HKSAR v. Kulemesin Yuriy and Others

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 669 OF 2008)

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BETWEEN

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Before : Hon Stock VP, Lunn JA and Saw J

Date of Hearing : 21 December 2011

Date of Judgment : 21 December 2011

Date of Reasons for Judgment : 15 February 2012

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court):

1.At the hearing on 21 December 2011 we allowed the appeals against sentence of the 1^st and 3^rd appellants and quashed the sentences of 3 years and 2 months’ and 3 years’ imprisonment that had been imposed upon them respectively in consequence of their convictions, the 1^st appellant for Charge 1 and the 3^rd appellant for Charge 2. In their place, we ordered that the 1^st appellant be sentenced to 18 months’ imprisonment and the 3^rd appellant to such term of imprisonment that permitted his immediate release. We ordered that the 2^nd and 4^th appellants, whose convictions we had quashed, be granted their costs of the trial and of the appeal, with a certificate for two counsel. Now, we give our reasons for so ordering. An overview of the facts relevant to sentencing is encompassed in our judgment in respect of the appeals against conviction of 14 December 2011.

SENTENCE

2.In sentencing the appellants and their co-accused at trial the judge said:

“ In the present case the defendants had each seen the other vessel ahead for 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.”

3.Of their primary culpability, and that of their co-accused at trial, she said:

“ I regarded the failure of D1-D4 to take action as the most blameworthy fault in the navigation of YH and N67. The 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 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.”

4.The judge went on to find that the vessels had collided, “as a result of their dangerous prolonged bad navigation”.  Further, she noted that errors in navigation at sea that result in collisions are “life-threatening”.  She said that the fact that in consequence 18 lives had been lost on the N67 “cannot be ignored”.

5.Although the judge acknowledged that it had been submitted on behalf of the defendants at trial that a deterrent sentence ought not to be imposed, given that they had not been convicted of any criminal offences and had enjoyed exemplary, accident-free careers at sea, nevertheless the judge found that, “…such serious errors of navigation” required the imposition of a deterrent sentence.     

6.In her consideration of the appropriate length of imprisonment to be imposed on the appellants the judge said that she had endeavoured to find as many previous cases as possible in which sentences had been imposed for offences contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (“SPCO”).  However, she acknowledged that many of those cases involved the pursuit by police vessels of boats carrying illegal immigrants in Hong Kong waters in which the coxswain of the latter boats steered in a manner that deliberately and recklessly endangered the safety of those on board both vessels and, accordingly, were not relevant to the instant case.

7.The judge noted that the judgment of this court delivered by McMahon J in HKSAR v Chow Tin Shing [2007] 4 HKLRD 991 was concerned, inter alia, with the appropriateness of a sentence of 18 months’ imprisonment imposed for a conviction after trial for an offence contrary to section 72 of the SPCO.  The prosecution arose from a fatality that had occurred as an empty motorised oil-barge had been steered in a westerly direction on the wrong side of the Eastern Fairway, at the eastern entrance to Hong Kong harbour.  Because the oil barge had no cargo, it was stern heavy.  At his position on the bridge the appellant, as helmsman, had a “blind spot” forward of the bow of over 200 metres.  The appellant steered the vessel close to the shore on Hong Kong Island and passed the entrance to the Shaukiwan Typhoon Shelter.  There, he collided with a stationary sampan on which father and son were fishing, killing the father.  The judge observed that, notwithstanding the manner in which the coxswain in that case had navigated the oil-barge, nevertheless this court had found that the appellant had “performed no deliberately dangerous manoeuvres” noting, in particular that the circumstances were not that “the appellant in a calculated way risked the lives and safety of others such as was so in the above cited cases.”  That was a reference to three judgments of this court cited by McMahon J, to which the judge had referred, and which involved high-speed chases by police launches of vessels carrying illegal immigrants in which the latter vessels were steered deliberately or recklessly so that the safety of the persons of all the vessels involved was endangered.

8.The judge stated that the instant case could be distinguished from the circumstances obtaining in Chow Tin Shing and the other previously decided cases concerning section 72 of the SPCO.  She found that distinction to be that, notwithstanding the observations by each of the appellants of the other vessel as they approached one another, the appellants had made “deliberate omissions to act”.  Of that she determined, “It was their inaction that allowed the risk of collision to develop into a serious real risk of collision and ultimately a collision”.

9.Of the culpability of the 3^rd appellant, she said:

“ 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.”

