HKSAR v. THE HONGKONG ELECTRIC CO LTD

HCMA 751/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 751 OF 2013

(ON APPEAL FROM ESS 11912 OF 2013)

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J U D G M E N T

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BACKGROUND

1. On 19 August 2013, the Appellant company was convicted after trial before a magistrate of one charge of “failing to have on board a local vessel a sufficient number of crew members to ensure the safety of the vessel”.

2. The vessel in question was Lamma IV and the Appellant was the owner of this vessel. The offence date was 1 October 2012. It was not disputed that, on that day, there was fireworks display and the vessel was carrying passengers on board to see this event.

3. In gist, the prosecution case was that while the Operating Licence of Lamma IV required a minimum of 4 crew members on board, there were only 3 such members at the material time. At trial, the prosecution called one witness, Mr Wong, to say that he could only see 3 crew members in uniform. Mr Wong, however, confirmed that he was on the upper deck at the time and could not see whether there were any crew members on the bottom deck. The Appellant did not call any evidence.

4. Upon conviction, the Appellant was fined HK$4,500 on review.

5. No appeal was lodged in respect of the fine. The Appellant only appeals against the conviction.

THE CHARGE

6. In this case, the Appellant was said to have contravened Section 11 of the Merchant Shipping (Local Vessels) (General) Regulation, Cap 548F (hereinafter “Section 11”). 

7. Section 11 reads,

“(1) A local vessel—

(a) shall have on board a sufficient number of crew members who are qualified and capable of carrying out all duties which may reasonably be required; and

(b) shall be adequately equipped,

to ensure the safety of the vessel, having regard to the design, size, speed, total power, control mechanism, equipment and machinery of the vessel.

(2) The Director may, as regards a particular type of local vessel, issue for the purposes of subsection (1) a notice specifying—

(a) the number of crew members on board, the qualification, training and experience of such crew members; or

(b) the equipment on board,

which shall be regarded as adequate for ensuring the safety of a local vessel of that type.

(3) In relation to a local vessel of a type to which a notice issued under subsection (2)(a) relates, compliance with the notice is to be regarded as compliance with subsection (1)(a).

(4) In relation to a local vessel of a type to which a notice issued under subsection (2)(b) relates, compliance with the notice is to be regarded as compliance with subsection (1)(b).

(5) If subsection (1) is contravened, the owner and the coxswain of the vessel commit an offence and each of them is liable on conviction to a fine at level 3 and to imprisonment for 6 months.”

THE SUMMONS & THE ISSUES AT TRIAL

8. The summons reads,

“Information has been laid that you, on 1 October 2012, at about 08:15 PM, in Hong Kong, being the owner of a local vessel, namely Lamma IV, had three crew members on board the said vessel during navigation, in contravention of one of the licence conditions of the Operating Licence in respect of the said vessel which stipulated that a minimum of four crew members was required on board.

Contrary to : Sections 11(1), 11(2) and 11(5) of the Merchant Shipping (Local Vessels) (General) Regulation Cap. 548F.” 

9. By merely looking at the body of the summons, one would have thought that the charge was about a contravention of a licence condition. However, when one reads further, one could then see reference being made to the Section 11 offence.

10. The summons, as a whole, was therefore like a hybrid charge.  The particulars appeared to allege a contravention of a licence condition whereas the offence provision relied on was one concerning an allegation of insufficient number of crew members on board.

11. No doubt, if the charge was based upon a contravention of a licence condition, then section 36 of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap 548D, would have been cited.

12. However, that was not the prosecution’s stance in the present case. At trial, the case of the prosecution was this :

(1) the Operating Licence constituted a “notice” issued under Section 11(2);

(2) one of the licence (“notice”) requirements was that there should be a minimum of 4 crew members on board;

(3) there were only 3 such members at the material time;

(4) the licence (“notice”) requirement concerning the number of crew members was breached; and

(5) there were, therefore, insufficient crew members on board Lamma IV at the material time.

13. In other words, the prosecution was based upon a contravention of Section 11(1)(a). This position of the prosecution explained to a certain extent why the summons took its present form and why, instead of Section 36 of Cap 548D, Sections 11(1), 11(2) and 11(5) of Cap 548F were cited.

14. Given the prosecution’s stance, the issues at trial were these :

(1)        was the Operating Licence a Section 11(2) notice;

(2)        were there only 3 crew members on board; and

(3)        was a breach of the “notice” per se a contravention of Section 11(1)(a).

