The Queen v. Kong Cheuk Kwan
Read the full judgment text of CACC 455/1983 on BabelCite. This Court of Appeal judgment.
1. On the 11th of July, 1982, the "Flying Flamingo", a hydrofoil ferry owned by the Hong Kong and Macau Hydrofoil Co. Ltd., left Hong Kong at about 8:37 a.m. and made for Macau by one of the regular routes which took it, heading west, through the waters along the South shore of Lantau Island.
Cited by 1 case
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CACC000455/1983 Headnote Manslaughter by gross negligence - trial Judge's directions on criminal negligence, although at one point in error, sufficient in their totality to set the jury on the proper track - Quaere: whether Lord Diplock's "model direction" in Reg. v. Lawrence (1981) 1 All E.R. at 982 as approved by the House of Lords in Reg. v. Seymour [1983] 2 All E.R. 1038 is of general application in all "negligence manslaughter" cases - failure to follow that model precisely not in any event fatal - discretion remains in trial Judge in such cases to take the case from the jury if he is satisfied that the risk taken could not on any reasonable view amount to criminal negligence - in the instant case there was evidence fit for the jury - appeal dismissed.
BETWEEN
______ Coram: Court of Appeal (Hon. McMullin, V.-P., Li and Silke, JJ.A.) Date: 9th March, 1984. __________________ JUDGMENT __________________ McMullin, V.-P: 1. On the 11th of July, 1982, the "Flying Flamingo", a hydrofoil ferry owned by the Hong Kong and Macau Hydrofoil Co. Ltd., left Hong Kong at about 8:37 a.m. and made for Macau by one of the regular routes which took it, heading west, through the waters along the South shore of Lantau Island. 2. At about 9:00 a.m. on the same morning, the "Flying Goldfinch", another hydrofoil of very similar size and design and owned by the same company, left Macau for Hong Kong. Both craft were on regular scheduled trips and both were carrying passengers. Sailing conditions were ideal. It was a bright sunning morning, the sea was calm and visibility - estimated at about 12 miles - was, for practical purposes of navigation, unlimited. 3. At approximately 25 or 26 minutes after nine, these two vessels, foil-borne and travelling at close to maximum speed, came into collision with each other in the open sea, at a point approximately 1? miles due north of the island of Ching Chou. There were no other craft in their immediate vicinity. The bow of the Goldfinch struck the Flamingo on her starboard side amidships just forward of the main passenger saloon, breaching the hull and causing extensive damage to the engines resulting in instant failure of the hydraulic system whereby the rudder and foil flaps were frozen in their final position as at the moment of impact. 4. At the time of the collision Captain Kong Cheuk Kwan, the present applicant, was at the helm of the Goldfinch and Ho Yin Pun, the deck officer of the Flamingo was at the helm of that vessel. The Flamingo's captain, John Coull, who had taken the vessel out of Macau harbour, and had then given the helm over to Mr. Ho, was on the lookout duty at the latter's side in the wheelhouse. 5. Aboard the Goldfinch this lookout duty was being performed by Ng Yui-kin, the 1st mate. Captain Kong and Captain Coull are certificated master-mariners and their subordinates, on duty with them on that date, are both navigationally qualified officers. Mr. Ho is a certificated second mate and Mr. Ng holds a first mate's ticket. After the collision, the Flamingo was in a sinking condition. Her passengers were hastily transferred to the other vessel which was eventually towed into Hong Kong harbour. The Flamingo drifted northward with the tide and sank at a point on the Mainland some five or six miles north of the presumed point of collision. She was subsequently raised and moved to the hydrofoil dock where she and the Goldfinch were examined by Mr. Tang, a senior ship surveyor employed by the Marine Department. 6. Two passengers on the Flamingo, a man and a woman, lost their lives and several other people were injured as a result of this accident. The deceased woman, Madam Wu Yuk Ngan, is named as the victim in both charges of the indictment, in the first of which Captain Kong and Mr. Ng are charged with manslaughter, Captain Coull and Mr. Ho being similarly charged in the second. 7. The trial extended from the 7th to the 25th of March, 1983. Seven passengers from the Flamingo gave evidence for the Crown as did two seamen from the Goldfinch, two seamen from the Flamingo, and the radio officers of both vessels. No passenger from the Goldfinch was called either by the prosecution or the defence. 8. At the conclusion of the prosecution case, Counsel for all defendants - Mr. Steel for the 1st, Mr. Aiken for the 2nd, and Mr. Corrigan for the 3rd and 4th - submitted that there was insufficient evidence against their respective clients to put them to their defence. The trial Judge ruled that Ng Yui-kin, first mate of the Goldfinch, had no case to answer and he subsequently directed a verdict of acquittal. The other three defendants were called upon to answer to the charges but none of them elected to give evidence and Counsel then made their final submissions. By unanimous verdict, Captain Kong was convicted as charged and Mr. Ho, the deck officer of the Goldfinch, was acquitted. Captain Coull was acquitted by a majority of five against two. 9. There is no doubt that in choosing to charge all four officers on navigational duty on the two on this occasion the prosecution were shouldering an onus of a somewhat complicated kind. On the one hand it was not suggested that it was permissible simply to point to an apparently inexplicable occurrence and to invoke anything equivalent to the maxim 'res ipsa loquitur', and on the other, there was the need to pin-point the nature of the negligence attributable to each defendant, bearing in mind the international regulations applicable to the avoidance of collisions at sea, and the shifting array of responsibilities and duties which may arise in different situations under those regulations. 10. Moreover, the Crown was faced from the outset with the possibility - realized in the event - that none of the defendants would testify but that, if any one of them did so, the prosecutor must be prepared to deal with the extra-judicial statements made by each defendant prior to the trial. These statements contain the only attempt to explain the accident available to the Crown at the time when the trial commenced. 