately reckless and acts where there was no deliberate dangerous manoeuvres. It was accepted in Chow that there was no intention to endanger the safety of others, because the defendant was unaware that the fishing vessel was there. So there was no intention to cause danger.

70. In my interpretation of this section, there is no specific mens rea. I do not accept, however, that the present offence punishes the morally blameless.  The defence can raise a reasonable excuse, and the prosecution have to negative that excuse.”

[HKSAR v Chow Tin Sing [2007] 4 HKLRD 991]

89.  In the result, the judge determined that the offence provided for in section 72 was sufficiently certain to satisfy the test of legal certainty.  Further, that the defence of a “reasonable excuse” imposed an evidential burden only on the applicants.

The amended charges

90.  Two days after the judge’s ruling the applicants were re-arraigned on the amended charges described earlier.

A consideration of the submissions

91.  The construction and interpretation of section 72 is to be approached in the context of the provenance of that provision, in particular subsequent changes to its original form.

Origin and changes in the provision

The 1949 provisions

92.  Section 26(4) of the Merchant Shipping Ordinance, 1899, as amended in 1949, provided for the commission of an offence by:

(i)   any unlawful act; or

(ii)   any wilful omission or neglect;

(iii)   which endangers or causes to be endangered the safety of any person conveyed or being in or on any vessel.

As to (i): unlawful act

93.  Clearly, ‘unlawful act’ was distinguished from ‘wilful omission or neglect’.  The former was an act of commission, whereas the latter was constituted by a wilful failure to act at all (omission) or as required (neglect), in circumstances in which the person was required so to act.  The interpretation by the courts of the ingredients of unlawful acts in ‘dangerous unlawful act manslaughter’ provides a measure of guidance in construing the phrase ‘unlawful act’ in section 72, although it is to be acknowledged that the former is concerned with conduct causing death and the latter with the endangerment of the safety of persons.  By parity of reasoning, it follows that ‘unlawful act’ is to be construed as being criminal conduct, not merely a civil wrong, such as tortious conduct.  (See the judgment of the House of Lords in R v Kennedy (No. 2) [2008] 1 AC 269 at 274D, paragraph 7.)  “Unlawful” was used as an adjective to qualify the act and not as importing necessarily a requirement of proof of full mens rea, including as to the last element, namely as to intention or recklessness that danger be occasioned or caused

94.  Proof of the alleged unlawful act requires proof of the underlying crime.  In R v Pearce [1966] 3 All ER 618, a judgment of the Court of Appeal of England and Wales, the appellant and his co-defendant stole copper wire that connected railway signal stations rendering the signal system unusable.  The conduct the subject of the resulting theft charge, to which the appellant pleaded guilty, was the alleged unlawful act which was the foundation of the charge of endangering the safety of persons being conveyed on or being on the railway, contrary to section 34 of the Offences Against the Person Act, 1861, which is in all material respects, save that it applies to railways, identical to section 26(4) of the Merchant Shipping Ordinance, 1899.  Proof of the underlying crime whilst necessary is not sufficient to prove the offence created by section 72, since it is also necessary to prove the consequent danger.  (See the judgment in Chow Tin Shing at 997, paragraph 14.)

95.  The prosecution must disprove any excuses or justifications available to the defendant in the underlying crime.  (See the judgment of the Court of Appeal of England and Wales in R v Scarlett (1994) 98 Cr App R 290 at 295-6.)

As to (ii): wilful omission or neglect

96.  A ‘wilful’ omission or neglect is one that is deliberate.  ‘Wilful’ qualified “omission or neglect” and was irrelevant to the phrase “unlawful act”.

As to (iii): endangerment

97.  Proof is required that the conduct impugned in (i) or (ii) endangers or causes to be endangered the safety of any person conveyed or being in or on any vessel.  No proof is required that the defendant intended to endanger or cause to be endangered the safety of those persons.  (See R v Bowray (1846) 10 Jur. 211 at 12, cited with approval in Pearce.)  In the former case, the defendant was charged with having wilfully dropped a stone on a railway endangering the safety of persons travelling on that railway, contrary to 3 & 4 Vict. c.97, s. 15, which Act provided generally for railways.  In summing-up the case to the jury, Baron Alderson directed that the issue was not the intention of the defendant in dropping the stone on the railway but whether he had purposely done so and secondly, “would the effect of the stone’s so being dropped, be to endanger the safety of the persons on the railway?”  Also, see the judgment of the Divisional Court in Regina v Criminal Injuries Compensation Board, ex parte Webb [1985] 1 QB 184 at page 195C-F and 197F-G in respect of  the element of mens rea in section 34 of the Offences Against the Person Act, 1861.

The 1965 amendment

98.  What then was the consequence of the 1965 amendment of what had been section 26(4) of the Ordinance and had become section 68(7) of the Merchant Shipping Ordinance, 1953?  The phrase “or by any wilful omission or neglect” was deleted and replaced by “or in any manner whatsoever without reasonable excuse”.  The word “or” operates disjunctively.  Clearly, the phrase “in any manner whatsoever” was still to be distinguished from “unlawful act”.  Now, it encompassed all but an “unlawful act”.  But, what was the ambit of the phrase “unlawful act” in the amended section?  As noted earlier, the positive acts necessary for the commission of the offence of theft would constitute an unlawful act.  However, in some circumstances an unlawful act, a criminal offence, is constituted by a failure to act by a person under a duty to do so.  For example, failure to comply with the Fire-Fighting Appliances Regulations or Life-Saving Appliance Regulations made under section 99 of the Merchant Shipping (Safety) Ordinance, Cap. 369, for which offences a maximum term of imprisonment of two years is provided.  If the latter conduct is encompassed in the phrase “unlawful act”, what conduct falls within the phrase “or in any manner whatsoever”?  Obviously, conduct, by commission or omission, not amounting to an unlawful act would fall within that phrase, for example, the circumstances of mere negligence.

99.  By removing the conduct that hitherto was marked as being distinguished from “unlawful act”, namely that encompassed by the phrase “wilful omission or neglect”, clearly the ambit of the conduct that fell within the phrase “unlawful act” was now untrammelled.  Accordingly, conduct that was a “wilful omission or neglect”, but also constituted an “unlawful act”, now fell within that latter phrase.

100.  On its face the punctuation used, namely a comma placed after the phrase an “unlawful act” and the second comma placed after the phrase “reasonable excuse”, limited the applicability and operation of the defence to conduct other than by way of an unlawful act.

101.  The provision of that defence for conduct other than an unlawful act, for example an accident, is logical and readily understandable.  For example, a failure to turn a vessel to starboard, in circumstances where such a manoeuvre was required, might be explained properly and justifiably by the fact that immediately prior to the necessary manoeuvre the rudder had become jammed.  Although it might be the case that the safety of persons on a vessel was endangered thereby, that would not be culpable conduct because it is excused by the defence under section 10(4).  Proof of the underlying crime constituting an unlawful act requires that the culpability of the defendant is addressed.  For example, theft requires proof of full mens rea, whereas an offence of breaching the COLREGS, contrary to section 10(3) of the Ordinance, gives rise to the defence provided for by section 10(4) of “taking reasonable precautions”.  A similar defence is provided in the Life-Saving Appliances Regulations, namely of having “taken all reasonable steps to avoid commission of the offence”.  [See regulation 9(3)].

102.  In passing, it is to be noted that the distinction drawn between acts, on the one hand, and omissions on the other hand in the context of endangering life on a ship by the master or crew of a ship is specifically stated and is of long-standing in the legislation in the United Kingdom.  (See section 220 of the Merchant Shipping Act, 1894; section 27 of the Merchant Shipping Act, 1970 and section 58 of the Merchant Shipping Act, 1995.) Both acts and omissions can give rise to criminal liability under section 58.

1979: increased penalty for section 72 and a new section 72A; increased penalty for section 34 of the Merchant Shipping Ordinance.

103.  The circumstances leading to the eightfold increase in 1979 of the maximum penalty of imprisonment that could be imposed for contravention of section 72, of which counsel were unable to inform the judge at trial, are set out in Hansard for the proceedings of the Legislative Council on 10 January 1979.  Two bills were placed before the Council, amending both the Merchant Shipping and the Shipping and Port Control Ordinances respectively.  Both addressed the very considerable concerns arising from the rapidly increasing influx of Vietnamese refugees then arriving in Hong Kong by sea.

104.  In moving the reading of the two Bills in the Legislative Council the Chief Secretary stated in terms that the circumstances leading to the introduction of the Bills were the same.  Of the amendments proposed to the Merchant Shipping Ordinance, Cap. 281 he said:

“The purpose of this Bill is to discourage ships participating in the unlawful carrying of passengers to Hong Kong and to take additional legal powers to act against owners, masters and ships involved should this happen.”

105.  The amendments to the Merchant Shipping Ordinance proposed in the Merchant Shipping (Amendment Bill) 1979, described by the Chief Secretary specifically as being a “deterrent”, provided for what he acknowledged was a “significant increase” in the maximum term of imprisonment from 6 months to 4 years imprisonment for a breach of section 34 of that Ordinance, namely having on-board passengers in excess of the numbers permitted by the vessel’s certificate or having excess passengers on an uncertified ship.

106.  Similarly, again described as being by way of deterrence, amendments were proposed to the Shipping and Port Control Ordinance, Cap. 313, in particular the enactment of section 72A of that Ordinance, which provided for an offence in any person who:

“by any unlawful act or in any manner whatsoever without reasonable excuse, disables, abandons, scuttles or beaches any vessel within the waters of Hong Kong…”

107.  The maximum penalty for that offence on conviction on indictment was four years’ imprisonment and a fine of $200,000.  At the same time the bill proposed the creation of an indictable offence for an offence contrary to section 72, with a similar maximum penalty.  The proposals were passed into law and came into effect in 1979.

108.  It is to be noted that the punctuation used in the newly created offence provided for by section 72A is different from that used in section 72, in that in section 72A no comma is placed after the phrase an “unlawful act” and before the phrase “or in any manner whatsoever without reasonable excuse”.  Therefore, it might be said that on its face section 72A provides a defence that extends to “an unlawful act”, so that the defence is available to a defendant against whom it is alleged that by an unlawful act he “... disables, abandons, scuttles or beaches” any vessel.  But it seems clear that no statutory defence is provided to a defendant whose alleged unlawful act endangers or causes to be endangered the safety of persons on any vessel or in the sea.  Of course, it is to be noted that the two offences address quite different conduct: section 72 is concerned with the safety of persons on vessels or in the sea, whereas section 72A is concerned with the circumstances in which persons cease to use/control a vessel.

1979: The significance of the changes to section 72

109.  As noted, two significant changes were made in 1979 to section 72.  First, provision was made for an indictable offence and secondly, the maximum penalty was increased to a fine of $200,000 and imprisonment for four years.  Did the Legislative Council intend that the offence should provide for a conviction on indictment, subject to those increased penalties, without the ingredient of full mens rea, in the sense of requiring proof that the accused intended or was being reckless as to endangerment.  (See the analysis at paragraph 97.)

110.  A defendant facing a charge under either limb of section 72 is afforded a considerable measure of protection.  As noted earlier, proof of the alleged unlawful act requires proof of the underlying crime.  Conduct alleged to be an “unlawful act” because it is in breach of the Prevention of Collisions Regulations and thereby contrary to section 10(3) is subject to the availability of the defence provided by section 10(4), namely that the defendant took “all reasonable precautions to prevent the contravention charged”.  Similarly, a charge that alleges an offence on the alternative basis, namely other than by an unlawful act, affords the defendant the “reasonable excuse” defence provided in section 72.

111.  It is clear that the increase in the maximum sentence available for a conviction under section 72 to 4 years imprisonment and a fine of $200,000 was driven by concerns about the safety of persons on vessels bringing them to Hong Kong as refugees, in which condition they were subject to great abuse and danger.  The increased penalties were a deterrent to those who so abused those refugees.  The misconduct was serious and the societal interest great.

112.  Clearly, the ambit of misconduct that might properly fall under section 72 is wide.  There is no dispute that the alleged misconduct of the applicants in their different roles in the navigation of their respective ships is wholly different from the conduct that prompted the eightfold rise in the maximum penalty of imprisonment under the section.  That is a matter relevant to sentence for the offence contrary to section 72.

113.  In the result, we are satisfied that by the increased penalties available on conviction on indictment the Legislative Council did not intend to imbue section 72 with a general requirement of full mens rea.

The judge’s determination of the ingredients of section 72

114.  In considering the judge’s determinations of the ambit of section 72 it is to be remembered that they were made at different times and for discrete purposes.  Her ruling, made on the third day of a 91‑day trial, was made in the context of a challenge to the validity of section 72 in respect of charges that were framed only in respect of the “in any manner whatsoever” limb of the section.  Nowhere in her ruling, did she mention the “unlawful act” limb of that section.  Her reference to the significance of the deletion of the word “wilful”, as signifying that mens rea was no longer required is to be judged in that context, namely as applying to the second limb of the offence.  However, following the ruling and before the prosecution opened its case and called evidence the charges were amended to include Particulars of Offence that averred contraventions of the section on an alternative basis: firstly, by an “unlawful act” and, alternatively under the “in any manner whatsoever” limb.  Of course, in her Reasons for Verdict she addressed the specific amended charges that the applicants faced.

115.  We are satisfied that the judge correctly identified the ingredients of the offence contrary to section 72 , as particularised, on those two occasions.  In particular, in her Reasons for Verdict she identified correctly the conduct that the prosecution was required to prove under each of the two limbs (see paragraphs 19 and 20).  Similarly, she correctly identified the defences available to the applicants (see paragraphs 21 and 22).  Further, that it be proved that the conduct endangers or causes to be endangered the safety of persons.  Finally, she correctly summarised the issues of law that were relevant to the resolution of the issues arising the trial (see paragraphs 24-30).

Conclusion

116.  There is no merit in the criticism made by Mr McCoy, and adopted by counsel for all the applicants, that the judge erred in her construction and interpretation of the mens rea and actus reus imported by section 72.

(ii)     Was the judge correct to determine that the Castle Peak buoyed channel was a narrow channel to which rule 9 of the COLREGS applied?

The judge’s findings

117.  As noted earlier, the judge determined that the deepwater encompassed in the area delineated by buoys CP1 to CP5 was a narrow channel (paragraph 387):

“… on the grounds of it being physically narrow geographically, bathymetrically and in the manner that seaman in fact navigate in the channel.”

118.  The judge noted that the applicants were divided on the issue: the 1^st applicant contended that it was not a narrow channel, whereas the 2^nd to 4^th applicants contended that it was.

119.  At the outset of her consideration of the issue the judge observed that a narrow channel is not defined in the COLREGS and that the determination of whether the deep draught buoyed channel is a narrow channel is purely a question of fact (paragraph 360).  She said that there was no real dispute that the deepwater within those buoys was a channel marked by lateral marks (paragraph 362).

Submissions made on behalf of the 1^st applicant at trial

120.  In reaching her determination, the judge identified and addressed in terms the contentions advanced on behalf of the 1^st applicant that the water was not a narrow channel, namely that:

(i) the Admiralty pilot book and charts of Hong Kong did not state it to be a narrow channel:

(ii)     Mardep did not consider it to be a narrow channel;

(iii)    the report of the Board of Inquiry (“BOI”) into the collision of the vessels Kota Hadiah and AM Vella in 2002 made no reference to the water being a narrow channel or fairway;

(iv)    a subsequent Marine Traffic Risk Assessment (“MARA”) in 2004 had considered designating the area a narrow channel but had not done so;

(v)     the geographical and bathymetric features of the water are not consistent with a narrow channel, the buoys not marking the outer limits of navigable water for oceangoing vessels;

(vi)    if it is safe for oceangoing vessels to navigate outside the buoyed channel, the waters so enclosed were not a narrow channel;

(vii)   the purpose of the channel was primarily to enable vessels constrained by draught on a passage to the Castle Peak power station; and

(viii)  the practice of seamen was not to navigate on the basis that the water was a narrow channel.

Charts, books and notices

121.  Having noted that the Admiralty Pilot and charts did not identify any area in Hong Kong as being a narrow channel (paragraphs 368-9), nevertheless the judge accepted the evidence of Capt Simpson that not all narrow channels were so described nor were notices promulgated to that effect elsewhere in the world.  In particular, she found that the omission to so describe a stretch of water did not determine that it was not a narrow channel.

Mardep

122.  The judge acknowledged that the three witnesses (Assistant Marine controllers Leung and Wong and Marine controller Chan) employed in the Vessel Traffic Control (“VTC”) of Mardep testified that they did not consider the water to be a narrow channel.  Similarly, she noted that Dr Stephen Li, another employee of Mardep, was amongst the experts whose opinion was that the buoyed channel was not a narrow channel.  However, in the result she accepted the evidence of Capt Third that the buoyed channel was a narrow channel, thereby rejecting evidence to the contrary.

BOI-Kota Hadih

123.  The judge noted that the report of the BOI into the collision between the vessels Kota Hadih and AM Vella was into a collision that had occurred in the vicinity of Ha Pang on the mainland of the New Territories, well north of the buoyed channel.  Neither vessel had travelled in the buoyed channel.  The issue of its status did not arise for consideration.

MARA

124.  Of the MARA report of 2004, the judge noted that consideration had been given to designating the area a ‘fairway’ but that such a proposal was rejected on the basis of the diminishing volume of deep draught traffic and expense (Paragraph 372).

Geography and bathymetrics

125.  The judge noted that the seabed depth, marked by the buoys, and the distance between them was:

(a)     CP1 to CP2 (20 metres contour line) 570 metres;

(b)     CP3 (15 metres contour line) to the restricted area north of Siu Mo 407 metres; and

(c)      CP4 to CP5(15 metres contour line) - 518 metres.

126.  She accepted the evidence of Captain Third, that the water encompassed between the buoys had the make-up of a narrow channel, as did its bathymatics characteristics.  Similarly, the judge accepted the evidence of Captain Third that, although vessels could navigate outside the deepwater buoyed channel, nevertheless it could still be considered a narrow channel.

The practice of seamen

127.  Having noted that the pilots on board the Berlioz (Captains Chan and Lee) and the 3^rd and 4^th applicants, as pilots on the Yao Hai, said that the majority of pilots in Hong Kong navigated the whole area, in particular the buoyed area, in accordance with rule 9 and having observed, from a recording of data at the VTC, the manner in which vessels had navigated that area in the 24 hours prior to the collision the judge determined that (Paragraph 385):

“… seamen navigate the whole area of water from Ma Wan Island to the buoyed channel in accordance to Rule 9 but more particularly when they are navigating on approach to and especially within the buoyed channel.”

The submissions of the 1^st applicant

128.  The 1^st applicant submitted that the judge erred in determining that the waters between and in the vicinity of the buoyed channel were a narrow channel on the following principal grounds.

(i)      It was the position of Mardep, as articulated in the trial through four witnesses employed by Mardep called by the prosecution (three employed in the VTC and Captain Stephen Li Yu Kwong, the latter called as an expert witness) that those waters were not a narrow channel. It was not open to the prosecution to contend to the contrary.  Further, it was unfair to the 1^st applicant for the prosecution to proceed on the basis that the waters were a narrow channel, without calling evidence from either the Director of Marine or one of his senior officers in support of that proposition.  Finally, the judge erred in excluding from evidence a letter dated 29 June 2009 from Capt ST Li on the letterhead of the Mardep to the Safety Marine Inspectorate of Ukraine in which the buoyed waters were described as “not considered as a narrow channel”.

(ii)     Rule 9 was of uncertain ambit and applicability; it contained no definition.  The resolution of the issue of whether or not a stretch of water was a narrow channel was a pure question of fact.

(iv)           The factors that militate against a determination that it was a narrow channel include the geography and bathymetrics, the waters were not bounded closely by land or physical objects and the fact that the vast majority of vessels were free to navigate anywhere and in any direction between the northern coastline of this Lantau and the sudden shoreline of Castle Peak.

(iv)    A determination that a stretch of water that was dredged, or buoyed was a narrow channel required that all of the waters outside that stretch of water up to the two shorelines were up to the bordering shorelines were likewise so designated.  (See The Koningin Juliana [1974] 2 Lloyds Reports 353.)

(v)             The report of the BOI (December 2002) into the collision between Kota Hadih and AM Vella was relevant and pointed strongly to the buoyed waters not being a narrow channel: although the collision had happened nearby the buoyed waters off Ha Pang there was no suggestion that the buoyed waters were a narrow channel.

(vi)           The evidence of Capt Loynd was relevant, namely that following the MARA report of March 2004 consideration was given to setting up a fairway in western waters and that the Port Operations Committee paper of September 2006 referred to consideration having been given to widening the deep draught channel by dredging to the north of the buoyed channel or to a realignment of some of the buoys.  In neither case was there a reference to an existing narrow channel.

(vii)        The judge’s determination (paragraphs 296-300) that Capt Brown and Capt Loynd were not independent expert witnesses, but rather were biased in favour of the 1^st applicant, and her consequent rejection of their evidence, in particular that the buoyed channel was not a narrow channel, was unfair.

(viii)      The judge had failed to approach the evidence of witnesses who were pilots, namely Pilot Chan Shui Hoi and Pilot Lee Koon Wah on the Berlioz, Capt Chen Yau Chi, the Chairman of the Pilots Association who was called on behalf of the 3^rd applicant and the evidence of the 3^rd and 4^th applicants with sufficient caution, given their vested interests.

(ix)    The judge failed to have proper regard to the VTC evidence of vessel movements in the 24 hours prior to the collision:

(a)     not all westbound vessels passed between CP1 and CP2;

(b)     not all eastbound vessels in the buoyed channel kept to the outer limit on their starboard side;

(c)      vessels navigating in both directions did so to the north of the buoyed waters, not using those waters at all;  and

(d)     those vessels which use the buoyed channel were only those constrained by draught.

The submissions of the 2^nd applicant

Narrow channel: relevant factors

129.  It was submitted on behalf of the 2^nd applicant that the judge was correct in the factors to which she had regard in determining whether or not the waters were a narrow channel, namely the geography and bathymetrics of the area, the expert evidence and factual evidence as to how Mariners navigate.  Further, that her determination was correct, namely that the buoyed waters were a narrow channel to which rule 9 of the COLREGS applied as it did to the approaches to the entrance of the buoyed channel.  She did not determine that the whole of the area from Ma Wan to the buoys constituted a narrow channel.

IALA buoyed route

130.  In addition, it was submitted that in any event even if the buoyed channel was not a narrow channel it was an IALA buoyed route which required vessels to keep green buoys to starboard in the direction of the tidal flow (westwards) as indicated on the chart.  Further, good seamanship dictated that two vessels travelling within a buoyed channel in opposite directions should do so by keeping to the starboard side of the channel so as to pass port to port.

Channel

131.  Mr Brenton QC submitted that the waters encompassed by the CP buoys are clearly a channel.  The Mariners Handbook describes a channel as “A comparatively deep waterway, natural or dredged ...” The waters encompassed by the CP buoys are described in the Admiralty Sailing Directions of the China Sea Pilot as being a buoyed channel the entrance of which is marked by “CP1 (starboard hand) and CP2 (Port hand)” whilst “further light buoys (lateral) mark the deepwater route.”  Rule 1.2.1 of the IALA Maritime Buoyage System describes lateral marks as “generally used for well-defined channels”.

Narrow channel

132.  Mr Brenton submitted that the epithet “narrow” refers to a characteristic of the channel not to the size of the vessels that happen to be using it at any point in time.  Regard must be held to the size of the largest vessels that are liable to use the channel.  Support for the determination that the channel was a narrow channel is to be found in that characterisation by courts of stretches of water that are much wider than those involved in this case.  (See The Edison Mariner [1955] Ll.L.Rep.235-a 1 mile wide buoyed channel and The Glenfalloch [1979] Ll.L.Rep. 247-a fairway with a width of 1.5 miles at its narrowest point.)

Expert evidence

133.  Mr Brenton noted that no less than four of the expert witnesses gave as their opinion that the waters were a narrow channel, namely Capt Third, Capt Simpson, Capt Cheung and Professor Ng.  Mr Brenton submitted that, irrespective of the judge’s finding that Captains Brown and Loynd were biased towards the 1^st applicant, there were independent reasons to support her rejection of their evidence that the stretch of water encompassed by the buoys was not a narrow channel.  Their opinions to that effect, and that of Dr Stephen Li Yu Kwong, were based on the flawed proposition that if vessels were free to navigate outside the buoyed channel then that channel was not a narrow channel and rule 9 did not apply.  (See The Golden Polydinamos [1993] 2 Ll Rep. 464 and The Toluca [1981] 2 Ll Rep 548.) The judge was correct to accept the evidence of Capt Third to the contrary (paragraph 381). Similarly, the judge was correct to accept the evidence of Capt Simpson, and reject that of Capt Loynd, that the absence of designation of the waters as a narrow channel on charts for other publications to Mariners was not determining of the issue.  (See paragraphs 368-371.)

VTC employees

134.  The VTC employees of Mardep, namely Mr Leung, Mr Wong and Mr Chan were not called as expert witnesses.  The opinions that they expressed that the water encompassed by the buoyed channel was not a narrow channel were inadmissible and the judge was entitled to ignore them.  In any event, their opinions were based on the flawed proposition that the waters so marked were not a channel.

The practice of seamen

The pilots

135.  Mr Brenton noted that it was the evidence of the two pilots on the Berlioz, Pilots Chan and Lee, and Capt Chen, the chairman of the Pilots Association, that they treated the buoyed channel as a narrow channel.  The latter had produced an affidavit in which 96 of 101 pilot members of that association asserted that to be their understanding.  The two pilots said that they navigated in the buoyed channel on the starboard side.  Similarly, as witnesses of fact the VTS employees of the Marine Department, Mr Wong and Mr Chan said that ships transiting the buoyed channel did so by travelling on the starboard side of the buoyed channel.  The evidence so Dr Stephen Li was to the same effect.

VTS records of the 24 hours prior to the collision

136.  Mr Brenton submitted that the VTS records (P49 as extracted in D3 and other exhibits) for the movement of vessels in the material area in the previous 24 hours established that in that period vessels invariably passed port to port in the buoyed channel, i.e. by keeping to their starboard side of the channel.

BOI report: Kota Hadih and AM Vella/ MARA

137.  Mr Brenton submitted that it was not surprising that there was no description of the buoyed channel as a narrow channel in the BOI report since the collision was well to the north of that stretch of water and neither of the vessels was ‘shaping’ to enter that buoyed channel.  For present purposes the report was irrelevant.  Similarly, the MARA report, its recommendations and their subsequent consideration were in respect of a re-alignment of the buoys marking the channel or of dredging, not a consideration of specifying the buoyed channel as a narrow channel.  In any event, the absence of such a stipulation is not determinative of whether the water was a narrow channel.

Rule 15: the crossing rule

138.  Mr Brenton submitted that a necessary consequence of the judge’s correct determination that the buoyed channel was a narrow channel was that rule 15 of the COLREGS did not apply to the two vessels.  The judge was correct (paragraph 401) in identifying and accepting the ratio of the judgment of Wilmer J in The Empire Brent [1947/48] Vol. 81 Ll.L.Rep. 306 that where vessels are approaching each other in the opposite directions in a narrow channel there is no room for the application of the crossing rule.  Similarly, she was correct in determining (paragraphs 405-6) that rule 9, not the crossing rule, governed the conduct of vessels where one was in the approaches to a narrow channel and the other in that channel, in particular that the one in the channel “should keep to her starboard side of the channel… and must not hog the channel regardless of the reasonable aspirations of the other ship.” (See the judgment of Hewson J in The Cambera Star [1962] Vol. 1 Ll.L Rep. 24) Further, that the vessel navigating into the channel should do so by keeping to her starboard side of the channel.  (See the judgment of Fletcher Moulton LJ in The Kaiser Wilhelm Der Grosse [1907] P 259.)

A consideration of the submissions

The position of Mardep

(i)      The VTC witnesses

139.  There is no dispute that the three VTC employees called as witnesses for the prosecution, Mr Leung, Mr Wong and Mr Chan (PW1-3) were not called as expert witnesses.  They were witnesses of fact.  Mr Leung and Mr Wong testified of their observations and dealings from the VTC with the two vessels on the night of the collision.  Mr Chan was a supervisor at the VTC that night.  (See paragraphs 88; 264-268 and 350-6.)  Of course, they were able to and did testify of their observations of how vessels did navigate in those waters.  However, clearly as Marine controllers, and therefore of relatively low rank within the Marine Department, they were not authorised to testify on issues of Departmental policy determinations.

