HKSAR v. Kulemesin Yuriy and Others

DCCC 669/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 669 OF 2008

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REASONS FOR SENTENCE

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1.I convicted the defendants after a lengthy trial of an offence of endangering the safety of others at sea by unlawful acts, contrary to section 72 of the Shipping and Port control ordinance Cap 313 (SCPO).  The maximum sentence is 4 years imprisonment. 

2.The “unlawful acts” complained of were those as being in contravention of the Rules as stated in International Regulations for the Preventing Collisions at Sea (COLREGS).  D1 was found to have breached the COLREGS Rule 5, failure to pay a proper look out, Rule 8, failure to take proper action to avoid a collision and Rule 9 narrow channel, as he was navigating on the wrong side of the channel.  D2- D4 were found to have breached Rule 5 and Rule 8. 

The facts

3.On the evening of 22 March 2008 shortly before 21:14 hours two vessels namely the Neftegaz 67 (N67), a Ukrainian flagged oil rig supply boat measuring 81.37 metres in length and the Yao Hai (YH), a Chinese flagged bulk carrier measuring 225 metres in length, collided with each other in Hong Kong waters in the proximity of the Hong Kong Chek Lap Kok Airport, north of Lantau Island near the Brothers Islands within a deep water buoyed channel marked by buoys CP1-CP5 (the buoyed channel) near and within a few metres from buoys CP1 and CP2.

4.Following the collision N67 sank and tragically 18 of 25 crewmembers on board the vessel died.  No one on the YH suffered any injuries, however YH incurred some damage at her bow.

5.At all times the sea was calm, the weather was fair.  It was dark.  Visibility was good at about 3 nautical miles (nm). 

6.The vessel traffic density was low.  No other vessels impeded their passage.  No other vessels were within the buoyed channel. 

7.N67 was travelling east and YH was travelling west.  They were heading in opposite directions towards each other.  They were on reasonably consistent courses but not reciprocal.  N67 was on YH starboard side whilst YH was on N67 port side. 

8.For approximately five minutes prior to the collision N67 was travelling within the buoyed channel and YH was approaching the buoyed channel from Ma Wan Island just north of the buoys CP1 and CP2. 

9.There was generous sea room for the two vessels to pass each other at a comfortably wide safe distance apart within the gates of the buoyed channel at buoys CP1 and CP2.  The distance between CP1 and CP2 buoys was about 570 metres or 3.1 cables. 

10.Both vessels expected the other to take action to give way to the other.  Both vessels applied different rules of the sea in the navigation of their vessels.  YH believed that both vessels would affect a passing of port to port.  N67 believed that both vessels would pass starboard to starboard. 

11.The vessels were effectively heading for almost the exact same spot about 185 metres away from CP1 buoy.  Ultimately when the two vessels were close to each other, both vessels moved in the same direction to affect their intended passing.  YH went to starboard and N67 went to port, unavoidably there was a collision between the two vessels at a combined speed of 23 knots. 

12.On board the respective vessels at all material times was the 1^st Defendant (D1), the Master of N67, the 2^nd Defendant (D2), the Master of YH, the 3^rd Defendant (D3) a Kong Kong Pilot and the 4^th Defendant (D4) a Hong Kong Co-Pilot assisting D3, on board the YH.  On board N67 and YH were helmsman who were steering the vessels on the orders of D1 and D3. 

Mitigation

13.I have taken into consideration all the matters submitted in mitigation by counsels for D1 – D4. 

14.I first turn to deal with mitigating factors common to all the defendants.  The defendants all have a clear record.  Overall, counsel for the defendants have all asked me not to impose an immediate sentence of imprisonment.  They have submitted that this is not a truly criminal offence, they are not criminally culpable in the true sense as in offences of violence or drug trafficking but that this was just an error of judgment made in the last moments.  The defendants are first offenders.  The principle that a deterrent sentence of immediate imprisonment ought not be imposed on a first offender see Ho Kau v R 1978 HKLR 197 citing R v Curran [1973] 57 Cr. App. R 945 at p.947.  ‘Imprisonment is a sanction of last resort. It must be determined that the imposition of a sentence of imprisonment is justified in all the circumstances of the case, after due consideration of other sentencing options.’ See Cross and Cheung on Sentencing in Hong Kong 5^th edition at pp298-299.   