11. Captain Kong, the present applicant, made a statement to the police on the 3rd of August, 1982. His first mate, Mr. Ng, had already done so on the 1st of August. Captain Coull and Mr. Ho (3rd and 4th defendants) had also been interviewed by the police and they, separately, made statements on the 4th of August. Each of these statements, other than that of Mr. Ng, purported to give an account of the circumstances leading to the collision. Mr. Ng, professed himself to have been busy in making up the log of the Goldfinch immediately before the collision occurred and thus not to have witnessed anything of significance relating to the approach of the other vessel. 12. Each of the other three defendants, however, purported to explain the incident in a manner which was clearly intended to rebut any suggestion of negligent behaviour on his part. 13. These statements have played a somewhat equivocal part in the trial. They appear to have been admitted in evidence, though it is not clear in what manner they were produced and exhibited. Certainly they were referred to frequently, and commented upon both in Counsel's addresses and in the summing-up. They were also made available with the other exhibits for scrutiny by the jury at the conclusion of the evidence. 14. Mr. Lucas for the Crown made it clear both in his opening and in his closing address that the prosecution, were not relying upon any of these statements as to the truth of any part of their contents. Nevertheless they figured prominently in the Crown's case in as much as they were resorted to by Mr. Lucas principally to demonstrate that the accounts contained in them left the events which they described unexplained save in terms of gross negligence on the part of the maker of the statement. 15. Thus a major part of the evidence - some 420 pages of transcript involving 19 witnesses - consists of the evidence of the testimony of Captain Pyrke, a senior ship surveyor called as an expert in marine matters by the Crown. This evidence - occupying 174 pages of the transcript - is almost wholly concerned with an exploration of the possibilities raised by the factual content of these several statements taken in the context of the duties and obligations imposed by the 1972 International Regulations For Preventing Collisions At Sea, and considered in relation to the other evidence led by the Crown. This included the oral testimony of the crewmen and passengers, and it included also, as essential basic data, the presumed position of the vessels at the moment of impact and the angle at which the Goldfinch had struck the side of the Flamingo. Captain Pyrke was in effect asked to consider the situation described in these three statements and the action allegedly taken by the several defendants from the moment when the vessel first sighted each other, at which point of time there was, by the consensus of opinion of all three defendants, a distance of four to five miles between them uninterrupted by other traffic and unaffected by any defect in visibility. 16. We do not think it would be helpful to enter into all the details of this evidence or of the defendant's statements. Clearly much of what Captain Pyrke had to say was, of necessity, hypothetical. These craft travel at very high speeds. It is common ground that the Goldfinch and the Flamingo were closing upon each other at a pace which consumed the space between them at a rate of something over a mile per minute so that the period of mutual surveillance disclosed in the defendant's statements was little more than 4 minutes at the most from first sighting. 17. The substance of the statements of Captain Coull and Mr. Ho is that they were aware of the approach of the Goldfinch four to five miles ahead of them. The Goldfinch was heading on a straight course towards Tai Pa and the other vessel was on a reciprocal course and steady bearing which, in the opinion of both of them, would cause the two craft to pass each other starboard to starboard at a distance of about 5-600 feet. According to these statements, the collision was caused, by a sudden turn to starboard by the Goldfinch in what, according, to Mr. Ho, appeared to be an attempt to cut across the bow of the Flamingo when the vessels were a few hundred feet apart. 18. Captain Kong's account of the matter was that at four miles the vessels were both travelling "in a straight line" and he maintained speed and bearing until they were about two miles apart and then changed course by 10-15 degrees to starboard so as to put the other vessel upon his port-side. Finding that the relative bearing of the two boats had not altered when they were only half a mile apart, he then altered the course by a further 7 degrees to starboard and kept on at this bearing and at the same speed until they were .2 or .3 of a mile apart with the Flamingo at what he described as 33 to 45 degrees on his portside. At that point he looked down to check his instruments and when he looked up again the Flamingo was only two to three hundred feet away and appeared to be trying to cut across his bow. He then ordered the engineer to shut down the engines and a few seconds later, with his vessel still swinging to starboard, they collided with the Flamingo. 19. This account clearly sought to lay the blame upon the Flamingo for not turning to starboard as he had done but instead altering to port in such a way as to offset his manoeuvres - correct under the relevant regulations - from the time he first altered the course when the vessels were two miles apart. 20. Captain Pyrke was extensively examined by Mr. Lucas and cross-examined by all defence counsel. Mr. Lucas was concerned to demonstrate that even having regard to the contents of the statements and considering the performance alleged in them against the bedrock data of time, position, speed and angle of impact, there must have been a very high degree of negligence on both sides. The difficulty about that was, of course, that the bedrock data were themselves of a distinctly suppositious character. The exact location of the collision was never established with complete accuracy. The position 1.5 miles north of Ching Chow Island was fixed by reference to certain sightings of the two vessels by the chief officer of another foil borne craft, the Sao Jorge, a jetfoil belonging to the Far East Hydrofoil Co. Ltd., which passed the Goldfinch shortly after both vessels had left Macau and which later passed the Flamingo shortly before the collision, after the latter vessel had cleared Fan Lau point on the southern tip of Lantau. It eras this officer's duty to mark the times of passing various landmarks in a log kept for that purpose and the data thus recorded were resorted to for the purpose of trying to fix the position of the collision. The time of sighting of a smoke signal at 9:34 a.m. by another hydrofoil, the Flores, was also enlisted for this purpose. 21. This manner of fixing position was further complicated by the fact that the tide was flowing northward at the time, and the endeavour to establish the location of the collision as nearly as possible relied also in part on making an allowance for the northward drift of the disabled Flamingo to the point at which she sank, regard being had to the rate of flow of the tide at the time of the collision. 