140.  Mr Leung and Mr Wong (PW1 and PW2) were led by the prosecution as witnesses of fact.  The issue of the ‘opinion’ of the witnesses as to whether or not the buoyed channel was a narrow channel was first raised in cross-examination on behalf of the 1^st applicant.  Without objection, impermissible evidence of their opinions on that matter and other matters was led.  Eventually, the judge intervened noting the line to be drawn between the evidence of an expert and that of a factual witness.  (See the testimony of Mr Leung [T694 and 698] and Mr Wong [T. 786].)  Clearly, the judge was entitled, indeed required, to ignore the inadmissible evidence of their opinions.

141.  Subsequently, in the evidence of Mr Chan (PW3) the issue was dealt with on a different basis, namely by the suggestion by counsel for the 1^st applicant, accepted by the witness, that the Mardep did not regard the buoyed channel as a narrow channel (T. 833). The barrier to admissibility having been breached in that manner other counsel trespassed into the area of ‘opinion’ evidence and once again the court intervened on that basis (T. 864).  Again, given that Mr Chan was a simple witness of fact, not a witness authorised to speak on behalf of the Marine Department and, having regard to his relatively modest position within the Department, the judge was entitled to place little or no weight on his assertions of how the Marine Department regarded the buoyed channel and no weight on his opinions in that respect.

(ii)     Dr Stephen Li Yu Kwong

142.  Dr Stephen Li, a Senior Surveyor of Ships of the Mardep, was called by the respondent at trial and permitted to give evidence as an expert. As such, he advanced his personal opinions, not those of the Mardep.  He did not suggest otherwise.  It was his opinion that both vessels had breached the COLREGS: Yao Hai rule 8(a) and N 67 multiple subsections of rule 8. Of the buoyed channel, he said in cross-examination: “I do not consider it as a narrow channel” (T 2507).  The buoyed channel was not a narrow channel for vessels that were free to navigate elsewhere in that area (T 2718).

143.  In her analysis of the expert opinion the judge enumerated those that, on the one hand, were of the opinion that the buoyed channel was a narrow channel in contrast to those, on the other hand, who were of the contrary view. Of course, Dr Stephen Li appeared on the list of those of the opinion that it was not a narrow channel.  (See paragraphs 365 and 366.)  Having noted that there had been an “overabundance of expert opinions” from numerous experts on the “same repetitive multitude of topics and issues”, the judge went on to state how her findings and determinations were to be understood (paragraph 304):

“Where my finding on a particular point or issue refers to or relies on one or more particular expert’s opinion than (sic) any opinions to (sic) which differ from the expert’s opinion is rejected and all those that support that view are accepted”.

144.  The judge went on to state that she accepted Capt Third’s opinion in respect of the buoyed channel and the adjacent area that (paragraph 381):

“…even though in this case a vessel can still navigate outside of those buoys as there is sufficient room to do so the channel can still be considered a narrow channel.”

In doing so, clearly the judge was rejecting not only Dr Stephen Li’s opinion, but also the basis on which it was founded.  She was entitled to do so.

(iii)    29 June 2009 letter

145.  In cross-examination of Captain Chen Yau Chi (DW8), counsel for the 1^st applicant sought to put to him a letter dated 29 June 2009 from Capt ST Li, Surveyor of Ships of the Marine Accident Investigations section of the Marine Department, stated to be “for Director of Marine”, to the Head of Shipping of the Safety Marine Inspectorate of the Ukraine in which it was asserted of the buoyed channel:

“As most vessels can navigate outside the above buoys the subject area is not considered as a narrow channel.”

146.  In the face of objections to its admissibility from counsel for the 3^rd and 4^th applicant, who indicated that they wished to challenge that opinion, supported by counsel for the respondent, the judge ruled that the letter was inadmissible, noting that the 1^st applicant could have called the Director of Marine or another person in a position to deal with the assertion made in the letter (T. 6129-6130).

147.  Clearly, the letter was inadmissible to establish the truth of the assertion and the judge’s ruling was correct.

(iv)     the failure of the prosecution to lead evidence of the opinion of the Director of Marine as to whether the buoyed channel was a narrow channel

148.  As noted earlier, following the judge’s ruling on the preliminary challenge to the validity of section 72, the respondent sought to amend the initial charges.  For the first time, it was alleged in the Particulars of Offence that by his conduct the 1^st applicant was in breach of rule 9 of the COLREGS.  Noting that of the three experts from whom the respondent proposed to adduce evidence, only one was from the Mardep, and that his opinion was that the buoyed channel was not a narrow channel, counsel for the 1^st applicant asserted to the judge that it was to be expected that “authoritative evidence from the Government of Hong Kong or its appropriate representative” would be led to establish that it was a narrow channel (T. 195).

149.  In its subsequent Opening, the prosecution made it clear that the witnesses that it proposed to call remained the same, including the same three experts.  That position did not change during the trial.  In his closing speech, counsel for the 1^st applicant asserted that proof of allegations that the buoyed channel was a narrow channel (T. 7500-1):

“… can only be done by calling an official with sufficient seniority and authority from the Hong Kong government department responsible, i.e. the Marine Department, or ‘MarDep’, to testify to that effect, the Director of Marine being the ‘final arbiter of what goes on in Hong Kong waters’ .”

150.  A moment’s reflection on the assertion that the respondent was required to adduce evidence of the opinion of the Director of Marine lays bare the fundamental flaw in the contention.  Whilst the Director of Marine has power, no doubt delegated and exercised after appropriate consultation, to stipulate and then promulgate determinations in respect of the status of a particular stretch of water, he must do so within the constraints and requirements of the Ordinance.  If that process had been carried out, for example if it had been determined properly and Gazetted that the waters were a narrow channel, the matter would have been rendered beyond question.  However, no such thing was done.  Evidence of his opinion, or that of his immediate subordinates, would be accorded appropriate deference by a court but ultimately would remain just that, namely ‘opinion’ evidence.  Certainly, it was not a pre-requisite of proof that the buoyed channel was a narrow channel that the Director of Marine, personally or through a senior colleague in the Mardep, gave expert opinion evidence to that effect.

BOI report: Kota Hadih and AM Vella

151.  Clearly, the judge was entitled to determine that the decision by the BOI into the collision between the vessels Kota Hadih and AM Vella was of “no assistance” on the issue of whether or not the buoyed channel was a narrow channel.  Neither vessel transited the buoyed passage or shaped to do so. The collision occurred well to the North-East of the Eastern Limit of the buoyed channel.

MARA

152.  Apparently, in March 2004 the Mardep completed a consultancy study on MARA for North Lantau.  That study was not produced in evidence.  A paper of the Port Operations Committee of the Mardep dated September 2006 reported that in October 2004, at a meeting of the Pilotage Advisory Committee, the Mardep agreed to look into the need to form a working group under the Port Operations Committee to examine the recommendations of the March 2004 study.  The paper reported that consideration had been given to improving traffic flow in that area, especially for deep draught vessels, firstly to widening the deep draught buoyed channel by dredging and, secondly to re-locating and re-aligning those buoys.  Funding and the need for a dumping permit to deal with up to 5,000,000 m³ of excavated material resulted in the former proposal being described as a “non-starter”.  By contrast, the latter proposal was recommended to the committee.

153.  Capt Loynd’s evidence was that following the 2004 MARA study consideration was given to stipulating the buoyed passage as a fairway.  No mention was made of narrow channel.  So stipulating the buoyed channel had been raised as early as 1998 in the Pilotage Advisory Committee in the context of the introduction of the vessel height restricted area.  Nothing resulted from the consideration of the MARA study.

154.  As noted earlier, the judge accepted Capt Simpson’s evidence that not all narrow channels were marked on charts or were to be found in the Admiralty pilot books (paragraph 370).  In the context of consideration being given to designating the buoyed channel a fairway after the MARA study of 2004, Capt Third said of the approach of the responsible authorities (T. 5449-50):

“It is probably the case that they draw a line at a certain point, or maybe at a certain risk factor that they consider and then say, ‘Right, these areas we will officially designate’. But if a location doesn’t come up to that designated distance or risk factor, then they don’t make an official designation. But it doesn’t mean that it isn’t a narrow channel.”

The rejection of the evidence of Capt Browne and Capt Loynd: bias

155.  The judge found Capt Browne and Loynd not to have evinced impartiality in their testimony, but rather to have been biased towards the 1^st applicant (paragraph 296).  In the result, she did not accept their evidence (paragraph 300). Both of them had testified that in their opinion the buoyed channel was not a narrow channel.  That opinion was contrary to the opinions expressed by two of the experts called by the prosecution, namely Capt Cheung and Professor Ng, and the experts called by the 2^nd and 4^th applicants, Capt Third and Capt Simpson respectively.  The judge stated specifically that she relied on the evidence of Capt Third and Capt Simpson, in different aspects of their evidence, to reach her determination that the buoyed channel was a narrow channel.  (See paragraphs 377; 376; 379 and 381.)

156.  The judge cited examples in the testimony of the two witnesses that she concluded evidenced their attempts to justify all of the conduct of the 1^st applicant at the material time.  (See paragraphs 297-300.)  In particular, she noted that Capt Brown had insisted originally that if the 1^st applicant had heard a single short blast of the whistle of Yao Hai he should have manoeuvred N 67 to port as he had done subsequently.  She noted that eventually he had withdrawn that surprising opinion.  Similarly, he conceded that the CPA of the two vessels was too close in the last one minute and a half and that N 67’s action was too late.  Further, she determined his calculation of the rate of turn to port of the N 67 to be unrealistic.

157.  The judge noted that Capt Loynd had incorrectly asserted that the buoys in the channel did not have English letters affixed to them, which he asserted was indicative that they did not mark a narrow channel.

The use of the whistle on the Yao Hai

158.  The judge described as “most telling” in respect of their lack of impartiality the fact that neither Capt Brown nor Capt Loynd made any reference in their reports of sound signals given by Yao Hai and the 1^st applicant’s failure to hear those signals or to see the Aldis Lamp directed at N 67.  Of that, she concluded that they were “attempting to reach a conclusion on D1 by ignoring material evidence not in favour of D1.”

159.  Illustrative of the testimony that the judge no doubt had in mind was the response of Capt Browne as to why his report contained no reference to the reaction or non-reaction of N 67 to the whistles sounded by Yao Hai (T. 4741 M):

“It didn’t occur to me because it wasn’t in the -- that’s not something that appeared in the statements of the master.”

160.  Capt Browne went on to accept that the two vessels were about 600 metres apart and that it was required that the whistles be audible at two nm.  Of the fact that the 1^st applicant had said that he had not heard the whistles of Yao Hai, and his explanation that that was because the bridge of the N 67 was noisy, Capt Browne said (T. 4743L):

“Well, I have to accept what the man said.”

Similarly, Capt Browne accepted that he had not referred in his report to the failure of the N 67 to give two short blasts on her whistle as ultimately she turned to port, as he accepted she should have done. He accepted that he could have done so, but explained that it would have had no effect on the overall situation and was not a significant point to be dealt with  (T. 4742 D-Q) .

The use of the Aldis Lamp on the Yao Hai

161.  Capt Browne accepted that, although the statement made by the 4^th applicant to the police after the collision had asserted that he had directed the light at the N 67 as the two vessels were about two nm apart, he had not referred to or considered that in his pre-trial report.  His initial answer, as to why apparently no one on the bridge of the N 67 saw the signal was, in effect to challenge the assertion of the 4^th applicant, “if it had been directed in the right direction and not at the wrong ship…” However, immediately he accepted that there was no other vessel at which the light could have been directed.  Next, he objected that if the light had been used others in the vicinity would have seen it.  Then, he raised the issue of the absence of the distinctive clicking noise of the shutters of an Aldis Lamp in operation on the sound recording of the bridge of the Yao Hai.  Of that, he accepted that if the Aldis Lamp had been used on the bridge wing the ability of the sound recording system to record any noise would depend on its distance away from the operation of the Aldis Lamp.  Nevertheless, finally he was prepared to accept that if it had been used properly and directed at the bridge of the N 67, he would have expected those on that bridge to have seen it (T. 4811-5).

The time of the helm order ‘Hard Port’ on the N 67

162.  The judge’s criticism of Capt Browne’s opinion that the 1^st applicant had given the order to turn to port on the N 67 at 21:12:29, as being an “unrealistic calculation”, was made in the context of her very close examination of not only his evidence but also that of Capt Simpson and Capt Third, together with all the other evidence.  (See paragraphs 518-548.) She noted that Capt Browne had been subjected to searching cross-examination on “how unreasonable and unlikely” his opinion was but nevertheless he had remained adamant of that opinion.  The judge determined, “He was not giving independent evidence.” The significance of Capt Browne’s opinion as to when the order was given on the N 67 to turn to port, lay in the context of the manoeuvres performed by the Yao Hai, namely the orders ‘Starboard 10’ and ‘Starboard 20’, at 21:12:25 and 21:12:32 respectively, and the blasts on the whistle of the Yao Hai, one at 21:12:32 and five beginning at 21:12:43.  The judge noted caustically that the case advanced on behalf of the 1^st applicant through Capt Browne appeared to show that “N 67 was less manoeuvrable than YH” (paragraph 533).

163.  For his part, Capt Loynd said of his failure to refer in his report to the whistle blasts from the Yao Hai, “it didn’t occur to me to include it”. That was because the 1^st applicant had said in his statement that he had not heard the whistle blasts.  Capt Loynd accepted that his failure to refer to the whistle blasts or the lack of reaction from the N 67 was “an omission” (T. 5194).  Of his failure to refer in his report to the use of the Aldis Lamp on the Yao Hai, Capt Loynd explained that the evidence was “slightly confusing”, the 3^rd applicant saying that the Aldis Lamp had been used once and the 4^th applicant that it had been used twice.  His response to the suggestion that the light signal from the Aldis Lamp should have been seen on the bridge of the N 67 was not directly responsive, “Well, it should have been seen by the Berlioz, as well” (T. 5159).

164.  It is be remembered that in his evidence in chief (T 5143) Capt Loynd had asserted that the BOI into the collision of the Kota Hadih and AM Vella had determined that rule 9 of the COLREGS did not apply to the whole stretch of water.  In cross-examination, when that assertion was challenged Capt Loynd initially remained adamant (T. 5171).  However, ultimately he agreed that his assertion was incorrect.

Conclusion

165.  Having heard Capt Browne and Capt Loynd testify over no less than six days the judge was well-placed to determine whether or not they had discharged their duty to the court as expert witnesses, in particular that of impartiality.  We have referred to a number of indicia in their testimony that tend to support the judge’s conclusion as to their reliability in this case and in the result not to rely on or accept their evidence.

VTS records of the 24 hours prior to the collision

166.  The criticism made of the judge on behalf of the 1^st applicant that she failed to have proper regard to the VTS records of the 24 hours prior to the collision is unfounded.  No issue was taken with the judge’s finding that in that period:

(i)   no vessels passed starboard to starboard within the buoyed channel or at or near the entrance to it (paragraph 383); and

(ii)   no vessels, particularly large oceangoing vessels, made their way to the south of the channel such that they would then have to navigate north again to miss the restricted area (paragraph 480).

167.  The judge acknowledged that some vessels going west travelled north of CP1, for example, the 143 metre long Stadt Ratzeburg.  (See paragraph 485.) Of that, she noted that the Kalamata, 243 metres long, was ahead of Stadt Ratzeburg travelling in the same westerly direction in the buoyed channel, whilst the CMA CGM Strauss was travelling in the buoyed channel in an easterly direction.  The vessels Kalamata and CMA CGM Strauss passed each other port to port in the buoyed channel, but Stadt Ratzeburg passed to the north of CP1 and entered the buoyed channel between CP1 and CP3.  (See D3¾SET 2 #48-51.) The route taken by those vessels was illustrative of the judge’s earlier observation, “vessels usually go north of CP1 buoy only in response to oncoming traffic from the east meeting the west.” (See paragraph 476).  Nevertheless, the judge had determined that such conduct was “not conclusive that this was not treated by seamen to be a narrow channel” (paragraph 384).

168.  Similarly, the contention made on behalf of the 1^st applicant that the buoyed channel was used only by vessels constrained by draught is not made out.  The Kalamata is described in the legend to exhibit D3 as having a ‘sailing plan draught’ of 10 metres and having described its draught on AIS as 9.9 metres. On the other hand, most of those vessels described in the legend had a length of over 200 metres.  Also, the judge noted of the vessels travelling eastward in the buoyed channel that a majority “made their way towards the centre line of the gates (CP1 and CP2) moving slightly to the south”.  Of vessels travelling westward towards the buoyed channel, she noted that they made their way towards the centre of that gate.  (See paragraph 476.)

The pilots

169.  Although the judge referred to the evidence of the 3^rd and 4^th applicants as pilots at the same time as referring to the evidence of the two pilots of the Berlioz (paragraph 382) it is clear that, on the issue of whether the buoyed channel was a narrow channel or whether the crossing rules applied, the judge was aware that the testimony of the 3^rd and 4^th applicants, as well as that of the 1^st applicants, was in the nature of ‘cut throat’ defences.  On the one hand, the 1^st applicant contended that the buoyed passage was not a narrow channel but that the crossing rules applied (paragraphs 66-67).  Arrayed against him was the case of the 2^nd to 4^th applicants and, in particular, the evidence of the 3^rd and 4^th applicants that they navigated the buoyed passage as a narrow channel.  Obviously, the self exculpatory testimony on the one side was inculpatory of the other.  However, there was no need for the judge specifically to advert to that blindingly obvious situation.

170.  Pilot Chan Shui Hoi and Pilot Lee Koon Wah, the two pilots on the Berlioz, did not give evidence as expert witnesses.  Rather, they were witnesses of fact.  Each of them was a member of the Hong Kong Pilots Association and held a Pilot’s Class 1 licence, obtained in 1998 and 1996 respectively.  Although the judge described them as having expressed their ‘opinion’ (paragraph 382) of the manner in which they and their fellow pilots treated the waters westwards from Ma Wan, including the buoyed channel, as a narrow channel in fact their evidence was of their observation of the practice of pilots navigating in those waters.  It is to be noted that in her summary of the evidence leading to her determination that the waters were a narrow channel the judge did not advert at all to the evidence of Captain Chen Yau Chi (DW8) the Chairman of the Pilots Association.

171.  The relative importance of the evidence available on the issue, in particular that of the evidence of the pilots, is to be gauged from the detailed consideration that the judge gave to the VTS recording of the vessel movements in the 24 hours prior to the collision (paragraphs 383-5; and 472-485) and the evidence of the expert witnesses (in particular, paragraphs 370; and 376-381). By contrast, the judge dealt with the evidence of the pilots of the Berlioz very briefly and made no reference to having relied on it.

Narrow channel: does that designation necessarily encompass all the waters up to the adjoining shorelines?

172.  The judge determined, accepting the opinion of Capt Third, that although vessels could navigate safely outside the buoyed channel, nevertheless the buoyed channel could still be considered a narrow channel (paragraph 381). In doing so, she referred to the judgment of Clarke J, as he was then, in the Admiralty Court in The Golden Polydinamos as supporting that proposition. In his judgment, Clarke J noted of a collision that had occurred between The Devotion and the The Golden Polydinamos in the waters at the Atlantic entrance of the Panama Canal, that it was not in dispute that the channel which runs between the breakwaters to a point some way to the north of Gatun Locks was a narrow channel.  He said (page 466):

“The channel is only about 150 metres wide. There was however enough water for The Devotion to navigate outside the channel to the west and, as she approached the position of collision, there was enough water for The Golden Polydinamos to navigate outside the channel to the east.”

173.  In The Toluca [1981] 2 Lloyd’s Law Reports 548 Sheen J was concerned with a a stretch of the 18 km dredged channel from the sea up the Chao Phrya River towards Bangkok.  The channel was marked with buoys, between which ships proceeding along that particular stretch of the channel were guided by leading lights.  Of that channel, Sheen J noted:

“The channel is a narrow channel. The deepest part of the channel is 100 metres wide. On each side of the channel the banks and rise with a gentle slope, so that shallow draughted vessels can safely navigate a short distance outside the main channel. There is no obligation to do so.”

174.  Mr Haddon-Cave Q.C. relies on the judgment at first instance and, in particular, on dicta in the Court of Appeal in the judgment of Lord Denning MR in the Konigin Juliana, to support his proposition that where the designation narrow channel applies to a dredged, buoyed or other channel within a wider stretch of water, it necessarily applies across the whole width of the water right up to the shoreline.

175.  In the Koningin Juliana the waters concerned were a dredged channel, outside which lay navigable waters marked by buoys, in Harwich harbor. At its maximum the width of the navigable waters was about three cables, whereas the dredged channel of 23½ feet was about one cable in width.  At first instance ([1973] 2 Lloyd’s Rep.) Brandon J, as he was then, determined that the ‘narrow channel’ meant the whole width of navigable water between the lines of the buoys.  In doing so, he made it plain that he was having regard to the particular features and circumstances of that stretch of water.  Having referred to authorities concerning stretches of the River Thames he said (page 313):

“I have to consider this matter not in relation to the River Thames but in relation to a particular part of Harwich Harbour with its own particular characteristics.  I do not think it would be right to hold that, in relation to these waters, the expression “narrow channel” means the dredged channel and no more.  A great many vessels using the harbour can and do navigate outside the dredged channel, and so to hold would mean such vessels, when so navigating, were not subject to rule 25(a) at all (the narrow channel rule).  Alternatively, it would be necessary to hold that there were three narrow channels, first the dredged channel itself, second the navigable water to the North of it, and third the navigable water to the South of it, and rule 25(a) applied to each of them.  This would, in my view, be impracticable, if not absurd.”

176.  As Cairns LJ noted in his judgment in the Court of Appeal, that finding was not called into question in the appeal (page 359).  At issue was Brandon J’s finding that the “mid-channel” meant the centre line of the dredged channel, marked by pecked lines on the chart.  That finding was confirmed.

177.  In his judgment, Lord Denning MR observed (page 355):

“… the regulation applies not only to the dredged channel itself, but also to the stretches of water on either side of it right up to the shore… If a vessel proceeds along the river outside the dredged channel, it must keep to the same side of the river as she would do it in the dredged channel.”

It is to be noted that the limits of the dredged channel was not itself marked by buoys.

178.  There is no dispute that the peculiar characteristics of the stretch of water in question and the manner in which seamen treat the waters is of importance.  In his judgment in The Jaroslaw Dabrowski  [1952] Lloyd’s Law Rep. 20 Willmer J, in addressing the issue of whether a channel off the North German coast was a narrow channel, observed that authorities were of limited utility (page 26):

“I have been referred to a certain amount of authority where this or that stretch of water had been considered and has been pronounced to be or not be a narrow channel. I do not think that the mere perusal of the cases relating to other localities is of much help in this case.”

He went on to cite with approval (page 27) the importance attached by Langton J in his judgment in The Varmdo to a consideration of the practice of seamen with regard to the particular stretch of water in determining whether or not it was a narrow channel.

179.  As noted earlier, in her consideration of the expert testimony (paragraph 295) the judge determined Capt Third to be “the most comprehensive, logical, independent and fair expert”, finding him to be “an impressive and reliable witness”.  Of the buoyed channel, Capt Third said (T.5435):

“it is a narrow channel, it’s marked by the buoys, but the buoys don’t mark the limit of where a vessel can navigate… a vessel can still navigate outside of those buoys. There is sufficient searoom to do that. There are numerous places in European port approaches which are of that type. There is the ability to navigate outside buoys.”

180.  We are satisfied that the judge was entitled to accept the evidence of Capt Third to the effect that the fact that vessels could navigate safely outside the buoyed channel did not preclude it from being a narrow channel.

Geography, bathymetrics and buoys

181.  There is no dispute that in having regard to the evidence in respect of the geography, bathymetrics and the fact that the channel was buoyed the judge addressed relevant factors in deciding the issue of whether the channel was a narrow channel.  Her determination was that the water that constituted the narrow channel was limited to the buoyed channel (paragraphs 130 and 387).  She relied on the evidence of Capt Third in determining that those factors were satisfied.  In his evidence he said (T 5434):

“... the channel actually defines itself geographically; it defines itself bathymetrically with draughts but, in the relevant area that we’re dealing with, it’s defined by an IALA buoyed system.”

182.  Clearly, the limited distance between the buoys on one side of the channel from the buoys on the other side of the channel militated in favour of such a finding, as did the fact that the buoys were laid on the two contour lines, which resonated with the description of the stretch of water as a deep-water route in the Admiralty Sailing Directions.

The approaches to the buoyed channel

183.  The judge determined that in the approaches to the buoyed channel, which she had determined to be a narrow channel, the narrow channel rules applied (paragraph 402). In support of that finding, she relied upon a passage in the judgment of Hewson J in The Canberra Star [1962] Vol. 1 Lloyd’s Law Rep. 24 at 28, to the effect that the vessel navigating in a channel faced with a vessel preceding in the opposite direction intending to enter the channel “must not hog the channel regardless of the reasonable aspirations of the other ship”.  She rejected the submission that, given that the Yao Hai was outside albeit approaching the buoyed channel, the crossing rules applied (paragraph 400). She cited a passage from the judgment of Wilmer J in The Empire Brent [1947/1948] Vol. 81 Lloyd’s Law Rep. 306 to support the proposition that when vessels are approaching one another, navigating up and down a channel, the narrow channel rule applied.

184.  We accept Mr Brenton’s submission that the principle relied upon by the judge as articulated in the judgment of Hewson J in The Canberra Star reflects the approach of the Court of Appeal of England and Wales in The Kaiser Wilhelm Der Grosse [1907] P 259.  The collision between the two vessels, the Kaiser Wilhelm Der Grosse and the Orinoco, occurred at night just outside the entrance to Cherbourg Harbour.  That entrance was half a mile wide and lay between two breakwaters.  The Kaiser Wilhelm Der Grosse was navigating out of those waters to the open sea and the Orinoco navigating in the opposite direction.

185.  The Court concluded, which determination accorded with that of the President and the Elder Brethren, that the entrance was a narrow channel.  At issue was whether or not the Orinoco ought to have waited outside the entrance until the Kaiser Wilhelm Der Grosse had come out and cleared the entrance.  In his judgment, Fletcher Moulton LJ said (page 269):

“… it would be unreasonable to say that channel half a mile broad is not wide enough for one vessel to come round the end of the breakwater, and go out and another vessel to go in at the same time so long as they keep on their proper sides…”

Of the latter issue, he went on to say (page 270):

“… as a matter of seamanship a master ought to recognize that the proper way of using such an opening is to keep to one side, and that side is the starboard side.”

186.  There is no dispute that the 570 metres wide entrance to the buoyed channel between CP1 and CP2, could easily accommodate the simultaneous entrance and exit to the buoyed channel of the Yao Hai and the N 67.

Conclusion

187.  For the reasons set out above, we are satisfied that the judge was correct to determine, as she did, that the buoyed channel was a narrow channel to which rule 9 of the COLREGS applied, with application to vessels approaching and shaping to enter the narrow channel, and that the crossing rules did not apply.  Clearly, she made that finding on the basis that she was sure that was the case.  Her findings (Ground 2) in respect of whether or not the 1^st applicant had taken all reasonable precautions to prevent a contravention of rule 9 of the COLREGS, in which she addressed the issue of whether or not the 1^st applicant was possessed of a reasonable belief that the crossing rules not the narrow channel rules were applicable to the buoyed channel and vessels in its approaches shaping to enter the buoyed channel, confirm unequivocally that all those findings were made to the criminal standard.

THE 1^st APPLICANT’S GROUNDS OF APPEAL

Ground 2: reasonableness of the belief that the buoyed channel was not a narrow channel and that the crossing rules applied.

188.  In advancing this ground, namely that the judge erred in determining that it was unreasonable for the 1^st applicant to believe that the buoyed channel was not a narrow channel and, conversely that the crossing rules were applicable to the two vessels, Mr Haddon-Cave prayed-in-aid the arguments advanced in respect of the judge’s determination that the buoyed passage was a narrow channel to which rule 9 of the COLREGS applied.  In particular, he submitted that the 1^st applicant had taken steps to establish the status of the waters in the buoyed channel: he had consulted the Admiralty Pilot and the appropriate charts.  Nowhere, was the buoyed channel described as a narrow channel.

189.  It was submitted that having regard to all those matters it was reasonable for the 1^st applicant to believe, as he had testified, that the buoyed channel was not a narrow channel but rather that the crossing rules were applicable to the two vessels.  That, it was suggested, was relevant to the issue of whether or not the 1^st applicant had taken all reasonable precautions to avoid contraventions of the COLREGS, in particular rule 9.