GROUNDS OF APPEAL AGAINST SENTENCE

The 1^st Appellant

10.On behalf of the 1^st appellant it was submitted by Mr McGowan that the judge had erred in finding that the 1^st appellant had deliberately omitted to act in the face of a developing dangerous situation.  To do so was to condemn the 1^st appellant for navigating in accordance with his honest and reasonably held belief as to the status of the waters of the Castle Peak buoyed channel.  Further, that the judge failed to have regard to the ambiguity as to the status of those waters. Then, it was said that the judge had erred in distinguishing the judgment of this court in Chow Tin Shing, in particular, it was submitted that the culpable conduct in that case was of a more serious nature than that of the 1^st appellant. Finally, it was contended that the judge had erred in imposing a deterrent sentence on a man of previous good character, with an exemplary record at sea.

11.In written submissions filed with the court after the delivery of the judgment in respect of conviction on 14 December 2011 and in oral submissions at the hearing, Mr McGowan submitted that the explanation, addressed at paragraph 111 of that judgment, for the increase in 1979 in the maximum sentence for a contravention of section 72 of the SPCO from six months’ to 4 years’ imprisonment, was relevant to the appropriate level of sentence to be imposed on the 1^st appellant.  There, this court had said that the increase in sentence was:

“ driven by concerns about the safety of persons on vessels bringing them to Hong Kong as refugees, in which condition they were subject to great abuse and danger. The increased penalties were a deterrent to those who so abused those refugees. The misconduct was serious and the societal interest great.”

12.Mr McGowan submitted that those circumstances did not apply in any way to the facts of the collision between the N67 and the Yao Hai.  Accordingly, so he contended, the maximum level of sentence appropriate to a contravention of section 72 of the SPCO in the circumstances relevant to the 1^st appellant, but clearly wholly outside the circumstances described above, was at or near the previous maximum of six months’ imprisonment.

13.Finally, Mr McGowan submitted that, although the judge had stated that she took into account the mitigation advanced on behalf of the appellants, namely their good character, their good records in navigating at sea and, in particular in the case of the 1^st appellant his “genuine remorse or shock that the crew who lost their lives were the equivalent of a family to him”, the judge did not identify a “starting point” taken for sentence.  Accordingly, it was not possible to calculate what discount in sentence the judge had in fact afforded the 1^st appellant.

The 3^rd Appellant

14.On behalf of the 3^rd appellant, Mr Grossman contended that the judge had erred in finding that the 3^rd appellant was culpable of a deliberate omission to act in the face of the developing risk of collision.  Next, it was submitted that the sentence imposed upon the 3^rd appellant was disproportionate to that imposed upon the 1^st appellant, having regard to their relative culpability.  This court was invited to note that in the judgment in respect of conviction it had been accepted that “primary responsibility for the collision” lay with the 1^st appellant. By contrast, this court had accepted the judge’s characterisation of the culpability of the 3^rd appellant as taking action “too little, too late”.

15.Then, it was said that the judge had erred in imposing a deterrent sentence of imprisonment on the 3^rd appellant. Furthermore, it was contended that although the judge had stated that she had taken mitigating factors into account, clearly in imposing a sentence of 3 years’ imprisonment on the 3^rd appellant she had not done so.  Finally, it was submitted that the judge had erred in taking due account of the fact that 18 lives have been lost in consequence of the collision between the two vessels.

A CONSIDERATION OF THE SUBMISSIONS

Starting Point

16.There is no issue that in imposing sentence on the appellants the judge did not state the starting point taken for sentence in their respective cases.  On the other hand, she did state that she took into account the mitigation advanced on their behalf, both common and individual.  In particular, she noted that they were both of good character and had “very good records whilst navigating on the sea”.  Of the individual mitigation, she noted that the 1^st appellant was genuinely remorseful and shocked at the loss of the lives of the members of his crew, whom he regarded as the equivalent of family members.  Of the 3^rd appellant, she said that she took into account his “positive good character in providing voluntary unpaid assistance” to various organisations and to his exemplary maritime record over a period of 39 years.   However, not having stipulated a starting point taken for sentence in the case of either of the two appellants, it is not possible to calculate what discount in the sentence, that otherwise would have been imposed, was afforded for mitigating factors.