22. Again, both of the marine experts who gave evidence, Captain Pyrke and Mr. Tang, were working on an angle of impact between the vessels which was deduced from the damage to both vessels and the disposition and alignment, following impact, of some of the interior furnishings of the Goldfinch. This angle was estimated variously as being between 60-80 degrees (Mr. Tang) and 50-70 degrees (Captain Pyrke). 23. It is not difficult therefore to appreciate that Captain Pyrke was being pressed for fairly definite answers concerning what had happened prior to the accident and as to what was done or not done, or what should have been done, by the three defendants upon a slender basis of facts which also included the variety of imponderables. Amongst the latter was, for example, the same northward flow of the tide which has already been mentioned and its possible effect upon the heading of the two vessels from the moment of first sighting up to the point of impact. Captain Pyrke prepared a number of graphs which are in effect time and motion studies purporting to follow out suggestions put to him by Counsel on the basis of the somewhat exiguous facts contained in the statements. It is perhaps not surprising that there can be found in his evidence answers which give support at times to the Crown and at other times to the defence view of the collision. 24. Mr. Steel, both at the trial and also before this court, has throughout maintained with forceful reiteration: a) that it was not possible for the Crown to ascribe even civil liability - much less criminal responsibility - to any of the defendants without first having established sufficient primary facts in regard to the initial position of the vessels at the time of first sighting and their respective bearings thereafter up to the point of impact; b) that without such facts it is not possible to say with certainty who was at fault under the International Regulation; more particularly to say which was the "stand-on" vessel under Rule 17 of those regulations whose right it would have been to maintain course without alteration until it had become apparent that the vessel at fault was doing nothing to observe her duty to avoid collision; c) that the prosecution had not shown sufficient primary facts, the evidence of the eye witnesses being inadequate and somewhat confused and covering only the last few seconds before the impact; d) that the prosecution did not purport to rely on the contents of any of the defendants statements; e) that nevertheless his client's statements contained the only account of the occurrence which gave anything like a coherent explanation of how the critical situation had been brought about. This statement had furthermore been relied upon to some extent by the trial Judge in finding that Ng Yui-kin had no case to answer. If such statement were true, it established, he said, the Goldfinch as the "stand-on" vessel and the Flamingo as the "give-way" vessel which had therefore been responsible for creating the risk which had resulted in the collision. These were the principal reasons urged by Counsel in support of the first Ground of Appeal which was that the Judge was wrong to have ruled a case to answer against his client. 25. It may be said at once that, if the prosecution had been proposing to bring home its charges solely by showing that all the defendants had displayed a very high degree of negligence in their manner of navigation from the moment when they first became aware of each others approach, it would be difficult to support the finding of case to answer in the absence of evidence to establish with sufficient certainty the relative positions of the two craft at the outset and the manoeuvres performed by each of them thereafter. There was no independent observer who could speak of these matters and the Crown was certainly not relying on the contents of the defendant's statements insofar as these might be regarded as proposing innocent explanations for what had occurred 26. Although Mr. Lucas seemed at one stage prepared to maintain that the inexplicable character of the incident coupled with what he regarded as the demonstrated falsity of the tendered explanations was sufficient to establish gross negligence from the outset, he made it clear that the Crown's primary position was that that degree of negligence had been satisfactorily proved in relation to that short space of time - to which he referred as the "circle of danger" - and which, as we understood him, would have been entered at the point when the vessels were half a mile apart and therefore some 30 seconds only from collision. 27. The prosecution, while not relying on Captain Kong's statement as an innocent explanation of his conduct here fully entitled to have regard to any part of it which told against his interests as one professing to have acted responsibly. What Captain Kong's statement shows is that having seen the other vessel behaving in an unusual and irresponsible manner the only action which he took was to alter course to starboard by a further 7 degrees. As to this at least Captain Pyrke's evidence was unequivocal. Such a manoeuvre under such circumstances was, he said, useless. The only safe course according to him which either vessel could have taken at that stage was to cut the engines and drop upon the hull. There was evidence, accepted by both sides, that these craft are easily manoeuvrable but, more importantly, that they are capable of stopping with dramatic suddenness in a distance of about 250 feet by cutting the engines and going down off the foils. 28. The Judge stressed this aspect of the evidence. He pointed out that Captain Pyrke had said that these hydrofoils can come to a complete stop from full speed ahead in 7-8 seconds, and a little later he said: "He said" (that is Captain Pyrke said) "that if the hydrofoils saw each other at three miles away and decided they should alter course - at three miles away they should alter course then and there. They should not leave it any later. Their approach speed is about a mile a minute. If, however, nothing is done and danger is seen at about half a mile, both vessels should come down on to their hull, they should not at that stage leave it to a change of course, and that at half a mile the safe thing to do is to come down onto the hull." (emphasis added). It is conceded by the Crown that the reference to the need to alter course at 3 miles in that passage is incorrect. What the Captain had in fact said was that when the vessels were three to four miles apart, what they should do was, at a reasonable distance and in ample time, alter course to starboard so as to pass portside to portside in the proper manner. But that mistake in ho way dilutes the importance of the concluding part of that direction with its emphatic insistence upon the need to come down upon the hull instantly once the danger of collision has become imminent. 