The judge’s findings

190.  Having determined that the buoyed channel was a narrow channel to which rule 9 of the COLREGS applied and that the crossing rules did not apply, the judge determined that (paragraph 130):

“D1 was unreasonable in not believing that this is a narrow channel.”

Of her reasons for so finding, she said (paragraph 451):

“He had knowledge of the deep draught buoyed channel of CP1-CP5, its depth and geography. He had navigated through this channel 20-30 times. The fact that some seaman may have navigated outside the buoyed channel, or that there was no publication that it was a narrow channel does * mean that it is not one.” [*Clearly, the word “not” is intended.]

191.  Furthermore, the judge cited at length (paragraphs 457–463) passages from the testimony of Capt’s Third in which he expressed the opinion that a prudent mariner applying good seamanship would treat the buoyed channel as a narrow channel.

IALA buoyed channel

192.  The judge repeated that finding, adding that she found it unreasonable for the 1^st applicant not to believe that (paragraph 467):

“... at least that under the rules of good seamanship that the vessels would keep to the starboard side of the buoyed channel and pass port to port.”

Crossing rules

193.  Similarly, having found that the crossing rules had no application, she found (paragraph 466):

“that it was wholly unreasonable and erroneous for D1 to believe that the crossing rules applied.”

194.  Of her reasons for so finding, the judge noted that the 1^st applicant was aware that the waters between Ma Wan and Urmston Road was a route used by vessels travelling in the opposite direction from one another, East to West and vice versa.  Of necessity, they had to pass each other beam to beam.  Of that, the judge said that ought to have provided the 1^st applicant with the answer in respect of how to navigate, namely that (paragraph 456):

“… both vessels pass each other port to port and both vessels alter course to starboard.”

A consideration of the submissions

Reasonable grounds to believe/’reasonable precautions’

195.  As noted earlier, the judge determined that section 10(4) of the Shipping and Port Control Ordinance, Cap. 313 provided a defence to the unlawful act allegation against the 1^st applicant in Charge 1, namely in circumstances where he (paragraph 21) “… took all reasonable precautions to prevent the contravention of the unlawful act.”

196.  Rule 2(a) of the COLREGS provides that nothing shall exonerate, inter-alia, any master or crew of a vessel from the consequences of any neglect of “… any precaution which may be required by the ordinary practice of seamen”. In his evidence (T. 5390), Capt Third said that the rule “defines the approach or attitude that must be taken by the navigator to the collision rules in general”.  He went on to say that the navigator:

“…must apply them as an ordinary seaman, prudently and with regard to the difficulties and problems which are faced by other vessels following the same rules”.

The apposite test

197.  The judge accepted (paragraph 457) the evidence of Capt Third that the apposite test to be applied in respect of the conduct of the navigator was that of a “prudent mariner applying good seamanship”.  Clearly, that same test applied to the construction of the phrase “all reasonable precautions”.

Narrow channel

198.  It was in that context that Capt Third testified that a prudent mariner applying good seamanship would say of the status of the buoyed channel in all the circumstances (paragraph 457):

“… that is a narrow channel. And even if he thought, ‘Well, maybe it’s not’, a prudent mariner would assume it was for the purposes of encounters with vessels coming in the opposite direction.”

Capt Third went on to say (T. 5446):

“… of its appearance and of its features and characteristics, it is clear enough that it is a narrow channel. But I think the next stage-and mariners do, sometimes, have these stages, where he may not know whether it’s a narrow channel, even though it has the appearances, but the default condition for mariners (is) to assume that it is, assume that keeping starboard is the safe option.”

199.  Of the suggestion that it would be a reasonable assumption to make for a mariner who had transited the waters regularly that rule 9 did not apply, Capt Third said (T.5468), “… that would not be a reasonable assumption.”  He added:

“I don’t agree that there is scope for ambiguity. It is about as plain as it gets, given the navigational markings and the situation as presented…. But we are dealing with a channel here which is essentially a channel for large, ocean-going ships.”

Finally, he said that it would not be reasonable to have any doubt about the matter (T. 5469).

Crossing rules

200.  Capt Third refuted the suggestion that it would have been reasonable for the 1^st applicant to have assumed that the crossing rules applied as between the N 67 and the Yao Hai (T. 5488):

“Not at all. You-I cannot see how, with the presence of those navigational marks, with an approaching vessel shaping a course to pass between the marks, that you could assume that all that it would be safe to stand on in that situation. It just doesn’t work.”

201.  Of the suggestion that it would have been a reasonable assumption for the 1^st applicant to make, that the Yao Hai would navigate north of the CP1 buoy, Capt Third said (T. 5488):

“It’s not a reasonable assumption at all. You can’t view it like that… In fact, that’s a dangerous assumption.”

Conclusion

202.  It is clear that in reaching her determinations that it was unreasonable for the 1^st applicant to believe that the buoyed channel was a narrow channel and that, instead of rule 9 of the COLREGS, the crossing rules applied the judge had regard to and applied the appropriate test, namely that of a prudent mariner applying good seamanship.  In determining that his belief was unreasonable, of necessity the judge was satisfied that the 1^st applicant had not taken reasonable precautions to avoid a contravention of the COLREGS.  She was entitled to make that finding.

Ground 3: navigation in the IALA buoyed channel

203.  By ground 3, it was submitted that the judge erred in holding that, regardless of the narrow channel issue, ‘good seamanship’ required vessels to navigate on the starboard side of the IALA buoyed channel and that in not doing so the 1^st applicant was in breach of rule 2 of the COLREGS.  Firstly, no allegations were made in the Particulars of Offence of a breach of rule 2 and/or good seamanship.  Secondly, until very shortly before the collision the N 67 was the only vessel navigating in the channel and was entitled to navigate in the middle of the buoyed channel (see The Mersey No. 30 [1952] 2 Lloyds Law Rep. 183).  Consequently, the judge was in error to find that the N 67 was “hogging” the buoyed channel.  The 1^st applicant was entitled to expect that the Yao Hai would keep clear of the N 67 (see the Canberra Star and The Enif [1999] 1 Lloyd’s Rep. 183).  Furthermore, the judge erred in finding that the 1^st applicant should not have had any doubt that the Yao Hai would enter the buoyed channel between CP1 and CP2.

The judge’s findings

204.  There was no dispute that the buoyed channel was an IALA buoyed channel in which lateral marks marked the limits of the channel.  In conjunction with the conventional direction of buoyage, green buoys mark the starboardside and red buoys the port side of the route to be followed.

205.  Accepting the evidence of, inter-alia, Capt Third and Capt Simpson the judge determined that it was good seamanship, as described in rule 2 of the COLREGS, for vessels navigating in an IALA buoyed channel to navigate to the starboard side of the channel (paragraph 328).  In consequence, vessels passing each other in the opposite direction in the buoyed channel should pass ‘port to port’, unless they made specific direct agreement with one another to do otherwise (paragraph 128-9).

206.  The judge accepted that the N 67 was entitled to use the buoyed channel, but added the caveat that (paragraph 490):

“… common sense and good seamanship suggest that she should have had cognizance of vessels of deeper draught would wish to use this route as the safest passage. At worst she should have kept to the starboard side of the channel or even left the channel to transit north of the buoyed channel. The last thing she should have done was to remain in the middle of the channel which made it difficult for any westbound large vessel to enter it safely.”

207.  The judge found that from the outset, the 1^st applicant should not have had any doubt that the Yao Hai would be entering the buoyed channel between CP1 and CP2 (paragraph 127).  She accepted the evidence of Capt Simpson that the situation could not be considered in isolation: the Yao Hai was followed closely by the Berlioz, an even bigger vessel.  She noted that he expressed incredulity that anyone would expect the two large vessels to alter course to pass north of the buoy CP1, to permit the smaller vessel, N 67, to exit the channel.  She noted that the solution was for the N 67 to “dip down to the south … so that the vessels would pass red to red” (paragraphs 464-5).

208.  Of the appropriate manner of navigating a vessel in such a channel, Capt Third said (T. 5391):

“… if you are in a channel, with a sizeable vessel, and there are vessels approaching you, you should be keeping to the starboard hand of the channel, to make sure that your encounters are consistent and follow the red-to-red pattern.”

A consideration of the submissions

Rule 2/good seamanship

209.  As noted earlier, rule 2(a) of the COLREGS serves to emphasise the importance of compliance with the ‘ordinary practice of seamen’.  Capt Third’s opinion that the rule defines the approach or attitude of the navigation to the COLREGS is supported by the observation expressed by the authors of the 13^th edition (2003) of Marsden’s ‘Collisions at Sea’, namely (6-23):

“One view is that the principle underlies all the rules, which form a part, but only a part of the concept of good seamanship.”

210.  We have no doubt at all that throughout the trial all parties understood that the overarching principle applicable to the impugned conduct was that it was to be judged against the standard of the prudent mariner applying principles of good seamanship.  It was unnecessary that this standard, or reference to rule 2 of the COLREGS, be stipulated in the Particulars of Offence.

Navigation in the IALA buoyed channel

211.  In The Mersey No 30 Willmer J was concerned with a collision between vessels in a narrow channel.  Although the judge found that one of the vessels was in breach of the equivalent of rule 9 of the COLREGS, in that she had not kept to the starboard side of the channel as required by the rule, nevertheless he found that her breach of the rule did not contribute to the collision.  In passing, he observed (page 190):

“I know that in many narrow channels seamen in practice tend to stick to the middle, and only came away to their own side when it is necessary to do so in order to pass another vessel coming the opposite way;”

212.  There is some force in Mr Brenton’s submission, whatever might have been the practice in the 1950s in the Mersey, that was not the practice of vessels navigating within this buoyed channel as evidenced by the records of the navigation of vessels in the 24 hours prior to the collision of the N 67 and the Yao Hai.  More importantly, however, was the critical question of what was required of the N 67 in prospect of the approaching vessels Yao Hai and the Berlioz.

213.  It is to be noted, however, that Capt Third said of that issue (T.5439):

“If there is no traffic in the area which causes you a problem, navigating within the channel and passing to the north of centre would create no risk whatsoever.”

Nevertheless, he went on to say:

“The problem arises if you have traffic and then, of course, the collision avoidance rules kick in because the rules are to avoid collisions.”

214.  Pilot Lee (PW5) gave evidence to similar effect, namely that “if there’s no opposite traffic” vessels transiting from west to east would navigate in the middle of the channel, but not to the north side of the channel (T. 1274).

Vessel approaching the channel

215.  Of the appropriate navigation required of a vessel within a channel, into which another vessel was approaching, Capt Third said (T. 5391):

“if you are in a channel, with a sizeable vessel, and there are vessels approaching you, you should be keeping to the starboard hand of the channel, to make sure that your encounters are consistent, and follow the red-to-red pattern.”

216.  In The Enif, David Steel J was concerned with a collision that occurred in the south western approaches to the Mississippi River.  The Enif was a general cargo vessel of over 12,000 tons, 127 metres in length and 22 metres in beam.  The vessel with which she collided, the Alexia, was a bulk carrier of Panamax size, 223 metres in length and 32 metres in beam.  The Enif was proceeding from New Orleans down the Mississippi River in the South West Pass, whereas the Alexia was inbound shaping to enter the South West Pass.  It was common ground that the South West Pass, a safety fairway, was not a narrow channel.  The judge found that the Alexia was at fault for having kept an appalling look-out, as a result of which she did not see the Enif until less than one minute before the collision, whereas the Enif, in face of the fact that the Alexia made no attempt to give away as she should have done, was at fault for not having altered course to starboard or having taken off way.  The judge observed (page 647):

“In the event that Alexia was determined to navigate within the safety fairway but felt that Enif left her insufficient room so to do, her reaction should have been to slow down and let Enif come across in front of her.”

217.  However, as noted those observations were made in the context of the judge’s findings that, faced with the fact that the Alexia was making no attempt to give way to her despite attempts to attract her attention, the Enif was required to take action herself.  She was not entitled to pursue her course regardless of the conduct of the other vessel.

The route to be anticipated of the Yao Hai and Berlioz

218.  Capt Simpson testified, by reference to the available radar images (T. 6715):

“anyone following the track, firstly of the Yao Hai but then as Berlioz came into the screen, of anyone watching the radar…just shows them heading towards it. In my view, as a mariner, shows them heading towards that space between the two buoys, CP1, CP2.”

219.  Of the issue whether it would have been reasonable of the 1^st applicant to expect the Yao Hai and the Berlioz to navigate north of the CP1 buoy, Capt Simpson said (T. 6926):

“… to possibly assume that one large vessel will take a track to the north of a buoy, when it’s clearly approaching a channel, is an unreasonable expectation, I think. But to compound it with expecting two large vessels to pass… north of a buoy, is compounding the situation… I can’t understand why two large vessels would simply not use a channel that’s open to them, or should have been open to them.”

220.  Of the position of the 1^st applicant Capt Simpson said (T. 6743):

“I’ve identified two large vessels in relatively close proximity. They are relatively close to each other as well. They’re both approaching me and I’m navigating within a channel… And I think, simply from a comfort perspective, I would have to be thinking, ‘Don’t embarrass them’.”

Conclusion

221.  Clearly, the judge was entitled to determine that the 1^st applicant should not have had any doubt that the Yao Hai was shaping to enter the channel between buoys CP1 and CP2.  In those circumstances, in particular given that the Yao Hai was being followed in close proximity by the Berlioz, the judge was entitled to find that the 1^st applicant was at fault in ‘hogging’ the channel, rather than altering the course of the N 67 to the starboard side of the buoyed channel towards the CP2 buoy, and thereby avoiding embarrassing the other vessels.  Quite obviously that was the conduct required of a prudent mariner applying good seamanship.

Ground 5: failure to keep a proper look-out – rule 5

222.  Mr Haddon-Cave submitted that the judge erred in finding that the 1^st applicant had failed to keep a proper look-out, in consequence of which he was in breach of rule 5 of the COLREGS.

The 1^st applicant’s look-out

223.  It was argued that finding was contradicted by the evidence of the 1^st applicant, apparently accepted by the judge, of the observations that he had made of the approaching Yao Hai, namely:

(i)                first of all, on AIS (Automatic Identification System) to the east of Ma Wan (paragraph 426);

(ii)             then, on radar at about five nm as she rounded Ma Wan (paragraph 427);

(iii)           next, he acquired details of the Yao Hai on ARPA, including her course (250°) and speed (13-14 knots) over the ground, the CPA of 2-3 cables to starboard (paragraph 427) and a bow crossing range of 7 to 8 cables (paragraph 447);

(iv)    subsequently, he identified two masthead lights and a green navigation light by using binoculars (paragraph 429); and

(iv)           finally, he heard VHF radio transmissions between the Yao Hai and Mardep.

It was submitted that the finding that the 1^st applicant was in breach of rule 5, keeping a proper look-out, “necessarily entailed” the determination that the 1^st applicant was not telling the truth about his look-out.

Aldis Lamp

224.  Next, it was contended that the judge erred in holding that the 4^th applicant had used an Aldis Lamp to flash a light signal to the N 67.  In so finding she ignored the evidence of Pilots Chan and Lee (PW4 and PW5) on the Berlioz that they had not seen such a light signal and the absence of any record or audio recording of any discussion between those on the bridge of the Yao Hai about the issue.

The whistle

225.  Then, it was contended that the judge erred in holding that the whistle of the Yao Hai would have been audible on board the N 67. In so finding, the judge failed to give proper consideration to the audio strength of the whistle as recorded on the Yao Hai, the fact of concomitant VHF transmissions and the evidence of Pilots Chan and Lee (PW4 and PW5) on the Berlioz that they had not heard the whistle.

Radar

226.  Furthermore it was submitted that the judge erred in holding that the 1^st applicant was wrong to stop using his radar when the distance between the two vessels became less than one nm.  In so determining the judge failed to have regard to the fact that the Yao Hai had been visible to the 1^st applicant for several minutes and that mariners placed greater reliance on visual observation.

227.  Finally, it was submitted that the judge erred in criticising the 1^st applicant for not having appreciated the reduction in the CPA of the Yao Hai, which was brought about by small alterations of course to starboard by the Yao Hai.  In addition, the judge failed to take into account the evidence of the 1^st applicant that the CPA reading on ARPA of the N 67 was never less than two cables and the bow crossing range never less than 5 cables.

The judge’s determination as to compliance with rule 5

228.  Rule 5 of the COLREGS provides:

“Look-out

Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and the risk of collision.”

229.  As noted earlier, the contravention of rule 5 of the COLREGS alleged against the 1^st applicant in Charge 1 was particularised on the basis that he:

“failed to maintain a proper look-out by sight and hearing as well as by radar so as to make a full appraisal of the situation and the risk of collision with the vessel ‘Yao Hai’.”

230.  The judge determined that compliance with the requirements of rule 5involved (paragraph 765):

“… not just observation but also appraisal of the situation, that is making a judgment of the situation.”

There is no dispute as to the accuracy of the first part of that statement.  However, the judge went on to say:

“There is no point in saying I was watching and listening and seeing a dangerous situation developing and then ignoring it or doing nothing about it. That is not a proper appraisal… there is no point keeping a proper lookout and then just carry on doing nothing. That does not mean you have complied with the rule, just because you are aware and you have actually seen and heard what is going on around you and then you do not do anything about it or you do not do enough.” [Italics added]

A consideration of the submissions

231.  With respect to the judge, the latter observations add an unwarranted gloss to the words of the rule itself.  The sequence of the rules evidence a readily understandable logical structure:

(i)                Rule 5 is entitled ‘Look-out’ and requires a proper look-out to be maintained, “... so as to make a full appraisal of the situation and the risk of collision.”

(ii)             Rule 7 is entitled, ‘Risk of collision’.  As to the risk of collision, rule 7(a) provides that, “if there is any doubt such risks shall be deemed to exist.”

(iii)    Rule 8 is entitled, ‘Action to avoid a collision’.  Rule 8(a) provides that, “any action to avoid a collision shall, if the circumstances of the case permit, be positive, made in ample time and with due regard to the observance of good seamanship.”

232.  Clearly, if a proper look-out is maintained in all the circumstances, so as to make a full appraisal of the situation and of the risk of collision, that compliance with rule 5 is not turned into a breach of the rule by a subsequent failure to act.  Other rules deal with that conduct.  However, earlier the judge had articulated the correct logical sequential approach to the issue (paragraph 746):

“By failing to keep a proper lookout D1 did not appreciate the situation and consequently failed to take the proper action. D1 failed to hear or respond to the whistle blasts from the YH.”

Look-out: the 1^st applicant’s credibility

233.  There is no substance to the assertion that, in finding that the 1^st applicant was in breach of rule 5, the judge was necessarily determining that he was not telling the truth about his look-out.  It is to be noted that this assertion seemingly contradicts the earlier submission, namely that the judge had accepted the 1^st applicant’s evidence as to his look-out.  On the contrary, as is readily apparent, the judge proceeded on the basis of his testimony in that respect, in particular that he had not heard the blasts on the whistle of the Yao Hai, seen her Aldis Lamp or observed a CPA between the two vessels displayed on the ARPA of N 67’s radar of less than two cables.

The Aldis Lamp

234.  In her ‘Analysis’of the 4^th applicant’s evidence ,the judge found that in using the Aldis Lamp the 4^th applicant had acted independently of the 3^rd applicant.  Clearly, she was accepting his testimony that he had used the Aldis Lamp to flash a light signal directed at the N 67.  There is nothing surprising in that determination, given the fact that, although the 4^th applicant was cross-examined (T. 6421-6; 6432-42) on behalf of the 1^st applicant in some detail and at some length about the circumstances of his use of the Aldis Lamp, it was never suggested to him specifically that he had not used it.  Similarly, although the 3^rd applicant confirmed in his testimony (T. 5667-8) that the 4^th applicant had used the Aldis Lamp from the wing of the bridge of the Yao Hai, describing it graphically as like one of the laser beams displayed in Victoria Harbour from time to time, and, although the subject was raised with him in cross-examination on behalf of the 1^st applicant (T. 5735-8), it was never suggested to him specificallythat the Aldis Lamp had not been used as described by the 4^th applicant.

235.  Clearly, there was no room for the possibility that the 3^rd and 4^th applicants were mistaken about the use of the Aldis Lamp.  It is trite law that if a court is to be invited to disbelieve witnesses on the basis that they are lying that suggestion must be made to the witness, to give the witnesses the opportunity to deal with it.  That was not done.  In those circumstances the judge was clearly entitled to accept their testimony.

 The pilots on the Berlioz

236.  In addition, although both pilots on the Berlioz testified that they had not seen the beam of an Aldis Lamp projected forward from the Yao Hai each of them said that from their position on the Berlioz, astern of the Yao Hai, they would not have seen that beam of light.  Pilot Chan (PW4) said (T. 1178):

“I almost can say for sure that I won’t be able to see it.”

Pilot Lee (PW5) said (T. 1271-2):

“It’s just impossible for me to see the Aldis lamp from behind... I’m so far away, it is totally impossible to see.”

In those circumstances, very little or no weight attached to the fact that they had not seen the beam of an Aldis Lamp projected forward from the Yao Hai.

The audibility of the Yao Hai’s whistle

237.  There is no dispute that the blasts on the whistle given by the Yao Hai are audible on the audio recording made by the Yao Hai.  Similarly, there is no dispute that the Yao Hai was required to have a whistle that was audible at two nm and that the blasts on the whistle were given at a distance between the vessels of less than half a nm.  (See paragraph 509.) Further, there were no adverse weather conditions relevant to the issue of audibility.

238.  Similarly, there is no dispute that the pilots on the Berlioz did not hear any whistle blasts.  However, clearly little significance attached to that fact.  Pilot Chan (PW4) accepted that his ability to hear such whistle blasts from the Yao Hai would be affected by the fact that the whistle blasts were directed forward of the Yao Hai, that the vessels were far apart and he was inside the bridge of the Berlioz (T. 1175; 1227 and 1248).

239.  Clearly, the judge accepted the 1^st applicant’s testimony that he had not heard the blasts on the whistle given by the Yao Hai. In her ‘Analysis’ of his evidence, she said simply (paragraph 509):

“D1 failed to hear any of the whistle blasts...”

Why did the 1^st applicant fail to hear the whistle of the Yao Hai?

240.  The material issue remaining was simply how that had come about.  The judge noted that the 1^st applicant’s testimony in that respect was (paragraph 443):

“... because N 67(‘s) bridge was very noisy as the funnel and engines were noisy. Noise was also coming from the VHF radios.”

241.  There is no dispute that Yao Hai had given one short blast on her whistle at 21:12:32 and gave the first of five short blasts on her whistle at 21:12:43.  VHF radio transmission between Yao Hai and Mardep had begun at 21:11:58.

VHF transmissions between Mardep and the N 67

242.  The judge was alive to the evidence of the 1^st applicant of the VHF transmissions that were received and were being made from and to the N 67 during the period of time in which blasts on the whistle of the Yao Hai were made (paragraph 351).  At 21:12:28 Mardep gave N 67 a warning to keep a safe distance from the “head-on vessel”.  The judge noted (paragraph 442) that the 1^st applicant testified that he had heard only “keep safe distance” and, as a result, had asked the Third officer on the bridge of the N 67 to ask VTC to repeat the message.  That VHF transmission from the N 67 was made at 21:12:36.  Finally, at the request of the 1^st applicant, the Third officer on the bridge of the N 67 had contacted the Yao Hai at 21:12:39 and enquired “Are you okay, Neftegaz.”  At 21:12:46 Mardep warned the N 67 (paragraph 352):

“You have a warning. You have a collision risk with the head-on vessel. Over. Take action to avoid danger, over.”

The 1^st applicant’s duty: distracting noise

243.  Of the 1^st applicant’s duty, having regard to the noisy conditions obtaining on the bridge of the N 67, the judge determined (paragraph 509):

“If as D1 knew another vessel was approaching then someone should be stationed on the outside of the bridge so as to be able to hear any whistle blasts. To navigate N 67 in the apparent noise of the bridge without being able to hear such audible sounds is highly substandard, reckless and outright dangerous. This was no excuse let alone a reasonable excuse.”

In our judgment, that finding was entirely justified.

Use of radar: ARPA and CPA

244.  Having noted the 1^st applicant’s testimony, that after the point in time when the two vessels were about one nm apart he had used only visual observation with the aid of binoculars to monitor the progress of the Yao Hai, the judge said (paragraph 745):

“Simply to go entirely visual using eyesight and binoculars especially at night with limited reference points is difficult. It would have been sensible to at least check with the radar with a quick glance at now and again to see whether it accorded with what D1’s eyes were apparently telling him.”

245.  The context in which the judge made that finding was her earlier reference to the evidence of Capt Third (paragraph 512):

“I accept Captain Third’s evidence that it should have been obvious to D1 that the two vessels were on a near collision course from YH(‘s) lights and a quick radar check. He said:-

‘I think the fact that the vessels were on a collision course would have been self-evident from observing the lights, observing the buoys ahead.  A quick glance at the ARPA not even looking at the numerals just looking at the vectors would have told you, you know, that’s what I can see, there it is.’”

246.  Having noted that it was the evidence of the 1^st applicant that the CPA displayed on ARPA on the radar of N 67 was 0.2 or 0.3 nm, or about 2 to 3 cables when data on the Yao Hai was first acquired (paragraph 427) and that it was never less than two cables, the judge observed (paragraph 510):

“Although the CPA was originally two cables or more from 21:09 the CPA as can be seen on exhibit P3A had changed to half a cable or less when the vessels were 1.8 miles apart but D1 unwarrantably failed to notice it.”

247.  No doubt, the judge’s reference to the 1^st applicant’s unwarranted failure to notice the continuing very reduced CPA was related to the fact that a full two minutes passed before the vessels came within one nautical mile of each other.

248.  Of the significance of the CPA, the judge said that it (paragraph 744):

“… varied effectively between zero and 100 metres or less for almost 5 minutes before the collision. From 21:09 onwards there was a risk of collision. There may not have been any real risk of collision even at 21:10 but a risk of collision was developing. The later each vessel left their decision to take action the more likely it would be luck than good judgment that avoids a collision. The dire situation which arose should never have developed.”

249.  The 1^st applicant’s evidence that the CPA displayed on ARPA on the radar of the N 67 gave readings to an accuracy of 0.1 nm, or one cable, was unchallenged (T. 4213).  Significantly, when making reference to the 1^st applicant’s evidence in respect of CPA the judge did so in those units.  Clearly, she was aware that the VTC records, which condescended to readings of a metre, were much more accurate.  Nevertheless, the force of the judge’s observation, critical of the 1^st applicant, remains.  From 21:09 the CPA of the two vessels was not two or more cables or 0.2 nm or more.  It was consistently less than 0.1 nm.  A glance at the ARPA display on the radar would have provided the 1^st applicant with that crucial information.

250.  We are satisfied that the judge was entitled to find (paragraph 135):

“There were more than sufficient persons on the bridge of N 67…. It would have been easy for one of them to keep his eye on the radar or ARPA.”

Similarly, she was entitled to determine of the 1^st applicant, as master of the N 67, that there was “no effective reliable use of the available instruments or equipment by D1.”

The change of course of the Yao Hai from about 250° to 260°

The 1^st applicant’s case

251.  The judge noted that it was the evidence of the 1^st applicant that as the Yao Hai approached the N 67, there was no discernible change in her course (paragraph 433).  In his evidence, the 1^st applicant had testified that the course of the Yao Hai was first described on ARPA as being 250° (T. 4274).  As the vessels closed on each other he said (T. 4277):

“Yao Hai also maintained its course and speed. At least I did not notice any considerable changes.”

Of the aspect of her lights, he said that there was “no considerable change”.

The judge’s findings

252.  Of the actual change in the heading of Yao Hai, the judge said (paragraph 511):

“YH slowly turned from a heading of about 250° to 260° from about 21:07:56 to 21:09:08 (1 minute 12 seconds). I accept Capt Cheung and Professor Ng’s opinion that such a change of heading should have been noticed by D1 but it was not.”

253.  Capt Cheung expressed the opinion that it was unreasonable that the 1^st applicant had failed to notice such a change of course.  He noted that the vessels were navigating in a narrow channel and were in “congested waters”.  He said (T. 2196):

“If he maintained careful lookout, he should have been able to detect the changes.”

He added:

“He should have been able to observe visually. He can also pick it up through the radar.”

254.  Professor Ng accepted that it would have been very difficult for the 1^st applicant to have detected each individual small alteration of course by the Yao Hai.  However, he disagreed that the accumulated small changes were not discernible (T. 3450):

“It add up together. It’s not small.”

He explained his assertion that if he had been on the bridge of N 67 he would have discerned the changes in course:

“… because I’m looking at the ARPA and the radars. If Yao Hai is in sight, then I’d look at it visually. How can I miss that? No.”

