HKSAR v. Yao Baonong and Another

DCCC 1323/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1323 OF 2011

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Reasons for Sentence

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1.Each of you pleaded guilty to a single offence of endangering the safety of others at sea, contrary to Section 72 of the Shipping and Port Control Ordinance, Cap.313.

2.You each admitted the facts and I convicted you.

3.By way of comment, I do make the point that while the offences are essentially the same, the particulars contained therein do vary dramatically.  I shall endeavour to explain this at a later stage.

4.The facts themselves require some detailed reciting, for which I make no apology.  This was a very complex situation. 

5.What the prosecution say happen is as follows.

6.At about 3.06 am on 7 December 2010,  River Trade Vessel Run Ze 001 (hereinafter referred to as “Run Ze”) and another River Trade Vessel Hui Jin Qiao 08 (which I shall refer to as “Hui Jin Qiao”) collided at southeast off Tung Lung Chau, within Hong Kong waters in Hong Kong.

7.The Run Ze sank soon after the collision with the loss of eight of her 14 crew members, including her Master and the bridge crew.  None of the surviving crew members nor any of the crew on board Hui Jin Qiao sustained any injuries.  Both vessels were damaged to their bows.

8.Immediately after the collision, Marine police officers of Police Launch 55 attended the scene to carry out rescue and recovery of bodies. 

9.D1 - you were the master - D2, you were the helmsman - and one Yang Rongbiao (the lookout) onboard HJQ were identified.  At the time of the collision, you, D2, and the lookout were working at the bridge of the vessel whilst you, D1, were off-duty, asleep in your quarters.

10.D1, you were subsequently arrested for endangering the safety of others at sea. 

11.Under caution, you admitted, amongst other things, that you were a qualified Master, having qualified with a certificate of Coxswain Grade 3 in 1994.  Since March 2008 you had taken over the navigation of the HJQ as the Master.  Since that time you navigated the vessel between Hong Kong and Shantou once a week.

12.On 7 December of 2010 you went off-duty at about 1 am.  You designated the duty of navigation of the vessel to D2 with Yang Rongbiao assisting.

13.You made further admissions:

(a) the vessel navigated to Hong Kong from Shantou once a week to load and unload goods;

(b) on this occasion, the vessel entered Hong Kong on 5 December 2010. At 10.20 pm on 6 December 2010 you started navigating the vessel with a view to leaving Hong Kong;

(c) at about 1 am on 7 December 2010 you, D2, took over the duty of the navigation of the vessel, you taking a rest, D1. You and another crew member would take over the duty at the bridge of the vessel from D2 and Yang Rongbiao (who was acting as lookout) at about 4 o’clock in the morning;

(d) you prepared the duty roster of the crew members, including assigning the duty of the lookout;

(e) at about 2 am in the morning, Yao Wenmu, a crew member, reported that the Mainland China Customs & Excise had issued an order that the vessel had to return to Hong Kong for the sake of repairing the “Customs Surveillance” system, which had been out of order. D1, you then instructed D2 to carry out this order. At this time, you yourself did not return to the wheelhouse;

(f) several minutes after 3 am, you were woken up by a loud noise, probably by collision of the vessel with another vessel. The collision caused you to fall to the floor. You immediately went up to the bridge of the HJQ. You then saw the RZ 40 to 50 metres away from the HJQ. It was leaning forward and, soon after. it turned upside down and sank. You then marked the location of the collision on the chart navigator. D2 briefed you as to what had happened about the collision. You then asked that the Hong Kong Police be informed and for the damage to the HJQ to be assessed;

(g) you had not given any specific instructions to D2 on the returning voyage to Hong Kong as D2 had sailed together with you since 2008 and was familiar with the returning route to Hong Kong. D2, in fact, held the same qualification as yourself, that is, Coxswain Grade 3;

(h) you were aware that, before the collision, the waves were 2 metres high and the wind speed on the Beaufort scale was 7 to 8.

