Kulemesin Yuriy and Another v. HKSAR

FACC Nos 6 and 7 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS6 AND 7 OF 2012 (CRIMINAL)

(ON APPEAL FROM CACC NO 19 OF 2010)

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Between :

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DECISION ON COSTS

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Mr Justice Tang PJ:

1.The 2^nd Appellant, Tang Dock Wah was the Pilot on board the Yao Hai (“YH”), a bulk carrier when it collided with the Neftegaz 67 (“N67”), an oil rig, commanded by the 1^st Appellant, Kulemesin Yuriy.  As a result of the collision N67 sank with a loss of 18 lives.

2.The 2^nd Appellant, as D3, Kulemesin Yuriy as D1, were charged together with Liu Bo (D2), the master of YH, and Chun Wah-tak, Bruce (D4), the co-pilot on YH with offences under s72 of the Shipping and Port Control Ordinance Cap 313 (“SPCO”).  They were convicted, after long trial, by Judge S D’Almada Remedios, and the 1^st to 4^th Defendants were sentenced to imprisonment for 3 years 2 months, 2 years 4 months, 3 years and 2 years 4 months respectively.  On appeal, the convictions of D2 and D4 were quashed.  Notwithstanding submissions to the contrary, the Court of Appeal awarded the costs of the trial and the appeal to the D2 and D4, and said:

“36. … 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 (Defendants) could be denied their costs of trial.”

3.The Court of Appeal, whilst upholding the convictions of D1 and D3 had reduced their sentences.  In the case of the D1 to 18 months imprisonment.   In the case of D3 so that he could be immediately released.[1]

4.In this Court, the 1^st Appellant’s appeal was dismissed but we have allowed the appeal of the 2^nd Appellant.  In our judgment we made an order nisi that the 2^nd Appellant should have the costs here and below (including the trial).

5.Now, the Respondent asks this Court not to award costs to 2^nd Appellant in respect of the trial and to deprive him of a substantial part (80%) of his costs in his appeal to the Court of Appeal.

6.Since the 2^nd Appellant was convicted at trial and his appeal dismissed by the Court of Appeal, it falls to us to decide whether he should be awarded any of his costs in those courts.  The principles underlying the exercise of such discretion have been clearly stated in Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 and Ting James Henry v HKSAR (No 2)(2007) 10 HKCFAR 730.  As Lunn JA said in the Court of 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 ...”

7.Mr Kevin Zervos, SC, for the Respondent, criticised 2^nd Appellant’s conduct during the investigation and at trial. 

8.Such criticism centred on 2 statements taken very soon after the collision.

9.The trial judge said of these statements:

“104. … I place little weight on [their] contents. The defendants had a long evening awake with no sleep. I accept that the defendants may not have had a clear mind the morning after the collision as the dramatic and tragic events of the previous evening may have had an effect on the precise recollection.”

10.Given that the relevant events were recorded and captured on radar at the Vessel Traffic Centre and on the voice data recorder, and there was a video of the VTS radar images, which shows clearly how the collision occurred, this is not a case where one could fairly say that 2^nd Appellant’s conduct has brought suspicion upon himself or that he has misled the prosecution into thinking the case against him is stronger than it is.  Vol 9 Halsbury’s Law of Hong Kong, Criminal Law and Procedure para 130.178.   

11.Indeed, the fact that of the 4 persons the prosecution had seen fit to prosecute, 3 have had their convictions quashed strongly supports Lord Clarke’s statement that:

“181. … No proper thought could have been given to the case before this charge was drafted …”

12.There is also no good reason to deprive 2^nd Appellant of any of his costs in the Court of Appeal.   We believe, had the Court of Appeal applied the correct test on mens rea, they would have allowed the 2^nd Appellant’s appeal with costs. 

13.By letter dated 13 March 2013, solicitors for the 2^nd Appellant asked for Certificates for two counsel throughout these proceedings.  This is not controversial.   We do so certify and make the costs order nisi absolute.

Written submission by Holman Fenwick Willan for the 2nd Appellant in FACC No 7 of 2012

Written submission by Mr Kevin Zervos SC and Mr Robert K Y Lee of Department of Justice for the Respondent