GROUNDS OF APPEAL

15. Mr Peter Duncan, SC, appearing with Mr Robert Chan, for the Appellant, advances the following grounds of appeal :

(1) The learned Magistrate failed to address the essential elements of the offence created by Section 11(5) of the Regulation;

(2) The learned Magistrate erred in finding that the Operating Licence constituted a “notice” for the purposes of Section 11(2) of the Regulation; and

(3) The learned Magistrate erred in finding that there were only 3 crew members on board Lamma IV at the material time.

SECTION 11

16. Section 11(1)(a) imposes a requirement as to the presence of a sufficient number of qualified crew members on board to ensure the safety of a local vessel. Whether the number is “sufficient” or not would be determined “having regard to the design, size, speed, total power, control mechanism, equipment and machinery of the vessel.” For want of a better term, I would call this “the specific requirement”.

17. What then is Section 11(2)(a) about? This section empowers the Director of Marine to issue, for the purposes of Section 11(1)(a), a notice specifying the number of crew members on board, the qualification, training and experience of such crew members “as regards a particular type of local vessel”[1]. The specifications shall be regarded as adequate for ensuring the safety of a local vessel “of that type”. For ease of reference, I would call this “the general requirement”.

18. Subsections (1)(b) and (2)(b) deal with the equipment on board. The situation is similar to that outlined in respect of the crew members requirement.

19. Finally, Section 11(5) creates the offence which holds the owner and the coxswain of the vessel liable for a contravention of Section 11(1).

20. Considering the context and purpose of Section 11 and from the wordings used in subsections (1) and (2), it is plain that Section 11(1) targets the particular vessel in question whereas Section 11(2) aims at covering a particular type of vessel instead of an individual vessel.

21. This becomes even clearer when subsections (3) and (4) are examined. Section 11(3) stipulates that “in relation to a local vessel of a type to which a notice issued under subsection (2)(a) relates, compliance with the notice is to be regarded as compliance with subsection (1)(a)”.  Likewise, Section 11(4) does the same in respect of subsections (1)(b) and (2)(b) which concern the equipment on board.

NOTICE AND COMPLIANCE

22. When subsections (1)(a), (2)(a) and (3) are read together, the situation is this : if a notice had been issued under subsection (2)(a), and if the local vessel had that number of qualified crew members as specified in the notice on board, then, without further ado and without the need to examine whether the number of qualified crew members was sufficient to ensure the safety of the particular vessel, such is regarded as compliance with the requirement in subsection (1)(a).

23. In other words, compliance with “the general requirement” as regards the particular type of vessel to which the vessel in question belongs is full answer to “the specific requirement”. No further assessment concerning the design, size, speed, etc. of the individual vessel needs be made in answering the question of sufficiency of crew members.

24. Section 11(3) also has this effect, that is, in a given case, even if the number of qualified crew members specified in the notice was considered insufficient having regard to the design, size, speed, etc. of the particular vessel involved, the person would still not be liable if he had complied with “the general requirement” stipulated in the notice.

25. Section 11(3) therefore operates like an exemption clause. The situation is the same in respect of Section 11(4).

NOTICE BUT NON-COMPLIANCE

26. What then is the position if a notice had been issued but “the general requirement” was not complied with. Does it mean that the defendant is automatically taken to have acted in contravention of the requirement in Section 11(1)(a)? In my view, the answer is “no”.

27. In such a case, the question of sufficiency would need to be addressed and assessed having regard to the particular features (the design, size, speed, total power, control mechanism, equipment and machinery) of the individual vessel. The mere failure to have on board the number of qualified crew members specified in the notice is not relevant.

28. In other words, the question of sufficiency can only be answered after considering all the particular features pertaining to the vessel in question. For instance, if the vessel was very modernized and was fully automated in terms of the provision of life-saving tools and equipment, then it might be that although the vessel did not have the requisite number of crew members as stipulated in the notice, the number of crew members on board might nevertheless be still considered sufficient to ensure the safety of the vessel. In that eventuality, the defendant would not be held to have contravened Section 11(1)(a).

29. In the course of making his submissions, Mr. Duncan, SC, also stresses the part in Section 11(1)(a) which concerns the qualification and capability of the crew members. The point made is this : if the crew members on board were of an exceedingly strong qualification and capability, then even if the number of crew members specified in the notice was 4, the magistrate might find that 3 such highly qualified and capable crew members were already sufficient to ensure the safety of the vessel. In other words, it is not just a “numbers game” or such a simple exercise.

