HKSAR v. Kulemesin Yuriy

CAC C 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 DCCCNO. 669 OF 2008) ________________________

BETWEEN

	HKSAR	Respondent
	and
	KULEMESIN YURIY (D1)	Applicant

________________________

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

Date of Hearing: 18 May 2012

Date of Judgment: 18 May 2012

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J U D G M E N T

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

1.On 21 December 2011 we granted a certificate pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap 484, on the application of those who were the first and third defendants at the trial with which this case was concerned, that a point of law of great and general importance was involved in the decision of this Court handed down on 14 December 2011.  We limited to that certificate to one question, relating to the mens rea to be proved under section 72 of the Shipping and Port Control Ordinance, Cap 313; but we declined to certify other questions posed, which mainly related to the COLREGS under Cap 369.

2.Later on the same day, 21 December 2011, the first applicant filed an application in the Court of Final Appeal for leave to appeal; the application recited the certificate granted, notified that Court that it would seek the grant of a further certificate from the Court of Final Appeal for those questions which the Court of Appeal had declined to certify and sought leave also under the substantial and grave injustice limb of section 32(2) of Cap 484.  It is right to say that the application filed with the Court of Final Appeal that day was filed in something of a rush so as to put beyond doubt the Court of Appeal's jurisdiction to deal with an application by the first applicant for bail pending determination by the Court of Final Appeal of the leave application.

3.In January 2012, the first applicant filed a proposed amended Form B in support of the application for leave; and that amended form raised four additional points of law allegedly involved in this Court's decision on the appeal against conviction.

4.The hearing of the application for leave is listed before the Court of Final Appeal on 29 May 2012 and those acting for the first applicant are fearful that by reason of the provisions of section 32(3) of Cap 484, those representing the first applicant may be precluded from seeking leave on the basis of the four additional questions.  They read that subsection as enabling the grant of leave on the basis of a question of great and general importance only if the Court of Appeal has been asked to certify that question.

5.So we have before us today a Notice of Motion dated 7 May 2012 which puts before us four additional questions which we are asked to certify.  

6.No issue is taken by the respondent as to that interpretation of the subsection or as to the question of time and, given that the application for leave is due to be heard next week, we have agreed to entertain the application at short notice.

7.The additional four questions put for our consideration are as follows:

" 1.  What are the legal principles for determining whether a particular channel is a 'narrow channel' to which Rule 9 of the COLREGS applies?;

2.  Is there a Rule of Good Seamanship which requires a vessel navigating in an IALA buoyed channel which is not a narrow channel to keep to the starboard side?;

3.  Do the crossing rules apply when a vessel is approaching a channel on a crossing course involving risk of collision with another vessel navigating in that channel?; and

4.  In what circumstances does the law require a stand-on vessel in a crossing situation to take avoiding action by virtue of Rule 17 (a)(ii) of the COLREGS notwithstanding the permissive wording of that Rule?"

8.The questions posed are in the main fact-sensitive but we are in any event not disposed to accede to the application and it is refused.

(Frank Stock) Vice-President

(Michael Lunn) Justice of Appeal

(Darryl Saw) Judge of the Court of First Instance

Mr Simon Westbrook, SC & Mr Robert Lee, SADPP of the Department of Justice, for the Respondent

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

(I) Please refer to FAMC72/2011 & FAMC2/2012 for the relevant appeal(s) to the Court of Final Appeal.