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Kulemesin Yuriy And Another v Hksar

Judgment Cited authorities 18 Cited in Precedent Map Related
Vincent
Judgment Date22 February 2013
Year2013
Citation(2013) 16 HKCFAR 195
Judgement NumberFACC7/2012
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC7/2012 KULEMESIN YURIY AND ANOTHER v. HKSAR

FACC Nos 6 and 7 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS 6 AND 7 OF 2012 (CRIMINAL)

(ON APPEAL FROM CACC NO. 19 OF 2010)

_____________________

Between :

KULEMESIN YURIY 1st Appellant
TANG DOCK WAH 2nd Appellant
- and -
HKSAR Respondent
______________
Before : Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Clarke of Stone-cum-Ebony NPJ
Dates of Hearing: 15-18 January 2013
Date of Judgment : 22 February 2013

_____________________

J U D G M E N T

_____________________

Chief Justice Ma:

1. For the reasons which are contained in the judgments of Mr Justice Ribeiro PJ and Lord Clarke of Stone-cum-Ebony NPJ, I agree that the appeal of the 1st appellant be dismissed and that the appeal of the 2nd appellant be allowed. I would also like to express the Court’s gratitude to all counsel for their submissions.

Mr Justice Chan PJ:

2. I agree with the judgments of Mr Justice Ribeiro PJ and Lord Clarke of Stone-cum-Ebony NPJ.

Mr Justice Ribeiro PJ:

3. On 22 March 2008, the “YAO HAI” (“YH”), a Chinese flagged bulk carrier, collided with the “NEFTEGAZ 67” (“N67”), a Ukrainian flagged oil rig supply vessel, in a buoyed channel running between the north coast of Lantau Island and the coast near Castle Peak in the New Territories. N67 sank with the tragic loss of 18 of her 25 crew members. YH suffered damage but none of her crew were lost or injured.

4. The collision led to the prosecution of N67’s master, Mr Yuriy Kulemesin (“the 1st appellant”); YH’s master, Mr Liu Bo; the senior pilot who was navigating YH at the time, Mr Tang Dock Wah (“the 2nd appellant”); and the junior pilot assisting him, Mr Bruce Chun Wah Tak. They were named as the 1st to 4th defendants respectively and each was charged with endangering the safety of others in contravention of section 72 of the Shipping and Port Control Ordinance (“SPCO”).

5. The trial took place over some 91 hearing days in the District Court before HH Judge S D’Almada Remedios and resulted in the conviction of all four defendants. However, the Court of Appeal quashed the convictions of YH’s master and the junior pilot. They reduced the 1st appellant’s sentence of imprisonment for 3 years and 2 months to a sentence of imprisonment for 18 months. They also reduced the 2nd appellant’s 3 year sentence so as to permit his immediate release. The present appeal is brought by the 1st and 2nd appellants against their respective convictions.

A. The scope of this judgment

6. This appeal concerns eight questions of law certified as being questions of great and general importance. The present judgment addresses the first of those questions, certified by the Court of Appeal in the following terms:

“What is the mens rea of the offence created by section 72 of the Shipping and Port Control Ordinance, Cap 313; in particular, is it incumbent upon the prosecution to prove that the accused either intended to endanger or caused endangerment or was reckless as to whether endangerment was caused?”

7. The other seven questions raise issues which bear on the appellants’ challenges regarding the actus reus elements of the section 72 offence, namely as to whether it ought properly to have been found that by their conduct they caused the endangerment of the safety of others. Those questions are dealt with in the judgment of Lord Clarke of Stone-cum-Ebony NPJ, which I have had the benefit of reading in draft and with which I respectfully agree. I gratefully adopt the account and analysis of the facts it contains.

8. This judgment also deals with the 1st appellant’s application for leave to raise two matters on the “substantial and grave injustice” ground under section 32 of the Court’s statute.[1]

B. SPCO section 72

9. Section 72, under which the appellants were convicted, provides as follows:

“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) on summary conviction to a fine of $200,000 and to imprisonment for 2 years.”

10. The approach of the courts below has been to treat section 72 as creating an offence having two forms: (i) one under the “unlawful act limb” covering cases where the accused performs an unlawful act and thereby endangers the safety of others; and (ii) the other under the second limb where the endangerment is caused by the defendant “in any manner whatsoever without reasonable excuse”. That approach was challenged by Mr Gerard McCoy SC[2] who sought to argue that the Court should relocate the comma after the words “unlawful act” in its construction of the section. For reasons given later in this judgment,[3] I reject that argument.

11. After amending the original charges, the case brought against the 1st and 2nd appellants proceeded under both limbs in the alternative. The Judge eventually convicted the 1st appellant under both limbs, but found the 2nd appellant guilty only under the unlawful act limb.[4]

12. Under the unlawful act limb, the prosecution alleges that the 1st and 2nd appellants were guilty of unlawful acts which consisted of offences under section 10(3) of SPCO which provides as follows:

“If any of the collision regulations is contravened by a vessel, the owner of the vessel, the master and any person for the time being responsible for the conduct of the vessel shall each be guilty of an offence and liable to a fine of $20,000.”

13. The unlawful act relied on for section 72 purposes was therefore breach of section 10(3) which in turn requires proof of contravention by a vessel of the collision regulations. Those regulations are the International Regulations for Preventing Collisions at Sea 1972 (often referred to as “COLREGS”), the current edition of such regulations issued pursuant to a series of international conferences convened by the International Maritime Organization. The collision regulations are well known to mariners all over the world and by their own terms, apply to all vessels upon the high seas and in all navigable waters connected therewith. They establish internationally recognized rules for the navigation of vessels aimed at preventing maritime collisions.

14. By section 10(1)(b) of SPCO, those rules are made applicable to all vessels within the waters of Hong Kong. And, as we have just seen, if any such vessel contravenes one of the collision regulations, her owner, the master and any person for the time being responsible for her conduct are individually made guilty of an offence under Hong Kong law under section 10(3). That, however, is subject to the defence provided under section 10(4) which states:

“It shall be a defence to a charge under subsection (3) for the person charged to prove that he took all reasonable precautions to prevent the contravention to which the charge relates.”

C. The collision regulations relied on by the prosecution

15. The contraventions of COLREGS relied on by the prosecution as constituting unlawful acts under section 72 are breaches of rules 5 and 8 in both cases and additionally of rule 9 in the 1st appellant’s case. Those rules relevantly provide as follows:

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.

(f)(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 channels

(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.”

D. The charges

16. Originally, the charges laid against the appellants proceeded solely under the second limb of section 72. It was in the context of the charges so framed that at an early stage of the trial, the defendants mounted an unsuccessful constitutional challenge to the validity of section 72.[5] The prosecution thereafter obtained leave to amend the...

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