17.In the judgment of this court delivered by Stuart-Moore JA, as he was then, in HKSAR v Au Siu Ming [1998] 4 HKC 422 the necessity for a trial judge to state the starting point taken for sentence, in the context of sentencing after a plea of guilty, and the reasons for taking that course were articulated (page 424 A-B):

“ A starting point should be clearly stated so that a defendant is aware of the extent of the credit accorded to him for matters raised in mitigation”.

18.Obviously, the logic and fairness that requires that approach applies equally in circumstances where sentence is imposed upon conviction after trial, where the court states that it has taken into account mitigating factors in imposing sentence.  As was noted in Au Siu Ming, in light of the judge’s failure to stipulate a starting point for sentence it falls to this court to consider and identify the appropriate starting point to be taken for sentence, in order to determine whether the sentences imposed were excessive.

Deterrent sentence

19.As we indicated to counsel in the course of oral argument, we are satisfied that the judge fell into error in determining that the “serious errors of navigation” of the appellants called for a “deterrent sentence”.  The judge did not condescend to any particularity as to why it was that she made that finding, in particular as to whether it was individual or general in nature.  However, given her acknowledgement of the fact that neither appellant had a criminal record, the positive good character of the 3^rd appellant and the exemplary maritime records of both the 1^st and 3^rd appellants it is clear that the judge did not conclude that an individual deterrent sentence was required.

20.The relative paucity of cases in which prosecutions were brought under section 72 of the SPCO, to which the judge made reference, in particular in which the conduct endangering the safety of others at sea was other than intentional or reckless, is powerful evidence of the fact that there was no need to impose a sentence the purpose of which was, in part, to deter others from the commission of this offence. Furthermore, the circumstances of the commission of this offence, albeit that it led to the loss of 18 lives, did not require the imposition of a deterrent sentence to reflect the denunciation of the conduct of the appellants by the community.  Neither of the appellants navigated their respective vessels intending to endanger the safety of others at sea.  Further there was no need in this case to introduce a deterrence against these offenders from offending in the future.

21.Clearly, the reasons advanced in 1979 for the increase of the maximum penalty for commission of the offence from the six months’ to 4 years’ imprisonment, namely concerns over passengers carried unlawfully by ship into Hong Kong, does not restrict imposition of the enhanced powers of sentence to only those particular circumstances.  Certainly, no such restriction is to be found in the legislation.  The judgment of this court in Chow Tin Shing illustrates that to be the case.

1^st Appellant

22.Notwithstanding the misgivings expressed in our judgment in respect of conviction as to the veracity of the 1^st appellant’s account as to what he saw and did, it is clear that the judge accepted his testimony that he had not seen nor heard the light and sound signals made by the Yao Hai.  Accordingly, it is on that basis that objections taken to the sentence imposed on him are to be approached.

23.Similarly, it is clear that the judge accepted the 1^st appellant’s testimony that he believed that the Castle Peak buoyed waters were not a narrow channel and that in navigating towards the Yao Hai the “crossing rules” applied.  That is relevant to the issue of the 1^st appellant’s moral culpability.  However, as we accepted in the judgment in respect of conviction, the judge was correct in finding that those beliefs were wholly unreasonable.  We reject Mr McGowan’s submission that those beliefs were “understandable”.  They were not.  Therein, together with his “failure to do anything but carry on regardless” (paragraph 292 of the judgment in respect of conviction) lies the 1^st appellant’s culpability.

Starting point

24.Any sentencing exercise must have regard to the maximum penalty provided by the legislature for the category of offence.  The prosecuting authority chose to bring these prosecutions for offences carrying a maximum term of four years’ imprisonment so it is in that context and in the context of more serious and highly reckless breaches of the regulations that may readily be envisaged that the sentences in this case must be assessed.   And, further, as regards the 1^st appellant, his sentence is to be assessed in light of the rather benevolent view taken by the trial judge of what he saw and heard.

25.In our judgment, having regard to all the circumstances, the appropriate starting point to be taken for sentence for the 1^st appellant was 21 months’ imprisonment.

Discount

26.Clearly, the judge was correct to take into account in mitigation of the penalty to be imposed upon the 1^st appellant his good character, his exemplary record at sea and his shock and remorse for the loss of lives of so many of his crew.  In the period from the collision until he has conviction, March 2008 to January 2010, the 1^st appellant was posted to a shore-based position, in which he suffered a loss of income of almost US$200,000.  Following his conviction the 1^st appellant’s employment with Chernomorneftegas, for whom he had worked for most of his life, first as an Able Seaman and then since 2003 as a Master, was terminated.  He was unemployed for a few months before obtaining employment as a Master for Tidewater Marine in the Caribbean.  In all the circumstances, we were satisfied that the 1^st appellant was entitled to a discount of three months from the starting point of 21 months’ imprisonment.