14.D2, you were also arrested for endangering the safety of others at sea and, under caution, you made the following admissions:

(a) you had worked regularly with D1 on the HJQ since March 2008, acting as First Mate;

(b) on the morning of 7 December 2010 you took over the duty of navigation from D1, who went off-duty at about 1.10 am. Soon after you had begun to navigate the vessel out of Hong Kong, D1 instructed you to reverse the vessel in the direction of Hong Kong because the Mainland China Customs & Excise ordered it to be so. The return journey started about 1.40 am;

(c) at about 3 am you first noticed the RZ, which was approximately 1 nautical mile from the front port of HJQ. According to the experts, the first time the vessels would have been visible to each other was after the tip of Tung Lung Chau Island had been cleared at about 2.54 m at a distance of 2 nautical miles;

(d) with regard to events before the collision, you said the following: “At about 0300 hours on 7 December 2010, I and lookout Yang Rongbiao were still on duty in the wheelhouse. As the HJQ reached Tung Lung Chau I saw a red vessel’s navigation light about one nautical mile away from the front port of our vessel. Therefore, I immediately slowed the HJQ from 5 to 3 nautical miles. The wheel speed was reduced from 8(800 – 810) revolutions to 600 revolutions right off. The vessel originally sailed at 220 degrees and it was shifted to 245 degrees. It meant that it turned to starboard side to 15 degrees. I also turned the vessel’s red flashing light to signal to the opposite side to keep near to my red navigation light area as it passed. However, the other side did not change its course. Immediately following it, I informed the opposite side via wireless radio in the wheelhouse. However, they did not reply. At the time the radio was on the universal channel 16. Several minutes later, a green light on the starboard side of their vessel was in sight and it was about 20-odd metres away from the HJQ. Then, I immediately stopped the vessel and activated the reverse gear. However, the vessel still sailed forward with momentum. In the end, the starboard bow of HJQ collided with the starboard mid-ship of their hull. Their vessel listed to starboard side and sank right off.”

(e) The radar was working before the collision.

The weather conditions

15.Based on the weather report provided by the Hong Kong Observatory in the vicinity of southeast off Tung Lung Chau, the visibility was 6 kilometres in the early morning on 7 December.  The wind was blowing at 6 on the Beaufort scale, creating 3- to 4-metre-high waves and there was a 24-knot northerly wind.

16.After the collision, the HJQ was inspected by Shiu Yu-chuen (“Shiu”), who is the ship surveyor of the Marine Department.  Mr Shiu found the following defects in the navigation aids on board the vessel:

(a) both the standard and steering magnetic compasses were unsuitable for safe navigation. The steering compass was secured by twine so not able to move freely to the horizontal when the ship rolled and pitched at sea. Also the steering compass had an air bubble in the liquid-filled bowl;

(b) the radar was defective because the metal fitting to secure the radar caused narrow blind spots. They were not approved manufacturers fittings;

(c) the navigational lights, which are essential to show the true position and aspect to other vessels at sea, did not comply with Rule 21(b) of COLREGS (the International Regulations for Preventing Collisions at Sea 1972) which was set out in the Schedule of the Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) Regulations, Cap.369N, as the side and stern lights could not produce a steady angle. This may affect the ability of one vessel to properly ascertain the position of another vessel and possible risk of collision;

(d) the red masthead signal lights were out of order;

(e) the equipment for sound signalling (including the whistle and the bell) were not working and could not meet the requirements as per Rule 34(d) of the COLREGS;

(f) the navigational charts were obsolete for safe navigation;

(g) the NAVTEX (which is, Navigation Telegram) was not working properly;

(h) the flag signals available on board did not meet the requirements under the International Code of Signals;

(i) three windows on the bridge (that is, the wheelhouse) were broken and had been temporarily repaired by glue, but I understand that this matter does not appreciate in the charge; and

(j) the Automatic Identification System (“AIS”) was not functioning.

17.By the standard of the Port State Control Guide (“the PSCG”) (IMO. Res A787(19)), Mr Shiu opined that the vessel was “substandard” and “unsafe” for navigation.  According to Mr Shiu, under the PSCG, a ship was regarded as substandard if its hull, machinery, equipment or operational safety is substantially below the standards required by the relevant convention and the various pieces of navigational aids mentioned in paragraph 16 above are equipment essential for the safe operation and navigation of a vessel.