30. Therefore, in the end, it is for the fact-finding tribunal to decide whether the number of crew members is or may be sufficient for that particular vessel, irrespective of whether such number is fewer than the one specified in the notice.

NO NOTICE

31. Now, in cases where no notice had been issued as regards a particular type of vessel, the situation is similar. In such a case, the requirement remains the one stipulated in Section 11(1)(a), that is, whether the number of crew members on board is sufficient or not would need to be determined on the factual matrix of that particular case. Again, it is a question of fact to be answered by the tribunal after considering the evidence adduced before it.

THE EVIDENCE CONCERNING THE NOTICE

32. In this case, Mr Tang, a surveyor of ships, was tendered by the prosecution for cross-examination by the defence.

33. When asked about whether the Director of Marine had ever issued a notice indicating the minimum number of crew members for Class I vessels (the Class to which Lamma IV belonged), the answer was this, “There wasn’t any notice.It was only stated in the Certificate of Survey and the Operating Licence.There was no notice issued to individual vessels.”[2] This part of Mr Tang’s evidence did not appear to have been contested. 

34. In light of this piece of uncontested evidence, it would seem clear that Section 11(2) was not applicable for the Director had not issued any notice as regards the type of vessel to which Lamma IV belonged.

35. Now, even if one were to fly in the face of this piece of evidence and were to argue that a particular document amounted to such a notice, then that document should possess the characteristics of the type of notice contemplated in Section 11(2), that is, issued in respect of a particular type of local vessel for the purposes of subsection (1).

36. The Certificate of Survey and the Operating Licence referred to by Mr Tang, however, were not documents of this nature. If they were, then there might be a basis to consider whether these documents constituted “notices” under Section 11(2).

37. As a matter of fact, these two documents belonged to a totally different category and were of an entirely different nature. The licence was issued pursuant to section 15 of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap 548D. Section 16 then specifies the validity period for a full licence. The Certificate of Survey was issued pursuant to section 24 of the Merchant Shipping (Local Vessels) (Safety and Survey) Regulation, Cap 548G. Section 27 then specifies the validity period for a Certificate of Survey. 

38. Clearly, pursuant to the above Regulations, both documents concern a particular local vessel. In this case, the vessel is Lamma IV, so one could easily find the specific references to Lamma IV when one looks at the licence and the certificate produced as prosecution exhibits.  There was no evidence that these documents were intended to be issued in respect of a particular type of vessel as that contemplated in Section 11(2). 

39. In the circumstances, I cannot see how any argument could be mounted as regards these two documents being of the type of notices mentioned in Section 11(2). They were not, and given the nature of these documents and the purposes for which they were issued, they could not constitute such notices. 

40. Therefore, the magistrate erred in finding that the Operating Licence did constitute a “notice” under Section 11(2).

THE ELEMENTS OF THE SECTION 11 OFFENCE

41. As set out above, even if the Operating Licence were indeed a notice issued under Section 11(2), the mere fact that the Appellant had not complied with the requirement in the notice would not necessarily mean that Section 11(1)(a) was breached. The court, when considering whether the charge was made out, would still need to address the question of sufficiency having regard to the particular factual matrix of the case.

42. Unfortunately, in this case, the magistrate did not conduct such an exercise. It would appear that, once the magistrate found that the Operating Licence constituted the Section 11(2) Notice and that, in contravention of the licence (“notice”) requirement, there were only 3 crew members on board Lamma IV, he considered that the offence was proven.

43. As a result, the magistrate did not make any further finding as to whether 3 crew members were insufficient to ensure the safety of Lamma IV having regard to the design, size, speed, etc. of Lamma IV. There was also no evidence before the magistrate which dealt with the qualification and capability of these crew members. In other words, the essential questions concerning the requirement stipulated in Section 11(1)(a) had not been answered.

44. I should add that, since section 2 of the Merchant Shipping (Local Vessels) Ordinance, Cap. 548, defines crew to mean “the coxswain and any other person employed or engaged in any capacity on board a local vessel on the business of the vessel”, it would appear that a cleaner or a cook employed on board a vessel on the business of the vessel would also be a crew member. In the absence of evidence, it is not clear whether, in the case of such members, they are to be taken as “crew members who are qualified and capable of carrying out all duties which may reasonably be required to ensure the safety of the vessel” as required in Section 11(1)(a).