255.  The judge’s determination (paragraph 754) that, “the alterations that D3 tookwere not alterations of course large enough to be readily apparent to N 67” does not conflict with her finding (paragraph 511) that the cumulative changes of course of the Yao Hai should have been noticed by the 1^st applicant .  The judge’s observation at paragraph 754 was made in the context of the consideration of compliance with rule 8(b) of the COLREGS by the 3^rd applicant.  The rule requires that any alteration in course taken to avoid collision, if the circumstances permit, “be large enough to be readily apparent to another vessel” [emphasis added].  It was Capt Cheung’s evidence (T. 1961) that at 21:10:05, when the Yao Hai’s heading was 257° that, the Yao Hai “ should have followed rule 8 to take action to avoid collision” and that she should have turned to starboard to a heading of at least 270°, i.e. a change of 13° to starboard.  She did not do so.  Rather, she continued to make small adjustments of course to starboard.  It was those adjustments of course by the Yao Hai, together with her adjustments of course in the previous minutes that Capt Cheung said ought to have been discerned by the 1^st applicant.

Conclusion

256.  Given the failure of the N 67 to take any steps whatsoever, save when it was too late, to avoid the course of the Yao Hai, the failure to respond to light and sound signals, the failure to notice the Yao Hai’s change of course, and the failure to make timely contact, one has to wonder whether the account given by the 1^st applicant as to what he saw and did was a true account, and whether he was keeping a look at all.  But, insofar as the judge accepted his evidence we are satisfied that she held correctly that the 1^st applicant (paragraph 746) “did not keep a proper lookout” and (paragraph 517) that his “lookout and hearing were critical failures”, so that he was in breach of rule 5 (paragraph 783). Although we have found that she was in error to state the ambit of rule 5 as itself requiring action in consequence of look-out and appraisal, it is clear that in her specific individual findings of failures in look-out the judge confined herself properly to the boundaries of the rule itself.

Ground 5: action to avoid collision - rule 8

257.  It is submitted by Mr Haddon-Cave that the judge erred in finding the 1^st applicant was in breach of rule 8 of the COLREGS. It was contended that the judge was in error to determine that rule 9 of the COLREGS applied to the buoyed channel, rather she ought to have held that the crossing rules (rules 15-17) applied.  Further, that the 1^st applicant held an “honest and reasonable” belief that rule 15 applied, so that the N 67 was the ‘stand-on’ vessel required to maintain course and speed whereas the Yao Hai was the ‘give way’ vessel.

258.  Next, it was submitted that the judge had erred in finding the 1^st applicant in breach of rule 8(a), in particular for failing to take positive action in ample time.  The judge ought to have held that it was not unreasonable for the 1^st applicant to have waited until the Yao Hai started to cross ahead of the bows of the N 67 before taking avoiding action by turning the N 67 to port because he reasonably believed that:

(a)     he was entitled to keep his course and speed until that time;

(b)     the Yao Hai appeared to be crossing ahead of the N 67 at a safe bow crossing range; and

(c)  that by turning N 67 to port he would increase the CPA between the two vessels.

Accordingly, the judge could not be satisfied to the criminal standard of proof that the conduct of the 1^st applicant prior to the period of one minute before the collision occurred was culpable.

259.  Then, it was contended that the judge erred in finding that the 1^st applicant gave the order ‘Hard Port’ no earlier than 21:12:50.  In making that finding the judge failed to take into account the evidence of the 3^rd and 4^th applicants that they had seen the N 67 manoeuvring to port earlier than that time.  Finally, it was submitted that the judges erred in finding the 1^st applicant to be in breach of rule 8(f)(i) of the COLREGS, which rule does not apply to the N 67.

A consideration of the submissions

The 1^st applicant’s honest and reasonable belief that the buoyed passage was not a narrow channel and that the crossing rules applied

260.  Earlier in this judgment, we held that the judge applied the correct test of the prudent mariner applying good seamanship, in resolving the issue of whether the 1^st applicant held an honest and reasonable belief that the buoyed passage was not a narrow channel and that the applicable regulations were the crossing rules.  That was relevant to a consideration of whether or not the 1^st applicant had taken reasonable precautions.  The judge was entitled to find that his belief was unreasonable and that he had not taken reasonable precautions.  That determination resolves the same submissions advanced on behalf of the 1^st applicant under this ground of appeal.

The time the 1^st applicant gave the order ‘Hard Port’ on N 67

The judge’s determination: 21:12:50/55

261.  The judge determined that the 1^st applicant gave the order‘Hard Port’ on the N 67 at about 21:12:50 or 21:12:55 (paragraph 548). She said that she relied on and accepted the evidence of Capt Third and Capt Simpson in respect of their calculations as to the time of that order and the submissions advanced on behalf of the respondents.

262.  The judge rejected the 1^st applicant’s case on the issue, in particular as advanced by Capt Browne.  (See paragraphs 532-3.) In rejecting the evidence that the order ‘Hard Port’ had been given by the1^st applicant at 21:12:30, the judge said (paragraph 767):

“That flies in the face of common sense, apart from anything else, that a vessel such as this would take 50 seconds to answer a helm command to any appreciable extent.”

The evidence

263.  Data in respect of the N 67 was available from the voyage data recording (“VDR”) on the Yao Hai and from the VTS.  That information included the Course over the Ground (“COG”), and the Heading and Rate of Turn (“ROT”) of the N 67.  The latter is a measure of the rate calculated in degrees (- for port and + for starboard) at which the bow of the vessel comes around in a minute.

(i)      Capt Third

264.  The judge noted (paragraph 537) that Capt Third had considerable experience with supply vessels similar to the N 67.  They were designed to manoeuvre precisely and quickly.  It was his opinion that when travelling at speed there would be an almost instant reaction to application of the rudder, which he said could be manoeuvred from amidships to hard over in 7-8 seconds.  In his opinion, the ROT data in respect of the N 67 was an unreliable indicator of her movements.  Neither vessel was fitted with a dedicated, specialised ROT instrument (paragraph 540).  He relied on turning characteristics of the vessel.  He noted that at 21:13:02 the heading of the N 67 given on AIS was 90°.  At 21:13:32 her heading was 47°.  That accorded with his experience of a vessel of this type.  Accordingly, the latest time the helm went over was at 21:13:02.  Allowing for time to respond to the order ‘Hard Port’, in his opinion the order was made at about 21:12:50 (paragraphs 541-2).

265.  In his evidence (T. 5605) Capt Third said that the ROT readings for the N 67 of about + or -10° were irrelevant and merely reflected the helmsman maintaining a steady course.  However, he agreed that the ROT reading in respect of the N 67 of -32 at 21:13:02 meant that she was “definitely turning”.  Thereafter, the ROT readings increased significantly e.g. -61, -98 and -125 and was accompanied by a significant change in heading of the N 67.

(ii)     Capt Simpson

266.  For his part, Capt Simpson rejected the evidence of Capt Browne that the helm order given by the 1^st applicant was given at 21:12:29.  He noted that the turn to port of N 67 had commenced at 21:13:04.  In cross-examination on behalf the 1^st applicant he was reminded of the evidence of the 3^rd and 4^th applicants of their observation of the N 67, in particular the time at which they observed the N 67 altering course to port.  The 3^rd applicant had testified (T. 5958), “at this stage, the second set of five blasts were sounded… At that stage, it was already known that she had turned to port.” That sound signal was commenced at 21:12:57.  Then, he said he had noticed the N 67 changing course “between the two sets” of five short blasts on the whistle.  The 1^st set of 5 blasts on the whistle commenced at 21:12:43. The 4^th applicant testified that he had given the first set of five short blasts on the whistle of the Yao Hai because, “it appears to me that she was doing something differ (erent) from what she had been doing”.  He gave the second set of five short blasts on the whistle because, “at that time I knew that she was turning to port.”

267.  When it was suggested to Capt Simpson in cross-examination on behalf the 1^st applicant that, in light of his opinion that the N 67 began to turn to port after 21:13, the 3^rd and 4^th applicants were mistaken in their evidence, he replied (T. 7054-7055):

“Well I think from a bare observation of these figures…. I think what they thought they saw was something wrong, followed by an alteration of course to port ……what I’ve heard in court from D1, is that the manoeuvre, or the helm order, was hard a-port... And nothing else. So in the absence of any other helm orders, my response has been based on my experience of giving a helm order of hard a-port, and the heading changed, I would expect, and I don’t think the figures here illustrate what you’re trying to say.”

268.  In accepting the evidence of Capt Simpson in respect of his opinion of the time at which the N 67 began to turn to port, and the earlier time at which the order to do so had been given by the 1^st applicant, the judge was clearly accepting his rejection of the 3^rd and 4^th applicants evidence to the contrary.

Conclusion

269.  We are satisfied that the judge was entitled to accept and rely upon the evidence of Capt Third and Capt Simpson as to the time at which the 1^st applicant gave the order ‘Hard Port’.

The applicability of rule 8(f)(i) to the N 67

270.  Rule 8(f)(i) of the COLREGS provides that:

“A vessel which, by any of these Rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea room for the safe passage of the other vessel.”

The judge’s findings

271.  The judge found that the 1^st applicant breached rule 8(f)(i) by navigating on the wrong side of what she determined to be a narrow channel (paragraphs 775 and 783).

272.  Earlier, the judge had noted that there was a dispute between the applicants and the respondent as to the applicability of either rule 8(f)(i) or rule 8(f)(iii) to the two vessels.  On the one hand, the applicants contended that the rule was vessel specific and not a rule of general application.  On the other hand, the respondent submitted that the duty “not to impede the passage” of another vessel was not so restricted but applied to vessels that were required to “keep out of the way” of that vessel.

273.  In determining that both provisions applied to the two vessels, the judge said that she accepted the evidence of Capt Third to that effect (paragraphs 325; 676-7).  Having agreed that rule 8(f)(i) applied to the N 67, Capt Third said of the N 67 (T. 5630):

“… she can see that there is a vessel heading down towards the channel entrance, as defined by the buoys... And, therefore, applying rule 9, she’s obliged to hold to starboard and if one interprets the ARPA correctly, there is a risk of collision developing and an early action to avoid a developing risk of collision in this case would be to allow sufficient searoom for the vessel that’s heading for the entrance between the buoys.”

Capt Third went on to say (T. 5631):

“So what you can say about rule 8 (f)(i) is that it sets out in terms what you would expect good seamanship, under rule 2, to define because the two things are the same, basically. Under rule 2, good seamanship is not to obstruct the passage that another ship is clearly intent on making, in a narrow channel, i.e. on the starboard side. And here, in terms, is a rule which is saying more or less the same thing; take early action… and keep out of the way.”

Conclusion

274.  We are satisfied that, having determined that the Castle Peak buoyed channel was a narrow channel to which rule 9 of the COLREGS applied and that, in any event as an IALA buoyed channel, good seamanship required navigation on the starboard side of the channel, the judge was entitled to accept the evidence of Capt Third that rule 8(f)(i) of the COLREGS was operative, so that a vessel required not to impede the passage of another vessel shall take early action to allow sufficient sea room for the safe passage of the other vessel.  As Capt Third testified, that accords with what is to be expected of the practice of good seamanship.

Rule 8(a): did the 1^st applicant take positive action in ample time to avoid a collision?

The judge’s findings

N 67 - no change of course (21:08:30-21:12:50)

275.  The judge found that the 1^st applicant made his alteration to port to avoid a collision “far too late” (paragraph 748).  She noted that the N 67 had passed the restricted area at about 21:08:30 (paragraph 672). In order to comply with the prohibition on entering the restricted area, as the N 67 steered east it was necessary for her to steer in the middle of the channel on a course of about 90°.  However, as the judge noted, having passed the restricted area the 1^st applicant maintained the course and speed of the N 67 (paragraph 167):

“without any deviation of course until he gave an order hard to port at 21:12:50. This order to port was the only alteration of course to avoid the collision.”

The time of collision: 21:13:44

276.  The judge determined that the time of the collision between the two vessels was about 21:13:44 (paragraphs 183 and 346).  She noted that in the period of about five minutes after the N 67 had passed the restricted area the ARPA display on the radar of vessels would have been showing (paragraph 741):

“… the ARPA equivalent of a red alert for a full five minutes before the vessels actually collided because it was obvious from that and, indeed, simply visually, that both ships were heading and aiming for what turned out to be the same point just inside and south of buoy CP1.”

Risk of collision

277.  Having noted that although the CPA between the two vessels varied, it was effectively less than 100 metres for almost 5 minutes before the collision, the judge determined (paragraphs 744):

“From 21:09 there was a risk of collision. There may not have been any real risk of collision even at 21:10 but a risk of collision was developing. The later each vessel left their decision to take action the more likely it would be luck rather than good judgment that avoids a collision.”

Earlier, (paragraph 160) the judge had determined that there was a “real risk of collision” by 21:12:00 when the two vessels were 0.6 nm apart.

Alternative: if the crossing rules applied

278.  Notwithstanding her findings that the Castle Peak buoyed channel was a narrow channel, in consequence of which by his navigation the 1^st applicant was in breach of rule 9 of the COLREGS, and that in any event good seamanship required the 1^st applicant to navigate on the starboard side of that IALA buoyed channel, nevertheless the judge went on to consider the 1^st applicant’s conduct on the basis that the crossing rules did apply (paragraphs 493-508).  Even in those circumstances, the 1^st applicant was not entitled to assert his rights irrespective of the other vessel, and stand on until a collision had occurred.  Having noted that the 1^st applicant accepted that it was clear to him that the Yao Hai was not taking action, the judge found that (paragraph 501), “It was wholly unreasonable for D1 to stand-on and hold her course and speed.”  In those circumstances, the 1^st applicant was at first permitted, by rule 17(a)(ii), and then required, by rule 17(b), to take action to avoid a collision.

279.  The judge accepted the evidence of Capt Cheung, Professor Ng and Capt Simpson that, to avoid a collision with the Yao Hai, the N 67 should have taken action and made a substantial alteration of course to starboard at about 21:12:00.  The 1^st applicant was permitted to do so under rules 17(a)(ii) (paragraph 502).  At 21:12:05 the two vessels were approaching each on a collision course at a combined speed of 23.5 knots and were only 0.68 nm apart.  The CPA was less than half a cable.  Merely to state that information is to illustrate the gravity of the dilemma that had been allowed to develop by the 1^st applicant.

280.  Capt Simpson testified that by 21:11:00 there was a risk of collision “if nobody altered course” (T. 7071).  He said that if he had been the master of the N 67 that he “would have altered course at around 21:11 to starboard.  I would have probably put my engines on full ahead and got out of the way down to the south” (T.7075).  That was permitted by rule 17(a)(ii). He refuted the suggestion that one option was for the N 67 to stand-on,

“Well, you’re saying to me that you are going to stand-on and you’re happy with a close green-to-green situation within a buoyed channel; I’m not happy with that. And I think there’s a point — you’re taking me to a position where — further into a position where I wouldn’t be, that I’ve told you what my perception would be by 21:11; in those circumstances, I would feel a little concerned and, again, I would have altered course to starboard. I would alter course to starboard but I wouldn’t ignore the ‘may’ in rule 17(a)(ii). I couldn’t ignore the ‘may’ there, however much you want me to say that it’s an option. For me it’s not an option.” (T. 7077)

Subsequently, he suggested the time to take action was 21:12:00 (T. 7164).

281.  The judge rejected the 1^st applicant’s case that if he had turned to starboard or left the channel he would have breached the COLREGS (paragraph 506):

“She could have left the channel or gone to starboard. The rules do not prohibit her from doing so… Her turn to starboard at any time would have naturally meant that YH and N 67 would be passing port to port in the channel.”

282.  Obviously, there can be no dispute with her finding that the 1^st applicant could have turned to starboard immediately upon passing the restricted area (paragraph 500).

283.  Of the fact that the 1^st applicant took no action whatsoever to avoid a collision other than turning to port at 21:12:50, the judge found (paragraph 549):

“Most appalling and in error was D1’s turn to port at such close range of about 0.3 nm or 550 metres when YH was so close.”

Conclusion

284.  There was overwhelming evidence on which the judge was entitled to reach the determination that the 1^st applicant was in breach of rule 8 of the COLREGS.  In our judgment such finding was inevitable.  As the judge noted, the true gravity of the 1^st applicant’s culpability lay in allowing a close quarter situation, requiring last moment action, to develop between the vessels (paragraph 781).

Ground 6: was the N 67 required to take avoiding action by turning to starboard or leaving the channel, after she passed the restricted area?

285.  It was submitted on behalf of the 1^st applicant that the judge erred in determining that the N 67should have taken avoiding action by turning to starboard or leaving the channel after she passed the restricted area.  As in respect of the previous ground of appeal, it was submitted that the judge approached the matter on the wrong basis, having incorrectly determined that the narrow channel rule, not the crossing rule applied. Next, it was contended that in maintaining her course and speed, namely in navigating in the middle of the channel, the N 67 was not in breach of either the COLREGS or the relevant principles of good seamanship.

286.  Then, it was suggested that the judge had failed to appreciate that rule 17(a)(ii) was permissive, not obligatory, and that rule 17(b) whilst mandatory nevertheless permitted N 67, as the stand-on vessel, to alter course in whatever direction she believed would best aid avoidance of a collision.  Accordingly, the judge ought to have determined that the 1^st applicant acted reasonably in altering course to port, given that he believed the Yao Hai was crossing five cables ahead of N 67 intending to pass starboard to starboard, and that in doing so the CPA would be increased.  Finally, the judge should not have determined that she was satisfied beyond reasonable doubt that the conduct of the 1^st applicant was wrong.

A consideration of the submissions

287.  As noted earlier, the judge was entitled to determine that the buoyed channel was a narrow channel and that rule 9 applied.  Similarly, she was entitled to determine that the crossing rules did not apply.  In consequence, the judge was entitled to determine that in navigating in the middle, not the starboard side, of the channel, the 1^st applicant was in breach of rule 9.  In any event, the judge was entitled to determine that in navigating in an IALA buoyed channel into which two large vessels were approaching in the opposite direction, good seamanship required the N 67 to move from the middle to the starboard side of the channel.  Of that she said (paragraph 490):

“The last thing she should have done was to remain in the middle of the channel which made it difficult for any westbound large vessel to enter it safely.”

N 67’s turn to port

288.  As noted earlier, the judge’s criticism of the 1^st applicant’s manoeuvre of turning the N 67 to port was on the basis that it was done so late, when the vessels were in close proximity of one another closing on a collision course at 23 knots.  She found specifically (paragraph 781):

“There fault was to allow the close quarters situation and the last moment action to have developed which led to the collision but not the actions they took in the panic.” (Italics added.)

Rule 17(a)(ii) and rule 17(b)

289.  Rule 17(a)(ii) provides that the stand-on vessel:

“may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.”

Rule 17(b) provides that, when the stand-on vessel:

“… finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.”

Conclusion

290.  There is no merit whatsoever in the suggestion that the judge failed to appreciate that rule 17(a)(ii) was permissive, whereas rule 17(b) was mandatory.  The judge stated as much in terms (paragraph 498):

“Rule 17 allows for two periods when a stand on vessel can take action to avoid a collision by her manoeuvre alone. Under Rule 17(a)(ii) she may take action as soon as it becomes obvious to her that the vessel required to keep out of the way is not taking appropriate action. Under Rule 17(b) she shall take action when she finds herself so close to the other vessel that collision cannot be avoided by the action give-way vessel alone.” [The judge’s emphasis.]

CONCLUSION

291.  There is no merit in any of the grounds of appeal against conviction advanced on behalf the 1^st applicant.

292.  We are bound to say that, even putting aside the narrow channel issue and rule 9, the case against the 1^st applicant was overwhelming and it would have been most surprising at the trial judge arrived at different conclusions in terms of his criminal liability.  It is palpably clear that the N 67 was at all material times hogging the available water to the embarrassment of the two much larger vessels, first the Yao Hai and then the Berlioz.  After she had passed the restricted area it was open to her at all material times thereafter to keep to the starboard side of the channel or to leave the channel.  It is to be noted that she was the only eastbound vessel in the channel at that time.  The configuration of the Yao Hai’s approach should have alerted the N 67, had a proper look-out been kept, to the fact that the Yao Hai was shaping to enter the buoyed channel.  No cogent reason has been advanced for the failure to see or hear the Yao Hai’s signals.  The VHF communications with the Yao Hai were ‘too little and too late’, as was the ultimate collision avoidance action of the N 67.  It was not a question of fine judgment in a difficult situation.  Considering matters in the round, it was a failure to do anything but carry on regardless.

GROUNDS OF APPEAL OF THE 3^RD APPLICANT

Ground 1 A: the judge erred in the way in which she accepted/rejected the evidence of experts

293.  Mr Grossman SC submitted that the judge had erred in the way that she accepted/rejected the evidence of experts, in particular her rejection of evidence in favour of the 3^rd applicant from experts whose evidence she accepted in other respects.  It was contended that this was true of Capt Third, whom she found to be an “impressive and reliable witness”, and of Capt Simpson, whom she found to be “reliable and sensible” (paragraph 295). It was required of the judge that she gave reasons for rejecting the opinions of experts that were supportive of the 3^rd applicant.  For example, she had given no reason for rejecting the evidence of Capt Simpson that it would have been dangerous for the Yao Hai to pass north of the CP1 buoy.

294.  It was suggested that the opinions of the experts were in the nature of “a judgment on the exercise of a judgment”, in which circumstances it was to be expected that there would be a range of opinions expressed by the experts.  Criminal culpability was not to be judged on the basis of split-second timing in decision-making.  Given that there were divergent views amongst expert witnesses it was impossible to determine to the criminal standard of proof that the 3^rd applicant was culpable.

295.  In a sweeping assertion, it was said that most of the expert witnesses gave evidence that vindicated the conduct of the 3^rd applicant.

A consideration of the submissions: expert evidence

The ambit of the expert evidence

296.  The parties were permitted to call between them no fewer than seven marine experts.  Their written expert reports admitted into evidence in the lower court occupied about two lever arch files of the appeal bundles.  For reasons that are not obvious, the prosecution was permitted to call three expert witnesses: Capt Cheung, Dr Li and Professor Ng.  They gave evidence over 18 days of the hearing and the transcript of that evidence is 1,746 pages in length.  The 1^st applicant was permitted to call two expert witnesses: Capt Browne and Capt Loynd.  They gave evidence over eight days of the hearing and the transcript of that evidence is 801 pages in length.  The 2^nd and 4^th applicants were permitted to call Capt Third and Capt Simpson respectively.  The former gave evidence over three days of the hearing and the latter six days.  The transcript of their evidence is 916 pages in length.  Overall, the expert witnesses testified for 35 days of the hearing and their collective transcript occupies 3,463 pages.

The judge’s approach

The requisite standard of expert evidence

297.  Of the proper nature and requisite standard of expert testimony the judge observed correctly (paragraph 292):

“Expert evidence presented should be independent and uninfluenced as to form or content by the exigencies of litigation. An expert should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.

The expert evidence received

298.  Clearly, the judge felt that some of the expert witnesses fell far short of that standard, given that she determined (paragraph 296) that Capt Browne and Capt Loynd were biased witnesses whose evidence she rejected (paragraph 300). As we have indicated earlier, she was entitled to make that finding.

299.  Overall, she determined of the evidence of the experts that it was (paragraph 293):

“… contradictory and conflicting with each other. There was little common ground among the expert witnesses.”

An over-abundance of repetitive expert opinions

300.  Unsurprisingly, given the number of witnesses permitted to give evidence as experts and the length at which their testimony was delivered, the judge determined (paragraph 293):

“An over abundance of expert opinions were given by the numerous experts on the same repetitive multitude of topics and issues.”

301.  The remedy to the huge burden placed upon the court below lay within the court’s own power to control proceedings.  In the joint judgment of Bokhary PJ and Chan PJ in Raymond Chen v HKSAR [2011] 2 HKLRD 189 judges in trial courts were reminded of their powers and duty in this respect (page 191, paragraph 2):

“It is not only within the power of trial courts but is their duty to take firm steps, including sometimes the setting of time-limits, to put a stop to time‑wasting whether by persons representing themselves, by solicitors or by counsel. Of course trial courts would not set time-limits until after tolerating some irrelevance, long‑windedness, repetition, circumlocution and the like. But there comes a time when such things – which are after all no part of what fair trials require – must be stopped. What is involved is not the judges or magistrates’ own time. It is the time of courts of justice serving the public. Time-wasting at a criminal trial is particularly to be deprecated. It delays the day in court of other defendants, who are presumed innocent, waiting for their cases to come on for trial. Some of them will be in custody and will eventually be acquitted. So such time-wasting strikes a heavy blow at liberty.”

The ambit of disputed opinions

302.  The judge noted that the disputed opinions of the expert witnesses encompassed a broad area, including (paragraph 302):

“· the ‘status’ of the deep water buoyed channel, i.e. whether this was a narrow channel or not;

· whether vessels were required to keep the starboard side of the channel;

· whether this was a crossing or head on situation;

· were the defendants maintaining a proper lookout;

· whether the action taken by the vessels was reasonable or left too late; and

·        what time D1 had actually given his order hard to port.”

The judge’s approach

303.  Having noted, correctly, that she was entitled to accept or reject the evidence of the expert witnesses, the judge set out the basis on which her findings were to be understood (paragraph 304):

“Where my finding on a particular point or issue relies on one or more particular expert’s opinion than(sic) any opinions to(sic) which differ from that expert opinion is rejected and all those that support that view are accepted.”

Hindsight: split-second decisions

304.  The judge made it clear that in her analysis of the evidence, from which she reached her determinations, she did not do so by having regard to the benefit of hindsight or to the making of split-second decisions.  Rather, she had regard to the broad picture of the two vessels as they approached one another for a period of a little less than 10 minutes (paragraphs 116-8).

“I have taken a broad look at what happened especially in the last crucial minutes without the exact, precise second by second or minute by minute time when actions were taken or might or could or should have been taken. I have tried to take what I consider to be a reasonable overview to see what happened and try and determine from that the rights and wrongs of the navigators.

I am not indulging in a retrospective micromanagement of the navigation with the benefit of radar, simulations, others’ viewpoints and the benefit of 20/20 hindsight.

I have made a conscious decision not to look at the decisions made by the defendants with the vision of hindsight and from the benefit of an armchair.  I have however borne in mind that on vessels one rarely makes last minute decisions unlike one does with vehicles which can turn and stop at any time unlike vessels.”

The overall effect of the expert evidence: the 3^rd applicant

305.  The assertion that the overall effect of the evidence of the experts was to vindicate the 3^rd applicant is not borne out by a consideration of their evidence.  It was only at 21:11:41 that the 3^rd applicant told the 4^th applicant to contact Mardep on VHF radio.  Clearly, that was for the purpose of arranging a crossing between the two vessels.  However, the judge accepted the evidence of Capt Third (paragraph 694) that such contact and arrangement should have been made five or six minutes before the vessels were to pass each other, namely at about 21:08:00.  Clearly, the 3^rd applicant had observed and became concerned that the N 67 was not navigating as he had anticipated, but was maintaining her course after having passed the restricted area.  The judge criticised the 3^rd applicant for navigating on the basis of what he expected and not on the basis of what he saw. She cited the testimony of Capt Cheung to the contrary effect (paragraph 685):

“safe navigation is about observation not expectation”.

306.  Both Capt Simpson and Capt Third said that the 3^rd applicant had given the order to alter course ‘Starboard 20’ too late.  Capt Simpson testified (paragraph 667) that the Yao Hai should have performed that manoeuvre by 21:11:55, namely 30 seconds before the manoeuvre was ordered. The judge accepted the evidence of Capt Third that the order was given a minute too late and that the manoeuvre by the Yao Hai had to be sufficiently large to display a red light to the N 67 (paragraphs 668-9).  Also, the judge accepted Capt Third’s evidence that, in the circumstances, the Yao Hai should have navigated closer to the CP1 buoy (paragraph 759).  That evidence resonated with the testimony of Capt Simpson quoted by the judge (paragraph 635) that in the circumstances those navigating the Yao Hai should have accepted that they were going to have to navigate closer to CP1 than they had anticipated.