18.Mr Shiu further remarked that, under the PSCG, a substandard vessel would be unseaworthy, which put the life of crew members on board the vessel at risk.  Thus, it would present an unreasonable threat of harm to the maritime environment, including other vessels at sea.

19.Further, if upon inspection, the vessel and/or the crew members throughout voyage were not able to navigate safely and to communicate in distress stations, and in view of all the  deficiencies of the navigational aids found on the vessel, the ship would be detained by the authorities as the vessel was unsafe for further navigation.

20.Based on the movement of the two vessels at the material time, including their respective courses, speeds and locations as shown by the radar-plot provided by the Marine Department, the accounts of the survivors (including you, D1, you, D2), the photographs and inspection done on the HJQ and the findings of the various Marine experts who have studied this case, the following synopsis of the accident can be established:

(a) both vessels were on opposing courses to each other from 3 am onwards on 7 December 2010 as the HJQ was heading back to Hong Kong Harbour whilst the RZ was leaving the harbour. The collision took place at about 3.06 am;

(b) before the collision, the RZ was leaving Hong Kong by the inward bound lane of Tatong Channel. The channel operated under a traffic separation scheme. Had the RZ travelled by the outbound lane instead of the inbound lane, which it should have done under the rules as it was the outboard vessel, the collision would have been avoided;

(c) at about 3 am, the speed of the RZ was 5.5 knots with a strong northerly wind against her. There was no reduction of speed by the RZ and no alteration of its course at any time prior to the collision;

(d) the HJQ, which was under the helm of D2 with Yang Rongbiao acting as lookout, was following a south-westerly course of approximately 225 degrees bearing back to Hong Kong. It was approaching the correct inbound lane;

(e) at about 3 am, the HJQ was travelling at a speed of between 6 to 6.5 knots with strong northerly wind on the starboard beam. There was no “substantial” reduction of speed of that vessel from 3 am to 3.06 am;

(f) at about 3.02 am, having seen the RZ approaching, the HJQ altered the course to starboard by 25 degrees (from 220 degrees to 245 degrees) and at about 3.03 am the HJQ further altered the course to starboard by 14 degrees (from 242 to 256 degrees);

(g) regarding D2, your use of the red flashing light as a means of warning to the RZ, the experts observed that this was a means of collision avoidance adopted by seamen in Mainland China. A flashing red light meant that the RZ should be passing the vessel “red to red” (port to port). The RZ should respond by flashing its own red light.

(h) the lookout on HJQ saw the RZ once it came round at the tip of the island and alerted you, D2, in time to take action;

(i) the risk of collision arose from about 3 am and onwards. By this time both vessels should have been visible to each other and their navigators should have appreciated and determined that the risk of collision existed pursuant to Rule 7 of the COLREGS and should have taken action to avoid a collision in terms of Rule 8 of the COLREGS;

(j) prompt actions should have been taken by each of the vessels to avoid a close-quarter station, whether a “head-on” or crossing station as per Rules 14 and 17 of the COLREGS. If a crossing situation applied, the RZ had a duty to stand on and maintain her course and speed under Rule 17. If a head-on situation applied, the RZ had a duty to go to starboard under Rule 14. No action was apparently taken by the RZ at any time between 3 am and 3.06 am to avoid the collision even though the HJQ should have been visible in sufficient time (that is, for at least 6 minutes) for avoiding action to have been taken;

(k) the two vessels had failed to take sufficient actions to avoid the collision per Rule 8 of the COLREGS: The HJQ took the correct action initially at about 3.02 am on seeing the approaching vessel, that is, turning 25 degrees to starboard and trying to alert the RZ on the expectation the RZ would also turn to starboard and the two vessels would correctly pass safely port to port as the COLREGS require. However, after you D2 had made the approximate 25 degrees alteration of course to starboard, you should have checked the effectiveness of the alteration of the course. You should have realised that the manoeuvre was not sufficient as RZ had not altered the course and the two vessels were on a “collision course”. At that stage D2, during the approximate 4 minutes before the collision, you should have taken further more positive and effective avoidance actions as required by Rule 8 of the COLREGS because the RZ was taking no such action.