45. Mr. Edmond Lee, SADPP, for the Respondent, diligently seeks to persuade this court that as the minimum number of crew members specified in both the licence and the certificate was 4, common sense tells us that in specifying such a number, the Director of Marine must have taken into account some, if not all, of the matters stated in Section 11(1)(a) pertaining to Lamma IV. In other words, the Director would not have so specified in a vacuum without making reference to Lamma IV.

46. Section 15(1) of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap. 548D, stipulates that in issuing a full licence in respect of a local vessel, the Director has to be satisfied that it is appropriate to do so having regard to the material considerations. “Material considerations” is defined in section 2 of Cap. 548D as follows :

“material considerations" (考慮因素), in relation to a local vessel, means—

(a) the class and type for which the vessel is or is to be certificated and the intended service of the vessel;

(b) provisions of the Ordinance and regulations made under the Ordinance;

(c) the condition of the vessel so far as it is relevant to seaworthiness or to any risk of pollution;

(d) the safety, health and welfare of persons employed or engaged in any capacity on board the vessel; and

(e) any other matter of public interest”

47. While it is true that the matters specified in subsections (c) and (d) above are matters pertaining to the individual vessel concerned, in the absence of evidence, it is difficult to see how these considerations could be equated with the considerations stipulated in Section 11(1)(a).

48. Likewise, although section 22(3)(a) of the Merchant Shipping (Local Vessels) (Safety and Survey) Regulation, Cap. 548G, states that a declaration of survey shall state whether in the opinion of the competent surveyor, the vessel is fit for the service intended and in good condition, in the absence of evidence, it is again difficult to see how these considerations could be equated with the considerations stipulated in Section 11(1)(a).

49. In other words, I do not agree that it is just a matter of common sense. It is a matter of evidence and there was no evidence before the magistrate as to how the number of 4 was arrived at. It would be a mere speculation if one were to suggest that, probably, the relevant considerations in Section 11(1)(a) had been taken on board when arriving at this number.

50. Now, even assuming that the requirement of 4 crew members specified in the certificate and the licence had taken into account the matters stipulated in Section 11(1)(a), there are still two hurdles for the Respondent.

51. Firstly, the certificate and the licence were issued prior to the offence date. Therefore, if one were to take the minimum requirement of crew members as still valid on the offence day and being able to support the charge of insufficient crew members, one would have to assume that the condition of Lamma IV remained the same with no modernization of safety equipment and no improvement work done during the interim period. Whether that was so or not is a matter of evidence.

52. Mr. Lee stresses that there was no evidence coming from the defence suggesting that modernization or improvement work had been carried out. However, I note that there was also no evidence adduced before the magistrate by the prosecution as to the condition of Lamma IV remaining the same on the offence day when compared with its condition on the day when the certificate or licence was issued. One should, of course, bear in mind that the burden is on the prosecution to prove the charge.

53. Secondly, there is, again, the question concerning the qualification and capability of the crew members on board Lamma IV at the material time. As set out above, no such evidence was adduced before the magistrate.

54. Therefore, even if I were to accept that the Operating Licence evidences the taking into account of the particular features of Lamma IV by the Director when specifying a minimum number of 4 crew members, this does not assist the Respondent in the present case.

55. The situation remains this : there was no evidence as to whether 3 crew members were insufficient for Lamma IV at the material time and there was no finding made by the magistrate in respect of the Section 11(1)(a) requirement.

THE CREW MEMBERS ON BOARD

56. In respect of the number of crew members on board, the Appellant seeks to argue that as Mr Wong could only observe the situation on the upper deck and could not say for sure whether there were any crew members on the bottom deck, the magistrate’s finding that there were only 3 crew members was erroneous.

57. Further, Mr Duncan, SC, submits that since there were other staff members of the Appellant who helped the passengers getting on and off the vessel as well as explaining to them the activity schedule, these people were also crew members on board.

58. The magistrate dealt with the issue of crew members at paragraphs 9 to 19 of the Statement of Findings. In short, the magistrate accepted Mr Wong’s evidence. The magistrate also referred to the Admitted Facts which stated that there were only three crew members in uniform at the material time.