Conclusion

307.  There is no dispute that the judge was required to give reasons, in respect of material issues, why she accepted the evidence of one or more expert witnesses and rejected that of another or others.  The judge did so at some length.  She explained why it was that she determined that Capt Browne and Capt Loynd were biased witnesses, whose evidence she rejected (paragraphs 297-300). She did give her reasons for her rejection of Capt Simpson’s evidence, that a manoeuvre of the Yao Hai up until 21:11:00 to pass to the north of CP1 would be dangerous if the Yao Hai were to encounter N 67 in the rapidly shallowing waters between CP1 and the 15 metre contour line.  She said that in performing that manoeuvre Yao Hai would have displayed her red light to N 67, with the result that (paragraph 614) “it would be highly unlikely for N 67 to also go north of the buoy.” Her reason for reaching that conclusion was based on the evidence of Capt Simpson himself, together with that of Capt Third, namely that when a vessel shows a change from a green to a red light the other vessel will react and go the other way.  She quoted Capt Third’s succinct explanation in his evidence:

“when you make your alteration to starboard to show your red light, the other vessel will immediately comprehend what you’ve done and will do the same thing in the other direction. So, ships will tend to pass by reciprocal manoeuvres...”

We are satisfied that the judge was entitled to accept/reject the expert evidence as she did and that she gave adequate reasons for so doing.

Ground 1 B and C: failure to keep a proper ‘look-out’ - rule 5

308.  Mr Grossman submitted that the judge was in error to find that the 3^rd applicant had failed to keep a proper look-out and was in breach of rule 5 of the COLREGS and to say that was evident from the audio recording of the conversation on the bridge of the Yao Hai.  Further, she erred in determining that no effective use has been made of instruments and equipment on the Yao Hai. There had been no challenge to the 3^rd applicant’s evidence that he had used binoculars to aid his visual observation and that he had made use of radar.  It was flawed logic to draw an inference adverse to the 3^rd applicant, namely that he failed to keep a proper look-out, from his inaction.

VHF-distraction

309.  Next, it was contended that the judge erred in finding that the use of the VHF radio on the bridge of the Yao Hai was a distraction to the 3^rd applicant in his duties in navigation.  The judge failed to consider that, albeit on the orders of the 3^rd applicant, the 4^th applicant was the person who made use of the VHF radio.

CPA

310.  Then, it was submitted that the judge was in error to determine that the 3^rd applicant did not appreciate the closeness of the CPA of the vessels.

Determination of risk of collision

311.  It was said that the judge erred in finding that the 3^rd applicant “wrongly and belatedly determined that a ‘risk of collision’ existed only when N 67 turned to port”, at about 21:13.  She failed to consider that it was the evidence of Capt Simpson that a ‘risk of collision’ existed only at 21:13.

Action taken on the Yao Hai

312.  Finally, the judge failed to consider the action taken on board the Yao Hai: she was turning progressively to starboard; an Aldis Lamp had been used to attract the attention of the N 67; an attempt had been made by use of the VHF radio to arrange a ‘port to port ‘passing; and, sounding the whistle of the Yao Hai to indicate a turn to starboard.

A consideration of the submissions: a failure to keep a proper ‘look-out’ - rule 5

313.  Under the heading ‘Analysis of D3’s evidence’, the judge determined at the outset (paragraph 638):

“Although I accept that D3 was paying a lookout he was not maintaining a proper lookout because he did not appreciate what was actually happening. He did not appreciate the close CPA, he did not appreciate the close quarters he was getting himself into and although he was using his binoculars he wholly misjudged what he was seeing. D3 was not keeping a proper lookout as no avoiding action was taken until 21:12:25. If D3 was keeping a proper lookout D3 would have taken action earlier to avoid a collision.”

314.  In The Santander [1966] 2 Lloyd’s LL Rep. 77 Wilmer LJ sitting in the Admiralty Division in England and Wales considered the ambit of the word ‘look-out’ in the context of rule 25 of the Collision Regulations, 1954, a provision equivalent to rule 5 of the COLREGS (page 82):

“When I use the phrase ‘look-out’ I mean not only visual and aural look-out, but look out in the wider sense of appreciation of what was taking place before their eyes. Both of them failed to hear audible whistle signals given by the other vessel, signals which, if they had been heard, would have warned them of what was going on.” [Italics added.]

315.  It is to be noted that in the passage at paragraph 638 the judge used the word ‘appreciate’ four times in her analysis.  In context, she did so in a manner entirely appropriate to the test enunciated by Wilmer LJ. In drawing the conclusion that if the 3^rd applicant had kept a proper look-out, including a wider appreciation of what was taking place, he would have taken action earlier to avoid a collision, the judge was doing no more than drawing the irresistible inference from his lack of timeous action.  She was entitled to do that.

316.  However, she erred when she said subsequently of what was required to comply with rule 5 (paragraph 766):

“There is no point keeping a proper lookout and then just carrying on doing nothing. That does not mean you have complied with the rule, just because you are aware and you have actually seen and heard what is going on around you and then you do not do anything about it or you do not do enough.”

There, the judge was conflating with rule 5 the effect of other rules: rule 7 which requires the use of all available means to determine if risk of collision exists; rules 14-18 which require action from vessels in certain circumstances and rule 8 which governs the action taken to avoid collision.

Action taken on the Yao Hai

317.  As is apparent from the passages that follow in this judgment, the judge did have regard to such action as was actually taken on the Yao Hai.

Ineffective use of instruments or equipment

318.  The judge’s finding that there was an ineffective use of instruments and equipment was made in the context of a consideration of the conduct of those on the bridge of both ships.  It was an omnibus finding, namely (paragraph 135):

“There were more than sufficient persons on the bridge of N 67 and YH. It would have been easy for one of them to keep his eye on the radar or ARPA. D1-D4 all knew that they were about to encounter another vessel ahead coming in the opposite direction. There was no effective, reliable use of available instruments or equipment by D1-D4. Relying entirely on visual eyesight through binoculars particularly at night with limited reference points is difficult. As for D1 there was a total absence of radar lookout from 1nm that is from 21:11. D1-D4 were not aware of the closeness in CPA of the two vessels. With the equipment available they should have been alert to the developing reducing CPA and the developing risk of collision.”

319.  It is to be noted that this paragraph appears under the heading, ‘Summary of Findings’.  It is not an accurate summary of her subsequent, detailed and considered findings in respect of the 3^rd applicant in respect of his use of ARPA from the radar and his awareness of the CPA between the vessels.  However, it is accurate in respect of her findings of his use of the VHF radio and his failure to use the whistle of the Yao Hai.

320.  It is accurate in respect of the 1^st applicant, in so far as he abandoned the use of ARPA and radar from the time when the vessels were about one nm apart and in so far his evidence was that the CPA displayed on ARPA on the radar of N 67 was never less than two cables, which was wholly incorrect.

Use of VHF: distraction to the 3^rd applicant

321.  After the N 67 left the restricted area the 3^rd applicant had expected her to change course.  She did not do so.  Beginning at 21:10:43, and continuing until 21:11:24, the 3^rd and 4^th applicants discussed her unexpected navigation on the same course in the middle of the buoyed channel.  Then, at 21:11:41 the 3^rd applicant instructed the 4^th applicant to contact Mardep and tell them:

“It’s Red to Red. You tell him about that, that whatever vessel it is. You tell him at 14 will be okay, or ten-67.”

322.  Channel 67 was the channel on which N 67 was required to have open for radio traffic, whereas Channel 14 was the channel the Yao Hai was required to use until she entered the buoyed passage between CP1 and CP2.  As the judge noted, (paragraph 268) the 3^rd applicant intended that, by using Channel 67, N 67 would be able to hear the radio transmission between Yao Hai and Mardep.  At 21:11:54 he confirmed the obvious intent of the message to the 4^th applicant, namely that the two vessels pass each other on their respective port sides:

“You tell him that it is port-to-port.”

323.  In answer to his initial enquiry of Mardep, as to the identity of the vessel approaching Yao Hai “head-on”, the 4^th applicant was informed by Assistant Marine Controller Leung (PW1) at 21:12:08 that it was the N 67.  Only at 21:12:13 did the 4^th applicant make the following enquiry and assertion:

“Which route does it intend to take? Er, really it doesn’t turn or anything. It has to be red to red?”

At 21:12:22, within several seconds of Assistant Marine Controller Leung’s attempt to contact N 67, the 3^rd applicant told the 4^th applicant, “Pay no attention to it first”.  There followed expletives.  That was a direction not to communicate with Mardep any further.

324.  Of the conduct of the 3^rd applicant, the judge determined (paragraph 696):

“Although D4 was on the VHF, D3 had instructed him to do so and was telling him to tell Mardep red to red passing. This was a distraction from his navigation as his time could be better used by taking avoiding action.”

Conclusion

325.  It follows, that there is no merit in the complaint that the judge failed to consider that it was the 4^th applicant, rather than the 3^rd applicant, who was using the VHF radio.  The context in which the judge made the determination, that it was a distraction to the 3^rd applicant from his navigation, was the fact that the period during which the 3^rd applicant had discussed with the 4^th applicant contacting Mardep, the latter doing so and, finally the applicant instructing him to desist, namely from 21:11:41 to 21:12:22, was the crucial period in which Capt Third testified that the Yao Hai should have changed course to avoid a collision.  Furthermore, as the judge determined, accepting Capt Third’s evidence (T.5620-1), the time to seek to arrange a port-to-port passing by use of the VHF was minutes earlier, “not simply one and a half minutes” before the collision.  Furthermore, noting that there was “a whole bridge team” on the Yao Hai she found (paragraph 695):

“Use of the VHF would be appropriate but not so if it distracts one from one’s navigational duties.”

The judge was entitled to determine that the 3^rd applicant’s orders as to the use of the VHF radio at the time that they were given were a distraction to his navigation.

ARPA and CPA

326.  The judge noted that it was the evidence of the 3^rd applicant that he had acquired the N 67 manually on ARPA on the radar of the Yao Hai and that at about 21:09 it had provided him with detailed information of the N 67, including a CPA of about 0.1 nm and a TCPA of about five minutes.  More particularly, she noted of his evidence (paragraph 607):

“He continued to watch ARPA and his radar thereafter and the radar trail. At times the CPA was less than 0.1nm.”

That was a reference to the evidence of the 3^rd applicant in cross- examination by the respondent in respect of the information provided on ARPA (T. 5992):

“Did you refer to it again, as it kept updating, the information for CPA and TCPA and so on; particular, CPA?

A. Yes.

Q. (Did) … it continue to give numbers of a cable or less, for the CPA?

A. Sometimes 0.1, sometimes 0.0.”

327.  No issue was taken by the respondent with that testimony of the 3^rd applicant. In re-examination, he re-asserted the evidence (T.6059-6060):

“I watched the radar. I watched ARPA.”

Nowhere in her reasons for verdict, does the judge suggest in any way that she rejected that evidence.

The whistle

328.  On the other hand, the judge was critical of the failure of the Yao Hai to use its whistle to give short blasts at an earlier time than it was used (paragraph 697):

“D3 or D4 should have given N 67 five blasts of the whistle to indicate doubts as to the intention of N 67 by approximately 21:10:30 or 21:10:45 not at 21:12:45 when they did.”

Risk of collision

329.  The judge’s criticism of the 3^rd applicant for his belated determination of the existence of a ‘risk of collision’ between the vessels (paragraph 644) is considered subsequently in the context of the action taken by the 3^rd applicant to avoid a collision.

Conclusion

330.  The judge was entitled to criticise the 3^rd applicant for the fact that he was distracted in his navigation by his orders in respect of the use of the VHF radio and his contemporaneous failure to order the sounding of five short blasts on the whistle of the Yao Hai.  Further, that although in other respects he maintained a look-out, he failed to appreciate in time what was taking place, in particular that the risk of collision had become acute.  She was entitled to determine that he had failed to maintain a proper look-out.

Ground 3: the judge erred in finding that it was unreasonable for the Yao Hai not to pass North of CP1

331.  It was submitted that the judge erred in finding that it was unreasonable for the 3^rd applicant not to manoeuvre the Yao Hai to pass North of CP1.  She determined that navigating the Yao Hai to pass North of CP1 to be the safest/probably the safest option available to the Yao Hai and that a decision to navigate that course should have been made in the period 21:10:00 or at the latest by 21:11:05.  A finding that it was the safest/ probably the safest option, was not sufficient to found a conviction.  Further, that finding was inconsistent with her earlier finding that it was reasonable for the Yao Hai to choose to proceed within the buoyed channel.  Similarly, the judge erred in finding unreasonable the 3^rd applicant’s reasons for not doing so, namely that the N 67 might itself choose to leave the channel and proceeded north.

332.  Next, it was contended that the judge was wrong to rely on Professor Ng’s evidence to determine that there was no danger of the Yao Hai running aground in the available waters north of CP1.  By contrast, she failed to give proper consideration to the evidence of Capt Simpson and Capt Third as to the need for and timing of that manoeuvre, together with the ensuing difficulties and dangers.

333.  This ground of appeal is misconceived.  The judge did not find that it was unreasonable for the Yao Hai not to go to the north of CP1.  She did find unreasonable the 3^rd applicant’s concerns that the N 67 might also change course to the north, if the Yao Hai navigated to the north of CP1 (paragraph 615).  She did so on the basis that in changing course to pass to the north of CP1 the Yao Hai would change from displaying to the N 67 her starboard to her port light and in reliance of Capt Third’s evidence that, when vessels show a change from a green light to a red light, other vessels will react and go the other way (paragraph 614):

“when you make your alteration to starboard to show your red light, the other vessel will immediately comprehend what you’ve done and will do the same thing in the other direction. So, ships will tend to pass by reciprocal manoeuvres.”

334.  Relying on Capt Third’s evidence in that respect of the behaviour of mariners, the judge rejected Capt Simpson’s evidence that the risk of the N 67 changing course to the north made it dangerous for the Yao Hai to navigate to pass to the north of CP1 where the waters rapidly became shallower (paragraphs 613-4).

335.  The judge found that it was reasonable for the 3^rd applicant to choose to navigate the Yao Hai to enter the buoyed channel between CP1 and CP2.  She said (paragraph 158):

“The other alternative was for YH to navigate south of CP1 buoy but to go much closer to CP1 than YH in fact did. It was reasonable in the circumstances for YH choose to navigate within the narrow channel and to enter the channel between CP1 and CP2 buoys.” [Italics added]

The judge went on to note that navigating closer to CP1 was something that the 3^rd applicant (paragraph 643), “... could have done and did not do.”

336.  The judge’s finding that navigating to the north of CP1 was the safest way, in the circumstances, for the Yao Hai to achieve a port to port passing of the vessels, was made in the context that (paragraph 156)

“N 67 was not doing what was expected”. Rather, it was maintaining its course of about due east. But, as the judge made clear, alternative courses were available to the 3^rd applicant: he could have steered a course closer to CP1 or he could have gone north of CP1, but he did neither. Obviously, the 3^rd applicant’s conviction was not based on his failure to take the safest or the probably safest option of navigating north of CP1 in the period 21:10:00 and 21:11:05. Rather, it was his failure to take either of these options and manoeuvre the Yao Hai timeously.

337.  Far from failing to consider the evidence of Capt Simpson and Capt Third as to the timing of any manoeuvre of the Yao Hai to pass to the north of CP1, together with the ensuing difficulties and dangers, the judge did so at some length.  Of Capt Third’s testimony she noted (paragraph 632):

“… at C-3 that is the collision time less three minutes (approximately 21:10:45) it was still possible for the Yao Hai to go north of CP1 but by C-2 it was too late to do so. At C-2, YH only option was to pass south of CP1 because of the extreme manoeuvre so the preferred option was to pass south of CP1.”

338.  Of Capt Third’s opinion that going south of CP1 was the preferred option, she noted his testimony (paragraph 633):

“… the closer you get to the buoy, the greater the alteration of course you’ve got to make. Not only that, you have a following current, your alteration is going to be towards the buoy in such a way that, if it is mistimed, you might quite easily carry over, carry the stern over the buoy which is something you really don’t want to do. But the problem is not just in avoiding the buoy. When you come out on the other side, you’ve got to get the ship back into the channel again and that is going to call for an equally extreme manoeuvre to bring the ship back.”

339.  Similarly, the judge noted Capt Simpson’s testimony that in the period 21:11 00 and 21:12:00 the option existed for the Yao Hai to be navigated north of CP1 but that the preferred option was to navigate within the channel, but to do so closer than had been planned.  She noted his evidence (paragraph 635):

“So, going back to 21:11, I see my options as being.. we’re going to take a transit through this narrow corridor and we know we’re going to have that buoy close. The option of (going) north of CP1 is something that, to me, is an option that’s rapidly passing... I’m still not of the opinion that I am sufficiently concerned that I would take... a drastic manoeuvre of hard astarboard simply to pass north of CP1 and allow a small vessel to exit the channel. By 21:12.. the option of going north of CP1 then is just simply out of the question.”

340.  In the result, the judge took a conservative course in determining that (paragraph 157):

“… the latest time to make the decision for YH to navigate north of buoy CP1 should have been about 21:10:00 or latest by 21:11:05 as stated by Professor Ng…. There was no real danger of running aground by straying beyond the 15 m depth contour to shallower waters. More than 250 m deep water was available for YH north of CP1 before she was in the hazards of shallow waters.”

341.  Relevant to the judge’s determination was the evidence and her findings in respect of the passage of vessels to the north of CP1.  As the judge noted (paragraph 184) the Berlioz, a vessel of over 300 metres in length and a gross tonnage of more than 73,000 tonnes, travelling just over one nm behind the Yao Hai and shaping to enter the buoyed channel between CP1 and CP2 avoided the scene of the collision by navigating north of CP1.

342.  Similarly, the judge noted that in the VTC recording of the 24 hours before the collision vessels navigated to the north of CP1, and observed that they did so (paragraph 476), “… only in response to oncoming traffic from East meeting the West”.  She noted (paragraph 484–5) that the Stade Razeburg, 143 metres in length with a draught of 6.7 metres, had been navigating west following the Kalamata which entered the buoyed channel between CP1 and CP2, had gone north of CP1 as the Strauss, 277 metres in length made to exit between CP1 and CP2 as she travelled east.

Ground 2: the judge erred in finding that the 3^rd applicant was “doing nothing” to avert the risk of collision

343.  It was contended on behalf of the 3^rd applicant that the judge had erred in stating that the 3^rd applicant was doing nothing to avert the risk of collision (paragraph 697).  The judge failed to take into account what had been done on the bridge of the Yao Hai:

· the 3^rd applicant had given helm orders to move the Yao Hai progressively to starboard and he had instructed the 4^th applicant to contact Mardep to arrange a port to port passing of the vessels;

· the 4^th applicant directed and shone the Aldis Lamp at the N 67 and had sounded one blast on the whistle of the Yao Hai; and

· the 3^rd applicant had ordered: ‘Port 10’ at 21:13:04; ‘Starboard 10’ at 21:13:13 and ‘Midships’.

344.  Then, it was submitted that the judge erred in finding that in manoeuvring the Yao Hai the 3^rd applicant had achieved a course deviation, from the original passage plan, of only 50 metres. There was no evidence as to which point between CP1 and CP2 the Yao Hai would have passed but for the presence of the N 67.  Finally, the judge made inconsistent findings as to what was the first collision avoidance manoeuvre by the Yao Hai, ‘Starboard 10’ (21:12:25) or ‘Hard Starboard’ (21:12:43).

Ground 4: the judge erred in finding that the 3^rd applicant failed to take action in ample time (rule 8)

345.  It was submitted on behalf of the 3^rd applicant that the judge erred in finding that he failed to take action in ample time.  She was wrong to determine that because the vessels had seen each other from a distance apart of more than 2.5 nm the applicants, including the 3^rd applicant, had “plenty of time and plenty of sea room to avoid a close quarters situation” and it was their fault that the emergency had arisen.

346.  Next, it was contended that the judge had failed to consider the circumstances in which the 3^rd applicant was forced to make a decision in respect of the navigation of the Yao Hai.  She was unduly influenced by her determination that the safest option was for the Yao Hai to navigate north of CP1.  She failed to pay sufficient regard to the fact that, in navigating to pass south of CP1, it was necessary for the 3^rd applicant to wait until he was in position to turn before doing so.  The judge erred in not taking into account Capt Simpson’s evidence that a transit line between CP1 and CP3, extending beyond CP1, was the line on which pilots would turn to enter the buoyed channel, in particular his evidence that pilots as experienced as the 3^rd applicant would no longer need to think even in terms of a transit line.  Similarly, she was in error for not taking into account Capt Third’s evidence that there was a ‘window’ of only about 30 seconds for the 3^rd applicant to make the decision to turn to starboard.

347.  Then, it was submitted that the judge was wrong to determine that the overtaking manoeuvre performed by the fast ferry was irrelevant to the making of a decision by the 3^rd applicant to manoeuvre the Yao Hai to starboard.

348.  Similarly, she was wrong to find that the actions of the 3^rd applicant were taken in a panic.  Further, the judge placed too much emphasis on the fact that the two vessels were close to one another heading for the same spot.  It was inevitable that vessels travelling in the opposite direction into and out of the entrance formed by the CP1 and CP2 buoys would have directed towards each other.  Finally, it was submitted that there was insufficient evidence on which the judge could be satisfied to the criminal standard that the 3^rd applicant failed to act in time.

Ground 4A: the judge erred in finding that the 3^rd applicant should have given five short blasts on the whistle of the Yao Hai at 21:10:30 to indicate that he failed to understand the intentions or actions of the N 67 (rule 34(d) of the COLREGS)

349.  It was submitted on behalf of the 3^rd applicant that in so finding the judge failed to take into account the opinion of Capt Simpson that at 21:10:30: the Yao Hai was not in a position in which rule 34(d) was operative.  Further, that although he accepted that 21:11:00 the Yao Hai could have sounded five short blasts, he added “I’m not surprised that they didn’t”.

Ground 5: the judge erred in finding the 3^rd applicant’s actions were not large enough to be readily apparent to the other vessel (rule 8)

350.  It was submitted that the judge placed too much weight on the failure of the 3^rd applicant to order ‘Starboard 20’ by 21:11:40 at the latest to show a red light to the N 67, so that he was almost 1 minute late in giving that order.  She was wrong to determine that if the 1^st applicant had been shown a red light on the Yao Hai he would most likely have turned to starboard himself.  Also, the judge failed to give weight to the evidence of Capt Simpson that no matter what aspect of the Yao Hai was shown to the N 67 it should have been clear to the latter that in a buoyed channel a red-to-red passing was intended.

351.  Similarly, the judge was wrong to determine that the actions of the 3^rd applicant “to avoid collision at 21:12” were not alterations large enough to be readily apparent.  That was inconsistent with her finding, based on her acceptance of the evidence of Capt Cheung and Professor Ng, that the alterations from about 21:07 from 250° to 260° should have been noticed by the 1^st applicant.

A consideration of the 3^rd applicant submissions: Grounds 2, 4, 4A and 5

The use of the whistle: rule 34(d)

352.  Rule 34(d) provides:

“When vessels in sight of one another are approaching each other and from any cause either vessel fails to understand the intentions or actions of the other, or is in doubt whether sufficient action is being taken by the other to avoid collision, the vessel in doubt shall immediately indicate such that by giving at least five short and rapid blasts on the whistle. Such signal may be supplemented by a light signal of at least five short and rapid flashes.”

353.  There was no dispute that, having passed the restricted area in the buoyed channel at about 21:08:30, in the minutes that followed the N 67 maintained her course of due east.  The 3^rd applicant had expected the N 67 to alter course.  Of those circumstances, the judge found (paragraph 673):

“About 2 minutes after N 67 had passed the restricted area or three minutes before collision both vessels should have been in doubt as to the other’s intentions that is by 21:10:44 and should have sounded 5 whistle blasts at that time when the vessels were about 1 mile apart.”

The judge repeated that finding specifically in respect of the Yao Hai (paragraph 697):

“D3 or D4 should have given N 67 five blasts of the whistle to indicate doubts as to the intention of N 67 by approximately 21:10:30 or 21:10:45 not at 21:12:45 when they did.”

354.  Whilst it was Capt Simpson’s evidence that he did not think rule 34(d) was operative in respect of the Yao Hai at 21:10:30, he was more ambivalent in respect of the position at 21:11:00.  By contrast, the 3^rd applicant himself admitted that the making of the first set of five short blasts at 21:12:43 was too late.  In answer to the suggestion in cross-examination by counsel for the respondent, that the signal should have been given at 21:10:30/45, he said (T. 5965-5966):

“Yes, I admit (in) hindsight I was too late to issue the signal...

Q. Even without hindsight you were too late, weren’t you?

A. Right.  I admit that.”

355.  The position taken by the 3^rd applicant resonates with the evidence on the issue from Capt Third.  He said (T. 5628):

“So, from the Yao Hai’s perspective, the time for five short and rapid blasts would have been from about C minus 3, into the period leading up to C minus 2.”

He agreed with the suggestion that that sound signal should have been given after a period of two minutes had elapsed after the N 67 had cleared the restricted area, and she had made no change of course (T. 5629):

“So that’s the time you anticipate the manoeuvre to be made. Of course, when it’s not made, you then begin the period of, ‘Do I need to sound a wake-up signal? What is your intention signal?’ And at that point -- so that’s why I say C minus 3 and reducing.”

The time for the Yao Hai to manoeuvre so as to show a red light to N 67

356.  Of the action, or inaction, of the Yao Hai the judge found (paragraph 697)

“D3 should have ordered his starboard helm of at least starboard 20 by 21:11:40 at least two minutes before the collision to show N 67 a red light. D3 was a minute late in doing so.”

In making that finding, the judge was relying on the evidence of Capt Third, of which she had noted earlier (paragraph 595):

“From 21:10:43 onwards no avoiding action was taken by YH until 2 minutes later. The action that D3 took was about a minute too late. Captain Third’s evidence was that YH should have taken action by giving a starboard helm order of at least starboard 20 latest by 21:11:35 shows that D3 did not take action in time. Any action taken was not large enough to be readily apparent and was not action to avoid collision.”

357.  The judge went on to note of Capt Third’s testimony in this respect (paragraph 669):

“the most important thing for YH to do was to show N 67 a red light and get much closer to CP1 buoy. I accept his opinion that the alteration must be in accordance with Rule 8(b) is to ensure that you show your red light towards the oncoming vessel. This alteration of course would ensure that YH had turned far enough to show a change from a green to a red light. This would create a safe situation by showing the red light showing a change of heading and also the same time taking YH closer to CP1 buoy.”

358.  In his testimony, Capt Third said in light of the failure of the N 67 to change her course, after having passed the restricted area, the time for the Yao Hai to take action was in the period C-3 to C-2.  At C-3 there was a “risk of collision” (T. 5418).  Of the manoeuvre required of the Yao Hai, Capt Third said (T. 5419):

“… the way in which it’s conducted is in accordance with rule 8(b): your alteration of course will be made, (in) the first instance, to ensure that you show a red light towards the oncoming vessel. So, the alteration of course which is designed to create a safe situation in this case is one which shows a red light in the direction of the oncoming Neftegaz and, at the same time, takes you closer and, indeed, if you required, quite close, to the buoy but the most important thing of that is to ensure that you have turned your ship far enough to show the red light.”

359.  Of the time at which the Yao Hai did show the N 67 her red light, Capt Third said that it was (T. 5593):

“Only at the very end, because the manoeuvre was conducted too late, and at that point, there was insufficient time for that indication to be recognised and reacted to. Had the alteration of course been done earlier, there would have been time.”

360.  As the judge noted, the 3^rd applicant accepted in his testimony that from 21:09:00 there was a risk of collision between the vessels, but had said that there was not a danger of collision if the N 67 had turned to starboard and the Yao Hai had maintained her course (paragraph 621).  Similarly, the judge noted that the 3^rd applicant accepted that he could have turned the Yao Hai to starboard earlier.  Further, that he should have ordered a helm movement of at least Starboard 20 by 21:11:40 to show the N 67 a red light and that he was about one minute late in so doing (paragraph 631).

361.  In his testimony, the 3^rd applicant said (T. 5837):

“At 11 minutes past, even if I had turned a bit earlier, it would just be by a few degrees.

Q. Would a few degrees have made any difference?

A. Yes.

Q. A collision would have been avoided?

A. That can be said.”

362.  Furthermore, the judge noted that the 3^rd applicant admitted that the purpose of his ‘Starboard 20’ order was to manoeuvre the Yao Hai closer to the CP1 buoy and that it would not show a red light to the N 67 (paragraph 647).  Of the purpose of his ‘Starboard 20’ order, the 3^rd applicant said that it was (T. 5955):

“To keep closer to the buoy quicker and to avoid close-quarters situation.”

It was not a collision avoidance manoeuvre.  That was to be achieved by his order of ‘Hard Starboard’.