21.As we know, the tragic result was that eight members of the crew of the RZ died, and those are the prosecution facts upon which this prosecution is based and I might comment they are very fairly presented.

22.Now, on behalf of each of you, Miss Campbell-Moffat made it clear from the outset that the plea of guilty was based on the report prepared by Captain John Simpson, to which I will refer extensively later. 

23.The prosecutor, Miss Crebbin, very fairly and creditably conceded that the main fault lay with the crew of the vessel Run Ze, with such tragic consequences which resulted in the death of eight of its crew of 14.

24.Those rescued appeared to be the basic seamen and not the responsible officers who would almost certainly - if not, certainly - have been prosecuted. 

25.Indeed, I do comment here and place on record that I recognise and applaud both counsel for the admirable means with which this tragic matter has been finalised.  In the very best traditions of the bar, both parties have worked together to ensure that the prosecution is based on the correct footing without the necessity of a lengthy and expensive trial.  In my opinion, this is a fine example of counsel working together to achieve a just result. Both counsel are, therefore, to be commended.

26.Miss Crebbin, on behalf of the prosecution, provided me with a list of authorities and while I am obliged to her for doing so, the facts themselves do vary very much from what actually took place in this case.  However, I do note the guidance contained therein.

27.On behalf of each of you, Miss Campbell-Moffat placed before me lengthy and persuasive mitigation. 

28.I shall start with you, D1.  

29.She told me that you accepted the factual contents of the antecedent statement provided by the prosecution. 

30.The thrust of her argument, as I understand it, is that you, D1, should not be sentenced to imprisonment because of the peculiar facts of this case.  She submitted that the basis of plea was that whilst the charge in relation to the state of the HJQ is accepted, those defects had no bearing on the accident that actually occurred.

31.She submitted that this case, as far as you are concerned, D1, could well have been dealt with at Magistrates’ Courts level.

32.She listed the defects referred to in the charge, which are nine in total.  To repeat her submission, it is that the state of the vessel, as reflected by these faults, would have attracted a fine.

33.You are the Master and not the owner of the vessel.  As Master, you took responsibility for the journey and pleaded guilty.

34.As Captain Simpson’s report said, cumulatively the vessel was not seaworthy. 

35.Miss Campbell-Moffat says that the prosecution cannot prove and you do not accept that items 3, 4 and 5 were defective on that night, and that item 1 was defective in a very limited way, that the radar was functional and any failings were more than compensated for by the use of ECS. The defects on board the HJQ could not have been significant because, after repair to the hole in the hull, she was allowed to leave Hong Kong without any requirement by the Port Authorities to fix the items.

36.She then referred to the individual particulars in items of the charge.  She said the summary of facts was based on an inspection by Mr Shiu Yu-chuen, ship surveyor of the Marine Department, some six days after the incident.  That prior to the incident (and that is on 17 July 2010) the vessel had passed an inspection in Shantou, Mainland China.  She produced that report which shows that it was entirely seaworthy at that stage.

37.I turn now to the individual items.

38.She began with the standard and steering magnetic compasses, pointing out that the standard compass was mounted high up above you on the bridge whilst the steering magnetic compass was in front of you. 

39.The latter was indeed secured with string, the reason being that it is on a pivot and can be dislodged or roll excessively so one cannot read it.  The twine would not prevent it giving a proper reading. It also had an air bubble inside.  It has a container of alcohol by it for topping up.  It is not a sealed unit nor a vacuum and alcohol reduces the bubbles, but constantly the container has to be topped up.  She also submitted that, given the impact, it was not surprising that bubbles were found in the circumstances, that it was clearly working properly as there was no indication that your alterations, of course D2 were other than those intended. 

40.She then went on to deal with some matters such as the variation between the magnetic north and the true north, being distorted and damage to the standard compass, which could well be due to the impact.

41.As I understand it,  these are not complained of in the brief facts so I shall not deal with these matters.

42.Two, the radar defects amounted to its being secured by narrow metal bands which might have caused interference and impaired detection for collisions at close range.

43.Miss Campbell-Moffat said it was only the bracket securing it and there was no evidence of it having any bearing on the accident, as we know the radar was working properly to allow you, D2, to detect the RZ.

