The Queen v. Cheung Lee Wah and Another

HCMA000507/1989

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 507 OF 1989

BETWEEN

Coram: Cons, V. P. sitting as an additional High Court Judge

Date of hearing: 20 September 1989

Date of delivery of judgment: 29 September 1989

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J U D G M E N T

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Cons, V. P.:

1. This is an appeal from the Kwun Tong Magistracy. The facts found by the magistrate there, Mr. D. I. Thomas, were that on the evening of 14th March this year several marine police officers in a small inflatable craft were on patrol off the coast of Town Island. The officers were in uniform and their craft carried the legend "PB 51". She was in company with two larger police vessels, "Police no. 3", and "Police no. 72".

2. At about 10 o'clock Police no. 3 alerted PB 51 to the presence of a suspicious vessel. At the same time both she and Police no. 72 sent up flares. By their light the officers on PB 51 discerned a blue speedboat about half a mile away, to which they directed their course and closed to within two metres. One of the officers then flashed the morse signal "L", while both he and another shouted to the crew of the speedboat that they were marine police officers and that the speedboat should stop.

3. However the speedboat did not stop. Instead it maintained its course and speed, estimated to be about 20 to 24 knots. The police craft continued alongside and in some way or another a collision occurred, triggering a safety device on board the police craft which automatically cut the engine, allowing the speedboat to make away. The police helmsman re-started the engine, gave chase to the speedboat and overhauled it after some three to four minutes.

4. Again the two craft for a while held parallel courses a few metres apart. Again the officers flashed "L". And again they shouted that they were police and that the speedboat should stop. But again it did not. There soon followed a more serious collision in which the speedboat rode up over the stern of the police boat, its bottom scraping the head of one of the officers. Only then did the speedboat stop and the three men on board, including the two who were the Defendants in the court below, were arrested. They admitted to be smuggling into China the 15 television sets which were also on board.

5. The amended charges on which the two Defendants were tried were as follows:

"Charge (A) FAILING TO STOP (Jointly charged)

Statement of offence : Contrary To Regulation 20 (1) and

(3) of the Shipping and Port

Control Regulations, Cap. 313, Laws of Hong Kong.

Particulars of offence: CHEUNG Lee-wah and MAU Lap-hung,

you are jointly charged that on

the 14th day of March, 1989, at

two miles east of Conic Island (餃甑洲)

in the waters of

Hong Kong you, being the masters

of unnumbred vessel, which was

underway, did fail to stop

without reasonable excuse the

said vessel to which the

international code signal 'L' was

made by flashing lamp from a Police vessel 51.

Charge (B) ENDANGERING THE SAFETY OF OTHERS (Jointly charged)

Statement of offence: Contrary To Section 72 of the

Shipping and Port Control

Ordinance, Cap. 313, Laws of Hong Kong

Particulars of, offence : CHEUNG Lee-wah and MAU Lap-hung,

you are jointly charged that on

the 14th day of March, 1989, at two miles east, of Conic Island (餃甑洲)

in the waters of

Hong Kong, you did without

reasonable excuse, endanger the

safety of other persons, namely

the crew of police vessel No. 51,

in that you did collide with the

stern of that vessel and caused substantial

damage to its outboard engine casing."

6. At the close of all the evidence, including that of the Defendants the magistrate of his own motion further amended the particulars of the (B) charge to:

"that on 14th day of March 1989 at 2 miles east of Conic Island, in the waters of Hong Kong, without reasonable excuse, endangered the safety of the crew in police vessel 51 by being involved in a collision between the said police vessel and an unnumbered vessel under the control of yourself and another and then leaving the scene thereby causing the said police vessel to take up further pursuit in the course of which a further collision occurred."

7. Both Defendants pleaded not guilty to the further amended charge declining an adjournment or to recall witnesses. Both of them were convicted and sentenced for three months on the (A) charge, and 18 months on the (B) charge, the terms to run concurrently with each other and also with a further term of one month which the Defendants were already serving upon smuggling convictions. The speedboat was ordered to be confiscated.

