Captain Hsieh Chih Chien v. The Queen

Case No.CACC 1065/1980

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC001065/1980

Criminal law and procedure - fine - principles - overloaded ship - fine imposed beyond master's means - undertaking by owners - whether concept of "nominal defendant" known to criminal law.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1065 OF 1980

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Between
	Captain Hsieh Chin Chien	Appellant
	and
	The Queen	Respondent

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Coram: Hon. Fuad, J.

Date of Judgment: 29th January, 1981

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JUDGMENT

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1. On the 20th November 1980, Caption Hsieh Chih Chien, the master of the Char Loong, registered in Panama, appeared before a Magistrate's Court charged with an offence contrary to sections 14 and 4 of the Merchant Shipping (Lord Lines) (Hong Kong) Order 1970. By this Order in Council, the provisions of the United Kingdom Merchant Shipping (Load Lines) Act 1967 were extended to Hong Kong as modified and adapted in the Schedule to the Order. The Order provides sanctions against the overloading of ships by prohibiting the submergence of load lines (colloquially called, I believe, "plimsoll lines"). Section 14 of the Schedule to the Order deals with ships registered outside the jurisdiction, and section 4 with those locally registered. Subsection (2) of section 14 applies subsections (2) and (3) of section 4 to contraventions under section 14, and those subsections are in the following terms:

"(2) If any ship is loaded in contravention of the preceding subsection, the owner or master of the ship shall (subject to subsection (5) of this section) be guilty of an offence and liable on summary conviction-

	(a)	to a fine not exceeding six thousand dollars, and
	(b)	to such additional fine, not exceeding an amount calculated in accordance with the next following subsection, as the court thinks fit to impose, having regard to the extent to which the earning capacity of the ship was increased by reason of the contravention.

(3) Any additional fine imposed under section (2) (b) of this section shall not exceed six thousand dollars for every complete inch and for any fraction of an inch over and above one or more complete inches, by which-

	(a)	in a case falling within paragraph (a) of subsection (1) of this section, the appropriate load Ling on each side of the ship was submerged, or
	(b)	in a case falling within paragraph (b) of that subsection, the appropriate Load line on each side of the ship would have been submerged as therein mentioned;

and, if the amount by which that load line was or would have been submerged was less than a complete inch, any such additional fine shall not exceed six thousand dollars."

2. The Captain pleaded guilty and was ordered to pay a fine of $6,000, with an additional fine of $3,500 in respect of each of the 28 inches by which the load lines were submerged, making a total of $10,000. From this sentence he now appeals to this Court.

3. After recording a conviction, the learned magistrate was given the facts by a Senior Surveyor of the Marine Department and it must be said at once that this was a very grave contravention indeed. So much was very properly conceded by Mr. Geoffrey Ma who represented the appellant in the lower court and on this appeal. The Char Loong was slightly overloaded when she came into port and a considerable amount of cargo and water was taken on so that the ship's crew of about 26 were placed at great risk. This was the worst case of overloading to come to notice since records began to be kept nearly 30 years ago.

4. In addressing the learned magistrate in mitigation, Mr. Ma did not seek to minimise the seriousness of the case, but submitted that it would be wrong to equate the responsibilities of the owner to those of the master. It was the owner who gained financially and he had been instructed that the Captain would not have been eligible for a "cargo bonus". The Captain's salary was $6,000 per month and he had a wife and two children. He also supported his elderly parents. The master's ability to pay was the important consideration, and he had been instructed that the fine would be deducted from the Captain's salary.

5. Mr. Ma then produced a copy of a letter from the vessel's local agents, dated 7th November 1980, and addressed to the Marine Department and to the Government, which read:

"As Managers of the above vessel, and for and on behalf of the vessel's registered owners and Captain Hsieh Chih Chien, we hereby undertake to pay such fine as the said Captain Hsieh Chih Chien may be ordered to pay arising out of the above summons not exceeding the sum of Hk$180,000".

