HKSAR v. Lai Sai Ming
Read the full judgment text of CACC 77/2015 on BabelCite. This Court of Appeal judgment was delivered on 12 November 2015.
1. On 14 February 2015, the applicant, who was the 2 nd defendant at trial, was convicted before Deputy Judge Keith and a jury of 39 counts of manslaughter, contrary to the Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap 212 (Counts 42 to 80); and one count of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (Count 81).
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CACC 77/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 77 OF 2015 (ON APPEAL FROM HCCC NO. 458 OF 2013) ________________________
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____________________ JUDGMENT Hon Macrae JA (giving the Judgment of the Court): Introduction 1.On 14 February 2015, the applicant, who was the 2nd defendant at trial, was convicted before Deputy Judge Keith and a jury of 39 counts of manslaughter, contrary to the Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap 212 (Counts 42 to 80); and one count of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (Count 81). 2.Save that each of Counts 42 to 80 identified a different named victim, all were framed in the same way as follows:
3.Count 81 was in the following terms:
4.Subsequent to the applicant’s convictions, the judge sentenced him, on 16 February 2015, to concurrent terms of 8 years’ imprisonment for each of the manslaughter counts. In respect of the count of endangering the safety of others at sea, the judge sentenced the applicant to 18 months’ imprisonment, which sentence was likewise ordered to run concurrently with the sentences for the 39 manslaughter offences, making an overall sentence of 8 years’ imprisonment. 5.The applicant initially sought leave to appeal against both conviction and sentence. However, on 1 April 2015, he abandoned his application for leave to appeal against conviction but maintained his application for leave to appeal against sentence. Although argument has been advanced only in relation to the sentences for the manslaughter offences, the appeal is to be treated by virtue of section 83I(2) of the Criminal Procedure Ordinance, Cap 221 as an application for leave to appeal in respect of all sentences. Facts of the case The issues 6.The prosecution case against the applicant was that he had unlawfully killed the 39 persons named in Counts 42 to 80, his conduct (which was alleged to be a substantial cause of the deaths of those 39 persons) having fallen so far below the standard of professionalism reasonably expected of him as to amount to gross negligence deserving of punishment as a crime (Counts 42 to 80). It was also the prosecution case that he had failed to keep a proper lookout, as required by Rule 5 of the Merchant Shipping (Safety) (Signals of Distress on Prevention of Collisions) Regulations, Cap 369 N (“the Rules”); had failed to proceed at a safe speed, thereby breaching Rule 6 of the Rules; and had failed to take effective action to avoid the collision, contrary to Rules 8(a) to (e) of the Rules, thereby endangering the safety of others at sea (Count 81). 7.The substantive issues at trial were as follows: (i) how did the collision take place; (ii) did the applicant’s conduct fall below the standard of professionalism which could reasonably be expected of the sort of mariner he was; (iii) did his conduct fall so far below that standard so as to amount to gross negligence; and (iv) was his gross negligence a substantial cause of the deaths of the 39 persons? The applicant, coxswain of the Sea Smooth 8.The applicant had since 1997 been in the employ of Hong Kong and Kowloon Ferries as a coxswain of passenger-carrying vessels. Between July 2008 and September 2012, he had navigated the route between Central and Yung Shue Wan on Lamma Island over 2,300 times; more than 930 of those voyages being made by the Sea Smooth. Up until the day of the offences averred in the Indictment, the applicant had never been warned, cautioned or prosecuted by any relevant authority for infringement of any Ordinance or Regulation in relation to any marine incident; nor had he been the subject of any disciplinary action by his employer. Chow Chi Wai, coxswain of the Lamma IV 9.Chow Chi Wai (“Chow”), who was the 1st defendant at trial, had since 1992 been working for Hong Kong Electric as a coxswain on passenger-carrying vessels. He likewise had never been involved in any serious marine incidents up until the date of the incident in question. The collision on 1 October 2012 10.On 1 October 2012, the weather between Central and Lamma Island was fine, while the visibility recorded by the Hong Kong Observatory was 9 km at 8 pm, and 11 km at 9 pm. The prosecution evidence was that since the sea was calm, with no wind or current to speak of, there would have been no significant difference between a vessel’s heading and its course (particularly when the vessel was making a slow turn under its own power rather than drifting), capable of affecting the reliability of any observation of each vessel’s red port-lights and green starboard-lights in navigation at night. 