15.The defendants are all of good character.  Many testimonials letters have been submitted.  They are diligent, caring and responsible to their families.  The majority of them are sole breadwinners for their immediate and extended families.  They have held mariners certificates for a number of years D3 for the longest.  They are all professional mariners and have been employed or in the field of mariners for many years and had intended to remain so.  They all have exemplary records in their navigation on the sea.  This is the first time that they have ever been involved in an accident at sea.  As a result of the collision and the loss of lives on N67 they feel very remorseful.  They will shoulder this tragedy with them for the rest of their lives.  As a result of this conviction and/or tragedy they will not be able to return to sea either because of lack of any offers of employment or general personal feelings or the loss of their licence. 

1^st Defendant - D1

16.D1 is 46 years old.  He is Ukrainian.  He is married and living with his wife and two daughters in Ukraine.  He was only here in Hong Kong because of his employment.  He was only passing through Hong Kong on the evening of 22 March.  He did not come to Hong Kong to commit a crime.  He has no ties, nor friends in Hong Kong.  The closest consulate is in Beijing.  As a foreigner if sentenced to imprisonment he will suffer undue hardship.  Additionally D1 has lost his crew of 18 whom he says were like family to him as they lived and worked together on board N67. 

2^nd Defendant - D2

17.D2 is 38 years old.  He is divorced and living with his parents in China.  He has only been the Master of YH for 3 years. 

3^rd Defendant - D3

18.D3 is 62 years of age.  He is married and has a son and a daughter. He lives in Hong Kong.  He has been in the maritime industry since 1969.  He has been a Pilot for the Pilot Association since 1994.  He has over the years been assisting with voluntary unpaid work and training with the Pilots Association and other organisations.  He has been in the maritime industry for about 39 years.  He was due to retire when he was 65 years old only in about 3 years time. 

4^th Defendant - D4

19.D4 is aged 49.  He is married.  He lives in Hong Kong.  He worked in the maritime industry soon after completion at the Hong Sea School, Stanley in Hong Kong in 1980.  He embarked on an academic career achieving a Ph.D.  He was a lecturer at the Hong Kong Polytechnic University from 1992-2006. 

20.I found D1 –D4 were in the wrong in the navigation of their vessels.  Their vessels were in a very close quarters situation which led to the collision.  They should not have found themselves in that position.  That was an extremely difficult and dire situation and the situation should never have got to this point. 

21.This difficult situation was created by their fundamental and very serious faults.  Their faults were to allow this emergency to have arisen.  Their errors of judgment were grave and serious. 

22.Neither D1-D4 had any idea of what the other was going to do.  Whatever they were doing was far too late.  D2-D4 were making poor decisions and not communicating in any proper way.  By leaving the action so late a close quarters situation had developed.  The closer the vessels became to each other the less margin there was for successfully avoiding a collision.  Consequentially the less margin for error.  Any conflicting action manoeuvre by the other vessel was going to be very serious or perhaps disastrous.  If conflicting action was taken much further away there was time to see it and react to it but from a minute in with vessels of this size and manoeuvrability there was no way back.  Their conflicting collision avoidance actions unfortunately caused a collision instead of avoided a collision. 

23.I found in the present case before me that the actions taken by YH and N67 were too little and left too late by both vessels.  D1-D4 had ample time to think and take action.  They had seen each other when the vessels were approximately more than 2.5 nm away from each other.  When these vessels were miles apart there was plenty of time and plenty of sea room to avoid a close quarters situation.

24.Both continued on their courses without or little alteration of course until approximately a minute before the collision.  The lack of any action until about 45 seconds by D1 and a minute by D3 before the collision was indicative of D1-D4’s failure to maintain a proper lookout and omission to act to a developing dangerous situation.  They should never have left the avoiding action so late. 

The previous cases in Hong Kong

25.There have been a number of cases of endangering the safety at sea of others in Hong Kong.  I have endeavoured to find as many of the previous cases concerning s.72 SPCO.  The following were the cases I have found.  In all of them an immediate custodial sentence was imposed. 

