HKSAR v. Ruan Cuncai

DCCC 14/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 14 OF 2014

----------------------

---------------------

Reasons for Sentence

---------------------

1.At around 7:36 pm on 18^th April 2013, two vessels collided within the waters of Hong Kong, resulting in six deaths.

2.The two vessels involved were “Wang Da 6” and “Hai Bang Da 199”.  At all material times, D1 was the Master of “Wang Da 6” and D2 was the Master of “Hai Bang Da 199”.  D1 and D2 were each charged with one count of “Endangering the Safety of Others at Sea”, i.e. Charge 1 against D1 and Charge 2 against D2.  D1 appeared before me on 19^th June 2014.  He pleaded guilty to Charge 1 and admitted the facts.

3.At around 6:10 pm on 18^th April 2013, “Hai Bang Da 199” departed from Tseung Kwan O, Junk Bay with 11 crew members on board.  In the meantime, “Wang Da 6” entered Hong Kong waters from Hainan Dao and its destination was Fujian, the Mainland.  “Wang Da 6” had a total of 14 crew members.  Both vessels were loaded:  “Hai Bang Da 199” with around 4,700 tonnes of construction waste and “Wang Da 6” with around 5,000 tonnes of sand.  All the six who perished were crew members of “Hai Bang Da 199”.

4.At around 7:34 pm, an operator of the Vessel Traffic Centre, Marine Department, observed from the radar system that “Wang Da 6” was approaching from the right front side of “Hai Bang Da 199” and there was a risk of head-on collision.  At 7:34.14 pm, the operator alerted “Hai Bang Da 199” of the situation through radio.  A crew member of “Hai Bang Da 199” replied that he was aware of the situation.  At 7:34.49 pm, the operator issued a second warning and requested that “Hai Bang Da 199” to take immediate action.  The response from “Hai Bang Da 199” was unclear.  At around 7:36.52 pm, “Hai Bang Da 199” informed the operator that there was a collision and the vessel was sinking.  There was no further response from “Hai Bang Da 199” since 19:37.38 pm.

5.“Hai Bang Da 199” sank after the collision.  As said, six of its eleven crew members perished. All 14 members of “Wang Da 6” escaped the collision unscathed.

6.Various experts had been engaged to investigate the accident.

Vessel Inspection

7.On 28^th May 2013, Mr Cheung Tai-kee, a qualified ship surveyor, conducted a safety inspection and damage survey on “Wang Da 6”.  He inspected the navigational items of the vessel and confirmed that they were functioning in good order. 

8.After the collision, agent of “Hai Bang Da 199” provided the police with information and particulars of the navigational equipment of “Hai Bang Da 199”.  As “Hai Bang Da 199” had sunk, no onsite inspection could be carried out. 

Navigation of the Vessels up to the time of Collision

9.Mr Alfred Cheung is the Director of a shipping service company and a qualified master with considerable experience.  Having considered the Surveyor’s inspection report and various materials related to the incident, including the radar plots/data and video recordings of marine traffic scenario, Mr Cheung prepared a report of the navigation of “Wang Da 6” and “Hai Bang Da 199” between 7:20.02 pm and 7:35.30 pm (ie the time of collision), covering various positions, courses and speeds taken by each of the two vessels at various timeframes. 

10.What happened at

(1) 7:20.02 pm (ie 15 minutes before collision);

(2) 7:25.02 pm (ie 10 minutes before collision);

(3) 7:30.02 pm (ie 5 minutes before collision); and

(4) from 7:30.02 pm until collision (at 7:35.30 pm)

are set out in paragraphs 9 to 12 of the Summary of Facts which I would not recite in detail.

11.A radar plot chart (Annex 1) prepared by the Marine Department tells us graphically the various positions, courses and speeds taken by the vessels at different time frames. The red course was the course taken by “Wang Da 6”; the blue course was the one taken by “Hai Bang Da 199”.  The point where the two courses meet was the position where the vessels collided.

Breaches of the COLREGS

12.Mr Cheung was of the opinion that, owing to the ways of navigations of the respective vessels, D1 and D2 were in breach of the International Regulations for Preventing Collisions at Sea (“COLREGS”).

“Wang Da 6”

13.D1, the Master of “Wang Da 6”, was in breach of Rules 5, 6, 8(a) to (e), 19(b), 19(e) and 35(a) of COLREGS.

“Hai Bang Da 199”

14.D2 of “Hai Bang Da 199” was in breach of Rules 5, 6, 8(a) to (e), 19(c), 19(d) and 35(a) of COLREGS.