6. Mr. Ma then called the author of the letter who said that he had been advised both by his solicitors and by the Marine Department "that if the ship was to sail I should write this letter". He added that he had been authorised to do sc by the owners, on the telephone. Mr. Ma also called the appellant's solicitor who explained to the Court that he had arranged for the letter to be written because the ship was under a detention order and he had been concerned lest the ship's sailing be delayed. The letter was merely security that the fine, up to the amount stated, would be paid by the owners. The witness agreed, in answer to a question put by the learned magistrate, that the ship could not be detained if properly loaded.

7. The learned magistrate recorded his reasons at the time he passed sentence, and these were amplified in his Statement of Findings. He began by recounting the facts, and about the sentence had this to say:

	"In this Statement of Findings I will not refer to the other cases to which Counsel referred, as he will doubtless cite them again at the appeal. But I should stress that I fully accepted the established principle, that a defendant should be fined in accordance with his ability to pay. This principle is invariably applied. But in sentencing the appellant I said that I know of no rule that limits the interpretation of the term "the defendant's ability to pay" to his regular, normal, income. In this case the court had received a letter from the agents, in clear and unequivocal terms, (Document D2 of the record), that they "hereby undertake to pay any fine that Captain Hsieh may be ordered to pay, up to $180,000". The court had been told by defence counsel that this letter was written on the express telephoned authority of the shipowners in Taiwan. So the defendant's ability to pay in this case was $180,000; the ship owners had seen to it that it was so, and very properly in my view. I did not accept counsel's contention that, having written the letter, they could now be heard to say they only wrote it in order to ensure that the ship could be released from detention. The evidence was in fact that once the overloading had been rectified the ship could not be, and was not, further detained by the authorities. But I considered that the important point was that whatever their motive in writing the letter D2 - whether to save themselves further loss over and above that already incurred due to the detection of the unlawful overloading, or whether for some other reason, they had by their letter categorically and intentionally placed the master in a position to pay the fine, so that he now had the ability to pay, as they clearly intended he should have.
	As regard the amount of the fine imposed, the appellant had been prepared to risk the lives of 26 officers and crewmen by sailing into the South China sea during the typhoon season with his ship heavily overloaded. Had he not been detected - and this was not challenged at the hearing - his owners would have earned an excess sum of over $400,000 by this callous act. I considered that in all the circumstances a fine sufficient to deter others was necessary for the protection of seafaring men."

8. This appeal was filed on the 8th December 1980 and the fine was paid by the appellant's solicitors 10 days later, pending its outcome.

9. Before me, Mr. Ma once again acknowledged the gravity of the offence and did not quarrel with the arithmetical computation of the penalty, but he contended that the learned magistrate's approach had been wrong in principle. The court should have applied the well established principles that a fine should be within the offender's capacity to pay, and should not be imposed on the assumption that someone other than the offender would or might pay. He submitted that the learned magistrate had erred in concluding that the agent's letter had placed the appellant in the position of being able to pay any fine up to $180,000.

10. He cited a number of English cases which supported the proposition that it was wrong in principle to assess a fine on the assumption that some- one other than the offender would pay it. Among the cases cited were R. v. Baxter [1974] Crim. L.R. 611: R. v. Deaga [1977] Crim. L.R. 236: R v. Lewis [1965] Crim. L.R. 121 and R. v. Draga 10.10.75 3231/A/75. With regard to the general principle that a fine must be within an offender's means to pay, Mr. Ma relied on R. v. King [1970] 1 W.L.R. 1016 but, of course, there is ample authority for this proposition much nearer home, for example, Chan Sam v. R. [1938] H.K.L.R. 401: Attorney General v. Pang Lau /19757 H.K.L.R. 297 and Chan Sau-chun & Another v. R. [1977] H. K. L. R. 602.

11. In supporting the sentence Mr. Gall, for the Crown, submitted that the answer to Mr. Ma's arguments was to be found in the following passage (at page 322) of THOMAS' PRINCIPLES SENTENCING (2nd Edition):

"Although the sentencer is under an obligation to ensure that the fine is reasonably related to the offender's income and resources, he is entitled (although not bound) to rely on information provided by Where offender. offender provides information which leads the sentencer to overestimate his resources, he cannot complain that the fine or other financial order is excessive."