11.On that evening, the Lamma IV, a 224-passenger launch, of which Chow was the coxwain, sailed from Lamma Island, with staff members of Hong Kong Electric Co Ltd and their family members on board, in order to watch the October 1 fireworks in Victoria Harbour. For her part, the Sea Smooth, a catamaran ferry capable of carrying 381 passengers, with the applicant as coxswain, had been providing regular ferry services between Central and Yung Shue Wan throughout the day. Prior to the incident in question, she had left the pier in Central at about 8.00 pm heading for Yung Shue Wan. 12.Shortly before 8:20 pm, the two vessels were locked in a crossing manoeuvre involving a risk of collision. Under the Rules, the Lamma IV was the ‘give-way’ vessel, whereas the Sea Smooth was the ‘stand-on’ vessel. As the give-way vessel, the Lamma IV’s responsibilities were, first, to take early and effective action to keep out of the way of the Sea Smooth as stand-on vessel and, secondly, to avoid crossing ahead of the Sea Smooth. Providing that there was sufficient room to do so, the Lamma IV should have turned to starboard in order to keep well clear of the Sea Smooth. Since the manoeuvre took place at night, the Lamma IV’s turn had to be sufficiently sharp so that the Sea Smooth could see both her port-light and starboard-light in order that the Sea Smooth could be sure of the Lamma IV’s change of course to starboard. On the other hand, as the stand-on vessel, the Sea Smooth had to hold her course and speed. 13.The prosecution evidence was that the two vessels should never have placed themselves in a situation where they needed to take any drastic action at all in order to avoid a collision. In particular, if the applicant’s vision was compromised for whatever reason, perhaps because of a blinding fog light at the western side of the entrance to the Lamma Island Power Plant Typhoon Shelter, rendering it difficult to see other vessels in the vicinity, the Rules required him to slow down to a safe speed in order to gain time. 14.However, as the two vessels approached each other, the Sea Smooth, instead of keeping to its course, as the stand-on vessel was required to do under the Rules, made a discernible turn to port. The prosecution contended that the applicant should not have altered the course of the Sea Smooth when he did. If he had seen the Lamma IV but decided to pass in front of her in order to enter Yung Shue Wan, that would have been contrary to ordinary practice and would have amounted to a serious failure to take effective action to avoid a collision. On the other hand, if the applicant had not seen the Lamma IV until shortly before the collision, that would explain why he turned to port and would have amounted to a serious failure on his part to keep a proper lookout. There was evidence at trial that had the Sea Smooth stayed on the same course in which she had been proceeding prior to her turning to port, she would have passed the Lamma IV without colliding with her. The Lamma IV, for her part, also made a slow but discernible turn to starboard. There was no criticism of Chow for turning the Lamma IV to starboard initially. The complaint was that the Lamma IV’s turn to starboard had remained a slow one and had not been sharper or positive enough to avoid colliding with the Sea Smooth, when it should have been apparent to Chow that the Sea Smooth had turned to port. Both the red port-light and the green starboard-light on the Sea Smooth would have, by that time (if not earlier), been visible to Chow who should have realised that the Sea Smooth had turned to port. 15.At about 8:20 pm, the Sea Smooth collided into the port side of the Lamma IV off Lamma Island, making a large gash in one of her five under-deck compartments, namely the third compartment from the stern, referred to as compartment D at trial. The forward momentum of the Sea Smooth carried her along the side of the Lamma IV, which lengthened the gash she had made on impact. The Sea Smooth came to the bulkhead between compartment D and the next compartment to the stern, compartment E. The bulkhead at that point was reinforced by the Lamma IV’s hull which the Sea Smooth could not penetrate. The Sea Smooth slid along the hull and made a hole in compartment E. Water poured into compartments D and E and then spread into compartment F, the last compartment to stern, since the bulkhead between compartments E and F was not water-tight. The evidence was that the Lamma IV would have tilted to stern as a result, causing the flooding of compartment C, the compartment next to compartment D to bow; the only buoyancy that remained would have come from the first two compartments to bow, namely compartments A and B. 16.There was evidence to the effect that as she tilted to stern, all of the seats (except one) in the upper-deck cabin of the Lamma IV, together with the false ceiling panels, were dislodged or came away, and that they could well have rolled to the rear of the cabin and blocked the only exit from the cabin. The judge reminded the jury in his summing-up that neither Chow nor the applicant should be blamed for this. 17.Within minutes of the collision, the Lamma IV sank, its stern resting on the seabed with its bow protruding upwards. There was expert evidence to the effect that had the bulkhead between compartments E and F been water-tight, it was possible that the Lamma IV might not have sunk at all, or at least not as quickly as she in fact did. Of this evidence, the judge said, in his summing-up:
