HKSAR v. Ng Yan Tim

DCCC 920/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

CRIMINAL CASE NO. 920 OF 2008

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Before:  District Judge J Yau

Date:  3 April 2009 at 12:30 pm

Charge: Endangering safety of others (危及他人安全罪)

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to a charge of endangering the safety of others, contrary to section 32 of the Merchant Shipping (Local Vessels) Ordinance, Cap 548 (“the MSLVO”).

2. The particulars of offence are that the defendant, on the 18^th day of October, 2007, in Hong Kong, endangered or caused to be endangered the safety of LAI Loy-fook, ZHU Yuzhen, TAN Chengjiao, CHEN Han and TANG Yau-choi conveyed in the boat bearing registration number BM40070C, namely, navigating the said boat out of Cheung Chau typhoon shelter knowingly against the restriction of his navigating certificate, without any reasonable excuse, permitting the heavy cargos be loaded together with the said five passengers on board the said boat and navigating the said boat to Siu A Chau. 

Facts Admitted

3. According to the facts admitted by the defendant the 5 passengers named in the charge got on board of his boat bearing registration number BM40070C (“the boat”) at Tong Fook Pier in Lantau Island.  Bricks, cement and sand estimated to be 1,739 kg in weight were also loaded on board of the boat. 

4. After the boat had sailed for about 15 minutes seawater started to run over the bow into the compartment of the boat.  The defendant as the coxswain of the boat told the passengers to change their seats to keep it in balance.  As the situation deteriorated the defendant and the passengers started to throw bricks into the sea.  The boat, however, sank and 3 of the passengers were killed. 

5. The defendant was arrested and he admitted under caution: 

(a)  he held a Restricted Master Certificate issue by the Marine Department which allowed him to navigate the boat within Cheung Chau typhoon shelter only;

(b)  he received an order to convey the passengers and cargo form Tong Fook Pier to Siu A Chau; 

(c)  after the boat had set off for 5 minutes it started to roll side to side due to overloading and heavy sea current;

(d) the defendant had wanted to turn back but LAI Loy-fook insisted to continue with the voyage and the defendant backed off; 

(e)  the boat sank about 4 miles from Siu A Chau and only the defendant and 2 of the passengers were rescued.    

6. According to the ship surveyor’s report the boat sank because of overloading which resulted in large amount of seawater getting into the lower compartment of the boat from the bow.  The sinking could have been avoided had the boat not been overloaded. 

Criminal Record

7.The defendant has a clear record.

Background Report

8. The court obtains a background report of the defendant before sentencing.  According to the report the defendant is aged 61, married with 5 grown up children and 2 grandchildren.  He was brought up in a fisherman family and had received no education.  He assisted in the family fishing business when he was young and when the business closed down about 30 years ago he became a causal labourer. 

9. About 10 years ago he bought a motorised boat and became its coxswain until he was arrested for the present case.  He is described by his wife and children  as a dutiful husband, a loving father and a filial son who has no vice habits and lives a decent life. 

10. According to the probation officer compiling the background report the defendant committed the offence for a reward of $500.  He is now remorseful for offending the law and is sorry for the serious harms done to the victims and their families.  He had tried to commit suicide twice because of shamefulness but had been stopped or rescued.  The defendant appears to have learnt a bitter lesson and has shown determination to stay law-abiding in future.   

Mitigation

11. Counsel for the defendant points out in mitigation that the defendant initially asked to convey the cargo in 2 trips but was refused by LAI Loy-fook, one of the deceased passengers who gave him the order.  When the boat rocked because of the sea conditions he asked to go back but LAI again insisted to proceed.  The defendant foolishly gave in thus resulting in the tragedy.  He was therefore not to be blamed wholly for the incident.  As a result of what had happened the defendant has suffered mental anxiety and anguish and has even made 2 suicide attempts. 

12. According to the counsel the defendant purchased the boat 3 years ago for ferrying people within Cheung Chau typhoon shelter, earning about $6000 to $7000 a month.  The boat was seaworthy and had sufficient life saving appliances for 10 passengers at the time of the incident.  The defendant foolishly agreed to accept LAI’s order to carry the cargo and passengers to Siu A Chau in breach of the conditions of his Restricted Master Certificate because of the reward of $500.  He has now lost the boat and will not repeat the offence. 

13. The counsel submits letters of mitigation from the chairman of the Cheung Chau Rural Committee, a friend of the defendant of Hong Kong Fishermen’s Association, his children and his wife.  They describe the defendant as a law-abiding citizen who is active in community services and charitable causes, a hardworking person, a loving and responsible husband and father and an honest person.  According to them the defendant has suffered tremendous stress because of the incident.  They all ask the court to be lenient to the defendant.

14. The counsel cites the case of HKSAR v CHOW Tin Shing CACC 85/2007 to the court as a reference in sentencing.  He asks the court to consider the degree of danger created by the defendant instead of the amount of damages caused or number of people killed in determining the sentence.  He submits that although the offence in the present case usually carries an immediate custodial sentence the court should, in light of the special circumstances of the defendant, consider a suspended sentence or a community service order. 

Sentence

15. The maximum sentence of the offence of endangering the safety of others which the defendant stands convicted is 4 years imprisonment.  The maximum term of imprisonment is, of course, reserved for the most serious cases and the present case is far from being one of them.  There is no sentencing tariff for this offence.  This is understandable because the circumstances of the offence can vary substantially from case to case, so do the sentences. 

16. The court accepts the submission of the defence that in determining the level of sentence the court should look at the degree of danger created as a result of the acts or omissions of the defendant which constituted the offence.  In the present case it was the overloading of the boat and the breach of the conditions of the defendant’s Restricted Master Certificate that endangered the passengers on board of the boat.

17. No doubt the defendant took a deliberate risk even though he knew that his boat was overloaded by the cargo.  Although he had asked to convey the cargo in 2 trips and to go back when the boat started to rock during the voyage due to heavy sea current, he did not insist when LAI Loy-fook refused his request.  Being the coxswain he should have ignored LAI and insisted not to embark on the voyage and to stop the voyage when it became dangerous.

18. The defendant’s failure to do so had cost the lives of 3 people.  The court, however, accepts that the defendant had in fact not shown any callous disregard to life but was being reckless.  The sinking of the boat was surely not something within the contemplation of the defendant otherwise he would not have taken the risk of losing his tool of livelihood to accept the order.  This is also not a case in which the defendant intentionally risked the lives of other people. 

19.  It is pointed out by counsel that it was because of the introvert disposition of the defendant that he did not know how to refuse LAI.  This,  however, demonstrated that the defendant took the risk deliberately despite knowing the danger which was existing at that time.  This was a serious breach of the defendant’s duty as a coxswain of the boat and was recklessness of a high degree.  As such the court is of the view that an immediate custodial sentence is called for despite the remorsefulness and the unblemished record of the defendant. 

20. In HKSAR v CHOW Tin Shing the appellant was the master of an oil barge.  He proceeded at the barge’s full speed but was well within the speed limit for the fairway in which the barge was travelling.  The endangering act in question was that he elected to proceed on the wrong side of the fairway in the vicinity of possible inshore traffic when he knew that his forward vision was reduced. 

21. The barge collided with a stationary fishing sampan, killing sampan’s master.  The Court of Appeal was the view that in the circumstances of the case a sentence of 18 months imprisonment was called for.  This decision is a valuable reference in the sentencing in the present case. 

22.  Having considered the whole circumstances in the present case, the court adopts a starting point of 15 months imprisonment.  Giving credit to the guilty plea and clear record of the defendant the court sentences him to 8 months imprisonment.