12. Mr. Gall pointed out that although the letter had, of course, been in the Crown's possession, no reference had been made to it by the prosecution. The whole issue had been raised by the defendant at the trial. The letter from the agents was written expressly for and on behalf of the owners and the Caption, and the fine had in fact since been paid. The undertaking had thus been honoured.

13. In reply, Mr. Ma explained that the defence had introduced the letter for it would otherwise undoubtedly have been produced by the Marine Department. He had not wished to hide the matter. The fact that the fine had been paid, pending appeal, did not affect the position. There was a very great distinction between a moral and a legal obligation. The appellant had not misled the learned magistrate as to his means at the hearing, and so the passage quoted from THOMAS by Mr. Gall was not applicable.

14. As so plainly indicated in the learned magistrate's Statement of Findings, he was fully aware of the established principle that in imposing a fine the Court must have regard to the means of the offender, but he felt that whatever may have been the motives which had prompted the agents to write their letter, they had thereby "caterogically and intentionally placed the master in a position to pay the fine, so that he now had the ability to pay, as they clearly intended he should have".

15. I find myself unable to uphold this robust decision made by a very experienced magistrate who obviously took great care over the case. The principle that a fine must be within the capacity of the offender to pay is too fundamental and well settled to permit it to be departed from. While it is quite clear why the Crown was able only to charge the master (the owners are beyond the jurisdiction, in Taiwan), the fact is that the master, and not the owners, was before the Court. Perhaps the clue to the approach by the learned magistrate which I have been constrained to hold was erroneous, is to be found in the following sentence of his Statement of Findings:

"I did not accept counsel's contention that having written the letter the ship owners could now be heard to say they only wrote it in order to ensure that the ship could be released from detention."

16. The undertaking contained in the letter was not, of course, legally enforceable but the view was perfectly valid that the owners went back on their promise in a manner that did them little credit. However, they were not parties to these proceedings. Mr. Gall referred me to a passage in a letter written by the London Solicitors Norton, Rose, Botterell and Roche which was made available by the defence to the learned magistrate, and which gives an account of the hearing of an appeal by Judge Bruce Griffiths Q.C. in a Crown Court in Britain, where magistrates had imposed a fine upon the master of a ship, in an oil pollution case, that was well beyond his means. The passage was as follows:

"The Judge said that he had no doubt that where a Court was told that the defendant being nominally the master was to be indemnified by the owner, this would constitute sufficient grounds for saying that the means available for satisfying the fine were unlimited and that the master was standing in the place of the shipowners. The Judge emphasised, however, that such a view should only be taken where there was information before the magistrate to that effect, and they were invited to proceed on that basis. Where there has no such evidence, or they were not so invited, there by the general provisions of criminal law relating to sentencing procedures the magistrates must deal with a master as an individual and not proceed as if the owners were the defendant." [emphasis mine]

17. If the learned Judge was correctly reported, with respect, there is, so far as I am aware, no concept of "nominal defendants" known to the criminal law - but even in his view (as the part of the passage quoted above that I have emphasised indicates) a sentencing court imposing a fine beyond a master's capacity to pay personally, must have been invited to assess the fine on the basis that he would be indemnified by the owners. Here the learned magistrate was not so invited - indeed strenuous submissions to the contrary were advanced when the interpretation placed on the letter by the prosecution was challenged. In the circumstances envisaged by Judge Bruce Griffiths it is difficult to imagine that an appeal against sentence would be made.

18. I express some regret that the learned magistrate's very under-standable desire to deprive the owners of part of the profits they gained as a direct result of this flagrant and dangerous breach of the law must, on the authorities which bind this Court, be frustrated, and the element of deterrence thereby removed.

19. For the reasons I have given, I allow the appeal to the extent of reducing the fine to one of $8,000 which I judge, on the information given to the Court, to be within the capacity of the Captain to pay.

	(K.T. Fuad)
	Judge of the High Court

Representation:

Mr. Geoffrey Ma (J.S.M.) for appellant

Mr. T.M. Gall, Senior Crown Counsel, for respondent