18.A total of 39 persons on board the Lamma IV lost their lives: one died of multiple injuries, while the remainder drowned; 29 of those who perished being found inside the upper-deck cabin. Subsequent to the collision, the Sea Smooth disengaged herself from the Lamma IV and headed for the pier at Yung Shue Wan. 19.The applicant exercised his right not to testify in his own defence before the jury. By the jury’s verdicts, it is clear that they must have found that his conduct amounted to gross negligence, and that it was a substantial cause of the deaths of the 39 passengers on board the Lamma IV, notwithstanding the existence of other contributing causes. Reasons for sentence 20.In sentencing the applicant, the judge prefaced his remarks as follows:
21.The judge noted that the applicant did not give evidence at the trial. Accordingly, the jury had never heard from him as to whether he had seen the Lamma IV well before the collision but thought he could enter Yung Shue Wan in front of her, or whether he did not see her at all until shortly before the collision. The judge noted that the latter was the applicant’s claim and indicated that he would sentence on that basis. However, that begged the question as to why he had not seen the Lamma IV until it was too late. Of that question, the judge said:
22.The judge accepted that the applicant did not intend the consequences which befell the Lamma IV and its passengers that night but explained that when such serious consequences occur, they must, however unintended, be reflected in a higher sentence. The judge bore in mind the applicant’s years of unblemished sailing record and noted that he had suffered post-traumatic stress disorder following the incident. Balancing the level of the applicant’s culpability against the enormity of the consequences of his conduct, the judge passed the sentences to which we have referred. The appeal against sentence 23.We have set out the judge’s opening remarks (at para 20 supra) in full, because it was originally submitted by Ms Ip, on the applicant’s behalf, that the judge had failed to acknowledge the other contributing factors to this tragedy in which so many people died, which, had he done so, would have mitigated the culpability of the applicant. She subsequently modified that contention in the light of the passage cited and suggested that, nonetheless, the judge had failed to give sufficient consideration to other contributing causes of the tragedy, as well as to the failings of others, in assessing the gravity of the applicant’s conduct: as a result, he placed too great a focus on the tragic consequences of the collision rather than on the culpability of the applicant, which should have been the dominant component in sentencing. 24.This led to the further but related complaint that the judge gave undue emphasis or prominence to the fact that 39 people died as a result of the collision, instead of measuring the applicant’s culpability against the extent to which those consequences could be foreseen. It was submitted that since the applicant was not doing something deliberately dangerous, and since many other factors may have contributed to the high death toll, the applicant could not have foreseen, still less intended, such terrible consequences. 25.Finally, it was contended that by comparison with other comparable cases, in particular the sentence of 18 months’ imprisonment passed on the captain in R v Kong Cheuk-kwan [1984] HKLR 163, which involved a collision between two hydrofoils resulting in the deaths of two people, the sentence of 8 years’ imprisonment was manifestly excessive. Consideration 26.The starting point for any consideration in this case must be, as Mr Bruce SC, with him Mr Cheung, submits, the particulars or components of each of the counts of manslaughter on the indictment, which by their verdicts the jury must have accepted. Those particulars averred, firstly, that the applicant owed a duty of care to other vessels and their passengers; secondly, that in breach of that duty of care the applicant failed to keep a proper lookout and/or take any or any effective steps to avoid a collision with the Lamma IV; thirdly, that such breach of duty amounted to gross negligence; and fourthly, that such negligence was a substantial cause of the deaths of each of the 39 passengers. 27.The jury can, in our judgment, have been under no misapprehension as to the seriousness of their task or as to the gravity of the conduct which would constitute the offence of manslaughter by gross negligence. They were directed in terms by the judge in the summing-up that for the applicant’s conduct to come within the definition of gross negligence in law, they had to be sure (i) that “as a result of the (applicant’s) failure to keep a proper lookout, or to take effective action to avoid the collision, there was a serious and obvious risk of a collision, and that, in the event of such a collision, there was a serious and obvious risk, not just that someone might be injured, but that someone might die”; (ii) that “he realised, or shut his eyes to the obvious possibility, that if he failed to keep a proper lookout or to take effective action to avoid the collision, there was a serious and obvious risk of a collision, and that in the event of such a collision, there was a serious and obvious risk, not just that someone might be injured, but that someone might die”; and (iii) that “what the (applicant) failed to do was so serious that that failure should be regarded as a crime and deserving of punishment”. 