26.R v Chan Siu Yun, CAAR 9 of 1995, HKSAR v. Chow Tin Sing [2007] 4 HKLRD 991, HKSAR v Hon Cheung Man, CACC 112 of 2007, HKSAR v Sze Yu, CACC 143 of 2003, R v Mok King Ching, CACC 146 of 1995, R v Sze Yui, CACC 348A of 1995, HKSAR v Yeung Wui and others, CACC 415 of 2004, R v Ng Kwan Yiu, CACC 551 of 1996, R v Cheung Lee Wah and others, HCMA000507/1989

27.In the case of HKSAR v Chow Tin Shing [2007] 4 HKLRD 991 Mr. Justice McMahon giving judgment in the Court of Appeal considered some facts relevant to sentence.  He said at paragraph 34 :-

“ as a matter of general principle, any sentence imposed pursuant to a section 72 offence will primarily depend upon the degree of danger created by the acts of the offender in the circumstances as they existed at the time of the offence.  Those circumstances will vary enormously.  The weather, degree of visibility, the sea state, speed of vessels, manoeuvres performed and other factors pertaining to those circumstances will often be relevant.  

28.The facts in Chow Tin Shing. The applicant was the master and helmsman of a 23 metre long motorised oil barge.  The oil barge was empty and as result of its bow riding high out of the water forward visibility from the helm position was restricted to an extent that the applicant was unable to see small craft less than 200 metres from its bow.  Whilst proceeding on the wrong side of the fairway the oil barge collided with a small stationary fishing sampan, sinking it and killing one person. 

29.McMahon J referred to previous decided cases including the three as listed above but involving high speed chases by police launches of sampans carrying illegal immigrants in Hong Kong waters, where sentences of 2 ½ and three years imprisonment after trial had been approved.  AG v Chan Siu Yun, R v Sze Yui. In another case a subsequent similar offence led to a starting point at the maximum of four years being endorsed. HKSAR v Sze Yu.  He noted that in those cases, the acts of endangerment were deliberately reckless and of great risk to the safety of the passengers in the sampans and to a lesser extent to the crew of the pursuing launches.

30.The CA in Chow was of the view that those considerations did not apply to the oil barge.  It was taken into account that the applicant had proceeded on the wrong side of the fairway and in the vicinity of inshore traffic in circumstances where the defendant knew his forward vision was reduced and that the applicant act had brought about a person’s death but said it was not a situation where the applicant in a calculated way risked the lives and safety of others such as was so in the cases they cited.  The court was of the view that the applicant performed no deliberately dangerous manoeuvres.  Mr. Justice McMahon distinguished it from the callous indifference to life displayed by the cited cases.  He said that the applicant’s conduct and the conduct of those involved in intentionally risking the lives of others should have been given greater recognition in the sentence imposed.  The court considered a sentence of 18 months after trial was called for. 

31.I bear in mind that each case has to be considered on its own facts. 

32.The present case can be distinguished from Chow Tin Shing and the other previous decided cases. 

33.In the present case the defendants had made deliberate omissions to act.  As a result of their deliberate omissions to act they risked the lives and safety of the crew of N67. 

34.In the present case the defendants had each seen the other vessel ahead from approximately 2.5 nm away and for about four minutes before they took no action to avoid collision.  By their inaction they allowed a risk of collision to develop into serious real risk of collision and ultimately a collision.  They performed no manoeuvres until it was too late.  The manoeuvres in any event would not have avoided a collision.  What they did was deliberate.  It was a deliberate omission not to manoeuvre or take any action until the last moment of emergency and in a panic. 

35.I had referred to the case of The Maloja II [1993] 1 Lloyd’s Rep.48 in my verdict and the observations made by Sheen J.  Sheen J emphasised the importance of avoiding close quarters situation in which there was a risk of collision and emphasised that action should be taken at a time when the responsible officer does not have to make a quick decision and the action taken is to make it obvious to the other vessel what it is you are doing.  Further that the most serious errors of navigation are those errors which are made by an officer who has time to think.  I quote again Sheen J’s sage words :-

“The structure of the Collision Regulations is designed to ensure that, whenever possible, ships should not reach a close quarters situation in which there is a risk of collision and in which decisions have to be taken without time for proper thought.  Manoeuvres taken to avoid a close quarters situation should be taken at a time when the responsible officer does not have to make a quick decision or a decision based on inadequate information.  Those manoeuvres should be such as are readily apparent to the other ship. 

The errors of navigation which I regard as the most serious are those errors which are made by an officer who has time to think.  (my own emphasis). At such a time there is no excuse for failure to comply with the Collision Regulations”

36.The defendants in this case had time to time to think and to take action.  The radars would have told them they were heading to the same spot on a collision course.  They had advance warning.  The action they took was when they were at very close quarters when they had to make quick decisions.  These decisions were taken without time for proper thought. 