44.Further, that even in the absence of such bands, parts of the superstructure often affect the radar sweep but movement of the vessel caused by the waves allows a new picture every three seconds.  Thus, the bands did not stop the vessel seeing the entire area being scanned because of the motion of the sea and forward motion of the vessel.

45.Three, the stern navigation light was found not to be working and the starboard light had a reduced arc of 80 degrees.  Miss Campbell-Moffat said these lights are regularly checked and there was no evidence that they were not working prior to the accident.  They are delicate and would be affected by a significant impact such as occurred.  However, she does accept, on your behalf, D1, that they should have been properly secured. In any event, at no time would the RZ have seen the stern or starboard lights because of what occurred.

46.Four, the red masthead signal light was found not to be working.  She submitted that the First Mate had checked and tested all equipment prior to departure and it is no surprise they were affected.  She said that, in any event, it is only used in fog or when the ship has run aground.  The red Chinese warning lights adjacent to the other signal lights were used at that time.

47.Five, the ship’s whistle was not working.  Miss Campbell-Moffat said it was tested before departure and used on voyage to warn off fishing vessels.  However, it is easily affected by an impact such as this.

48.Six, the navigational charts were not up to date and it was accepted they should have been.  However, the Master used ECS, which would be up to date and correct, with a GPS plotter.  This is far more preferable than charts.

49.Seven, NAVTEX provides weather information warnings.  Therefore, all mariners ensure it is working properly.  It has a receiver externally and could have been affected by the impact.

50.Eight, Miss Campbell-Moffat implied that the flags used for signalling were accepted as not in compliance.  Some were, in fact, missing.  However, signals by other means were available and she suggested that flags were rarely, if ever, used.

51.Nine, AIS is the identification system which allows other vessels using AIS to know what vessels are around them and what they are doing and if it is likely they have any difficulty because of their draughts. She said this is not a collision avoidance tool.  This is an information system.  Given the order to return to Hong Kong, she submitted it was not surprising it was not updated.  There was no suggestion that the alarm was turned off. 

52.She said that the vessel was not a risk but that it was a typical coastal China trader.  Again, she made reference to the fact that it had passed its annual inspection in China in 2010 and such defects as found had been put right.

53.Referring to your personal details, D1, she said that you are 66 and retired and this is as a result of the accident.  Your wife is 65 years of age and in poor heath.  You have six mature children.  Whilst employed as the Master, you were earning RMB9,000 per month.  Now, you find yourself without income and relying upon your eldest son for support. 

54.She said that all the victims’ families had been compensated by the boat owners, so as to that matter, things had been put right as much as they could.

55.She referred to your qualifications as a Grade 3 Coxswain, which is the same as that of you, D2.  You are both, of course, of clear record, as we know.  The submission in respect of you, D1, was that this offence was at the lowest end of the scale, given the facts. 

56.Miss Campbell-Moffat then turned to you, D2.

57.She referred me to the map on page 11 of Captain Simpson’s excellent report.  Using that same report, she went on to describe in detail how the accident occurred, with special reference to paragraph 3.6 on page 16.

58.The HJQ was coming back from the direction of the Nine Pins. 

59.She showed me the traffic separation zone, which is a busy area with buoys to guide traffic.  It seems that mariners know from the shape of the buoy what it means.  She said that this is a constant and mandatory regulated zone. 

60.Tung Lung Chau was to the starboard of your ship.  The left lane of the chart was coming out.  One entered the traffic separation zone at a shallow angle. 

61.The RZ was coming out on the inbound lane in order to cut the corner to go up past the Nine Pins. 

62.This is one of the basic features of this case, the RZ was in completely the wrong lane.  She submitted the RZ would have appeared from behind the land mass.  There would have been no radar contact until it appeared.

63.Turning to Captain Simpson’s report in more detail, the HJQ was returning to Hong Kong harbour, passing Tung Lung Chau, bearing 225 degrees.  He said the navigation aids were working and she was doing 6 knots.  She would have to alter course to starboard in order to enter the traffic separation zone at a shallow angle.  She was off Tung Lung Chau and there was a lot of coastal traffic in the area. 