363.  The judge accepted that evidence and determined that collision avoidance action by the Yao Hai only started with the ‘Hard Starboard’ order at 21:12:43 (paragraph 648).  Furthermore, she found that if the Yao Hai had shown the N 67 a red light (paragraph 671) ;

“it would have been much more likely that D1 would have turned to starboard and not to port.”

364.  Although objection is taken to that determination in the grounds of appeal advanced on behalf of the 3^rd applicant, it is to be noted that the 3^rd applicant himself agreed with the proposition (T. 5893):

“Q. …if you had turned earlier, say, by 30 or 60 seconds, so as to pass much closer to CP1, the 30 to 40 metres that you’ve agreed was safe, you would have been showing the N 67 your red light much earlier, wouldn’t you?

A. Right.

Q. And it would then be, would you not agree as a mariner, much more likely that N 67 would turn to her starboard side, if she saw your red light?

A. Agree.”

Risk of collision

365.  The judge criticised the 3^rd applicant for his belated determination of the existence of a ‘risk of collision’ between the vessels (paragraph 644):

“D3 wrongly and belatedly determined that a risk of collision existed only when N 67 turned to port which was about 21:13:00.”

366.  Clearly, that criticism was based on the 3^rd applicant’s evidence in cross-examination by the prosecution (T. 5842):

“Q. ... when did you first determine that a risk of collision existed with the N 67?

A. When she altered course to port.

Q. And she altered course to port about 21:13:00, give or take a second or two, a few seconds either side.

A. Right.

Q. And are you saying that you didn’t appreciate or determine that there was even a risk of collision until that moment, 21:13:00, approximately, give or take five seconds; is that what you’re saying?

A. That’s right. When it was 12 minutes past, what was in my mind was close-quarters situation.

Q. But not risk of collision?

A. Not.”

367.  The 3^rd applicant rejected the suggestion that he ought to have determined that a risk of collision existed from 21:09:00.  However, in subsequent cross-examination the 3^rd applicant conceded that there was a risk of collision at 21:09:00, but qualified that answer (T. 5932):

“… however, this is not a danger of collision. If N 67 turns to her starboard side, whereas Yao Hai maintains her course, continue to shape her course into the narrow channel... in such circumstances, in the situation that both parties take appropriate action, the risk of collision will automatically disappear... There is a risk of collision only when both vessels maintain their courses.”

The judge referred specifically to that evidence of the 3^rd applicant at paragraph 621.

368.  As noted earlier, the judge determined that the risk of collision was something that developed in seriousness over time as the vessels closed on each other (paragraph 142).  Although she found that a risk of collision existed at 21:09:00, she went on to find that it had not developed into a “real risk” even at 21:10:00 (paragraph 153).  She determined (paragraph 160) that a “real risk” of collision existed by 21:12:00, when the two vessels were only 0.6 nm apart.

369.  Clearly, in making those findings the judge was rejecting the part of Capt Simpson’s opinion where he asserted (T. 7072):

“I don’t think a risk of the two vessels actually colliding was until much later, around — by the 13 minutes past, even, it was getting on towards that sort of time when there was a risk of collision. I think it could still be avoided even up to that late stage…. but it was certainly a risk.”

However, shortly before expressing that opinion Capt Simpson had said (T. 7071):

“… by around 21:11, we’re looking at certainly all parties being aware or should have been aware that there was going to be a very -- a close passing was achievable. I think there was a risk of collision if nobody altered course or did anything but I think there was every opportunity for both vessels to avoid getting unnecessarily close, shall we say.”

370.  In light of those contrasting answers, it appears that Capt Simpson was eliding the difference between two situations: risk of collision and unavoidable risk of collision.

Rule 8(b) alterations of course to avoid collision: not made in ample time and not readily apparent

371.  The judge determined of the actions of the 3^rd applicant (paragraph 688):

“that the actions to avoid collision at 21:12 taken by D3 to be made in a sort of panic. They were not made in ample time and were not alterations large enough to be readily apparent.”

The actions of the 3^rd applicant/Yao Hai prior to and at 21:12

21:08-21:10:43

372.  The 3^rd applicant testified that he first noticed the presence of the N 67 visually as it navigated in an eastwards direction north of the restricted area, after which he and the 4^th applicant, who had observed the vessel on radar, had a discussion which was not audible on the audio recording on the bridge of the Yao Hai (T. 5773-5).  At 21:08:15 they had a brief discussion about the approaching vessel which was on the audio recording.  As the judge noted, at that time the Yao Hai’s heading was 257°.

373.  At 21:08:32 the 3^rd applicant gave a helm order of 260°. He expected the N 67 to alter course to starboard once she had passed the restricted area (paragraph 603).  Prior to the flurry of orders given by the 3^rd applicant- ‘Starboard 10’, ‘Starboard 20’ and ‘Hard Starboard’ given at 21:12: 25/32/43 respectively, the only other helm orders he gave were 261° and 263° at 21:11:12/37 respectively (paragraphs 625-6). Having activated the ARPA system on the radar at about 21:08, about a minute later the 3^rd applicant said that he had acquired data in respect of the N 67 (T.5778): “bearing, distance, course, speed, CPA and TCPA”.  The N 67 had cleared the restricted area.  The 4^th applicant used an Aldis Lamp directed at the N 67.  As the judge noted, the CPA was 0.1 nm, and at times less, and a TCPA of five minutes.  Of the significance of that information, the judge observed that the 3^rd applicant admitted that (paragraph 607):

“the information was indicating to him that if neither he (YH) nor N 67 changed course there was going to be either a collision on near miss.”

21:10

374.  As the judge noted, by 21:10:05 the Yao Hai course was 259.5°, whereas the N 67 “was continuing her course and speed in the middle of the channel” (paragraph 618).  Further, there was no discussion on the bridge of the Yao Hai in the period of about two minutes after 21:08:15, when the 3^rd and 4^th applicant had discussed the fact that the vessel was proceeding towards the Yao Hai.

Discussion between the 3^rd and 4^th applicants: 21:10:43-21:11:24

375.  The growing concerns of the 3^rd and 4^th applicants in respect of the navigation of the N 67 are evidenced by their conversation, captured on the audio recording of the Yao Hai:

21:10:43  (A3)   “How could it possibly continue to move in this way?

(A4)   Yeah, arriving right in the middle.

21:10:53  (A3)   It’s a supply boat… a tanker.

21:10:58  (A3)   A supply boat would not be like that.

(A4)   No red, red light.

21:11:04  (A3)   He knows that I would turn for sure?  He knows that I would turn for sure.

21:11:20  (A3)   It doesn’t need to move right along the fairway.  I personally don’t see the (need).

21:11:23  (A3)   Even placing itself in the middle.

21:11:24  (A3)   It doesn’t need to.”

376.  The judge noted that the 3^rd applicant’s explanation in testimony for his observation at 21:11:04 was that he thought the N 67 would know that he would enter the buoyed channel once he was clear of CP1 and then make a “large alteration of course to go west along the buoyed channel” (paragraph 624). As noted earlier, during that interchange between the 3^rd and 4^th applicants the 3^rd applicant had given two helm orders making minor adjustments to the course of the Yao Hai: 261° at 21:11:12 and 263° at 21:11:37.

Use of VHF:21:11:41-21:12:22

(i) The 3^rd applicant’s instructions

377.  At 21:11:41 the 3^rd applicant instructed the 4^th applicant to contact Mardep and tell them:

“It’s Red to Red. You tell him about that, that whatever vessel it is. You tell him at 14 will be okay, or ten-67.”

At 21:11:54 he confirmed the intent of the message to the 4^th applicant was that the two vessels pass each other on their respective port sides:

“You tell him that it is port-to-port.”

(ii) The 4^th applicant’s contact with Mardep

378.  In answer to his initial enquiry of Mardep at 21:11:58, as to the identity of the vessel approaching Yao Hai, the 4^th applicant was informed at 21:12:08 that it was the N 67.  At 21:12:13 the 4^th applicant made the following enquiry and assertion:

“Which route does It intend to take? Er, really it doesn’t turn or anything. It has to be red to red?”

Then, Mardep attempted to contact N 67.  At 21:12:22 the 3^rd applicant told the 4^th applicant,” Pay no attention to it first”, followed by expletives.

The 3^rd applicant’s orders for course changes: 21:12:25 onwards

379.  At 21:12:25, the 3^rd applicant gave his order ‘Starboard 10’ (paragraph 179).  A mere seven seconds later, at 21:12:32 the 3^rd applicant gave the order ‘Starboard 20’, at which time the 4^th applicant gave one short blast on the whistle of the Yao Hai.  At 21:12:43 the 4^th applicant began sounding five short blasts on the whistle of the Yao Hai.  At the same time the 3^rd applicant gave the order, ‘Hard Starboard’.  At 21:12:57 the 4^th applicant gave a second set of five short blasts on the whistle of the Yao Hai.  At 21:13:04 the 3^rd applicant ordered ‘Port 10’, followed by an order of ‘Starboard 10’ at 21:13:13 and at 21:13:26 ‘Midships’.  At about 21:13:44 the vessels collided.

Action taken in ample time?  The judge’s conclusions

380.  Of the actions taken by the 3^rd applicant, the judge determined (paragraph 595):

“The action that D3 took was about a minute too late. Captain Third’s evidence was that YH should have taken action by giving a starboard helm order of at least starboard 20 latest by 21:11:35 shows that D3 did not take action in time.”

381.  In his evidence, Capt Third addressed the position of the 3^rd applicant, as the pilot on the Yao Hai, given that his expectation that the N 67 would change course having passed the restricted area had not materialized, (T. 5495):

“… there is a two minute period there where you would be looking at Neftegaz, thinking ‘well, she’s going to alter course to starboard’. Now, a mariner will look and say ‘Well she’s going to alter course to starboard…she must alter course to starboard.’ And it’s only the realization that dawns on you after about two or three minutes, that she hasn’t altered course to starboard, you then say ‘Oh, this isn’t very good. I’m going to have to take a more positive course of action here, and define this situation clearer.’ Which is where we arrive at C minus 3 in this collision… is the beginning of the time where ‘Right, I must’ — from Yao Hai’s perspective, ‘I must make an alteration here which he can see’.”

382.  The judge found that the alterations of course of the Yao Hai from 21:07:56 to 21:09:08, namely from 250° to 260° should have been noticed by the N 67 (paragraph 511).  It was contended that the two findings are inconsistent with each other.  They are not.  At the outset, it is to be noted that in the former finding the judge was addressing in terms the provisions of rule 8(b) of the COLREGS, in particular the term ‘readily apparent’ in the context of action taken to avoid collision.  As noted earlier, the judge had determined, as was accepted by the 3^rd applicant, that he initiated no action to avoid collision until he ordered ‘Hard Starboard’ at 21:12:43.  In the four minutes prior to 21:12:00, three helm orders had been given:

· 260° at 21:08:32;

· 261° at 21:11:12; and

· 263° at 21:11:37.

No other change of course was ordered by the 3^rd applicant until he ordered ‘Starboard 10’ at 21:12:25 followed by the order ‘Starboard 20’ at 21:12:32.

Conclusion

383.  Clearly, the judge paid very close attention to the evidence of events as they unfolded from the perspective of the bridge of the Yao Hai and, in particular, from the perspective of the 3^rd applicant.  As the judge noted, the 3^rd applicant had expected the N 67 to alter course after it had passed the restricted area.  Clearly, he was entitled to expect the N 67 to do so.  But, in the event she maintained her course and speed unchanged.  The fact that the 3^rd applicant was discombobulated by that turn of events is eloquently evidenced by his conversation with the 4^th applicant from 21:10:43 to 21:11:24. That conversation had commenced about 2¼ minutes after the N 67 had passed the restricted area.

384.  The judge was entitled to find (paragraph 673) that in face of the surprising and disconcerting maintenance of course by the N 67, the 3^rd applicant ought to have sounded the whistle on the Yao Hai at about 21:10:44, giving five blasts to indicate that he was unsure of her intentions.  At that time, the vessels were about one nm apart.  Instead, at 21:11:41, a full minute after he commenced his discussions with the 4^th applicant as to the course maintained by the N 67, the 3^rd applicant ordered the 4^th applicant to make contact with Mardep for the purpose of establishing that the vessels would pass each other ‘red to red’ or port to port. The judge was entitled to find that this belated attempt to establish a passing between the two vessels was too late.  Similarly, that it was a distraction to the consideration to take action, namely by a substantial change of course of the Yao Hai in which the red light of the Yao Hai would be displayed to the N 67.

385.  As it was, in the period 21:11:41 to 21:12:22, during which the 4^th applicant had been ordered to and was making contact with Mardep, no change of course to the Yao Hai was ordered.  All the while, the two vessels closed on each other approaching the same place in the water to the south of CP1.

386.  The abrupt and peremptory order given by the 3^rd applicant to the 4^th applicant at 21:12:22, accompanied as it was by an expletive, to desist with his attempts to arrange a passing between the vessels, is eloquent testimony of the 3^rd applicant’s belated appreciation of the true gravity of the situation in which his vessel was placed.

387.  Having regard to the rapid and changing helm orders given by the 3^rd applicant:

21:12:25 - Starboard 10, when the vessels were 0.46 nm apart;

21:12:32 - Starboard 20, when the vessels were 0.4 nm apart; and

21:12:43 - Hard Starboard, when the vessels were 0.3 nm apart

the judge was entitled to describe them as having been given in a sort of ‘panic’.

388.  Those helm orders were accompanied by short blasts on the whistle by the 4^th applicant:

21:12:32 - 1 short blast;

21:12:43 - 5 short blasts; and

21:12:57 - a second set of 5 short blasts, when the vessels were 0.2 nm apart.

Ground 6 A and B

389.  It was submitted that the judge erred in finding (paragraph 692) that the 3^rd applicant had committed a serious error of judgment in leaving his actions in response to the oncoming N 67 so late and that it was a grave error of judgment to believe that the vessels would pass red to red at a safe distance.  The judge, not having determined expressly that the 3^rd applicant was “reckless, negligent or grossly negligent” in his navigation of the Yao Hai, could not found criminal liability on a mere error of judgment.  Also, she erred in finding (paragraph 160) that to avoid a collision with the N 67 an order ‘Hard Starboard’ was required on the Yao Hai at 21:12:25.  Furthermore, she erred in determining that it was the fault of Yao Hai in leaving avoidance action so late and that is why the vessels collided (paragraph 164).

Ground 6C: reasonable precautions

390.  It was submitted that the judge erred in finding (paragraph 698) that the 3^rd applicant did not take reasonable precautions to prevent contravention of the COLREGS and/or that he did not have a reasonable excuse for his failure to do so.  If the 3^rd applicant was culpable of breaches of the COLREGS, they were minor infractions arising out of an error of judgment only and did not displace the defence that he had taken reasonable precautions and/or have a reasonable excuse.

A consideration of the submissions

391.  The context in which the judge determined (paragraph 160) that the 3^rd applicant ought to have ordered ‘Hard Starboard’ on the Yao Hai at 21:12:25, was her finding that ‘collision avoidance’ action, not the lesser alterations of course in fact ordered, was required at that time.  The order that the 3^rd applicant gave at that time was ‘Starboard 10’.  It is to be noted that in the very next paragraph the judge determined that the 3^rd applicant should have ordered ‘Starboard 20’ at 21:11:40 at the latest, in order to show a red light to the N 67.  In that respect, she determined that the 3^rd applicant was a minute late in giving that order.  As the judge noted (paragraph 751) the 3^rd applicant did not take ‘collision avoidance’ action until 21:12:43 when he gave the order ‘Hard Starboard’.  At that time, the vessels were only 0.338 nm apart.

392.  The offence contrary to section 72 of the Shipping and Port Control Ordinance does not include as an ingredient proof of conduct that is “reckless”, “negligent” or “grossly negligent”.  What is required, is proof that the defendant’s conduct “endangers or causes to be endangered” the safety of persons on a vessel or in the sea (although as prerequisite, that the conduct is an unlawful act, or is conduct for which there is no reasonable excuse).  Nevertheless, the gravity of the culpability that the judge attributed to the 3^rd applicant’s conduct is clear from the description ascribed by the judge to that misconduct (paragraph 692):

“D3 had time to think. His errors of navigation in leaving it so late were serious. His errors of believing that he was passing red to red and much further away from N 67 were grave. These were not reasonable errors. D3’s errors of judgment were unreasonable”.

393.  The judge made it clear that her attribution of culpability to the 3^rd applicant in respect of the section 72 offence was not contingent on the fact that there was a collision between the two vessels, let alone that many lives were lost in consequence of that collision.  Her determination of his culpability lay in the fact of his failure to take action at all for several minutes as the vessels closed on each other and subsequently for such inadequate and late actions that were taken.  In particular, she did not attribute culpability to the actions taken in the last moments.  It is in that context that her attribution of serious fault, in his navigation of the Yao Hai and his contribution thereby to the endangerment of persons, must be viewed.  In her findings the judge said (paragraph 781):

“I regard the failure of D1-D4 to take action as the most blameworthy fault in the navigation of YH and N 67. Their fault was to allow the close quarters situation and the last moment action have developed which led to the collision but not the actions they took in the panic.”[Emphasis added.]

394.  Clearly, the judge was correct in taking that approach.  The safety of persons on board the two vessels was endangered or caused to be endangered by the close-quarters situation that was created between the two vessels.  That would have been the case whether or not there was a collision and/or loss of life.  Sadly, matters progressed to the latter stage.

395.  In determining that the 3^rd applicant was culpable of a grave error of judgment in believing that the vessels could pass safely ‘red to red’ the judge accepted the evidence of Professor Ng based on the plot he made, exhibit P42 (paragraph 653):

“Exhibit P42 shows that D3’s intended passing clear of 60-70 m red to red to be incorrect but would at best have achieved a near miss. D3 seriously misjudged the situation. He thought he was shaping a course that would bring him between N 67 and CP1 buoy whereas in fact he was heading for a close green to green passing. A poor and bad misjudgment.” [Emphasis added.]

396.  However, the judge also had regard to the evidence of Capt Simpson in respect of the same issue, whose opinion she described as being (paragraph 655):

“that there would be a near miss or a slightly larger margin between the two vessels.”

397.  In the result, having regard to exhibit P42, the judge concluded (paragraph 768):

“Even if I accept the uncertainty of the data deprives me of any confidence that the plot is an accurate representation of what actually would have occurred the fact is that the outcome would have been a collision or very near miss if anything as viewed by Captain Simpson.”

398.  Clearly, as the judge found (paragraph 777), the 3^rd applicant’s culpability lay in allowing an avoidable very close quarters situation between the vessels to come about.  She quoted and relied upon Capt Third’s evidence in this respect (T. 5515):

“… this is an extremely difficult and almost dire situation, so an individual will be bound to be challenged by this; mistakes are made. That is the way it is. This situation should never get to this point.” [Emphasis added.]

Reasonable precautions

399.  As observed earlier, the judge noted that the 3^rd applicant had anticipated that the N 67 would change course after it had passed the restricted area at about 21:08:30.  At that time the 3^rd applicant ordered a slight adjustment of course to starboard, namely a course of 260°.  He said that he was aware that at about that time the 4^th  applicant had used the Aldis Lamp to signal two long light flashes at the N 67 to attract its attention to the presence of the Yao Hai.  However, the N 67 maintained its course.  In consequence, the issue arises of what precautions the 3^rd applicant took to ensure compliance with the COLREGS.

400.  The 3^rd applicant testified that he had acquired the N 67 on ARPA at about 21:09:00 and was aware that the CPA of the two vessels was less than 0.1 nm.  At times thereafter it was less than 0.1 nm.  He accepted that he was aware that, if neither vessel changed course, the two vessels were heading for the same piece of water.  He maintained his observation of the N 67, but did nothing.  At 21:10:43 the 3^rd applicant initiated a discussion about the navigation of the N 67 with the 4^th applicant. Yet, the 3^rd applicant still took no action whatsoever, other than making minor adjustments to the course of the Yao Hai to starboard at 21:11:12 and 21:11:37.  At 21:11:41 he ordered the 4^th applicant to make contact with Mardep to arrange a port to port passing between the vessels.  At 21:12:22 he ordered the 4^th applicant to desist in that attempt and then, at 21:12:25 he gave the order ‘Starboard 10’, followed by the orders ‘Starboard 20’ and ‘Hard Starboard’ at 21:12:32 and 21:12:43 respectively.

401.  Of the undisputed evidence that, after the N 67 had passed the restricted area the N 67 was not manoeuvring as had been expected by the 3^rd applicant, the judge said (paragraph 685):

“… the only sensible course was to keep well clear. D3 should have navigated on what he actually saw and not what he had expected.”

Clearly, that approach was all the more appropriate, given that the Yao Hai had directed two long flashes of the Aldis Lamp at the N 67, albeit to no effect, as she passed the restricted area.

402.  As described earlier, the judge determined that the viable options open to the 3^rd applicant were to have gone north of the CP1 buoy or south of the buoy, but closer to it.  Importantly, either manoeuvre required that the Yao Hai display a red light to the N 67.  Clearly, those manoeuvres were in the nature of precautions that the 3^rd applicant should have taken.  He took neither of them.

The belated use of the whistle on the Yao Hai - five short blasts at 21:12:43

403.  In cross-examination by counsel for the prosecution, the 3^rd applicant admitted that the five short blasts on the whistle of the Yao Hai at 21:12:43 were sounded at least two minutes too late.  That was his omission.  He had failed to comply with the COLREGS.  He was wrong not to do so (T. 5965-6). As noted earlier, rule 34 (d) provides, in respect of vessels in sight of one another that, if:

“… either vessel fails to understand the intentions or actions of the other, or is in doubt whether sufficient action is being taken by the other to avoid collision, the vessel in doubt shall immediately indicate that doubt by giving at least five short and rapid blasts on the whistle.” [Emphasis added.]

404.  Of the five short blasts on the whistle of the Yao Hai sounded at 21:12:43, the judge decided that they were made too late (paragraph 172). She noted that at 21:12:43 the vessels were only 0.3 nm apart (paragraph 340). She found that at this point of time, fully two minutes after the N 67 had passed the restricted area, both vessels of should have been in doubt as to the other’s intentions (paragraph 673):

“… and should have sounded 5 whistle blasts at that time when the vessels were about 1 mile apart. That is a wake up call or a sound signal for what is your intention.”

Finally, she determined (paragraph 697):

“D3 or D4 should have given N 67 five blasts of the whistle to indicate doubt as to the intention of N 67 by approximately 21:10:30 or 21:10:45 not at 21:12:45 when they did.”

Conclusion

405.  We are satisfied that the judge was correct in deciding, that the 3^rd applicant did not take all reasonable precautions to prevent contravention of COLREGS (paragraph 692) and that the prosecution had proved that fact beyond reasonable doubt (paragraph 785).

Ground 7: endangered or caused to be endangered

406.  It was submitted that the judge erred in finding “the actions of the YH endangered or caused to be endangered safety at sea”.  The evidence did not establish that a collision would have occurred between the vessels but for the actions of N 67.  The judge failed to acknowledge that there was no evidence regarding the cause of the N 67 sinking, nor why the crew had been trapped and unable to escape.  Given the conduct of the navigation of the N 67, the judge failed to appreciate that any attempt by the Yao Hai to give a warning or display a red light would have been futile.  The judge took into account irrelevant factors in determining the issue.  It was the navigation of the N 67 alone that caused the collision.

A consideration of the submission

407.  As noted earlier, the endangerment of the safety of others on a vessel or in the sea is not contingent upon the occurrence of a collision, let alone injury or death.  As the judge determined in this case, endangerment to the safety of persons was caused by the 3^rd applicant by his part in navigating the Yao Hai so as to cause or permit the development of a very close-quarters situation (see paragraph 781).  The bare facts have only to be stated for that to be obvious: on that night the vessels, the N 67 over 80 metres in length and the fully laden Yao Hai 225 metres in length, were approaching each other at a combined speed of over 23 knots in relatively confined waters with a CPA that was less than 100 metres from 21:09:00, at which point they were 1.83 nm apart.  At the time of the order, ‘Starboard 10’, given by the 3^rd applicant at 21:12:25, the CPA was about 50 metres and the vessels were 0.46 nm apart.  When the order ‘Hard Starboard’ was given at 21:12:43 the CPA was about 20 metres and the vessels 0.3 nm apart.  Furthermore, there was sufficient room available to the Yao Hai to manoeuvre to avoid such a close-quarters situation.

408.  Whether or not the N 67 would have responded to a subsequent warning, given after the Aldis Lamp had been directed at her from the Yao Hai after the N 67 had passed the restricted area, by the sounding of five short blasts on the whistle or by the Yao Hai manoeuvring substantially to starboard and showing her red light is nothing to the point.  The 3^rd applicant was not excused the exercise of his duty of proper navigation on the Yao Hai by what might or might not have been the response of the N 67.

Ground 8

409.  Finally, it was submitted that the judge made inconsistent findings, which cumulatively rendered the conviction of the 3^rd applicant unsafe, namely:

(i) in finding that it was unreasonable and incorrect for the 1^st applicant to assume that the Yao Hai would not use the buoyed channel, yet finding that it was both unreasonable (paragraph 615) and reasonable (paragraph 158) for the Yao Hai to use the buoyed channel;

(ii) in finding that the N 67 could have left the buoyed channel to navigate north of CP1, yet rejecting the 3^rd applicant’s concerns that he feared encountering a risk of collision with the N 67 if the Yao Hai navigated north of CP1;

(iii) in rejecting the 1^st applicant’s reasons for not turning to starboard, yet determining that it was unreasonable for the 3^rd applicant to expect N 67 to keep to starboard;

(iv) in determining that the 1^st applicant’s manoeuvre to port was  “most appalling and in error”, yet finding that the 3^rd applicant should have anticipated the 1^st applicant turning to port; and

(v) in finding that the COLREGS were mandatory, breach of which rules was unlawful, yet finding that the 3^rd applicant should have breached the rules and rejecting his reasons for standing on whilst being overtaken by the fast ferry.

A consideration of the submissions

410.  The judge did not determine, at paragraph 615, that it was unreasonable for the Yao Hai to use the buoyed channel.  As noted earlier in this judgment, she rejected as unreasonable/untenable the 3^rd applicant’s reasons for not navigating north of the CP1 buoy, namely a fear of encountering the N 67.  She did so on the basis that she accepted the evidence of Capt Third that such a manoeuvre would display a red light to the N 67 and that would prompt a reciprocal manoeuvre from that vessel, obviating any concerns of the 3^rd applicant of encountering N 67 north of the CP1 buoy.  The judge noted (paragraphs 622-3) that the options available to the Yao Hai were: navigating north of the CP1 buoy; navigating south of CP1 and, navigating at an extreme angle towards the CP2 buoy.

411.  The judge did not find that it was unreasonable for the 3^rd applicant to expect the N 67 to keep to starboard.  She did reject the 1^st applicant’s testimony that he was compelled by the ‘crossing rules’ of the COLREGS to maintain his course and speed, so that he could not alter course to starboard within the buoyed channel (paragraph 458).  The judge found that the 1^st applicant could have navigated the N 67 out of the buoyed channel to transit north of the buoyed channel or to starboard in the channel (paragraphs 491 and 506).

412.  Whilst the judge did criticise the 1^st applicant for navigating the N 67 to port she did not criticise the 3^rd applicant for not having anticipated that manoeuvre.  It is to be remembered that she found that the 1^st applicant’s order ‘Hard to Port’ on the N 67 was given at 21:12:50/55.  At that time, the vessels were at very close-quarters, about 0.3 nm apart.  Although the judge said (paragraph 680) that “... it would not be entirely unforeseeable that N 67 would in a belated attempt to avoid the collision try to increase the distance between the two vessels starboard to starboard and make a turn to port”, she made it clear that was on the basis of looking matters from the perspective of the N 67. In particular, that from the point of view of the N 67 “... she has Yao Hai crossing her bow at a fine angle to pass starboard to starboard and making no attempt to turn to starboard”.  In context, the alteration of course to port of the N 67 clearly falls in what the judge described as the timeframe when the close-quarters situation between the vessels had developed to such an extent that actions were taken “in panic” (paragraph 781).  As noted earlier, the judge held that the 3^rd applicant, amongst others, was culpable for allowing the very close quarters situation to have developed, but not for what happened in panic.