59. Although the magistrate did not say so in these terms, it was clear he rejected the claim that there were, on that day, other crew members who were wearing plainclothes but were on duty on board Lamma IV.

60. It is true that a crew member is not required to wear uniform when working on board a vessel. However, since it was an admitted fact that the coxswain, the engineer and the sailor were all in uniform, it was open to the magistrate to find it an absurd suggestion that there were other crew members working on board but somehow, they were not wearing any uniform. This inference could also more readily be drawn by the magistrate as there was no evidence from the defence to contradict or weaken such a finding.

61. Once the magistrate found that the crew members who were on duty on Lamma IV at the material time must have been in uniform, the magistrate was entitled to consider it immaterial whether or not Mr Wong was able to observe the bottom deck. The reason was that the number of crew members in uniform had already been dealt with by way of an admitted fact and it was agreed that there were only 3 such crew members on board Lamma IV.

62. As regards the suggestion that the staff members of the Appellant were also crew members, the magistrate correctly referred to the definition of “crew” in section 2 of the Merchant Shipping (Local Vessels) Ordinance, Cap 548, and the stipulation in Section 11(1)(a) that crew members should be “qualified and capable of carrying out all duties which may reasonably be required to ensure the safety of the vessel”.

63. The magistrate, in the end, found that the staff members of the Appellant who helped the passengers getting on and off Lamma IV as well as explaining to them the event schedule were at the most, employed or engaged for the event, not persons employed or engaged on board the vessel on the business of the vessel. I consider that this finding of the magistrate could not be faulted.

THIS APPEAL

64. For the reasons set out above, Grounds (1) and (2) are successfully made out while Ground (3) is not.

65. Mr Edmond Lee invites this court to substitute for the conviction recorded by the magistrate a conviction under section 36 of Cap 548D, pursuant to section 119(1)(g) of the Magistrates Ordinance, Cap 227.

66. Section 119(1)(g) of the Magistrates Ordinance, Cap 227 reads,

“where an appellant has been convicted of an offence and the magistrate could on the complaint or information have found him guilty of some other offence, the judge may, if he considers that the magistrate must have been satisfied of facts which proved the appellant guilty of that other offence, substitute for the conviction recorded by the magistrate a conviction of that other offence and pass such sentence in substitution for the sentence passed by the magistrate as may be warranted in law for that other offence.”

67. Obviously, before a court could invoke section 119(1)(g), the case must be one in which “the magistrate could on the complaint or information have found him guilty of some other offence”. Is that the situation here?

68. As set out above, although the body of the summons appeared to allege a contravention of a licence condition, that was not the real complaint in this case. The prosecution’s complaint before the magistrate was a contravention of Section 11(1)(a), that is, a failure to have sufficient qualified crew members on board to ensure the safety of Lamma IV.

69. In respect of a Section 11(1)(a) offence, I have already stated that, even if a Section 11(2) notice had been issued, non-compliance with the requirement specified in the notice is not material. The crux is whether the number of qualified crew members on board was sufficient or not having regard to the particular features of the individual vessel concerned. 

70. In other words, a complaint made pursuant to Section 11(1)(a) does not even entail an allegation of a breach of a Section 11(2) notice, not to mention a contravention of one of the vessel’s licence conditions which is clearly a different matter.

71. Viewed in this light, I cannot see how, on the complaint or information before the magistrate, the magistrate could have found the Appellant guilty of a Section 36 offence.

72. Further, section 36 of Cap 548D reads,

“If, without reasonable excuse, any of the conditions or restrictions attached to a full licence or temporary licence in respect of a local vessel is contravened, the owner, his agent and the coxswain each commits an offence and is liable on conviction to a fine at level 3 and to imprisonment for 6 months.”

73. Therefore, before the magistrate could find the Appellant guilty of a Section 36 offence, the magistrate had to be satisfied that there was no reasonable excuse for the Appellant to have contravened the licence condition. However, as this offence was never raised by the prosecution at trial, the Appellant was not given a chance to deal with it, in particular, the “reasonable excuse” limb.

74. To now replace the conviction with a Section 36 conviction would be to deprive the Appellant of the opportunity to raise the issue of “reasonable excuse”. I consider this to be both inappropriate and unfair.  I therefore do not regard this a viable option even if section 119(1)(g) is applicable in the present case.

CONCLUSION

75. For the reasons set out above, the appeal is allowed. The conviction is quashed and the sentence set aside.