64.Referring to the general conditions, Miss Campbell-Moffat said it was 3 am, it was pitch black, the wind was 6 on the Beaufort scale and a northerly wind was blowing at 24 knots, with waves of 3 to 4 metres high.  As the HJQ came around, the wind was against the starboard.  The RZ had wind to the portside as making a port turn.  The wind affected the forward motion as against the starboard side of the HJQ, so she would be turning to the starboard against the wind.  Clearly, this affects the manoeuvrability of the vessel.  Hard to starboard would take longer to be effective against a 24-knot wind at 5 knots.

65.COLREGS rule 8 applies in circumstances where a risk of collision exists.  When one ascertains there is a risk of collision, COLREGS part 2 kick in and certain things have to be done. 

66.Until the RZ passed the headland at between 2.54 am and 2.56 am, there was no risk of collision, as she was still heading south.  The coxswains of the HJQ and RZ then turned to port to do the U-shape manoeuvre.  At 2.52 am the HJQ had sight of the vessel at the headland and, from experience, both vessels would know that they would be doing a U-shape.

67.At this stage, there is no requirement to do anything, as there is no risk of collision, even guessing what the other would do.  Paragraph 3.64 of Captain Simpson’s report supports this. 

68.It was not until the RZ altered course to port at about 2.56 am, creating a risk of collision and creating a crossing situation.

69.By 2.58 am there was a definite risk, in sight of each other and needing to act under COLREGS. 

70.Miss Campbell-Moffat referred to the brief facts, where it was a clear crossing situation, but mentioned that one prosecution expert thought it was a head-on situation.

71.By 2.58 am there was one vessel to the south turning to port and one vessel to the north turning to starboard.

72.The RZ never pointed to the bow of the HJQ. Figure 1 on page 11 of the report shows this.  It is a clear crossing situation.  COLREGS then come into play.  The vessel to starboard must take action while the vessel to port should maintain its course; that is, just keep going until there is no risk of collision.

73.Rule 15, the RZ should have kept going along the red line.  Also reference to Rule 17:  at the same time, you, D2, had to go to starboard.  You had to act.

74.Between 3 am and 3.02 am, the vessel changed its tack by 25 degrees.  Rule 16 requires early and substantial action to keep clear. She submitted that this takes time even if it is manoeuvrable.  However, the turning was into a 24-knot wind.  Further, the more she turns to starboard, the more she heads for land.  220 degrees plus 25 degrees gives 240 degrees, so close to land.

75.Miss Campbell-Moffat submitted there was little clearance at 0302.  However, the RZ just kept coming; it was not doing what it should have done.  By now the HJQ was dangerously close to land and then turned a further 14 degrees.  She submitted it was, therefore, heading for the land. The RZ turned to port as if not noticing the HJQ at all.

76.The crux of the defence case is that you, D2, acted properly and appropriately until that point under COLREGS.

77.D2, you had reacted twice.  Clearly, you knew and saw and reacted to the RZ.  However, you cannot sit back and there continued a duty to react, if the other vessel is not obeying COLREGS.  You cannot turn into port under COLREGS.  With hindsight, the only thing you can do is continue to move to starboard.  This means you were definitely going towards the land. Next, at 20 metres away, you went full astern but she hit you on the starboard bow. She hit you near the anchor, which is prone to hole.  Photos 53 to 55 show this.  The accident occurred at 0306 hours.  It had been turned 180 degrees so the impact was not so hard. 

78.Miss Campbell-Moffat submitted that in different circumstances, you had done everything correctly.  However, as we know, a third movement to starboard was required.  She described you as acting in the agony of the moment. 

79.Miss Campbell-Moffat then referred me to two very old authorities from the United Kingdom, both of which are, in fact, civil cases. 

80.The first was London Steamboat Co. v Bywell Castle (Owners), Court of Appeal 1879.  I was referred to various paragraphs on pages 222, 223, 226, 227, 228 and 229.  Whilst I do not intend to go through those paragraphs, the gist, as I understand it, is as follows:  that if a person has navigated with due care and skill until shortly before the accident, the emergency being caused by the actions of the other vessel, then he should not be held negligent for an act committed in the agony of the moment.