37.I regarded the failure of D1-D4 to take action as the most blameworthy fault in the navigation of YH and N67.  The close quarters situation was created by their fundamental and very serious faults.  Their fault was to allow this emergency to have arisen.  Their fault was to allow the close quarters situation and the last moment action to have developed which led to the collision but not the actions they took in the panic.

38.What they were doing was watching and listening and seeing a dangerous situation developing and ignoring it and doing nothing about it.  That was in itself deliberate, dangerous and substandard navigation.

39.Obviously the closer the vessels became to each other the less margin there was for error and successfully avoiding a collision.  The two vessels were large.  When action is taken within a minute from collision with vessels of this size and manoeuvrability there is no way back.  Vehicles can stop and turn at any time unlike vessels. 

40.D1 – D4 were all qualified mariners of large vessels.  Captain Third said by about 21:10:44 three minutes before collision both vessels should have been in doubt as to the others intentions. 

41.D2 and D4 should have seen what was happening and should have been aware of D3’s inaction.  I accept that D2 and D4 were entitled to rely on D3 as a more experienced mariner in these waters however they should have recognized the dangers of D3’s navigation.

42.They should have alerted D3 early to the risk of collision about which D3 was doing nothing.

43.D2-D4 were on notice to be vigilant and cautious on their approach to N67.  They thought N67 was in the wrong place.  Moreover D3 was wondering if N67 was a vessel in difficulties.  He was still expecting N67 to move to the right place, either to starboard or out of the channel completely.  Safe navigation is about observation not expectation.  If D3 believed N67 to be in difficulties he was not behaving properly.  The only sensible course was to keep well clear of N67.  D3 disregarded that and continued to head straight towards N67. 

44.Lord Woolf CJ said in the well known case of R v Cooksely [2003] 3 ALL ER 40 when considering sentencing guidelines for dangerous driving causing death at paragraph 11 :-

“before referring to the guidelines, we would make the following points about sentencing for death by dangerous driving. (i) although the offence is one which does not require an intention to drive dangerously or an intention to injure because before an offender can be convicted of dangerous driving, his driving has to fall far below the standard of driving that would be expected of a competent and careful driver and a driving must be such that it would be obvious to the same competent and careful driver that driving in that way would be dangerous, it will usually be obvious to the offender that the driving was dangerous and he therefore deserves to be punished accordingly.  “

45.As in the offence of dangerous driving causing death the offenders in s. 72 of SPCO do not necessarily intend to drive dangerously or intend to cause the death or serious injury.  The defendants in the case before me deliberately manoeuvred and steered their vessels or more accurately omitted to manoeuvre and steer in the way they did such as to cause the safety of the crew of N67 to be endangered. 

46.The defendants endangered the crew of N67.  As a result of their dangerous prolonged bad navigation the vessels collided.  The mere fact that there was a collision is a grave endangerment.  If as a result of the collision no lives were lost this would not in my view necessarily lessen the gravity of endangerment.  The fact that tragically 18 lives were lost as a result of this collision cannot be ignored. 

47.I am of the view that the defendants in this case were committing the most serious errors of navigation.  Emergency last minute action should never have happened. 

48.Many foreign and local vessels use Hong Kong waters which are busy and restricted.  Careful and prudent navigation is expected.  Safety of persons at sea is of paramount importance.  Errors in navigation particularly resulting in collision with other vessels are life threatening, more so when a collision causes the vessel or vessels to capsize.  I however accept errors at sea are not in the same degree as errors of navigation made in the air by pilots in a plane which result is almost always fatal.  However, in cases that involve such serious errors of navigation as the present one a deterrent sentence is called for.  Taking into account all the above, I consider this to be among one of the worst case scenarios as a consequence of the defendants deliberate failure to act and the resulting tragic loss of 18 lives. 

49.On the facts of this case D1 and D3 as the two in charge of directing and steering of their respective vessels N67 and YH are more culpable than D2 as master and D4 as co-pilot.

50.I have taken into account the mitigation for each of the defendants particularly their good characters, their very good records whilst navigating on the sea.  Also for D1 the genuine remorse or shock that the crew who lost their lives were equivalent to family to him.  For D3 his positive good character in providing voluntary unpaid assistance and training to the Pilots Association and other organisations and for his exemplary record spanning over an extensive period of 39 years in the maritime industry.  

Sentence

51.D1 sentenced to 3 years 2 months

52.D2 sentenced to 2 years 4 months imprisonment

53.D3 sentenced 3 years.

54.D4 sentenced to 2 years 4 months imprisonment.