29. There was therefore, for the jury's consideration, an admission that, on being presented with a situation of extreme danger, and irrespective of how that had come about - and irrespective also of any failure on the part of the other vessel - the applicant, on his own admission, had failed to take the only course which, on the expert evidence he should immediately have taken. But that was, of course, not all that the jury had to consider. There was also the evidence of the passengers and the seamen. 30. In his opening speech Mr. Lucas had sought to contrast what he described as "pandemonium", among the passengers at the observed approach of the Goldfinch with an apparent lack of concern, demonstrated by a lack of immediate action, prevailing in the wheel-house. Mr. Steel took issue with him on this and it may be said that if at the outset Counsel for the Crown was hoping to be able to demonstrate that these dramatically described and opposite conditions had prevailed for the full half minute which would emcompass the traversing of his "circle of danger" - the witnesses for the Crown did not go so fare. All the passengers who observed anything at all spoke of seeing the other hydrofoil approaching at very high speed. The length of time from sight to impact was variously estimated. The least of these purely time estimates was one or two seconds (Mr. Choi Hung Fai) and the greatest about ten seconds (Mr. Kwok Sum). But there were other descriptions of a possibly more reliable and revealing character. One of the witnesses standing at the starboard rail on the deck of the Flamingo said he saw the other hydrofoil when it was at a distance equivalent to the "diagonal of the Hong Kong Stadium" - clearly a substantial distance - which gave him time to comment to his friend on the manner in which the other hydrofoil was approaching. Another gave the first sighting distance as six or seven "American city blocks" or 4-600 yards. This witness was able to exchange a few words with his friend and then, when the Goldfinch was about 200 yards away, they both ducked down and lost sight of her until the crash. According to this witness, there was time for his impression of the approaching vessel to change from one of appreciation of it as a "beautiful sight" to one of accute alarm. 31. A crew member who was in the upper saloon heard someone near him say: "Why is this vessel sailing in such a manner?". He turned and looked out the window and saw the Goldfinch. He then had the time to shout out in alarm five or six times and then to leave the bar where he had been standing and lie flat on the floor between the seats. He said that one or two seconds later the other vessel struck. Other passengers saw less or were less coherent. None of them spoke of any change in direction in the course of either vessel. There were, however, two seamen of the Goldfinch who, shortly before the collision, were sitting on the upper deck facing towards the stern. They both described a sharp turn to starboard by their own vessel which showed in the wake a very short time before the impact. One described it as bending in a sickle shape from a previously straight line. The other noticed this bend in the wake when the Flamingo was about 100 feet away. 32. The statements of Captain Coull and Mr. Ho alleged a perfectly straight course after clearing Fan Lau on the southern tip of Lantau and this received support from Mr. Tang when he inspected the Flamingo and found that all the controls had been frozen in position at the moment of impact. He noted that the starboard foil flap was depressed by 10 mm. and the port flap was up by the same amount. This indicated, he said: "slight port turning; if it has any movement - very slight. In cross-examination later, he said that, since he had also found the helm of the Flamingo in a neutral position, his findings could be consistent with a perfectly straight course of travel by the Flamingo up to the point of impact. 33. There was another factor to which the jury were entitled to have regard. Mr. Lo Kam-sing, the radio officer of the Goldfinch , described a meeting held by Captain Kong on the evening of the 11th July after the accident to which he and several other crew members of both hydrofoils were summoned by Captain Kong. Deck Officer Ng Yui-kin (the 2nd defendant) and Chief Engineer Lam Hok-chung were the other people present from the Goldfinch. Those present from the Flamingo ware the first mate Ho Yim-poon (the 3rd defendant) and Chief Engineer Yuen Wing-yiu. Captain Coull did not attend. The purpose of this meeting was to agree upon an account of what had happened. Captain Kong wanted it established that there had been a sudden inexplicable and uncontrollable "sheer" to starboard by the Goldfinch shortly before the impact and also that he had ordered the engineer to shut down the engines immediately that occurred. Mr. Ho did not speak of any general consensus on these points, but he was clear that the 2nd defendant was prepared to support Captain Kong in this account of the matter and the upshot was that the latter added an entry to the log for the 11th of July, the relevant part of which is as follows:
34. This entry, together with other details subsequently noted, was signed by Captain Kong and by Mr. Ng. 35. Between the date of that meeting and the making of the several statements to the police, the Flying Goldfinch was examined by Mr. Tang and it became apparent that there had had been no mechanical failure or defect in her equipment which could have accounted for any such sudden and uncontrolled turn to the right. It was conceded at the trial that this story in the log was a fabrication. 36. In dealing with this invention the Judge directed the jury not to regard this written entry as direct evidence of how the collision had occurred. He said: "It is only of value in assessing the weight - the reliability of Captain Kong's statement." This was no doubt a reference to the full statement made by Captain Kong several weeks later to the police. What must be noted however is that both stories describe, though in very different terms, a turning to starboard, while the statements of Mr. Ho and Captain Coull described a straight and undeviating course for the Flamingo. 