81.Also, the House of Lords’ decision in Miraflores (Owners) v George Livanos (Owners) & Ors [1967], especially the highlighted paragraphs at pages 815 and 816.  Again, I do not intend to repeat them.  It seems it underlines the previous decision. 

82.She then referred me to your personal particulars. She reminded me of your plea of guilty, clear record and qualifications.  You are a professional man, with the same qualifications as D1.  Both of you have excellent records at sea. 

83.It was her submission that this case could properly and justly be dealt with by way of a suspended sentence rather than an immediate prison sentence.  This is based on all the circumstances prevailing at the time and the considerable mitigation advanced.

84.She made some reference to cases within the prosecution bundle, especially HKSAR v Kulemsin Yuriy & Three Others, CACC 19/2010.  Especially, she referred to the senior pilot in that case had his sentence reduced to 3 months’ imprisonment. 

85.She submitted that you, D2, in this case, were not as guilty as that person in that case. 

86.You are 62 years of age, unemployed and married.  You have elderly parents to support.  I understand you have three grown sons.  As the First Mate, you had been in receipt of some RMB4,000 per month and she repeated her submission that this case should be dealt with by way of a suspended sentence.

87.I turn now to the sentences.

88.Here we have two men in their 60s, of clear record and unblemished service at sea over a considerable number of years.  You both hold similar and appropriate sailing qualifications.  D1, you were the Master of the vessel and you, D2, the First Mate. 

89.It is entirely clear to me that at around 3 am on 7 December 2010, sailing conditions were at the very least difficult. The wind was 6 on the Beaufort scale, giving a 24-knot northerly wind, waves 3 to 4 metres high, and obviously it was pitch black.

90.There is no doubt in my mind, and, as I understand it, the prosecution raised no argument to the fact that the overwhelming blame for this tragedy rests with the actions of the RZ, the boat that sank with such terrible loss of life.

91.Miss Crebbin very fairly conceded in reply to a question I posed that had it not been for this tragic loss of life, the prosecution would have been levelling prosecutions against appropriate officers of that ship.  From the facts, that is self-evident.

92.Both of you have, as I have said, appropriate qualifications for your roles and long experience.  There is no and should be no criticism levelled at the lookout who performed admirably in my opinion. 

93.Whilst the prosecutions of both of you are well-founded given the facts, to use the terrible expression and with apologies, I should say you should be regarded as, to a large extent, the fall guys in this case.  To a large extent, you were called upon to accept responsibility for the actions of others. 

94.That is not to say that you were without fault. You do bear some fault.

95.My assessment of the facts is based on the prosecution case, the defence mitigation and on Captain Simpson’s report, which I find to be fair, accurate, well argued and objective.

96.Of course, in areas of doubt, where the prosecution have been unable to prove the contrary I give the benefit of that doubt to the defence.  This accords with proper and well-established principles.

97.So far as you are concerned, D1, the defects on the ship are accepted, but some could, or even going further, are most likely to have been caused by the impact.

98.The events and actions of you, D2, are to my mind clear, and fully and well-established.

99.Dealing first of all with you, D1, as I have said, you were the Master of the HJQ.  You were not the owner.  As the Master, it is your duty, so far as it extends to Charge 1, to ensure that when the ship puts to sea, it is seaworthy and free from defects.  Of course, by that, I do not mean cosmetic defects but defects which could endanger the life of others.

100.Your plea of guilty advanced and the mitigation show a clear and unambiguous acceptance that you had failed in that duty.  Indeed, Captain Simpson’s report is clear on that point. 

101.As I have said, I accept the mitigation presented by Miss Campbell-Moffat in respect of the cause and nature of the defects. It is clear that some, and those are the ones I have indicated, could have been caused or are more likely to be caused by the impact itself.  In respect of those, it seems to me the prosecution would have been unable to prove to the contrary and, therefore a Newton hearing would have been pointless.

102.What is of cardinal importance to me is that none of the defects, either potential or actual, contributed any way to the accident or indeed to the proper navigation of the vessel at sea.  They had the potential to do so but, in view of what actually happened on that night, it is clear beyond all reasonable doubt that what had occurred was not caused by the defects to the ship.