8. Regulation 20(1) and (3) of the Shipping and Port Control Regulations provide

"20. (1)     Any vessel underway to which the international code signal "L" is made by flag, sound or flashing lamp from a marine, police, immigration or customs and excise department launch or a signal station, or to which any signal prescribed in regulation 35 is exhibited from a police launch, shall stop until authorized to proceed.?

(2)     Any vessel not underway to which the international code signal "L" is made in the manner specified in paragraph (1), or to which any signal prescribed in regulation 35 is exhibited from a police launch, shall not move from its position until authorized to do so.

(3)     If without reasonable excuse this regulation is contravened, the master of the vessel commits an offence and is liable to a fine of $5,000 and to imprisonment for 6 months."

9. Mr. Spicer, who appears for the Defendants on their appeals, suggests by his first ground of appeal that:

" the Crown adduced no evidence that either Appellant was master of the subject vessel."

Very fairly he drew attention to relevant passages in the prosecution evidence and then that of the Defendants, neither of whom suggested that there was anyone else, "having for the time being command or charge of the vessel": see definition of "master" in Section 2 of the Shipping and Port Control Ordinance, Cap. 313. Indeed their evidence confirmed what in my view was amply established by that of the prosecution, namely that at the time they were joint masters of the twin-engined speedboat.

10. The second and third grounds of appeal relate to the expression "international code signal 'L"' and, as I understand them, both turn upon the suggestion that it is not necessarily to be equated with the international morse code, as the magistrate apparently assumed.

11. There is no definition of "international code" in the Ordinance, but I have been referred to a document published by the United Kingdom Department of Transport through Her Majesty's Stationary office which sets out the "International Code of Signals" adopted by the Inter-Governmental Maritime Consultative Organization at its fourth assembly in 1965. I have no doubt this is the code referred to in Regulation 20. Chapter X incorporates the morse code as such. These grounds of appeal therefore fail.

Section 72 of the Ordinance provides

"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."

12. With great respect to the magistrate, the (B) charge as finally amended presents insurmountable difficulties. To begin with I am unable to comprehend how the passive role of "being involved in a collision" could impose criminal responsibility upon the Defendants. It is clear, both from his note at the time and from his Statement of Findings, that the magistrate was not satisfied that the Defendants deliberately collided with the Police craft. There is no suggestion of error of navigation, simply an assumption that the Defendants

" had put the lives of the crew of the pursuing police vessel at risk by trying to out-run police vessel 51 and forcing the crew thereof to engage in a hazardous pursuit."

13. Moreover, as I understand the circumstances, the pursuit would not of itself have been hazardous, only at the final stage, should the police attempt to board the speedboat. By analogy the magistrate appears to be holding that, in a similar situation on dry land, a person who runs away from a constable whom he knows to be intent on affecting his arrest, is guilty of assault when finally the constable catches hold of him. With every respect the final framing of the (B) charge discloses no offence and the conviction of the Defendants thereon must be set aside and their sentences quashed. It is not necessary then to consider the further point raised by Mr. Spicer, that at the same time the amendment rendered the charge bad for duplicity, a point only faintly pursued on the ground that, if successful, the Court might nevertheless remedy the situation by a yet further amendment.

14. I turn next to the sentences on the (A) charge. As is apparent, the maximum punishment is a fine of $5,000 and imprisonment for six months. For myself I find it difficult to envisage a more blatant or deliberate refusal to obey the police instructions and I have anxiously considered whether the three months imposed by the magistrate was adequate. However I have come eventually, bearing in mind that the Crown has taken no action, to the conclusion that it will be sufficient for me merely to dismiss the appeals against sentence.

15. Finally there is the confiscation of the speedboat. Although it is not expressly mentioned in the Notice of Appeal Mr. Spicer has asked that it be re-considered. His difficulty, however, is that the boat does not apparently belong to either Defendant. In evidence the 1st Defendant said that it belonged to the third person on board. So far as I know that person has not yet made any application to the Court. In the circumstances I ant of the view that the matter should be left as it stands unless and until he does.

Representation:

Rupert Spicer (D.L.A.) assigned for the Appellants

Samuel Leung Crown Prosecutor for the Respondent