413.  The judge’s rejection of the 3^rd applicant’s explanation for not turning to starboard because of the presence of the overtaking fast ferry was on the basis that the presence of the fast ferry was irrelevant.  The judge found that the 3^rd applicant “was always intending to enter the channel in the middle or thereabouts”.  Further, the judge said that it appeared that the 3^rd applicant “… had made up his mind to go between CP1 and N 67 by the time the fast ferry had passed at 21:10:43” (paragraph 664).  The judge did not find that the 3^rd applicant should have breached the COLREGS by turning to starboard, whilst the fast ferry was overtaking the Yao Hai.  The fast ferry, as the overtaking vessel, was required by rule 13(a) to keep out of the way of the Yao Hai.  As the ‘other’ vessel, the Yao Hai was the ‘stand-on’ vessel and was required by rule 17(a)(i) to keep her course and speed.  Nevertheless, in determining that was a “… sensible course to consider to avoid a risk of collision with N 67”, no doubt the judge had in mind rule 2(b), which she set out at paragraph 319 and which provides that in construing and complying with the rules :

“… regard shall be had to all dangers of navigation and collision and to any circumstances… which may make a departure from these Rules necessary to avoid immediate danger.”

CONCLUSION

414.  There are no merits in the grounds of appeal against conviction advanced on behalf of the 3^rd applicant.  We are satisfied that the judge was fully aware of the dangers of a retrospective armchair assessment of the events and that she addressed the difference between errors of judgment and obvious fault.  The expert evidence that she accepted supported findings of obvious fault.  The fact that primary responsibility for the collision lies with the 1^st applicant in his navigation of the N 67 does not sit ill with a finding of culpability on the part of the 3^rd applicant. The 3^rd applicant did not respond effectively and timeously, by the use of sound or light signals or alterations of course, to the unexpected failure of the N 67 to change course after she had passed the restricted area in the buoyed channel.  The risk of collision was obvious.  The collision avoidance action taken by the 3^rd applicant on the Yao Hai was indeed ‘too little, too late’.

GROUNDS OF APPEAL OF THE 2^ND APPLICANT

415.  By ground 1, Mr Brenton submitted that if the judge had erred in finding the 3^rd applicant guilty of charge 2, then of necessity she erred in finding the 2^nd applicant guilty of that charge.

416.  Then, it was contended (ground 2) that the judge had misdirected herself in respect of the law relevant to the issue of endangering or causing to be endangered the safety of others as relevant to charge 2.  It was submitted that ‘endangering’ required a direct causal link between the act and the endangerment.  ‘Causing to be endangered’ connotes a bringing about of a state of affairs.  A mere omission to act is insufficient.  A failure to avert a danger already in existence will not suffice.

417.  Next, it was argued that if, contrary to the submissions made on ground 2, the 2^nd applicant’s failure to “prod” or “query” the 3^rd applicant as to his navigation of the Yao Hai was capable of satisfying the test of causation for the offence alleged contrary to section 72, nevertheless there was no evidence that the 2^nd applicant’s failure to so act caused the endangerment.

418.  By ground 4, it was contended that the judge had misdirected herself on the law and in respect of the evidence in her application of rules 5, 7 and 8 of the COLREGS.

‘Look-out’: rule 5

419.  It was submitted that in light of the evidence of the 3^rd and 4^th applicants, together with the out-of-court statement to the police made by the 2^nd applicant and adduced into evidence at trial by the prosecution, the judge ought to have found that it was not proved that the 2^nd applicant failed to maintain a proper look-out as required by rule 5.  Her finding to the contrary (paragraphs 138 and 783) was in error.  The only reasons that the judge gave for so finding (paragraph 135) do not accord with the undisputed evidence.  The judge ought to have found that the 2^nd applicant was keeping a proper look-out, sufficient to enable him to discharge his duty under rule 8 and to determine whether it was appropriate to query the conduct of the 3^rd applicant in his navigation of the Yao Hai.

420.  In finding that the 2^nd applicant was in breach of rule 5 the judge misconstrued the rule and its relationship with rules 7 and 8.  Compliance with rule 5 requires no more than “an appreciation of what was taking place”.  It does not require the making of a determination that a risk of collision exists.  That arises under rule 7.  Nor does it impose a duty to determine what action to take.  That arises under rule 8.  Failure to take action does not necessarily mean there has been a failure to keep a proper look-out and make a determination of what was taking place.  It was impermissible to draw an inference adverse to the 2^nd applicant, from a failure to take positive action, that he had failed to keep a proper look-out.

Rule 8

421.  Rule 8 is applicable only if there is in existence a risk of collision, which is to be determined under rule 7 by reason of the appraisal made of the information gathered under rule 5.  It was submitted that the judge erred in determining that the 2^nd applicant ought to have “queried” or “prodded” the 3^rd applicant in respect of his navigation of the Yao Hai no later than 21:11:40.  In so finding, the judge failed to have regard to her own determinations that although a ‘risk of collision’ existed from 21:09 (paragraph 153), there was no real risk of collision until 21:12 (paragraph 160), to the evidence of Capt Third and Capt Simpson and to the evidence of the awareness of the 2^nd applicant of the conduct of the 3^rd applicant in navigating the Yao Hai.

422.  By ground 5, it was submitted that the judge erred in finding that an error of professional judgment did not amount to the defence available under charge 2, namely “taking all reasonable precautions”.  Further, the judge erred in fact in failing to find that the 2^nd applicant had not taken such precautions.  If the 2^nd applicant committed any error, it was a mere error of professional judgment that was nevertheless consistent with the taking of all reasonable precautions.  In consequence, the judge improperly rejected evidence, in particular that of expert witnesses and of the 3^rd and 4^th applicants, when she determined that it did not amount on a balance of probabilities to taking all reasonable precautions by the 2^nd, 3^rd and 4^th applicants.

423.  Then, it was submitted that the judge erred in law and misdirected herself as to the manner in which it was open to accept and reject expert evidence.  Next, it was argued that the judge failed to distinguish properly between “blameworthiness” and “causative potency” when considering the ambit of the 2^nd applicant’s duties and any relationship between any failure to carry out such a duty and the ultimate collision.  Finally, it was contended that there was a material irregularity in the trial arising from the respondent’s failure to stipulate with appropriate particularity the ambit and nature of the 2^nd applicant’s failure to question the conduct of the 3^rd applicant’s navigation of the Yao Hai, together with the respondent’s failure to put its case in that respect to the 3^rd applicant in cross-examination.

A consideration of the submissions

Ground 1

424.  Given our findings in respect of the 3^rd applicant, it is not necessary to address the submissions made on behalf of the 2^nd applicant in respect of ground 1.  That ground fails.

Ground 2: ‘endangers or causes to be endangered’

425.  At all material times the 2^nd applicant was on the bridge of the Yao Hai, together with the 3^rd and 4^th applicants, the third officer and the helmsman.

Relationship between master and pilot

426.  The judge noted (paragraphs 554-9) that the duties and responsibilities of a master, in particular having regard to the master’s relationship with a pilot, are set out in the STCW Guide (Standards of Training, Certification and Watch-keeping for Seafarers) and ICS (International Chamber of Shipping) Bridge Procedures Guide.  Of the ongoing duties of a master, notwithstanding the presence and assistance of a pilot, the judge said (paragraph 556):

“ When the master delegates the conduct of the ship to the pilot, the master must continue to monitor the pilot’s intentions to ensure they are safe and reasonable. A master’s duty is to check that the pilot is doing his job properly. The master must observe at all times that the pilot is navigating his vessel correctly and safety.”

However, the judge noted that ultimate responsibility lay with the master, (paragraph 559):

“The master retains the ultimate responsibility for the safety of his ship. This includes querying any actions or omissions by the pilot. If a master is not sure what is going on he is required to challenge a pilot.”

No issue is taken with those determinations.

427.  Clearly, in those circumstances the 2^nd applicant had an ongoing and continuous duty or responsibility in respect of the safety of his vessel and crew.  If circumstances arose that jeopardised the safety of his vessel and crew, the 2^nd applicant was under a duty to act to avoid or ameliorate that risk.  It mattered not whether those circumstances had been brought about by accident, for example an outbreak of fire, or by the culpable misconduct of others, for example the navigation of the vessel at high speed by the pilot at close-quarters in confined waters.  His failure to so act in those circumstances would be a breach of that duty which, in appropriate circumstances, might give rise to culpability for endangering the safety of others at sea.  The fact that the 2^nd applicant did or said nothing to give rise to the original risk is, by itself, no answer to liability in the master in respect of his vessel.

Grounds 4 and 5

The 2^nd applicant: rule 5 - failure to keep a proper look-out

428.  As the judge noted (paragraph 561), in his account to the police on 23 March 2008, the morning after the collision, the 2^nd applicant said that he had remained on the bridge after the pilots boarded the Yao Hai and acted as a look-out.  He had seen the N 67 on the radar of the Yao Hai sometime after 9 pm, after the Yao Hai had passed under Tsing Ma Bridge.  The judge acknowledged (paragraph 562) that the 2^nd applicant relied upon the evidence of the 3^rd and 4^th applicants that he was “..part of the bridge team lookout, each of them looking at the radar and maintaining a lookout visually”.

Radar: ARPA and CPA

429.  Of the period 21:08-21:09, the 3^rd applicant had testified that he, the 2^nd and 4^th applicants all used radar to observe the N 67 (T. 5668):

“All of us were master mariners, except the 3^rd officer. Under these circumstances, this kind of traffic, there was no need for discussion.”

The judge found (paragraph 133):

“D2 to D4 on YH and D1 on N 67 observed each other’s vessel (at least by 21:08) for about five minutes before the collision by their radar and using ARPA and visually through binoculars.”

430.  Of the use of ARPA, the judge said (paragraph 134):

“… ARPA alone would have informed them of the CPA. The vessels were in very close proximity to each other should they meet. It would have been obvious from the radar that they were both heading for the same spot.”

In these determinations in respect of the use of ARPA and information as to CPA the judge treated the four applicants collectively. The 2^nd, 3^rd and 4^th applicants clearly operated as a team on the bridge of the Yao Hai.  Capt Third confirmed that that is what was to be expected of a master, working with two pilots (T. 5267). He said (T. 5285) that he would have expected information as to the CPA derived from ARPA to be shared amongst those on the bridge, but he agreed that there was no such conversation discernible on the recording of the bridge of the Yao Hai.

431.  As noted earlier, for his part the 3^rd applicant had testified that he had manually acquired N 67 on ARPA on his radar set and was aware that the CPA was 0.1 nm at the outset and less at times thereafter.  However, he agreed (T. 5770) that his radar set was the only radar set with ARPA set on it.  He agreed that the radar set that the master and the co-pilot were looking at from time to time did not have ARPA.  However, earlier he had said (T. 5674):

“Inside the bridge, the master did not leave the bridge at all. All along he maintained lookout. He also used the radar. All along, he was observing my performance. He also paid attention to the course of Yao Hai.”

432.  In his evidence the 4^th applicant denied having used ARPA on radar and having derived or used a figure for CPA (T. 6419-6420). In cross-examination by the prosecution, when asked if he was aware that the CPA was reducing between the two vessels, he said (T. 6548):

“I was not working on CPAs .That is -- well, it is finer on our starboard bow.”

433.  The judge’s statement in her ‘Summary of Findings’ (paragraph 135):

“D1-D4 were not aware of the closeness in CPA of the two vessels.”

is clearly wrong in respect of the 3^rd applicant. It is at odds with her other findings in respect of the 3^rd applicant. On the other hand, it accords with the testimony of the 4^th applicant. There was no direct evidence in respect of the 2^nd applicant on that issue.  He did not give evidence and the issue was not addressed in his out-of-court statement: although the 2^nd applicant mentioned his use of radar when acting as a look-out on the bridge of the Yao Hai, he made no mention of having used ARPA or of having derived or used a figure for CPA.  Whilst the radar set used by the 2^nd and 4^th applicants did not have ARPA, as noted already, the 3^rd applicant had said that the 2^nd applicant “was observing my performance”.

Aldis Lamp

434.  Although the judge did not make special mention in respect of her consideration of the 2^nd applicant’s case of the use of the Aldis Lamp by the 4^th applicant and although the 2^nd applicant made no mention of that fact in his out-of-court statement to the police, it is clear that the 2^nd applicant must have been aware of its use.  The 4^th applicant had left the bridge in order to direct the bright light of the Aldis Lamp at the N 67.  The 3^rd applicant testified that the 4^th applicant had been assisted in that operation by the Third officer and had gone to the right side of the navigation wing (T. 5667).  The 3^rd applicant said that he had seen the bright flashes from the Aldis Lamp from within the bridge.  The 4^th applicant returned inside the bridge and used binoculars to identify and follow the navigation of the N 67.

VHF

435.  As the judge noted (paragraph 561), in his out-of-court statement to the police, the 2^nd applicant had described the use by the pilots on the Yao Hai of the VHF.  He said that there were attempts, first to contact the N 67 and, after that had failed, to contact Mardep.  Of the course orders given by the 3^rd applicant, the 2^nd applicant said that at around 21:12 the 3^rd applicant had given the following sequence of orders, first ‘Starboard 10’ and then ‘Starboard 20’. Then, he saw the N 67, 100 metres away turning to port.  The 3^rd applicant ordered ‘Hard Starboard’, but in the face of the continued turn to port of the N 67, the 3^rd applicant ordered the Yao Hai to change course to port, at which point the vessels collided.

The judge’s determination of the 2^nd applicant’s look-out

436.  The judge determined of the 2^nd applicant’s look-out that evening, (paragraph 582):

“D2 was well able to decide that night upon his observation if D3 was complying with the collision avoidance rules.”

Also, the judge found (paragraph 586) that, from his use of radar and by sight, the 2^nd applicant was aware that the two vessels were heading for the same spot or thereabouts.

437.  Notwithstanding, those findings in respect of his ‘look-out’ the judge went on to decide that the 2^nd applicant was in breach of rule 5 (paragraphs 588 and 783).  But, the judge’s determination that the 2^nd applicant’s look-out was sufficient for him to determine whether or not the 3^rd applicant was complying with the COLREGS and that he was aware that the vessels were heading for the same spot, are findings that are consistent with the maintenance of a proper ‘look-out’.  That the judge found otherwise is perhaps to be explained, as was suggested by Mr Brenton, by the judge’s interpretation of the ambit of rule 5 as set out at paragraph 765:

“ What is required under Rule 5 is not just observation but also appraisal of the situation (,) that is making a judgment of the situation. There is no point saying I was watching and listening and seeing a dangerous situation developing and then ignoring it or doing nothing about it. That is not a proper appraisal… There is no point keeping a proper lookout and just carrying on doing nothing. That does not mean you have complied with the rule.”

438.  As noted earlier in this judgment in respect of the 1^st and 3^rd applicants, the judge’s approach in that regard was to add a wholly unwarranted gloss to the words of the rule itself and imported into it requirements which arise in respect of rule 7 (‘determination of risk of collision’) and rule 8 (‘action to avoid a collision’).

Conclusion

439.  In our judgment, the judge fell into error in determining that the 2^nd applicant was in breach of rule 5.

Rule 8

Risk of collision

440.  Although the judge determined that a “real risk” of collision existed by 21:12 (paragraph 160) she had determined earlier (paragraph 142) that a “risk of collision” existed at 21:09 when the CPA was about 100 metres and that as time passed and the vessels approached each other more closely it was developing into a “grave and growing risk” of collision.

Relationship between master and pilot

441.  In addressing the issue of the master’s ultimate responsibility for the safety of his ship, notwithstanding the requirement of compulsory pilotage, the judge cited (paragraph 571) dicta from the judgment of Dube J in the Federal Court of Canada in Irish Shipping Limited v R [1977] 1 Lloyd’s Law Rep. 195.  The plaintiffs, the owners of the Irish Stardust, brought an action against the Crown to recover damages sustained by the vessel when it grounded whilst under compulsory pilotage in a traffic separation scheme in Broughton Strait in British Columbia.  The plaintiff contended that the Department of Transport had been negligent in implementing and recommending the use of a traffic separation scheme which was dangerous and unsafe for navigation and inadequately lit.  In denying liability, the Crown contended that the grounding of the vessel was the failure of those in charge of that vessel, including master and pilot.

442.  The judge quoted Dube J’s observations as to the role of the pilot and the duties of the master (page 205):

“… the role of the pilot is to provide local knowledge about areas foreign to the master of the ship; he does not relieve the master of his duties. The officers and crew on the bridge are there for a purpose, to be on guard, alert and ready to provide quick assistance.”

The judge went on to refer to observations made by Lord Alverstone CJ in the Court of Appeal of England and Wales in The Tactician [1907] P 244.  In that case the Tactician, under the control of a pilot, collided with the Leander, a vessel at anchor in the mouth of the river Thames. At first instance, Bargrave Deane J found (page 247):

“… there was a very strong duty on the part of the master….. to have brought the attention pointedly of the pilot that he must be mistaken in thinking that the glimmer of these lights which he saw were the lights of a crossing vessel or moving vessel, and should have pointed out that these lights were not shifting, and by the fixed light of the Black Deep it was perfectly certain that the vessel was at anchor.”

443.  In dismissing the appeal, and having acknowledged that the pilot was in sole charge of the ship and having adverted to the dangers of divided command and interference with a pilot on the bridge of a ship, Lord Alverstone CJ said (page 250):

“But side-by-side with that principle is the other principle that the pilot is entitled to the fullest assistance of a competent master and crew… the cases in which the master has to interfere at all with the pilot very rarely occur… (but) there is, or maybe, a distinction between interference and bringing to the pilot’s notice anything which the pilot ought to know.”

444.  In The Peerless (1860) Lush 30 the High Court of Admiralty was also concerned with a collision between a vessel at anchor, the Jason, and a vessel under way under the command of a pilot.  The Peerless weighed anchor and was getting underway under canvas only, without the assistance of a steam tug boat.  At issue was the culpability of the master of the Peerless in permitting the pilot to so navigate the vessel.  In summing up to the Trinity Masters, Dr Lushington directed them:

“There may be occasions on which the master of a ship is justified in interfering with the pilot in charge, but they are very rare. If we encouraged such interfering, we should have a double authority on board, a divisium imperium, the parent of all confusion, from which many accidents and much mischief would most surely ensue. If the pilot is intoxicated, or is steering a course to the certain destruction of the vessel, the master no doubt may interfere or ought to interfere, but it is only in urgent cases.”

The evidence and findings relevant to the issue

445.  The 3^rd and 4^th applicants, as pilot and co-pilot, had boarded the Yao Hai at the pilot boarding area near the Lamma patch in the Lamma Channel some time after the Yao Hai had entered Hong Kong waters,  and as she proceeded in a generally westerly direction.  By law, the Yao Hai was required to have on board both those pilots.  The 3^rd applicant took over the ‘con’ of the Yao Hai and, having turned to a northerly course at the western end of Hong Kong Island, navigated through the Western and Ma Wan Fairways and eventually beneath the Tsing Ma Bridge.  There, the 3^rd applicant navigated the Yao Hai in the difficult manoeuvre from its generally northerly course to a south-westerly course.  Of the navigation of the Yao Hai by the 3^rd applicant to that point, the judge found (paragraph 580):

“Clearly before Ma Wan Island and under the bridge…there were difficult manoeuvres.”

446.  The context in which the judge’s determination, that the 2^nd applicant ought to have “queried” or “prodded” the 3^rd applicant in respect of his navigation of the Yao Hai, is to be viewed is the evidence of Capt Third, in cross-examination by the prosecution (T. 5655), in respect of the relationship between pilot and master.  Capt Third said that the master would watch and observe the navigation of the vessel by his pilot.  Subsequently, the 3^rd applicant testified that is exactly what the 2^nd applicant had done on the bridge of the Yao Hai that evening.  Given the length of time during which the pilot had been on board the Yao Hai, Capt Third said:

“… so he would have formed a view as to whether he can trust the pilot or not. Normally, you can do that within ten minutes.”

447.  Of the nature of the waters encountered by the Yao Hai, after she had manoeuvred to port having passed under the Tsing Ma Bridge, the judge said (paragraph 581):

“After passing Ma Wan Island to the buoyed Channel was more or less a direct stretch of water. It does not require very difficult manoeuvres. Perhaps more demanding would be if the master had taken over the con he would have had to have manoeuvred YH close to CP1 buoy”.

The steps to be taken by the master

448.  Of the requisite response by a master, complying with his duties in respect of the pilot and his vessel, the judge determined (paragraph 578):

“ The first step for D2 unless this was a sudden emergency would be to discuss the matter with the pilots, if necessary give suitable advice and if he was still concerned his advice was not being followed and that his ship was endangered or for the safety of lives at sea then the last step would be for him to retake command or con of the vessel.”

449.  Of the latter step, the judge went on to decide (paragraph 587) that the 2^nd applicant, “… should not necessarily have taken over the navigation of YH.”

450.  Of the initial step, the judge found that, having been able to see that the two vessels were heading for more or less the same spot in the water the 2^nd applicant (paragraph 586):

“... should have recognised the dangers of D3’s navigation and queried him whether the manoeuvre D3 was taking was sufficient to avoid N 67. 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.”

451.  Earlier, the judge had noted (paragraph 574) that on his own account the 2^nd applicant had taken a “very passive role”.  Also, she noted (paragraph 583 and 585) that not only was there no evidence on the available recordings of the bridge of the Yao Hai of any conversation at this material time between the 2^nd and 3^rd applicants but also the 3^rd applicant had confirmed in his testimony that the 2^nd applicant had never sought clarification from him as to what he was intending to do.

452.  The judge said that she agreed with the evidence of Capt Third (T. 5639) that, given his opinion that the latest time for the ‘Starboard 20’ order to be given on the Yao Hai was about one minute earlier than it was given, then in that period (paragraph 579):

“D2 should have been prodding the pilot asking if they should go to starboard”.

Intervention by a master: a very fine judgment

453.  However, earlier in his evidence Capt Third had described the decision of a master to intervene with the navigation of his pilot as a matter of “very fine judgment” (T. 5425):

“Well, without doubt, the pilot is the more experienced man with close-quarters ship handling and the most experienced man manoeuvring in channels and the man who will know the limits of the manoeuvring room around the vessel. And it is a fairly straightforward relationship that the master has in that respect, in that the pilot is on board the ship as a specialist navigator. And the master will only intervene if he feels that his attention to the navigation is going to be better for the safety of the ship if his specialist is considered to have let him down. So it’s a very fine judgment in this particular case.”

454.  Of the difficulties of judgment for the master, Capt Third went on to say (T. 5425-6):

“It’s pretty difficult for a master. There is -- although it is rarely ever recognised, there are human relationships involved here. A younger man, an older man, the younger man with some experience of Hong Kong but not the level of experience that the pilot’s got… Invariably, if a master comes to that decision there’s a very good chance he’s going to get it too late because he will always be trusting his pilot to get him home.”

455.  In his testimony in cross-examination by the prosecution, Capt Third returned to that theme (T. 5639):

“And what you don’t want to have on the bridge of a ship is an interference which might set someone on an opposite strategy… this sort of situation is one where it is very difficult for a master to deal with, with a pilot, in close quarters, on an encounter of this type. And if the master chooses to go with his pilot, then he is always going to tend, perhaps, certainly in reality he’ll always tend to go a bit too long with his pilot. So the fact that he has not intervened at a point is -- okay, you can view it is a mistake, but it’s entirely possible, as a mistake.”

The relative experience of the 2^nd and 3^rd applicants

456.  As the judge noted (paragraph 600) it was the evidence of the 3^rd applicant that he was 61 years of age and had experience of piloting vessels of all sizes in Hong Kong waters for 15 years.  He had been certified as a foreign-going Second Mate in 1973 and as a Master Mariner (Class 1) in 1979.  He qualified as a Class 1 Harbour Pilot of the Hong Kong Pilots Association in June 1997.

457.  By contrast, the 2^nd applicant stated in his out-of-court statement to the police that he had been born in June 1972.  After he had joined his employer, Shanghai Chang Hang International Co. Ltd, in November 2007 he had been assigned to work as the master of the Yao Hai.  Of his experience of Hong Kong waters the only available evidence was his statement that whilst the Yao Hai was sailed mainly in Mainland waters, “(it) sometimes went through the waters of Hong Kong.”

458.  The judge accepted (paragraph 586) that the 2^nd applicant was entitled to rely on the 3^rd applicant:

“… as a more experienced mariner in these waters and for manoeuvring YH in close passing situations in Hong Kong waters.”

459.  As Mr Brenton has pointed out, in the period of about one minute during which the 3^rd applicant should have ordered ‘Starboard 20’ but did not do so, the 3^rd applicant was engaged in giving urgent instructions to the 4^th applicant to contact Mardep.  Clearly, as might be expected, the 3^rd applicant had paid close attention to the interchange between the 4^th applicant and the Mardep officer who responded on the radio, as was evidenced by his intervention at 21:12:22 ordering the 4^th applicant to desist in that radio conversation.  There then followed the flurry of orders given by the 3^rd applicant for changes of course:  ‘Starboard 10’,  ‘Starboard 20’ and ‘Hard Starboard’ at 21:12:25/32/43.  There is considerable force in Mr Brenton’s submission that in those circumstances a reasonable mariner would be reluctant to distract his pilot.

Conclusion

460.  In the result, in our judgment the judge was in error to conclude that the 2^nd applicant was in breach of rule 8 of the COLREGS and thereby had committed an unlawful act.  Viewing matters in the round, the fine judgment required of the 2^nd applicant in the period beginning about two minutes prior to the collision was to be viewed in the context of the navigation of the Yao Hai prior to that by the 3^rd applicant and the fact that he was taking steps in the face of the developing danger.  The 2^nd applicant, as master of the Yao Hai, had been required to take on board to pilots to navigate in Hong Kong waters.  They were specialists who had successfully navigated the Yao Hai, through the Ma Wan Fairway and underneath the Tsing Ma Bridge followed by the difficult sharp turn to port.  The 2^nd applicant was entitled to feel that his trust in them as pilots was vindicated.

461.  After the N 67 had been identified on radar, a signal had been directed at her use of the Aldis Lamp and a visual watch had been maintained of her.  Then, as it became apparent that the N 67 was not navigating as was to be expected of her, a conversation obviously related to that issue had ensued between the 3^rd and 4^th applicants.  Next, the 3^rd applicant had ordered the 4^th applicant to use the VHF radio.

462.  Whilst the judge was entitled to accept Capt Third’s evidence that the 2^nd applicant ought to have raised with the 3^rd applicant the issue of whether or not the Yao Hai should manoeuvre to starboard, in all the circumstances we are not satisfied that his failure to do so did not constitute the criminal culpability alleged.

CONCLUSION

463.  Our findings that the judge erred in determining that the 2^nd applicant was in breach of rules 5 and 8 of the COLREGS are determinative of his appeal.  In those circumstances, it is unnecessary for us to address the remaining grounds of appeal advanced on his behalf.

GROUNDS OF APPEAL OF THE 4^th APPLICANT

464.  Mr McCoy adopted the arguments advanced on behalf of the 2^nd applicant in respect of the limits of conduct as a result of which it could be determined properly that the 4^th applicant had endangered or caused to be endangered the safety of others.  In particular, he supported the submission that an omission/failure to act was an insufficient factual basis for such a determination.  Also, it was contended that, if the judge erred in finding the 3^rd applicant’s navigation culpable misconduct, then of necessity the judge erred in finding the 4^th applicant culpable for not having intervened/questioned the 3^rd applicant in respect of his navigation of the Yao Hai. Then, it was submitted that the judge had erred in finding the 4^th applicant culpable as a secondary party by way of omission, without determining that he had intentionally aided and abetted, counseled or procured the acts of the 3^rd applicant. Next, it was submitted that the judge erred in determining that the failure of the 4^th applicant to question or prod the 3^rd applicant in respect of his navigation of the Yao Hai was causative of endangerment.

Ground 6

465.  By ground 6, it was contended that the judge had erred in law/misdirected herself on the evidence in respect for the application of rules 5, 7 and 8 of the COLREGS.  In relation to compliance with the rule 5, it was submitted that on her own findings of fact of the conduct of the 4^th applicant the judge ought to have determined that he was maintaining a proper look-out.  In making a contrary finding it was said that the judge had misconstrued the relationship between rules 5, 7 and 8.  Having determined that a ‘real risk’ of collision existed at 21:12, the judge erred in holding the 4^th applicant culpable for his failure to question/prod the 3^rd applicant in respect of his navigation of the Yao Hai prior to that time.

466.  Next, Mr McCoy submitted that the judge had erred in her evaluation/analysis and acceptance/rejection of the testimony of expert witnesses in reaching determinations adverse to the 4^th applicant. Then, it was contended that the judge erred in having regard to a statutory defence of “reasonable excuse”, when the appropriate test was that of having taken “all reasonable precautions” to prevent a contravention of the COLREGS.  Further, the judge erred in determining that an error of professional judgment did not fall within that latter phrase and by determining that the 4^th applicant had not taken that action.  Also, it was argued that in failing to particularise its case against the 4^th applicant, as to when and what action the 4^th applicant ought to have taken, and failing to cross-examine the 3^rd applicant as to what he would have done had the 4^th applicant questioned/prodded him as to his navigation the 4^th applicant was denied a fair trial.  Finally, it was submitted that in convicting the 4^th applicant on the ‘unlawful act’ limb of the charge, the judge had misdirected/ failed to direct herself in respect of the issue of his limited status as a Class 2C pilot, namely a pilot not permitted to navigate the Yao Hai by himself.