103.To that extent, D1, it is my finding that I cannot be said that you were in any way responsible for this accident.  The blame for this accident lies very firmly with the negligence of the RZ.

104.Having said that, I turn to my original theme, that any vessel which puts to sea must be wholly fit for its journey.  The task of ensuring that it is so rests upon the shoulders of the Master, the owner in this case not being so charged.

105.In my finding, this offence, even given the extensive extenuating circumstances, calls for the imposition of a prison sentence of short duration.

106.D1, would you stand, please?

107.I take a starting point of 3 months’ imprisonment, reduced to 2 months for your plea of guilty. 

108.However, given the extenuating circumstances, your clear record, your impeccable sailing record and also that the ship in July was found to be fully seaworthy, that sentence will be suspended for a period of 2 years.

109.I am sure counsel explained this to you fully. What this basically means is that if you commit no further imprisonable offence in Hong Kong within the next two years, you will not be required to serve this sentence, but if you commit any offence at all which carries imprisonment, then normally this would be served in addition to any imprisonment imposed.

110.D2, you were tasked with navigating the ship back from the Nine Pins to Hong Kong harbour.  You had ample experience and an impeccable sailing record to render you fit for the task.

111.I fully recognise and accept that in the darkness, sailing conditions, given the weather, were difficult.  You had to contend with high waves and a northerly wind of 24 knots, but of major significance is the fact that you were confronted with a vessel behaving totally against all maritime laws and in the most bizarre of fashions. 

112.The RZ was leaving Hong Kong in totally the wrong lane:  the incoming zone.  It was clearly in a position to see your vessel and, when a risk of collision arose, it had a duty to continue its course. 

113.In direct contravention of COLREGS, as it was presented to me, it turned to port, creating a crossing situation.  Presumably it was doing the U-turn to head towards the Nine Pins, and here I pose a question:  had it not seen the HJQ or had it seen her but it decided to disobey and ignore COLREGS and hope for the best?  That, we will never know. 

114.What we do know is that you were faced with a situation that was difficult, a situation that was desperate. 

115.It is accepted, and I find that to be a fact, that you took appropriate and timely action in your initial adjustment of 25 degrees to starboard, followed by a further corrective action by another 14 degrees.  Your turn was against a northerly wind of 24 knots, which clearly would have affected manoeuvrability.  It was also affected in a relatively narrow channel, where the risk of running aground was both real and imminent. 

116.Up to this point, you had, in my opinion, followed COLREGS to the letter.

117.However, it seems that by 3.05 am, that a collision was looming large and COLREGS called on, as I understand it, for you, D2, to make a further correction to starboard.  Again, your inaction has to be placed in the context of the weather, the sea conditions and the proximity of the land, which was even more imminent, with the possibility of running aground. 

118.You took the wrong decision and you did nothing and therein lies the fault.

119.It was, as Miss Campbell-Moffat so rightly puts it, a decision made in the agony of the moment.  We will never know for certain what the result of the action would have been, but action was called for.

120.Therefore, at 3.06 am, the collision took place.  The RZ sank and eight men lost their lives.

121.However, that was far and away the fault of those responsible on the RZ.

122.Relatively, the fault that you must bear, D2, is minor and, to an extent, what you did is understandable.

123.Justice is blindfolded but it is not blind.  This court acknowledges the tragic death of the eight men, but has to place your actions in context and that the fault for that on your behalf is relatively minor.

124.You made an error but it was an error from a position forced upon you by the appalling mistakes of those responsible on the RZ.

125.Stand up, please.

126.In this case, too, a prison sentence is appropriate.

127.I take a starting point of 9 months’ imprisonment reduced to 6 months for your plea of guilty. 

128.However, given the limited blame that attaches to your actions, the conditions that prevailed on that night, your clear criminal record and your excellent sailing record, that will be suspended for a period of 2 years.

129.This will, as I said to D1, be fully explained to you by counsel, but what it means is that if you commit no further offences in Hong Kong during the next two years which carry imprisonment, you will not be required to serve that sentence, but should you commit any offence at all which carries imprisonment, then normally this would be served in addition.

130.Please sit down, and finally I thank counsel for their assistance in this case.