The Queen v. Ng Yui-kin and Others

HCCC000292/1982

IN THE HIGH COURT OF HONG KONG

Criminal Jurisdiction

Case No. 292 of 1982

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Between

Coram: Hon. Penlington, J. in Court

Date: 24 JUN 1983

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JUDGMENT

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Preliminary

1. These are applications for costs against the Crown brought by Messrs. Ng Yui-kin, Ho Yim-pun and John Coull following their acquittal on charges of manslaughter; They are made pursuant to Section 73A of the Criminal Procedure Ordinance. This section was enacted in 1978, possibly because of a decision by Mr. Commissioner O'Connor, as he then was, in R.v. Chu Kwan-kong and ors. 1977 H.K.L.R. 371, where he found that there was then no jurisdiction to award costs in criminal cases in the High Court to an acquitted defendant. The section reads as follows:

2. The court clearly has a discretion as to whether costs should be awarded in any particular case. It is somewhat surprising is that apparently no application has in fact been made in the High Court since the amendment was passed. This primarily no doubt due to the fact that most defendants in the High Court are legally aided.

3. The trial was held from the 7th to the 24th of March 1983. Ho Yim-pun and John Coull were represented by Mr. A.J. Corrigan, instructed by Deacons, Ng Yui-kin by Mr. Nigel Aiken, instructed by Sinclair Roche and Kong Cheuk-kwan by Mr. David Steel Q.C. and Mr. K.M. Chong, instructed by P.T. Yeung and Co.

4. The Crown case was conducted by Mr. Max Lucas Q.C., the Crown Prosecutor, and Mr. T.R.W. Jenkyn-Jones. When that case was closed it was submitted on behalf of Ng Yui-kin that there was no case against him upon which the jury could convict. I upheld that submission and Ng was acquitted at that stage. The other defendants did not call or give evidence. Kong Cheuk-kwan was convicted, Ho Yim-pun was found not guilty, both by unanimous verdicts and John Coull was found not guilty by a majority of 5 to 2.

The Evidence.

5. There were four persons charged in this indictment which contained 2 counts, both for manslaughter. The first count was against Kong Cheuk-kwan and Ng Yui-kin, the captain and first officer of a vessel called the "Flying Goldfinch" ("Goldfinch"), the second count was against John Coull and Ho Yim-pun who held similar posts on another vessel the "Flying Flamingo" ("Flamingo").

6. Both counts were for manslaughter and arose from a collision which occurred between the two vessels on the 11th of July 1982 while proceeding to and from Macau. Both vessels were high-speed hydrofoils. The Goldfinch struck the Flamingo virtually amidships causing very severe damage to both vessels. 2 passengers on the Flamingo were killed and the Flamingo itself later sank.

7. Evidence was called by the Crown from a number of persons who were passengers on the Flamingo and from crew members of both vessels. This evidence related to the manner in which each had been navigated before the collision, which occurred on a fine, calm day on the open sea. The evidence from some of the crew members went on to relate what had happened at a meeting which was held at the Hong Kong Hotel on the evening of the 11th of July, which was attended by the defendants Kong, Ng and Ho but not Coull. The engineers from both vessels were also there and I was satisfied that the purpose of the meeting, which was organised by Kong, was to try to cover-up the undoubted negligence which had caused the collision. It was not clear if the persons present at the meeting contemplated criminal proceedings being brought against them but without doubt they realised there would be a Marine Inquiry at least.

8. At the meeting, according to evidence given by Lo Kam-shing, radio operator on the Goldfinch, Kong asked his engineer, one Lam, to say that he, Kong, had given an order to stop the engines before the accident. It was also suggested by Kong that the Goldfinch had made an uncontrolled turn to starboard before the collision. Both Ng and Ho made statements to the Police in early August and both mentioned the meeting and related what was said.

9. There was also what I was satisfied was an attempt to evade liability by Ng in the deck log which he wrote the day after the incident. That contained an account of what was done on the bridge of the Goldfinch before the collisions which I am satisfied was false in that it suggested an uncontrolled sheer to starboard due to faulty controls. The expert evidence, which was not challenged was that the vessel's controls were perfectly serviceable. However in his statement made to the Police on the 1st of August Ng admitted the entry was false and said he had signed what Kong had written while he was "confused".

10. Statements made by all defendants were also admitted. Kong said that the collision was due to the Flamingo turning to port, contrary to the International Regulations for the Prevention of Collisions at Sea, and although he went to starboard he was unable to prevent the collision.

11. Ng said that he saw the Flamingo when it was about one mile away and 15?to starboard. He then started to fill in his log-book and was still doing so when the collision occurred. On that basis there was certainly grounds to believe that he had failed in his duty to keep a good look-out.