37. All of these statements were before the jury and in Hong Kong such statements when admitted in evidence are there for all purposes whether in part self-serving or not. A jury in Hong Kong is entitled to give to such statements whatever weight they think may be justified (Cheng Chui v. The Queen, 1980 H.K.L.R. 50) It is true that Mr. Lucas more than once informed the jury that the Crown did not present these statements as embodying the truths. He was primarily concerned to use their contents for the purpose of demonstrating, via the evidence in Captain Pyrke, that they did not relieve any of the defendants of the imputation of negligence. It was this which caused Mr. Steel to describe the approach of the prosecution as an exercise in destruction. The law, as it stands, in Hong Kong, can make the prosecution approach to such statements as these appear ambivalent, and it may be that Mr. Lucas so expressed himself to avoid the appearance of ambivalence. However that may be, it is clear that there was matter in these several statements which was capable of being construed as constituting an admission against the interest of the maker and however they were described by counsel for the Crown, and notwithstanding the "destructive" use to which he put them, they were before the jury whose task it was to consider them and form an estimate as to their value and as to what extent, if any, they could be relied upon as revealing in whole or part the truth. 38. Thus there was before the Judge at the stage of the submission of no case, and before the jury ultimately, a body of evidence tending to show that the Goldfinch had made a turn to starboard at a very late stage with the apparent intent of cutting across the bow of the other vessel which had, up to then, been travelling in a straight line and that it was this which had either (on the defendant's story) brought a dangerous situation - itself the result of inadequate lookout on both vessels - to the pitch of disaster; or else, (on the Flamingo version) had produced disaster from a situation which up to then had threatened nothing of the kind. 39. There remained the reality that even on the latter view of the matter it should have been open to the helmsmen or masters of both craft to avoid disaster by going immediately down upon the hull on the first perception of the crisis, or at any rate within the 30 seconds still remaining after the moment when, on any rational reckoning, the existence of a crisis ought to have become apparent to any one keeping lookout. Even if such action had been taken by either vessel in the last 10 seconds it seems clear, assuming that the other vessel held on its way, that there could have been no collision; and if taken by both vessels simultaneously this would, at worst, have resulted in damage greatly less than that which occurred. 40. Mr. Steel, arguing from the perspective of these Collision Regulations and the lack of data to establish headings and bearings throughout the entire passage of these vessels up to the last half mile considered the jury's verdict to be inexplicable. Indeed, it is often not very profitable to try to construe the verdict of a jury. But in the shortened perspective of the last 30 seconds, this verdict may perhaps not appear especially inscrutable. The jury had been told by Captain Pyrke that the heaviest responsibility for keeping lookout fell not on the helmsman, whose attention should be directed to the waters directly ahead and circumscribed by what the witness called "tunnel-vision" owing to the need to watch out for obstructions in the vessel's immediate track, but on the officer sitting or standing to the helmsman's left and charged specifically with the task of general surveillance. The helmsman on the Flamingo visa the Deck Officer Mr. Ho, the lookout Captain Coull. The situation on the Goldfinch was the reverse of that. In the case of the first mate, Ng Yui-kin, there was the admission by Captain Kong in his statement that he had seen and had been observing the Flamingo throughout her approach. It was this which caused the Judge to accede to the submission of No Case in regard to Mr. Ng. He took the view that once the mate was aware that the helmsman, Captain Kong, had observed the Flamingo, there was no need for him to inform the Captain of anything further so that there was no evidence to show anything in the conduct of Mr. Ng which could reasonably be regarded as causative of the accident. Indeed, he so informed the jury upon their return following the conclusion of the No Case submissions, in explaining to them the absence of the second defendant from the dock. A point is taken on this by Mr. Steel, to that we will return. 41. As to the remainder of the verdict, it may reasonably be read against the contents of the statements of Captain Coull and Mr. Ho both of which alleged a straight course for the Flamingo and an expectation, from the apparent bearing of the other vessel, that there would be a starboard to starboard passing at 5-600 feet which, on Captain Pyrke's evidence would have been safe. Mr. Ho's statement said that he had then concentrated on what lay immediately ahead and he accounted for the collision by an attempt on the part of the Goldfinch to cut across his bow which he observed when she was only 200 feet away. Captain Coull on his showing had not perceived the crisis until he heard Mr. Ho cry out, and by then the Goldfinch was upon them. 42. The acquittal of Mr. Ho, the helmsman of the Flamingo, would suggest that the jury had found the immediate cause of the collision in a late and unexpected turn to starboard by the Goldfinch, something which the lookout rather than the helmsman should have seen. There was some evidence from the radio officer of the Flamingo that Captain Coull was seated beside Mr. Ho with some papers including a newspaper lying on a flat surface in front of him. There was no evidence that he had actually been reading the newspaper. The verdict in his case obviously reflected some dissatisfaction with his performance of the duty of lookout. But as a verdict of acquittal, it would accord with the view that there was an acceptance by the majority that the real blame for failing to take effective action in the critical last 30 seconds lay with the other vessel. 43. Mr. Steel drew our attention to a number of statements - some 11 or 12 in all - in the summing-up which he categorised as factual errors damaging to his client's case. Although this was keenly disputed by Mr. Lucas, there clearly were some instances of mis-statement or misunderstanding of the evidence. Thus, for example, the Judge said that Captain Pyrke's evidence was, that on reciprocal courses, five to six hundred feet would be a minimum safe crossing distances. In fact, what the witness said was that that would be just acceptable if the vessels were passing each other starboard to starboard. There was a confusion at this point since the Judge 71 went on at once to tell the jury that "five to six hundred yards would of course be perfectly safe". This latter was a reference to Captain Pyrke's opinion as to what a safe distance would be on reciprocal crossing courses, the vessels having altered course while still 3-4 miles apart. 