HKSAR v. Kulemesin Yuriy and Another

CACC 19/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 19 OF 2010

(ON APPEAL FROM DCCC NO. 669 OF 2008)

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BETWEEN

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Before: Hon Stock VP, Lunn JA and Saw J in Court

Date of Hearing: 21 December 2011

Date of Decision: 21 December 2011

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D E C I S I O N

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Hon Stock VP (giving the Decision of the Court):

1.We handed down our judgment in this appeal on 14 December 2011, in relation to conviction. By that judgment we dismissed the appeals of the first and third appellants. They now seek a certificate pursuant to s. 32(2) of the Court of Final Appeal Ordinance, Cap.484, that points of law of great and general importance are involved in the decision of the Court of Appeal.

2.Both appellants put forward suggested questions for certification which relate to the mens rea of the offence created by s. 72 of the Shipping and Port Control Ordinance, Cap. 313. The first appellant put forward additional questions related to a number of specific regulations of the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collision) Regulations, Cap. 369 (the COLREGS).

3.The three mens rea questions are these:

(1)   What is the mens rea of the offence under section 72 of the Shipping and Port Control Ordinance, Cap. 313 (“Section 72”)?

(2)   In order to prove an offence under Section 72, is it necessary to prove full mens rea, including as to intention or recklessness that danger was caused?

(3)   Does the defence of “reasonable excuse” provided for within Section 72 apply to both limbs of the offence, namely, “unlawful act” and “in any manner whatsoever”?

4.The questions proposed in relation to the COLREGS are as follows:

COLREGS, Rule 8(f)

(1)   Do the provisions of Rule 8(f) apply to all vessels, or only to those vessels which are specifically required by the COLREGS not to impede another vessel; that is:

Narrow Channels

-   a vessel of less than 20 metres in length or a sailing vessel [Rule 9(b)];

-   a vessel engaged in fishing [Rule 9(c)]

-   a crossing vessel [Rule 9(d)]

Traffic Separation Schemes

-   a vessel engaged in fishing [Rule 10(i)]

-   a vessel of less than 20 metres in length or a sailing vessel [Rule 10(j)]

Vessels constrained by their draught

-   any vessel other than a vessel not under command or a vessel restricted in her ability to manoeuvre [Rule 18(d)(i)]

Rule of Good Seamanship

(1)   Does a vessel navigating within a channel have a right of way over another vessel which is approaching from outside the channel with the intention of entering it?

COLREGS Rule 9

(1)   Does Rule 9 of the COLREGS apply to a vessel approaching but navigating outside a narrow channel or fairway?

5.We are satisfied that the issue of mens rea merits a certificate under s. 32(2) and we certify the following which is combination of the proposed questions (1) and (2):

What is the mens rea of the offence created by s. 72 of the Shipping and Port Control Ordinance; in particular is it incumbent upon the prosecution to prove that the accused either intended to endanger or cause endangerment or was reckless as to whether endangerment was caused?

6.We are not persuaded that the third question is involved in the decision and we therefore decline to issue a certificate in the terms requested.  We decline also to grant a certificate for the remaining questions but it is of course open to the appellants to propose them for consideration by the Court of Final Appeal.  Accordingly, we certify to the extent indicated.

Mr Simon Westbrook, SC & Ms Jasmine Ching, SPP of the Department of Justice, for the Respondent

Mr James H.M. McGowan, instructed by Messrs Ince & Co., for the 1st Applicant

Mr Clive S. Grossman, SC and Ms Chyvette Ip, instructed by Messrs Clyde & Co., for the 3rd Applicant