28.When one acknowledges the gravity of the conduct upon which the jury must have based their verdicts, Ms Ip’s submission that the applicant was not deliberately doing something which he knew to be dangerous, with respect, rather misses the point. Nevertheless, the judge accepted that the applicant did not intend the consequences of his actions, however serious and obvious the risk that someone might die ought to have appeared to him. 29.We do not accept that the judge overstated the gravity of the applicant’s negligence, which led to the deaths of 39 passengers on board the Lamma IV. The grossness of his negligence was implicit in the verdicts reached following the judge’s directions. Nor can we accept that the applicant’s conduct was anything less than a substantial cause of the deaths of those 39 passengers. That too was implicit in the verdicts reached following the judge’s directions. 30.As for the lack of foresight of the actual consequences, anyone who pilots a twin-hulled vessel weighing 274 gross tons, with a capacity to carry 389 persons on board, at a speed of 20-22 knots, through the busy waters of Hong Kong must appreciate that any negligence on his part which results in a collision will run the serious and obvious risk of loss of life, whether to the passengers of his own vessel or of the vessel with whom he collides. That too was implicit in the verdicts reached following the judge’s directions. 31.Ms Ip has conceded, as she must in the light of 39 separate verdicts of manslaughter, that if there was in the circumstances of this case an obvious and serious risk of loss of life as a result of the applicant’s negligence, then there was an obvious and serious risk of more than one loss of life. The significance of this matter is that where there is “more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable)”[1], an offender’s culpability is considerably aggravated: see R v Cooksley and others [2004] 1 Cr App R (S) 1. Although, of course, Cooksley was a case of causing death by dangerous driving, the same principle would apply to what is sometimes referred to as ‘motor manslaughter’, or any other form of manslaughter caused by gross negligence. The “Overarching Principles: Seriousness” guidelines issued by the Sentencing Guidelines Council of the United Kingdom in December 2004, which followed Cooksley but applied to crimes generally, state, in relation to the assessment of culpability and harm, that:
We would adopt this principle in the present case. 32.Having said that, we acknowledge that culpability must remain the principal consideration in the sentencing process where multiple deaths may be unintended but are nevertheless a foreseeable consequence of grossly negligent conduct. As the Court in Cooksley emphasised[2]:
Similarly, in the same guidelines of the Sentencing Guidelines Council, it is made clear in Section D that, when dealing with the assessment of culpability and harm in crimes generally:
33.We do not think, however, that the judge in this case was under any misconception as to the significance to be attached to the fact that 39 people lost their lives as a result of the applicant’s gross negligence, or as to the relationship between culpability and harm in the offences of which he was convicted. He said, in sentencing the applicant:
34.Indeed, in our view, there can be no valid complaint by the applicant about the way the judge went about his sentencing task in what was obviously a difficult case. He had the singular advantage of having seen and heard all of the evidence called or produced in evidence, much of it of a highly technical nature, over the course of a 3-month trial. He was in the best possible position, therefore, to judge the applicant’s culpability and the extent to which the appalling consequences of his negligence should have been reflected in the sentence that he passed. We do not think it can sensibly be said that he failed in that exercise. 35.We can dispose very simply of the submission that the judge should have passed a sentence commensurate with that which was passed on the captain in R v Kong Cheuk-kwan, namely 18 months’ imprisonment after trial. With respect, the submission was wholly unrealistic. As the judge himself observed of that case, when it was referred to him in mitigation by the applicant’s then leading counsel, there was never any appeal against sentence, so it is unknown what the appellate court thought of the sentence passed. All that can be said is that it was a sentence passed at first instance by a judge in different circumstances with very different consequences, for reasons which, it would seem, are no longer available. Moreover, the facts in Kong Cheuk-kwan took place more than 33 years ago, when harbour traffic may have looked very different to its modern appearance. Like the judge, we do not find the case of any assistance in this particular case. 36.There is, however, one matter, which we feel we must address, although it does not assist the applicant. We drew to the parties’ attention the fact that no consideration had been given by the judge to the element of deterrence when sentencing the applicant. The reason for this appears to have derived from an exchange during mitigation between the applicant’s leading counsel and the judge, as follows:
37.The case to which reference was there being made was HKSAR v Kulemesin Yuriy and others (unrep., CACC 19/2010, 15 February 2012). And the passage in the judgment, which leading counsel and the judge had in mind, was at para’s 19-20, under the sub-heading ‘Deterrent sentence’:
38.We do not believe that the Court in Kulemesin was intending to say of someone responsible for the multiple deaths of passengers as a result of a collision caused by his gross negligence in piloting a ferry, albeit that he did not intend such consequences, that there was no need for any element of deterrence. If the Court had said that, we would have respectfully disagreed. However, the Court was there dealing with a conviction in the District Court for an offence under section 72 of the Shipping and Port Control Ordinance, Cap 313, the allegation being that the appellant, the captain of a cargo vessel, had endangered or caused to be endangered the safety of his crew by virtue of various specified unlawful acts, for which offence the maximum sentence on indictment was a fine of $200,000 and imprisonment for 4 years. It was not dealing with convictions for manslaughter by gross negligence arising out of the collision of two passenger vessels, on one of which there were 124 passengers, of whom 39 lost their lives, for which offence the maximum penalty was life imprisonment. 39.The difference in culpability between the two types of offence is further made evident by the fact that Chow, the coxswain of the Lamma IV, was convicted of the section 72 offence (Count 40) but, unlike the applicant, acquitted of all the manslaughter counts against him (Counts 1 to 39). Count 40 against Chow, was in identical terms, save for the change of names, as Count 80 against the applicant; while the manslaughter counts against Chow (Counts 1 to 39) were in identical terms, save for the change of names, as the manslaughter counts against the applicant (Counts 42 to 80). 40.Ms Ip nevertheless argued that since such offences at sea were not prevalent, there was no need for any deterrent element in sentencing. However, although prevalence might be a factor indicating the need for deterrence (or, perhaps, greater deterrence), lack of prevalence does not militate against deterrence. The two issues address logically different aspects of sentencing. In our judgment, there must be an element of deterrence, particularly for those who are entrusted with the carriage of passengers, whether they be the pilots of ferries or aeroplanes, or the drivers of vehicles, trains or trams, so that they will be deterred from conducting themselves in such a grossly negligent way that the lives of those who are in their charge are imperilled. It is vital that those so entrusted should be reminded by the courts of the gravity of their responsibilities, because the consequences for their passengers and others affected by their conduct, if they do not take those responsibilities seriously, can be catastrophic. 41.Mr Bruce has brought to our attention the case of HKSAR v Chan Kwok Fai [2012] 2 HKLRD 25, a case of dangerous driving causing death in which two passengers died, where the Court said, at 31:
The same in our view may be said of the countless ferries, both public and private, large and small, which daily ply the waters of Hong Kong carrying passengers from one place to another. We might also observe that the Court in Chan Kwok Fai applied the principles in Cooksley, which had earlier been approved in this jurisdiction in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660. 42.With respect to the judge’s otherwise faultless and careful approach to sentence, we think that he yielded too easily to the submissions of leading counsel on the question of deterrence, which submissions were not derived from a correct reading and application of that which was said in Kulemesin. However, as we have already made clear, our view of this matter does not assist the applicant, but nor should the fact that the sentence did not address the question of deterrence at all disadvantage him either. Conclusion 43.Notwithstanding our concerns about the absence of any mention of deterrence in the judge’s reasons for sentence, the overall sentence of 8 years’ imprisonment passed upon the applicant was, in our judgment, neither manifestly excessive nor wrong in principle. There is ultimately no merit in any of the grounds of appeal, valiantly and eloquently put forward by Ms Ip, and the application for leave to appeal against sentence must be refused.
Mr Andrew Bruce SC on fiat & Mr Bobby Cheung SPP, of the Department of Justice, for the Respondent Ms Chyvette Ip, instructed by Holman Fenwick Willan, for the Applicant [1] R v Cooksley and others [2004] 1 Cr App R (S) 1, at 12 [2] ibid., at 13 |
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