12. Ho, the deck-officer and helmsman of Flamingo said he saw the Goldfinch 4-5 miles away, 10?to starboard. He said it again 3/4 of a mile away, 20?to starboard. He did not see it again until it was 200 feet away, 40?off his bow and a collision occurred almost immediately afterwards.

13. John Coull, the captain of Flamingo said in his statement that he was the look-out. He said Goldfinch 4-5 miles away 10?- 15?to starboard. He said he saw it again 2-3 cables (i.e. 400 – 600 feet) away at 45? He thought the vessels would pass safely. However shortly afterwards Ho, the helmsman, shouted out and there was then a collision.

14. There was also a considerable amount of expert evidence as to the manner in which these vessels should be operated particularly as to the duty to keep a look-out and the detection of a risk of collision.

Principles on which costs should be awarded.

15. In R.v. Chu Kwan-kong and ors. Mr. Commissioner O'Connor stated that in his opinion the power to award costs was not a matter of "practice and procedure", as had been submitted for the acquitted defendant there. That being so, although there was such a power in England, he had no jurisdiction to make an order. He said at P. 373

16. Section 9 of the Criminal Procedure Ordinance reads as follows :

17. The applicants also rely on Order 1, Rule 2(4) and Order 62 Rules 2 and 3(3) of the Rules of the Supreme Court. These read as follows:

18. Mr. Aiken for the defendant Ng and Mr. Corrigan for Ho and Coull, argue that the Court now having the power to award costs should follow the English practice as to how to exercise that power and indeed has no option but to do so. Mr. Corrigan cites in support a decision of Judge Ryan in V.D.C. case No. 322 of 19$1 where in awarding costs to one of the defendants who was acquitted he said that the English practice should "be given full consideration as a guideline". The Court clearly always has a discretion in this matter but it must be exercised judicially and in my view Section 9 of the Ordinance means that the Courts in Hong Kong must have regard to English practice and procedure in the exercise of that discretion. It also clearly must comply with its own Rules. Both, however, allow a wide discretion.

The English Practice on award of costs in Criminal Cases.

19. The practice in England has changed dramatically. In 1952 in a statement of what principles should be followed the Lord Chief Justice said (36 C.A.R. 13)

"Let me reiterate the principle that the judges think should be followed in this matter. While section 44 in terms imposes no limit on the discretion of the court, it was never intended, and it would be quite wrong, that costs should be awarded as of course to every defendant who is acquitted. Its use should be reserved for exceptional cases, and every case should be considered by the court on its own merits. "

However in 1973 the Costs in Criminal Cases Act was passed and in 1981 a Practice Direction was issued by the Lord Chief Justice which was a virtual complete about-face. That Practice note reads as follows:   

20. Mr. Lucas, for the Crown says firstly that conditions and attitudes in Hong Kong are very different than in England. This is not a welfare state. Costs have been awarded here in the past in the magistrates court but only when the Crown was at fault, i.e. where the Court is saying that the prosecution should never have been brought. Now that there is power to award costs in all courts that same principle should be followed and here the Crown were perfectly justified in prosecuting all the defendants, including Mr. Ng. He points out that in Hong Kong the Crown does not normally ask for costs when successful and to follow the English practice would be to change the substantive law, which Judges cannot do. He finally says that the collision was so extraordinary that it called for an reasonable explanation from all who could have been responsible. Such an explanation was not forthcoming. Ng, Ho and Coull in their own statements did not keep the look-out they should have and that failure was, in part at any rate, the cause of the collision.

Principles applicable in Hong Kong

21. I do not consider that I should take account of different social attitudes in England and Hong Kong. Hong Kong, while not the welfare state that exists in England, does have a comprehensive system of legal aid. There is however a class of persons who fall outside the financial limitations of that aid but who can ill afford the very substantial expenses of legal representation at what can be, and in this case was, a lengthy trial. If the legislature intended that acquitted defendants should only be awarded costs in the case of a prosecution being unjustified, at initio, I have no doubt it would have said so though in my view it would have made the enactment almost valueless as such instances in the District or High Court must be rare indeed.

22. I am satisfied that, in' light of Section 9 of the Criminal Procedure Ordinance and Order 62 of the Supreme Court Rules it must have been the intention of the Legislature in Hong Kong when the 1978 amendment was enacted that the English practice would be followed. Although the latest practice direction was issued in 1981 it does not materially differ from the ones then in force i.e. those issued in 1973 and 1977. (1977 1.W.L.R. 181). If that practice and procedure was not to be followed it would have been so stated in the amendment. I therefore should award costs in this case as laid down in the English Practice Direction and our own Rules of Court.

Awards in this particular case.