44. Again, there is some confusion where the Judge is dealing with a rather complicated series of questions and answers the general purport of which was to test certain hypotheses put to Captain Pyrke by counsel as to what action had been and what should have been taken on certain assumptions deriving from some of the statements and including assumptions as to the angle of impact and the headings of the two vessels at earlier stages in their approach to the point of collision. Concerning all this Captain Pyrke had plotted a variety of courses on graph paper, Mr. Steel's complaint is that the Judge misunderstood and to some extent misrepresented the possibilities elicited thus in evidence. A further objection is that the Judge also pointed out that Captain Pyrke had said that both vessels should have been using radar to check bearings, without reminding the jury that the witness had related the superior accuracy of such checking, over visual checking, to radar equipment which was gyro-stabilized, which was not the case on these two hydrofoils. 45. It might have been that these matters would have had a serious bearing on the jury's verdict if the Crown's case had depended substantially on showing gross negligence in the manner of navigation of the vessels from the moment of mutual sighting and thereafter throughout the course of sailing up to the point of impact. Within that perspective the emphasis laid on what Counsel alleged was a perfunctory treatment of the collision regulations by the Judge is understandable. Mr. Steel stressed the need to support such a charge as this by demonstrating where the responsibility lay for the creation of the risk. He argued that the Crown's concentration on the final moments was an attempt to discharge a criminal onus by the application of a doctrine vanished even from the field of civil law - the concept of the "last opportunity". But, with respect, that seems to misconceive the whole thrust of the prosecution case which was that, whatever had gone on before entry into the "circle of danger", there had thereafter been, on such facts as were available, an adequate and mutual opportunity of avoiding disaster by stopping the engines and going down off the foils. This part of Captain Pyrke's evidence was strongly underlined by the Judge more than once, (see pages 19 and 21 of the Summing-up) and there is no doubt that it was emphasized by that witness himself as the sovereign remedy against disaster in such crises of close encounter between foil-borne craft, however caused. The evidence at the conclusion of the Crown's case for consideration by the Judge, and the evidence ultimately for consideration by the jury, was a body of circumstances which included the following:
46. Against all this the jury had nothing further to go on in the form of sworn testimony by the applicant or the other defendants. It is not, we think, possible to say that there was not sufficient matter indicating a high degree of negligence to go to the jury for their consideration. 47. We would, however, add that we cannot agree with Mr. Lucas in his contention that in such cases as this the Judge must always leave the case to the jury, provided he is satisfied that there is evidence of some degree of negligence in the conduct of the accused, - something more than minimal negligence - so that it would be for them to say whether in all the circumstances they regard it as sufficiently grave to be criminal. It must surely be left within the Judge's discretion to take the case away if he is satisfied that the evidence could not reasonably be regarded as indicating anything more than a question of private compensation between individuals. 48. There remains, however, a final and a formidable objection on the law. Mr. Steel presented it as a short answer to the case against his client which avoids all necessity to investigate the facts or to examine the juris-prudential basis of manslaughter or its history. This is a point which concerns the direction given early on in the Summing-up to the jury on the vital matter of the proper test for manslaughter by a negligent act or acts. 49. The Judge was, no doubt, well aware that the current state of the law of manslaughter by negligence presents pitfalls for the unwary trial Judge and his concern that the jury should be properly instructed is evidenced by the carefully chosen formula which he caused to be prepared in writing and copies of which were put in the hands of the jury subsequent to its oral delivery in the course of the Summing-up. 50. That formula corresponds closely with what appears in the text of Archbold (44th Ed.) para. 20-49. Mr. Steel says that it is quite simply wrong in that it is materially different from the model direction provided by Lord Diplock in Reg. v. Lawrence [1981] 1 All E.R. 974 (at page 982) as approved by the House of Lords in Reg. v. Seymour [1983] 2 All E.R. 1058. The decision of the House of Lords had not yet been announced at the date of the Summing-up in the present cases. This direction, Counsel says, must now as a matter of law be strictly adhered to in all cases where the Crown seeks to bring home a charge of manslaughter based on conduct which is said to have been criminally negligent. 51. Seymour was a case in which the charge was causing death by reckless driving, but it is now common ground that, at least since the decision of the House of Lords in Jennings v. United States Government [1983] Appeal Cases 624, the degree of negligence which must be established in order to prove the Common Law offence of manslaughter based upon the negligence of the accused is no different from that which must be shown in support of a charge of causing death by reckless driving, notwithstanding that the statutory offence is regarded as the less serious of the two. The kind of negligence to be proved to establish manslaughter may in many cases properly be described as recklessness, although this state of mind may not accurately describe the mens rea in all cases of causing death by negligent conduct (see the speech of Lord Atkin in Andrews v. Director of Public Prosecution [1937] A.C. at page 583). 52. The "model direction" in Lawrence was propounded by Lord Diplock in this way (page 982):
53. The particular direction given to the jury on this point in the present case was admittedly one of fundamental importance to their understanding of how to set about the task of estimating the conduct of the applicant, and since this passage has been strongly criticised on several scores, it will be helpful to set it out in full before considering its apparent sources and the manner in which it is said to have misstated the law.
