The Queen v. Keung Siu Wah
Read the full judgment text of CACC 33/1984 on BabelCite. This Court of Appeal judgment was delivered on 7 March 1984.
1. The Appellant appeals against conviction in respect of the following offences under the Shipping and Port Control Ordinance :-
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CACC000033/1984
BETWEEN
---------------- Coram: Barnes, J. in Court. Date: 7 March 1984 ----------------------- J U D G M E N T ----------------------- 1. The Appellant appeals against conviction in respect of the following offences under the Shipping and Port Control Ordinance :-
He raises 26 grounds of appeal, 15 of which relate to the A and B convictions and 11 to the C and D. The grounds relating to A and B can be broken down to four main submissions:
2. In respect of the A and B offences the particulars were as follows:-
The particulars do not make it appear that the charges are real alternatives. But the reality of the matter was that both arose out of the same incident and the legal regalia in which both were clothed concealed the real allegations which, in effect, were that in A the Appellant was alleged to have endangered someone's safety by failing to keep a proper lookout whilst manoeuvring a jetski and in B that he had done the same manoeuvre in the same way but did not allege that he had endangered anyone's safety. in those circumstances the only available combination of verdits was one of the following: (1) A, not guilty; B, not guilty; (2) A, not guilty; B, guilty; or (3) A, guilty; B, no verdict. In case (3) once a verdict of guilty is returned in respect of the A charge, the B charge "has merged, as it were, into the other". (R. v. Harris (1969) 53 Cr. App. R. 376; Archbold, 41st edn., para. 4-453). the learned magistrate should not have entered a verdict in respect of the B charge. 3. The submission that there was no evidence to support a finding of failure to keep a proper lookout was put in an unusual way. There was, in fact, evidence before the learned magistrate, which he accepted, to the effect that the Appellant was the only occupant of a motor propelled craft which he was steering across the waters of Tai Tam Bay without looking in the direction in which his craft was heading with the result that he almost collided with a person swimming. It was submitted that that evidence by itself could not support a finding of failure to keep a proper lookout in the absence of (a) evidence from some person familiar with the handling of such a craft as to what would constitute a proper lookout, or (b) the assistance of a marine assessor. I see no merit in this submission. To my mind, a person who does not look where he is going in circumstances where ordinary prudence would require him to is not keeping a proper lookout whether he is riding a jetski across the waters of Tai Tam Bay or roller-skates along the pavement in Nathan Road. A magistrate does not need either expert evidence or the assistance of a marine assessor in the former case any more than he needs such evidence or the assistance of a "teeny-bopper" sitting on the bench with him in the latter. 4. There were discrepancies in the evidence of the prosecution witnesses about the relative positions of the Appellant's jetski, junks at anchor, a windsurfer and a swimmer during the Appellant's manoeuvres. Most, however, could only have significance in the mind of a cross-examining counsel who envisaged that the witnesses were all speaking of one moment frozen in time as if the "pause" button had been depressed on time's video recording and who therefore assumed that all were purporting to describe the same scene as it might be depicted on a single frame of a motion picture film. Most of the discrepancies were of the kind to be expected from truthful witnesses recalling a rapidly moving event witnessed from different points of view. A spectator at a football match who witnesses a missed goal form a position behind the goalkeeper will almost certainly give estimates of the position of the kicker, the line of flight of the ball and the margin by which the kick missed at variance with those given by a spectator who witnessed the same incident from a position beyond one of the sidelines. If, however, both appear to be witnesses of truth then the coincidence of their evidence about the central fact, namely, the missed attempt at goal, is still credible evidence of that fact notwithstanding the discrepancies in their estimates. The learned magistrate made the same point in this case when he pointed out that the discrepancies were understandable when the witnesses were relating what they saw from different junks, wobbling about at anchor, at different points in the bay. There was, however, one contradiction which could not be accounted for in that way. One prosecution witness had given evidence of seeing something in the water which the others did not see but which they should have seen had it been there when the incident occurred. The learned magistrate, however, did not accept the evidence of the one who was at variance with the others on this point and gave a sound reason for accepting one version and rejecting the other. He was entitled to do that. He also gave sound reasons for his acceptance of part of the prosecution evidence which was in conflict with part of the defence evidence. I find no substance in the complaint that the learned magistrate failed to consider and weigh the