23. I turn now to the position of the acquitted defendants. Paragraph 4(c) of the Practice Direction (acquittal on a technicality which has no merit) does not apply to any of them. The Crown's evidence came out as expected and each was found not guilty on the merits of the case. The sole question is whether they come within paragraph 4(b) - has the defendant's own conduct brought suspicion on himself and has misled the prosecution into thinking the case against him was stronger than it was. There is of course no suggestion that the Crown has acted spitefully within the meaning of paragraph (a) and indeed at the trial I was most impressed with the impatial evidence given by the Marine Department's experts.

24. No Yui-kin. I held that the evidence against Ng was not sufficient to go to the jury and directed his acquittal. This clearly gives him a strong but not necessarily undefeatable claim to costs.

25. Ng was deck officer of Goldfinch. It was his, duty to keep a good look-out and warn the helmsman, Kong, who was also the ships master, of any dangers he saw. The expert evidence however was that he was not under a duty to so warn if the helmsman clearly was already aware of that danger. Here Kong in his own statement was so aware at all relevant times and in his statement detailed the steps he took to avoid it. That was the basis of Ng's acquittal.

26. Ng attended the meeting at the Hong Kong Hotel on the 11th July. That meeting was arranged to try and conceal the truth of the causes of the collision. There was, however, no evidence that Ng in fact took any steps to do so which deceived the prosecution. He made a long and detailed statement to the police on the 1st of August in which he admitted going to the meeting and said it was for that purpose. He said he, told Kong he would "think it over". On the following day he signed an entry in the ships log which had been prepared by Kong and which was false. That may well have been enough to bring suspicion on himself but again in his statement, made well before a decision was made to prosecute him, he admitted doing so and he expressed his regret. I don't see how. the prosecution was misled by that action.

27. In his statement he said that before the collision and right up to the actual movement he was writing his deck log. That may well have been false but I don't see how it brought suspicion on himself or has misled the Crown.

28. Ho Yim-pun. He was the 1st officer and helmsman of the Flamingo, was acquitted by a unanimous verdict of the jury. He did attend the meeting in the Hong Kong Hotel but there is nothing in the evidence of the radio officers who also attended and gave evidence to show that he agreed to give a false account in order to protect himself or any of the others. He made a very full and detailed statement on the 4th August in which he said the purpose of the meeting was merely to record the time and location of the collision. That statement was false but I don't think it drew suspicion on him and certainly did not deceive the Crown. He also signed the deck log entry which had been made by Captain Coull, the master of Ho's vessel. This account, which he struck to in his statement, certainly showed a failure to maintain a proper continuous look-out, though the expert evidence was that the primary responsibility for look-out rested on the other deck officer. The helmsman tended to only look straight ahead, mainly to see obstructions or rubbish in the water.

29. John Coull. John Coull wisely did not attend the meeting on the 11th July. He did make an entry in the ships log book the following day and he made a statement on the 4th August. Mr. Lucas says, with justification, that that explanation, as with Ho's, is nonsense. If it was correct the vessels could not have collided. He says the events called for a reasonable explanation and one was not forthcoming; therefore the Crown was misled and both Ho and Coull were prosecuted. If they have a reasonable explanation let them even now be called to give it on oath.

30. The case against Coull was undoubtedly stronger than against Ho. Coull was the master of the Flamingo and was the deck officer with primary look-out responsibilities. There was also evidence that there was an open newspaper in front of him on the bridge. He was acquitted only by the narrowest of margins, 5 to 2.

31. The explanations, offered by Ho and Coull were not a good ones and it was never contended on their behalf that they were not negligent. Clearly they were. The question however was whether they were guilty of such gross negligence as to call for punishment by the State. The evidence was that their vessel pursued a virtually straight course for Macau at all times. The Goldfinch clearly altered course to starboard, either through negligence or possibly bravado so as to go close to Flamingo as it passed. Ho and Coull could not give a good explanation probably because they didn't have one but the jury was not satisfied their negligence was bad enough to warrant a conviction for manslaughter. I do not see that after the collision they brought suspicion on themselves and that the Crown was thereby deceived.

32. Ng was found to have no case to go to the jury. Ho and Coull were acquitted. On the evidence as it stood before the trial I am quite satisfied the Crown was perfectly justified in prosecuting all three, even Ng. However on the basis of the English Practice Direction and on Order 62. Rules 2 and 3 of the Rules of the Supreme Court, they are each awarded their costs, to be fixed by the Registrar.

33. I have given some thought in the case of John Coull as to whether I should make an order that he should have part only of his costs, but I have decided, with some reluctance, not to so order.

Representation:

Nigel Aiken (Sinclair Roche) for 1st Applicant.

A.J. Corrigan (Deacons) for 2nd & 3rd Applicants.

M. Lucas Q.C. Crown Prosecutor and T.R. W. Jenkyn-Jones, Counsel for the Crown.