54. The words from "firstly" down to "negligible" are in the main a paraphrasing of what was said by Lord Diplock in the passage from his speech in Lawrence which immediately precedes the announcement of the "appropriate direction". The reference to "some injury" albeit not necessarily "serious" etc., reflects the opinion of the Court of Appeal in Reg. v. Stone and Dobinson [1977] 64 Cr. App. Rep. 186; while the concluding words: "or was guilty of such a high degree of negligence ..." etc. are clearly a composite made-up of some of the expressions used by Hewart L.C.J. in the case of Bateman [1925] 19 Cr. App. Rep. 8 (at pages 11 and 12 of the report) later approved by Lord Atkin in Andrew's case and amplified by him in reference to the term "reckless" (page 583 of the report) which he regarded as being closest to the ideal epithet to cover the mens rea of manslaughter. Lord Atkin suggested that the term might not fit the state of mind of one who perceived a risk and endeavoured to avoid it by means which were themselves so negligent as to justify a conviction. 55. The debate as to whether "recklessness" and "gross negligence" are equivalent and equally appropriate terms to denote the high degree of negligence required for manslaughter in all cases continues especially at the academic level (see Archbold: 41st Edition, page 1421, para. 20-49 and Glanville Williams: Textbook of Criminal Law, pages 227 and 229). 56. These terms have certainly been used as equivalent in cases such as Reg. v. Lamb [1967] 2 Q.B. 981 and Reg. v. Cato [1976] 1 All E.R. 260 and there is no need to contribute to that particular part of the controversy in the present case since the term "reckless" was not employed anywhere by the trial Judge. He did refer to "gross negligence" and it has not been contended before us that that was anything other than a proper description of the very high degree of negligence which the Crown must show to support its charge. Mr. Steel's complaint is that in giving the direction which has been set out above, rather than something substantially on the lines of Lord Diplock's "appropriate direction" the Judge had wholly failed to bring home to the jury the high degree of negligence which they must find before convicting. There had been, Counsel said, a failure to draw any effective distinction between negligence and gross negligence. 57. In support of this contention Counsel points, firstly, to the direction set out above. His objection to that is, as it seems to us, the more serious objection and we will return to it after considering the other two points made in this connexion. 58. The first of these latter two points is directed at what was said by the Judge very shortly after giving his principal direction on negligence. He is still dealing with the concept of criminal negligence and he says:
59. This contrast between "trivial mistakes" and "gross error" must, Mr. Steel says, have left the jury with the impression a) that anything which was not a mere trivial mistake must amount to a gross error; and b) that since the applicant and his colleagues were still before the jury - although Mr. Ng had, upon the Judge's direction, gone out of the case - the Judge was suggesting that the error of the remaining defendants must have been a gross error. As to this latter point, the jury had been warned that the verdict must turn solely upon the evidence and that neither the Judge's views nor those of counsel constituted evidence. The first part of that objection (a) above) would seem to have been adequately disposed of by what the Judge said a few sentences later when, having pointed out the high duty of care which, as Mr. Steel concedes, was owed to the passengers of these vessels by the navigators of them, he said:
60. Counsel's next point relates to what was said by the Judge when he apprised the jury of his reason for directing the acquittal of Mr. Ng. This appears on page 4 of the Summing-up:
61. A subsidiary point taken on this was in effect that the Judge, having relied on the statement of Captain Kong in absolving Mr. Ng, should have regarded that statement as true, the implication being that it was illogical to have founded the acquittal of Mr. Ng upon it, without advising the jury that they ought to regard it as containing the truth in Captain Kong's regard as wells. That point - not relevant to the matter of present concern - has already been dealt with by the invocation of the decision in Chang Chiu v. The Queen. The jury, no less than the Judge, were entitled to have regard to every admission or assertion of fact contained the statement and to give to each what weight they thought it deserved. Moreover, the part of it relied upon by the Judge was not of itself self-exculpatory. 62. The substantial objection on this passage, however, is that the Judge, in the first three or four lines, appears to suggest that whereas gross negligence must be shown in relation to an omission to act, negligence of any kind is sufficient to render criminal any positive act which may have caused the risk complained of. This was no doubt a slip of the tongue and if nothing more were to be said as to the main direction on negligence which followed closely after that, it would seem most unlikely that the jury, if indeed they were misled to any degree by it, would not have been put right by reference to the need to show gross negligence in the passage (quoted above) which followed that main direction. 63. It is to that direction, however, that we must finally turn. 64. Mr. Steel points out that while the second part of the trial Judge's direction is drawn upon the model proposed by Lord Diplock in Lawrence and closely follows the wording of the second limb of that direction, the first limb of that direction - which counsel maintains to be essential to the whole - does not appear anywhere in the summing-up: and further that the part of the Judge's direction commencing with the words: "firstly, that at the time he caused the deceased's deaths" is drawn substantially from that part of Lord Diplock's argument which immediately precedes the "model direction" itself. There was, in other words, counsel says, a failure to point out that the jury must be satisfied that the applicant had navigated the vessel" in such a manner as to cause an obvious and serious risk of causing physical injury to some other person." 65. Undoubtedly the earlier part of the written direction given by the trial Judge would seem, on the face of it, to mean that provided the jury were satisfied that the defendant's conduct had involved even a small risk of minor damage they could nevertheless convict him on the charge. Although the language used by the Judge reflects to some extent that used by Lord Diplock in approaching his "model" direction, it obviously proposes a test of a very much less stringent character than that which appears in the first limb of that direction, viz: "an obvious and serious risk of physical damage". It is to be presumed that this phrase means, and was intended to mean, an obvious risk of serious physical damage, i.e. that it corresponds with the "kind of serious harmful consequences" referred to by Lord Diplock earlier. It is true that he qualified this description by contrasting it with a risk of a negligible nature which a prudent person might safely disregard - the phrase adopted by the trial Judge in the present case - but in view of the proposed model that was, presumably, not intended to suggest that anything above a mere negligible risk would suffice to fix the risk - taker with criminal negligence, but only to underline the correlation between the gravity of the perceived risk and the likelihood of the prudent individuals avoiding it. This nexus between degree of frisk and degree of negligence is emphasized again by Lord Diplock in Caldwell (1981) 1 All E.R. 961 at (p.966). 66. When Seymour's case went to the House of Lords the need to emphasize the high degree of risk which, if taken would support the allegation of recklessness on the part of the accused was further fortified in the concluding paragraph in the speech of Lord Roskill - the leading speech with which the majority, including Lord Diplock, agreed. There is no doubt that this paragraph expresses the ratio of the case since it answers the question posed for consideration by the House. The question and the answer are as follows: Question posed to the House :-