Sentence

27.Accordingly, we imposed a sentence of 18 months’ imprisonment on the 1^st appellant.

3^rd Appellant

28.As we noted in the judgment in respect of conviction the primary responsibility for the collision between the two vessels lies with the 1^st appellant.  The 3^rd appellant’s culpability lies in failing to react appropriately and in good time to the developing risk of collision posed by the navigation of the N67.  The judge correctly described his navigation of the Yao Hai, in response to the looming danger, as being, “too little, too late”.  Clearly, until the flurry of course changes ordered from 21:12:25 onwards, the 3^rd appellant navigated the Yao Hai on the basis of what he expected to be a change of course of N67, notwithstanding the clear evidence that she was not behaving in the expected manner.  Of course, he was not entitled to do so regardless of the ever rising risk of collision.  Further, no use was made of the whistle of the Yao Hai to communicate his obvious uncertainty and concerns as to the intentions of the N67 and no further use made of the Aldis Lamp.

Starting point

29.Clearly, the 3^rd appellant’s culpability in endangering the safety of the crew of the N67 was very much diminished when compared with that of the 1^st appellant. However, notwithstanding his age and good character we are satisfied that the appropriate sentence was a short period of imprisonment.  In our judgment, the appropriate starting point was 4 months’ imprisonment.

Discount

30.Clearly, the judge was correct to take into account the appellant’s positive good character and his 39 years of exemplary maritime service.  In the result, we are satisfied that it was appropriate to reduce the starting point taken for sentence by one month, to 3 months’ imprisonment.

31.Following his conviction on 12 January 2010, the 3^rd appellant was detained in custody until he was granted bail pending his appeal on 9 February 2010.  Thereafter, he remained on bail.

32.In the course of the hearing we received a medical report from Dr Peter WT Wu, a specialist in psychiatry, who treated the 3^rd appellant shortly after the collision in March 2008 for symptoms of “severe anxiety sleeping and eating difficulties”.  Those symptoms re-appeared during the long drawn-out trial from March 2009 until January 2010, Dr Wu said of the 3^rd appellant that the proceedings “greatly affected his mental well-being”.    He added that in the 3-4 years in which he had known the 3^rd appellant he had “aged a lot”.

33.We have no hesitation in accepting that, as a man of positive good character with an exemplary maritime career, the 3^rd appellant has been greatly affected by the tragic consequences that flowed from his part in the circumstances that led to the collision.  The 3^rd appellant having experienced the “clang of the prison gates” we were satisfied that justice did not require him to be returned to prison, some 22 months after his release on bail to serve the short period of imprisonment, with an anticipated discount for good behaviour, remaining in his sentence.

Sentence

34.Accordingly, we ordered that the 3^rd appellant be sentenced to a term of imprisonment which permitted his immediate release.

COSTS

35.Notwithstanding submissions to the contrary by Mr Westbrook SC, on behalf of the respondents, we ordered that the 2^nd and 4^th appellants, whose convictions we had quashed, be granted their costs of the trial and of the appeal, with a certificate for two counsel.  In the course of his submissions Mr Westbrook appeared to resile somewhat from his opposition to the grant of costs to those appellants in respect of the appeal.  Certainly, as successful appellants there was no reason whatsoever why they were to be denied their costs of the appeal.

36.There is no dispute that a defendant who is acquitted at trial of the charges brought against him is entitled to his costs, unless there are positive reasons for not so ordering.  Most relevant to the exercise of the discretion of the court is the respective defendant’s conduct during the investigation and at the trial, in the context of the strength of the case against him (see the judgment of Litton PJ in the Court of Final Appeal, with whom all the other judges agreed in Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 at 535 F-G).  As is readily apparent from this court’s judgment in respect of conviction, there were no positive reasons whatsoever upon which either the 2^nd or 4^th appellants could be denied their costs of trial.

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

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

Ms A.P. Campbell-Moffat, instructed by Holman Fenwick Willan, for the 2^nd appellant

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

Mr Gerard McCoy, SC and Ms Barbara Bryce-Borthwick, instructed by Haldanes, for the 4^th appellant

Please refer to FACC6/2012 & FACC7/2012 for the relevant appeal(s) to the Court of Final Appeal.