evidence before him in a proper judicial way. I think his findings of fact were properly made. 5. The submission that the International Regulations for the Prevention of Collisions at Sea had not been proved to be applicable was based on an interpretation of a rule made under those regulations without reference to the overall legislative context in which they take their place. The regulations themselves provide that the rules contained therein are to be "followed by all vessels .......... upon the high seas and in all water connected therewith navigable by seagoing vessels". It was contended that since Tai Tam Bay (the place where the offence was alleged to have been committed) was not proved to be navigable by seagoing vessels, it follows that the rules under the regulations had not been proved to be applicable to the case. The argument has no support whatever once the rules are read in their proper context. That context is the Shipping and Port Control Ordinance (Cap.313) and, in particular, the following provisions of sections 10 and 2 :-
The requirement under the regulations that the rules be followed only by vessels upon waters navigable by seagoing vessels is subject to the special provision under section 10 that the rules are to apply to vessels on tidal waters within the boundaries of Hong Kong whether those waters are navigable or not. The rules are therefore applicable to vessels upon the waters of Tai Tam Bay. 6. The 11 grounds of appeal relating to convictions C and D allege, in one form or another, that the evidence did not establish that the craft manoeuvred by the Appellant was a vessel to which the Merchant Shipping (Pleasure Vessel) Regulations ("the regulations") applied. 7. The regulations were made in 1970 under a power conferred by sections 97 and 105 of the Merchant Shipping Ordinance (Cap.281). Those sections were contained in Parts XIII and XIV respectively of that Ordinance. Both Parts were repealed by Ordinance No. 76 of 1978 which also enacted the Shipping and Port Control Ordinance ("the new Ordinance"). Section 33 of the new Ordinance empowers the Governor in Council to make regulations for, inter alia, the regulation, control and use of vessels. The relevant provisions of the new Ordinance, insofar as they are material to this submission, are as follows:-
"Pleasure vessel" is defined under the regulations as follows:-
8. The evidence before the learned magistrate established that the Appellant's craft was within the definition of "pleasure vessel" provided it was a "vessel". It was clearly a "vessel" within the meaning of the new Ordinance but under the Merchant Shipping Ordinance "vessel" was defined as including -- "Any ship or boat or junk or any other description of vessel used in vavigation ......" 9. The Appellant's submission was that as the regulations had been made under the Merchant Shipping Ordinance so the term "vessel" when used in the regulations must bear the same meaning. As a jetski was not proved to be a vessel used in navigation therefore, so the submission continued, it was not proved to be a vessel subject to the regulations. 10. The submission ignored that part of section 35 of the new Ordinance which provides that the regulations "shall be deemed for all purposes to have been made under section 33" of the new Ordinance. The regulation do therefore apply to vessels within the meaning of the new Ordinance "unless the context otherwise requires". Support for the Appellant's contention can, therefore, only be found if the context (which, in effect, is that part of Part IV of the new Ordinance which has been set out above) requires the assignment of some meaning other than that supplied by section 2. 11. The clear legislative intent appears to be that the provisions of Part IV of the new Ordinance are to apply, subject to the provisions of section 35(3), to all the vessels specifically brought within the Part by section 25, but do not apply to those specifically excluded by section 25(3). Section 35(3) provides that, of all the vessels made the subject of the general provisions of Part IV, only those which are included within the regulations deemed to have been made under the new Ordinance are affected by the provisions of that Part which are contained in section 35. Thus, section 35(3) is not a provision creating a context for the assignment of some meaning other than that assigned by section 2, but is a provision which limits the cover of part of the provision of Part IV to a portion of the whole class specifically included within the Part by section 25. That portion of the Part IV class comprises (a) vessels which are both within the meaning of that term under section 2 and within the inclusive provisions of section 25, and (b) within the definition of "pleasure vessels" under the regulations. There is, therefore, no context which requires that the term "vessel" be given any meaning other than that assigned by section 2. 12. As the evidence clearly established that the Appellant's craft was a pleasure vessel within the meaning of the regulations there is no merit in any of the 11 grounds challenging the C and D convictions. 13. In the result I allow the appeal only insofar as the B conviction is concerned. That conviction is quashed but the other convictions stand.
Representation: Mr. F. C. Whitehouse, Senior Crown Counsel, for the Crown. Mr. K. M. Chong instructed by Messrs. Chung, Kwan, Chan & Evans for the Appellant. |