Lord Roskill's answer :-
67. This decision has been criticised as self-contradictory (See the analysis of it by Professor J.C. Smith in the Criminal law Review (1983) at page 742). With due respect to that opinion we do not think that any contradiction is involved if the terms used by Lord Diplock in the "Lawrence direction" are understood in the way suggested earlier in this judgment. If, that is to say, a very high risk of death and an obvious risk of serious physical injury can, for practical purposes, be said to be the same. But the effect of Seymour undoubtedly is to oblige a direction to the effect that the risk of death must be very high and it is to this risk that the attention of the jury must be drawn in considering whether the conduct of the accused amounts to criminal negligence. 68. Such a direction was not given in the present case which is scarcely surprising since the authoritative explication and endorsement of Lawrence was not yet available for the guidance of the trial Judge - anymore than it was at that date for the enlightment of the editors of the leading manual of procedure and practice most frequently consulted by practitioners. The question is whether the direction in its entirety can be said to have sufficed to put the jury on the right track. 69. It must not be overlooked that what Lord Diplock proposed in Lawrence was "an appropriate direction". While this was said in Seymour to be appropriate also where the charge was manslaughter, we do not understand that case as going so far as to say that the failure to follow this formula exactly in all cases of "negligence manslaughter" will necessarily vitiate a conviction. Part of the concern caused in academic circles by the decision of the House of Lords in Seymour is due to the apprehension that, if it is to be applied generally in all cases, it might be said to have narrowed the mens rea of the offence of manslaughter, thus outflanking - without expressly disapproving - such cases as Stone v. Dobinson (supra) and Gray v. Barr [1971] 2 All E.R. 949 (see Smith Loc.cit. page 744). 70. A possible question therefore remains as to whether this "high risk of death" is a prescription which is to be confined to cases alleging recklessness in the driving of motor vehicles on the highway. That is to some extent an anomalous area of criminal negligence inasmuch as two distinct offences persist side by side the ingredients of which are said to be identical (R. v. Jennings) requiring precisely the same degree of recklessness to substantiate them, yet one of which - manslaughter - is said to be the graver offence involving a higher degree of moral turpitude (per Lord Roskill in Seymour). 71. Secondly, and perhaps more tellingly, it is to be noted that, although the Court of Appeal in Seymour's case when approving the "Lawrence direction" said, a) that that direction was of general application to all offences resting on a basis of recklessness; b) that it should be given to juries without being in any way diluted; c) that "it is no longer necessary or helpful to make reference to compensation and negligence", none of these propositions was expressly endorsed in the House of Lords where, by contrast, having amplified the formula of Lawrence by an explicit reference to a "high risk of death", the direction given by the trial Judge in that case was approved as "admirably clear" and a proper reflection of the decision in both Lawrence and Andrews (page 1063). That direction included a direction on the lines of Bateman and Andrews. 72. In the present case, the Judge appended to his partial quotation of the "Lawrence direction", a further direction based on Bateman and Andrews, posing the test of negligence of such a high degree "as to go beyond the mere matter of compensation ...etc." in relation to the means taken to avoid the risk. This, while undoubtedly an excrescence (as Mr. Steel put it) on the plain "Lawrence direction", was of all the expressions used by the Judge the one which was most likely to convey lively appreciation of the kind of negligence required to support the charge. This was followed shortly afterwards by a reference to the high degree of care which was demanded of the defendants by reason of their special skill as qualified navigators. Mr. Steel conceded that a high degree of care - related to that skill - was required of the defendants. In relation to this the Judge said (page 6 of the Summing-up): "The question is, then, firstly, did they not exercise that high degree of care? Was it such an omission as to be gross negligence .... It is a test which goes considerably beyond what would be the situation if this was a civil trial". 73. Lord Atkin in Andrews while noting the element of circularity in Lord Hewart's formula in Bateman (1937 A.C. at page 583) went on to say:
74. Eminent academic opinion of much more recent date puts the matter this way:
75. Be these opinions prescient or not in relation to the course which the law of manslaughter may take following Seymour, it does not seem to this court that this concluding clause of the Judge's written direction in any way diluted what was correctly reproduced from the "Lawrence direction" but was, on the contrary, most likely, taken together with his several references to gross negligence (at pages 4 & 6 and emphasized again at the close of the Summing-up at page 31), to repair its earlier deficiency by concentrating the attention of the jury on the facts, which included evidence of a very late and drastic manoeuvre by a skilled navigator which the jury were entitled to regard either as creating a risk where none had existed or else as adopting a grossly negligent manner of dealing with a situation involving some risk, whether that was caused by the applicant or by the other navigator, or by both of them together. The final reference to gross negligence (p.31) given just before the jury repaired to their task must have been extremely helpful in drawing to their attention the gravity of the burden to be discharged by the prosecution. That is as follows:
76. For these reasons we allow the application and dismiss the appeal. Representation: David Steel, Q.C. & R. Walters (Hampton, Winter & Glynn) for the Applicant. Max Lucas, Q.C. & Jenkyn-Jones for Respondent/Crown. |
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