A consideration of the submissions

467.  It was not in dispute that the 4^th applicant qualified as a Master Mariner in 1992 and had become an apprentice pilot in 2006.  Having operated as a Class 2D pilot for over a year he was qualified as a Class 2C pilot and was able to pilot vessels of up to 165 metres in length.  Pursuant to section 10E(3) of the Pilotage Ordinance, Cap. 84, the Director of Marine, as the Pilotage Authority, required two pilots to pilot the Yao Hai in Hong Kong waters.

468.  The judge noted (paragraph 708) that the 48-year-old 4^th applicant was not qualified to navigate a vessel the size of the Yao Hai and that he had no experience, even as a navigational officer, on a vessel of its size.  The 4^th applicant said that he had never met the 3^rd applicant, prior to their joining the Yao Hai on the night of 22 March 2008, and regarded him as his ‘si fu’ or teacher.  As noted earlier in this judgment, the 3^rd applicant was 61 years of age and had 15 years experience as a pilot in Hong Kong waters.

Ground 6: the judge’s determination that the 4^th applicant was in breach of rules 5 and 8 of the COLREGS

The judge’s findings

469.  No issue is taken with the judge’s finding (paragraph 701) that the role of the 4^th applicant, as co-pilot on the Yao Hai, was to assist the 3^rd applicant in the navigation of the vessel.  The Yao Hai had a co-pilot to increase the “margin of safety” (paragraph 575). The judge accepted (paragraph 701) the evidence of Capt Simpson and Capt Chen that the 4^th applicant’s duties were not only to carry out the instructions of the chief pilot, the 3^rd applicant, but also to “watch and listen and make his own judgment as to whether D3 acted correctly or not.”  Capt Chen testified (T. 6179) that the Hong Kong Pilotage Association’s manual of ‘Pilotage Operating Procedures’ required the co-pilot to keep the pilot-in-charge informed of any hazards, to maintain a radar watch and to establish communications with the VTC by VHF radio.

470.  The judge noted (paragraph 190) that the 4^th applicant had first observed the N 67 from the bridge of the Yao Hai on radar at about 21:08 when the N 67 was next to buoy CP 3 and that he had drawn the attention of the 3^rd applicant to the radar target.  They noted that the oncoming vessel was in the middle of the channel.  Then, the 4^th applicant used binoculars to identify the two white masthead lights of the N 67, after which he had directed two flashes on the Aldis Lamp at the N 67 (paragraph 710). The judge went on to note the 4^th applicant’s testimony that he had been aware of a fast ferry overtaking the Yao Hai from astern on the port side.  He resumed observation of the N 67 with binoculars and observed now not only the two white masthead lights but also a red sidelight (T. 6311).

471.  Then, at 21:10:43 the 3^rd applicant initiated a dialogue with the 4^th applicant in respect of the navigation of the N 67. In that context, the judge noted (paragraph 704) that in the 2¼ minutes prior to 21:10:43 nothing had been said between them about the maintenance of course by the N 67, notwithstanding that she had passed the restricted area.  The judge went on to note (paragraph 713) that following the instructions of the 3^rd applicant at 21:11:41, the 4^th applicant contacted Mardep on the VHF radio.  As instructed, he informed Mardep that the two vessels were to pass port to port.  That dialogue continued until about 21:12:22 when it was terminated abruptly on the order of the 3^rd applicant.

472.  The judge observed (paragraph 711) that following the 3^rd applicant’s Helm order ‘Starboard 10’ at 21:12:25, the 4^th applicant sounded one short blast on the whistle of the Yao Hai at 21:12:32, to indicate the vessel was turning to starboard.  That sound signal coincided with the 3^rd applicant’s Helm order ‘Starboard 20’.  The judge went on to note that having observed that the N 67 was not reacting as expected to the whistle signal, at 21:12:43 the 4^th applicant began sounding five short blasts on the whistle of the Yao Hai to indicate that he was unsure of its intentions.  The beginning of that sound signal coincided with the 3^rd applicant’s Helm order ‘Hard Starboard’.  The judge noted (paragraph 628) that the 4^th applicant gave a further set of five short blasts on the whistle at 21:12:57.

473.  The judge observed (paragraph 704) that, notwithstanding the discussions that had taken place between the 3^rd and 4^th applicants, there was no discussion about the Yao Hai taking “avoiding action”.  Of such discussions as there were between the 3^rd and 4^th applicants, the judge found that it revealed their appraisal of the situation to be “a complete shambles with poor decisions and not communicating in any proper way”.

The judge’s determination

474.  The judge was aware that the personnel on the bridge of the Yao Hai operated as a team in assisting the pilot in the navigation of the vessel.  She said as much (paragraph 695): “There was available to the YH a whole bridge team.”  Clearly, different members of the team could be called on to perform different functions and tasks in the navigation of the Yao Hai.

Look-out

475.  Notwithstanding the judge’s acknowledgement of the various functions of look-out conducted by the 4^th applicant throughout the material period of about five to six minutes prior to the collision, including the fact (paragraph 719) that he had acted independently in the use of the Aldis Lamp and the whistle of the Yao Hai, nevertheless she concluded (paragraph 721) that he had failed to pay “a proper lookout”.

476.  In particular, the judge was critical (paragraph 715) of the 4^th applicant’s evidence that “he had no idea how far the vessels were apart, he had no impression of time.” Moreover, she noted that the 4^th applicant had testified that he had stopped looking at the radar when the vessels were “about 1 mile apart” but accepted that, if he had looked at the radar, it would have given him a “more accurate idea of what was happening”.  In that context, the judge found subsequently (paragraph 743) that it would have been obvious to all the defendants from the radar that “the vessels were on collision courses for at least four minutes before the collision at 21:13:44”.  Earlier, in an omnibus finding that she made in her ‘Summary of Findings’ (paragraph 135) she determined that the 4^th applicant, in common with the other defendants at trial, was “not aware of the closeness in CPA of the two vessels.”

477.  Furthermore, she found (paragraph 719) that the 4^th applicant ought to have made contact with Mardep on the VHF radio earlier than he did, and that he should have done so on his own initiative in order to establish the identity of the N 67 in advance of the vessels meeting subsequently in the vicinity of the buoy CP1.  Of the enquiries made at about 21:12 by the 4^th applicant of Mardep on the VHF radio as to the identity of the eastbound vessel, the judge determined (paragraph 763) that was “useless” and “too late”.

Action to avoid a collision

478.  The judge determined (paragraph 721) that the 4^th applicant had “omitted to say something to D3 or inform him of his lack of collision avoidance action”.  She found (paragraph 720) that he was culpable of an “abject failure to appreciate the gravity of the developing situation on the night and to give the appropriate advice to the chief pilot”.  Further, (paragraph 717) that by the application of “reasonable skill and prudence” it would have been obvious to the 4^th applicant that, “to keep the course D3 was keeping would involve a danger of collision with N 67”.  In the circumstances, she found (paragraph 697) that the 3^rd or 4^th applicant ought to have given five short blasts on the whistle of the Yao Hai, to indicate that she did not understand the intentions of the N 67, at about 21:10:30-45.

A consideration of the submissions

VHF

479.  Relevant to the judge’s determination that the 4^th applicant ought to have used his own initiative and contacted Mardep on the VHF radio at around 21:08 to establish the identity of the eastbound vessel, is the reason that the 4^th applicant gave in testimony (T. 6421) for having drawn the attention of the 3^rd applicant to the eastbound vessel, namely “because that is a potential hazard”.  He went on to explain:

“This ship, as it is proceeding along the channel, we may need to pay attention to it a bit more than the other. That is why as a co-pilot, I tell the pilot in charge there is a ship right in the middle of the channel.”

480.  On the other hand, there is some force in the 4^th applicant’s testimony as to why he had not contacted Mardep on the VHF radio once the radar target of N 67 was observed in the middle of the Castle Peak buoyed channel (T. 6307, namely “it simply won’t work if we call Mardep for every ship.”  However, clearly the force in that approach was dissipated in direct proportion to the passage of time as the N 67 maintained its course after having passed the restricted area.  Clearly, the judge was entitled to find that the VHF contact made by the 4^th applicant with Mardep shortly before 21:12 was made too late.  Similarly, she was entitled to find that the 4^th applicant ought to have made contact with Mardep to establish the identity of the vessel on his own initiative at a much earlier time.

Radar/ARPA/CPA

481.  The judge’s finding that the 4^th applicant had “no idea of how far the two vessels were apart” at given times was made in the context of cross-examination of him by counsel for the respondent as to the estimates of distance he had given in his out-of-court statement to the police.  For example, the 4^th applicant had said that he had contacted Mardep on the VHF radio to enquire about the N 67 when the two vessels were “around two nautical miles apart”.  In fact, exhibit P3A (a schedule in chronological sequence of the course, relative bearing, CPA and distance apart of the two vessels) makes it clear that at that point in time the vessels were about 0.6 nm apart.  The 4^th applicant accepted that those estimates, based on his night time visual observations, did not accord with the distances described in the radar data available at trial.  The 4^th applicant conceded (T. 6511) that he did not have any “concrete measurement” of distance, but only something “very, very rough”, and that recourse to radar would have given him a very much better idea of the distances the vessels were apart.  He accepted (T. 6512) that he had stopped looking at the radar when the vessels were about 1 mile apart.

482.  In his evidence the 4^th applicant denied having used ARPA on radar and having derived or used a figure for CPA (T 6419-6420):

“Well, did you do any ARPA calculations yourself?

A. Myself?

Q. Hm.

A. Myself, no.

Q. Did anybody, the master of the Yao Hai, D2, do any ARPA calculations?

A. I don’t know.

Q. So, did you have any idea of what its closest point of approach to you was going to be?

A. No. Not numeric form.

Q. Or the bow crossing range, or anything like that?

A. Not in numeric form.

…

Q. Did you establish anything about this vessel which would tell you whether you were going to meet each other or not, and when?

A. Not in numeric form. As I told, I haven’t used — I was not using the ARPA, tracking it, to tell CPA or TCPA, in terms of number.

Q. So, did you have any — did you establish how many minutes it would be before the two of you were in a close-quarters situation?

A. Not—also not in the form of number.

Q. Was that your responsibility?

A. We are not picking any number for a situation while we are piloting.        Every — I don’t know, just every pilot just looked at it, with a — and we are not getting number to how far, how long, what time, and all this.  We will not come to that.”

In cross-examination by the prosecuting counsel, when asked if he was aware that the CPA was reducing between the two vessels, he said (T. 6548):

“I was not working on CPA’s .That is -- well, it is finer on our starboard bow.”

483.  It is to be noted, by reference to exhibit 3A, that the time at which the 4^th applicant testified that he had stopped looking at the radar, namely when the two vessels were 1 mile apart, was about 21:11:02/05.  Of course, at that time the 4^th applicant was engaged in a dialogue with the 3^rd applicant in respect of the movements of the N 67, in particular that unexpectedly she was maintaining her course towards the Yao Hai.  Shortly after that conversation ended at 21:11:24, the 4^th applicant was ordered at 21:11:41 by the 3^rd applicant to contact Mardep on the VHF radio.  Similarly, shortly after the 3^rd applicant ordered the 4^th applicant to desist in the VHF radio transmission at 21:12:22, the 3^rd applicant gave the Helm order ‘Starboard 10’, in consequence of which the 4^th applicant sounded one short blast on the whistle of the Yao Hai at 21:12:32 followed by five short blasts at 21:12:43.

484.  Given that at 21:10:43 the 3^rd applicant had initiated the conversation with the 4^th applicant about his obviously growing concerns about the navigation of the N 67, it is surprising that the 4^th applicant did not avail himself of the information that was readily available on radar on the bridge of the Yao Hai, in particular the CPA and TCPA.  As the judge found, a glance at the radar would have shown that the vessels were headed towards a collision.  More particularly, given that he himself had not troubled to calculate the CPA between the vessels, and in light of his own testimony that he did not know whether or not the 3^rd applicant had done so, it is even more surprising that the issue was not addressed in the dialogue between 3^rd and 4^th applicants.  In all those circumstances, clearly the judge was entitled to determine that five short blasts ought to have been sounded on the whistle of the Yao Hai, to communicate the fact that those on the Yao Hai were unsure of the intentions of the N 67.  In assisting the 3^rd applicant in the navigation of the Yao Hai that was a task fell to be performed by the 4^th applicant.

Conclusion

485.  Although we are mindful, as we have said elsewhere in this judgment, that in her statements at paragraph 766 the judge conflated the operation of rules 5, 7 and 8, we are satisfied that in her specific and particular findings in respect of the 4^th applicant the judge was entitled to conclude that he “failed to pay a proper lookout”.

Action to avoid a collision

486.  The judge’s criticism (paragraph 719) of the 4^th applicant that, “much time was wasted discussing with D3 about the type of vessel the N 67 was soon after N 67 was first sighted”, was made in the context of her related finding that the 4^th applicant ought to have contacted Mardep on his own initiative on the VHF radio to obtain that information and to have done so much earlier than he did, shortly before 21:12.  A conversation about the identity of the oncoming vessel took place between 21:10:43 and 21:11:24.  As the judge noted, that was 2 and ¼ minutes after the vessel had been identified on the radar on the Yao Hai and after a light signal had been directed at her on the Aldis Lamp.  It was not a criticism that obtaining the information was irrelevant.  Clearly, it was not irrelevant, since different types of smaller vessels typically navigated different routes as they made their passage eastwards in those waters.  In context, it was a criticism, for example, of the time spent by the 4^th applicant in making his observation, reaching a determination and saying to the 3^rd applicant at 21:10:58 (T. 6606) that the oncoming vessel was not displaying a red light, and therefore was not a dangerous goods vessel, in particular a tanker. That determination could have been made minutes earlier by contact with Mardep on the VHF radio.

487.  As the judge noted (paragraph 716) it was the testimony of the 4^th applicant that he knew that the 3^rd applicant was navigating the Yao Hai to pass the N 67 port to port and that, “D3 was navigating YH in between N 67 and CP1”.  Further, that the 4^th applicant accepted that, “he could see that the sea room available was less and less and very tight”.  Having noted that it was the 4^th applicant’s case that he did not have the “knowledge or the expertise to navigate YH”, and having accepted that he was licensed to pilot a vessel of up to 165 metres only in length, nevertheless the judge found that the danger of a collision between the Yao Hai and the N 67 ought to have been obvious to the 4^th applicant and that he ought to have given appropriate advice to the 3^rd applicant.

488.  As Mr McCoy pointed out in his written submissions, the judge made no specific finding as to what advice the 4^th applicant ought to have given the 3^rd applicant or when that advice ought to have been given.  Clearly, the 3^rd applicant having initiated a conversation with the 4^th applicant at 21:10:43 about the fact that the N 67 was maintaining its course, it was obvious to the 4^th applicant that the 3^rd applicant was not only aware of but also concerned about that fact.  Although that conversation came to an end at 21:11:24, it was followed shortly afterwards at 21:11:41 with an order from the 3^rd applicant to the 4^th applicant that he contact Mardep on the VHF radio and inform them that the vessels were to pass port to port.  The 4^th applicant complied with that order, until told to desist by the 3^rd applicant at 21:12:22.  That period of time was the crucial time during which the 3^rd applicant ought to have made a substantial alteration in course of the Yao Hai to starboard.  Whilst Capt Simpson acknowledged that the 4^th applicant could have raised with the 3^rd applicant taking action to avoid a collision at that time, he said that in his opinion the 4^th applicant was correct to carry out the orders given to him (T. 7279):

“… there are times when you have to do what you’re told. And I think D4 was quite correct to carry out the instructions that he was ordered to use the VHF. I think that was correct of him.”

489.  Given that the 3^rd applicant was not only aware of the risk of collision with the N 67 but was also taking steps to address the issue, in ordering the 4^th applicant to contact Mardep on the VHF radio, clearly the 4^th applicant was required to comply with those orders.  As Capt Simpson testified (T. 7279), raising the issue, in face of those orders, of taking collision avoidance action risked a challenge to the “chain of command”.  A fine judgment was called for.  As Capt Simpson posited by way of example (T. 7274), intervention by a co-pilot in face of the conduct of the chief pilot would be necessary in the face of an egregious mistake, for example a helm order to starboard when one to port was required.  In less obvious circumstances, the decision to intervene and question or prod the pilot is more difficult to make.

490.  Relevant to the exercise of the ‘fine judgment’ of a co-pilot to intervene, in effect by way of a challenge, in the navigation of the chief pilot is their relative experience.  The 3^rd applicant was vastly more experienced as a pilot than the 4^th applicant, 15 years to 15 months experience respectively.  The judge was alive to the 4^th applicant’s case in respect of his limited abilities, namely that (paragraph 716) “he did not have the knowledge or the expertise to navigate YH”.  Although the judge was undoubtedly correct in determining that, nevertheless, the 4^th applicant had the knowledge to navigate safely and to keep a safe distance from other vessels, that evidence was relevant to the issue of the 4^th applicant’s culpability in failing to intervene and advise the 3^rd applicant about his navigation of the Yao Hai.  Of the issue of when the turn to starboard of the Yao Hai ought to have been ordered, given the proximity of the buoy CP1, the 4^th applicant had said repeatedly (T. 6603-4) that he did not know when that order ought to have been given (T. 6639):

“… I don’t know how to do it. I don’t have the skill; I don’t have the experience. This ship are very difference; probably, maybe-no, I just I can’t. I can’t navigate a ship like this...”

Conclusion

491.  In the result, in all the circumstances in our judgment the judge was in error to conclude that the 4^th applicant was in breach of rule 8 of the COLREGS and thereby had committed an unlawful act.  Having regard to the action taken by the 4^th applicant to assist the navigation of the Yao Hai at the material time prior to the collision, both independently and under orders, and to the great disparity in experience as pilots of the 3^rd and 4^th applicants we are not satisfied that his failure to advise the 3^rd applicant about his navigation of the Yao Hai gave rise to criminal culpability.

492.  Although we are satisfied that the judge was correct in determining that the 4^th applicant was in breach of rule 5 of the COLREGS, for failing to keep a proper look-out in the sense we have described, in all the circumstances it is clear that his failure to keep a proper look-out by itself did not endanger or cause to be endangered the safety of the crew of Yao Hai.

493.  Our finding that the judge erred in determining that the 4^th applicant was in breach of rule 8 of the COLREGS is determinative of his appeal.  Therefore, it is unnecessary for us to address the remaining grounds of appeal advanced on his behalf.

OVERALL CONCLUSION

494.  Accordingly, we grant all the applications for leave to appeal against conviction and treat the hearing of those applications as the hearing of the appeals.  In the result, for the reasons that we have provided, we dismiss the appeals against conviction of the 1^st and 3^rd appellants in respect of Charges 1 and 2 respectively and allow the appeals of the 2^nd and 4^th appellants and quash their convictions on Charge 2.

495.  We will hear counsel on behalf of the 1^st and 3^rd applicants in relation to sentence on a date to be fixed.

Hon Stock VP:

496.  I wish to add some words of my own – with which the other members of the Court concur – about the conduct of the proceedings in the court below.  

497.  The trial in the court below lasted for something in the region of 90 days and for the appeal we were presented with the trial record which ran to some 8,600 pages of transcript.  

498.  That transcript does not make edifying reading.

499.  Interruptions, by a number of counsel, of submissions and of evidence were far too frequent, often unnecessary, often long and unfocussed, resulting in a picture of a disjointed and disrupted trial.  The reader of that transcript has only to open almost any page in the 8600 pages to be presented with a picture of constant and lengthy interruptions to the proceedings, with a tendency for a number of counsel to join in prolonged objections, counter-objections, comments and asides at the least excuse.

500.  Particularly unattractive is the spectacle which emerges of the use by certain counsel of over-casual terminology, sometimes addressing each other rather than the court, often several counsel talking all at once, sometimes all on their feet at once; and, on one occasion at least, leading counsel for the prosecution addressing the court when seated, and when asked to stand answering, with no apology to the court: “Well, I’ll get on my feet.  That’s a leading question, and perhaps you could ask it more neutrally,” a remark addressed to another counsel as if the judge was not there. 

501.  It is understood that in a lengthy and complex case, occasional relief from rigid formality is inevitable, so long however as the overall seriousness of the occasion, especially in criminal matters where the liberty of the accused is at stake, is not undermined and so long as the proceedings remain respectful and dignified.  But the atmosphere that rings through the pages of this transcript is of proceedings infused by some with far too much informality, far too much cross-chat and lack of decorum; exemplified on one occasion by one leading counsel addressing another by his forename.

502.  This type of conduct is unseemly and whilst I have some sympathy for this experienced judge faced with a difficult case, it is conduct which, at an early stage, ought to have been stopped.

503.  These over-frequent and prolonged interruptions added significantly to the length of the trial, which length became inordinate and was therefore conduct wasteful of public funds.

504.  Of particular concern is the offensive nature of some of the cross-examination by leading prosecuting counsel.

505.  In the course of cross-examining the third applicant, leading counsel for the prosecution said to the third applicant:

“Let me try to demonstrate to you, Pilot Tang, what a lot of nonsense you’re just talking.”

506.  Later, he asked the same defendant a question directed at undermining the witness’ suggestion that the Berlioz was more manoeuvrable than the Yao Hai.  The third applicant, for whom Mr Grossman acted, provided an answer, at the end of which prosecuting counsel said:

“I think, without fear of contradiction, I can say that’s the longest answer anybody’s given in this trial, over the last three months.” (5873)

507.  I pause to say that the answer was not particularly long but that is hardly the point.  The point is that counsel was not putting a question.  He was making a disparaging remark, the effect of which could only have been to intimidate.  One has to ask: What was the point of the remark?  What was the defendant supposed or expected to say in response to such offence?

508.  The matter continued:

“COURT: Is that a statement or a question?

MR WESTBROOK: It’s a statement.

MR MARASH: Well, then, get on with it.

Q. And not a single word of it had anything to do with the question I asked you.

MR GROSSMAN: Yes it did.

Q. … in other words, about the …

MR GROSSMAN: It did.

MR WESTBROOK: Can I just finish the question before you object to it?

Q. Not a single word of that incredibly long answer had anything to do with the question I asked you, which was about the engines.

MR GROSSMAN: Yes, it did, your Honour. There was a ...

MRS CAMPBELL-MOFFAT: It did.

MR GROSSMAN: It did. The first part of it was. If my learned friend cares to think back about it, it did.

MR MARASH: Can’t remember because it was such a long answer, your Honour.

MR WESTBROOK: I’ll repeat the question.

Q. Not a single word of it had anything to do with the engines, did it?

MR GROSSMAN: Your Honour, and I repeat my objection: it did.

COURT: It’s a question that he’s entitled to ask the defendant.

MR MARASH: Well, he should ask it properly, your Honour, with respect, because he said here “The Yao Hai had speed and momentum because of the limitation of her shape and design” and he’s talking about the speed of the boat. Now, although I agree he related it primarily to the rudder.

COURT: Yes. I’m permitting Mr Westbrook to …

MR WESTBROOK: Precisely. Had absolutely nothing to do with the engines.

COURT: So “Your answer did not … ”

MR WESTBROOK: Yes.

COURT: “… answer …”

Q. Not a single word of your answer had anything to do with the engines and the fact that the manoeuvrability didn’t make any difference if the engines were turned off.

MR MARASH: I’m sorry, your Honour, that’s still not quite right. There’s another part here. “When Berlioz is underway, she has her own speed, her mass. If you time the mass with her speed, momentum can keep the ship moving.” So it seems to me that that’s not quite correct.

COURT: Yes, but there’s no reference to “engine”.

MR MARASH: No, …

COURT: I think what Mr ...

MR WESTBROOK: Mr Marash keeps …

MR MARASH: … but speed.

MR WESTBROOK: …confirming that the question that I’m putting, that not a single word of that answer had anything to do with the engines.

COURT: Do you agree or not?

Q. Do you agree or not?

A. I disagree.

Q. Let me ask you the question again. If the engines are stopped, the fact that the engines are more powerful when they’re working is irrelevant to the manoeuvring characteristics, isn’t it?

COURT: Do you agree or disagree? Is that right?

A. Disagree. I can explain.

Q. No, I’m not interested in your explanation.

MR MARASH: Well, you’ve asked, so you can be interested, I’m sorry.

MR WESTBROOK: You can deal with it in re-examination …

COURT: You can deal with that in re-examination.

MR WESTBROOK: … if you think it’s interesting.

MR MARASH: Well, I can’t re-examine, you know; it’s not my witness.

MR WESTBROOK: Well, then, perhaps, …

COURT: It’s not for you; it’s Mr Grossman.

MR WESTBROOK: … whoever’s witness it is can do so.

MR GROSSMAN: Your Honour, I object, really to the style in which my learned friend is doing this. He’s hectoring this witness. Let him ask the questions he’s got to ask, not directed in this sarcastic form, simply upsetting the witness. He’s certainly not entitled to do that.

COURT: Well, it’s an answer that’s “Agree” or “Disagree” of which he’s said he disagrees and he can explain later if required in re-examination.” (Emphasis added)

509.  The question pressed by Mr Westbrook was not a question; it was a comment.  But more significantly, the remark to the witness¾to a defendant mind you¾“I’m not interested in your explanation” was rudeness itself delivered by counsel clothed with the authority of his professional robes to a person in a wholly unequal position.  The judge should not have permitted it.  The witness should have been allowed to explain himself then and there; and the objection that prosecuting counsel was hectoring and simply upsetting the witness was an objection well-founded.

510.  Cross-examination of the type displayed in the passages I have reproduced, apart from constituting poor advocacy, is never permissible. It is not permissible in respect of any witness, let alone of a defendant facing a charge which, if proved, might deprive him of his liberty and ruin his career; let alone of a 62-year-old man of previous good character providing evidence in difficult circumstances and doing so in a perfectly courteous manner; a man who simply had to take the rudeness dished out to him.  This should never happen.  It is distasteful.

511.  Penultimately, I wish to express some displeasure at the lateness of the mens rea ground of appeal on behalf of the fourth applicant and written submissions in support of that ground, delivered to us in mid-May on the fourth day of the appeal despite directions given as early as mid-February 2011 that the applicants’ submissions be filed on or before 18 March 2011. It is not the first time in a heavy appeal that we have been presented with the awkward choice between, on the one hand, adjourning the appeal to a fresh date so that we could properly read into the matter and receive mature written submissions in response, with all the inconvenience to the applicants and counsel from overseas that an adjournment would occasion and, on the other hand, avoiding that inconvenience and getting on with it as best we could.  It would have been courteous had the production of the new ground and submissions been accompanied by an explanation and apology.

512.  But this approach to our directions was matched by that of counsel for the respondent who was meant to file the respondent’s submissions no later than 8 April 2011.  In a letter dated 7 April 2011 ¾the very date upon which a further directions hearing was held and by which date no submissions had been received from the respondent¾was submitted on behalf of counsel appearing for the respondent merely saying that in addition to any other direction that may be suggested by the parties at the hearing that day, “the respondent would like to seek the Court’s order/direction as follows:

“That the date of filing the respondent submissions be extended to a further date to be fixed.”

513.  No explanation was offered in that letter; and no apology in it despite the fact that the Court had made it perfectly clear in February that the date for submissions were set with particular regard to the absence of judges over the Easter break, who wished to do some reading before that break.  We were presented with a fait accompli, so that for practical purposes we were powerless.

514.  At the directions hearing we were simply informed by leading counsel concerned that he had been engaged in another case and had difficulties in completing the submissions in time.  Any counsel in private practice knows full well that that is no excuse whatsoever but, even so, one might have hoped for the basic courtesy of some forewarning of the problem and of some prior explanation.

515.  Lest it be thought that the attitude with which these remarks are concerned is widespread at the Bar, I wish to make clear that that is not so; far from it.  Nor is it widespread at the Criminal Bar.  It happens, unfortunately, to be an attitude of some at the Criminal Bar, and it is to be hoped that a serious attempt will be made henceforth proactively to ensure that due decorum is maintained in all courts and that there will be a conscious effort to foster a culture of courtesy.

Excerpt from the ‘Hong Kong Harbour Facilities & Layout 2008’ map