COLREGS 35(a): Sound Signals in Restricted Visibility

15.Both “Wang Da 6” and “Hai Bang Da 199” failed to sound their respective fog signals at intervals of not more than two minutes per prolonged blast. 

COLREGS 5: Proper Lookout

16.Due to poor lookout and poor seamanship, both D1 and D2 were not fully aware of the risk of collision with the approaching vessel after radar observations between 7:20.02 pm to 7:30.02 pm.

COLREGS 8(a) to (e): Action to Avoid Collision

17.Whilst there was no other ship around or other obstruction nearby and knowing that the other vessel approaching was at risk of collision with it (from 7.30.02 until collision), the two vessels maintained their respective courses and speeds and did not take any action to avoid collision.

COLREGS 6, 19(b) and 19(e): Safe speed

18.“Wang Da 6” maintained its speed all the time at an average of 10.5 knots.  It should have reduced its speed but had failed to do so at all until collision.

The opinions of Captain THIRD

19.Captain John THIRD, a maritime expert, gives his opinions as to the navigational conducts of D1 and D2 as follows:

(a) both D1 and D2 did not comply with COLREGS, in particular Section III in relation to the conduct of vessels in restricted visibility and Rules 19 and 35, governing conduct and sound signals;

(b) both D1 and D2 had allowed their vessels to change course to the left. Such manoeuvres could and should have been avoided. The manoeuvres to the left violated a cardinal rule of seamanship and caused the collision;

(c) D2 had manoeuvred “Hai Bang Da 199” to the left in a similar manner to avoid another vessel only a few minutes before the alteration to the left in her encounter with “Wang Da 6”. These were actions of gross negligence;

(d) D1 allowed “Wang Da 6” to change her course to the left during the period of 3 minutes before the collision. The vessel was navigated in a grossly negligent manner during that period;

(e) both D1 and D2 did not take proper action to stop and take all the way off the vessels using the engines when it was appropriate to do so;

(f) D1 should have ordered his engine astern and performed an emergency stop at about 7:35.32 pm;

(g) likewise, D2 should have ordered his engine astern and stopped his vessel at 7:32.32 pm instead of turning his vessel to the left. Alternatively, D2 could have turned to the right. Captain THIRD opines that the manoeuvre to the left was conducted blindly because D2 had failed to appreciate the situation, ie the course and speed of “Wang Da 6”;

(h) the failure to stop their respective vessels by D1 and D2 when they were or should have been, uncertain of the developing situation ahead, was grossly negligent; and

(i) the collision would have been avoided if both D1 and D2 had complied with Rule 19 of COLREGS, in particular by changing their respective courses to the right or by reducing their respective speeds to a minimum and navigating with extreme caution until the risk of collision had passed.

Cautioned Interviews

20.A total of three cautioned interviews were conducted with D1.  D1 admitted under caution that:

(a) he had been the master of “Wang Da 6” since March 2013 and there were a total of 14 crew members on board;

(b) he held a Coxswain Certificate since 2003 and was qualified to steer vessels between 500 and 3,000 tonnes;

(c) “Wang Da 6” was equipped with radar, GPS, navigation lights, radio transmitter and lifesaving equipment;

(d) on this occasion, “Wang Da 6” was loaded with around 4,500 tonnes of sand. The vessel departed from Hainan Dao on 17^th April 2013 and was destined to Fujian, the Mainland;

(e) at around 7:20 pm on 18^th April 2013, D1, together with SHI Shuming, were inside the wheelhouse. D1 was responsible for monitoring the radar and giving instructions to SHI who steered the vessel. There was another crew member acting as the lookout at the front of the vessel and two other crew members were also on duties;

(f) at the material time, “Wang Da 6” was travelling at around 9 knots. As the weather was very foggy and the visibility was around 0.5 nautical mile, D1 instructed a crew member to act as the lookout at the front of the vessel for about 10 minutes. That crew member was released from duty after he had observed for about 10 minutes and nothing special was noted;

(g) D1 noted from the radar that there was an object which was 3 nautical miles away appearing on the left front side. He had tried to contact the approaching vessel through radio on numerous occasions but received no response from the other side;

(h) he then noted from the radar that the object had reached a distance of 2 nautical miles from “Wang Da 6”. He issued a long horn sound and received a long horn sound from the other vessel. He acknowledged that they would follow the collision avoidances rules. He thus instructed SHI to steer the vessel to the right side for about 5 degrees;

(i) he took a look at the radar again and noted that the other vessel continued to move on the left side and the two vessels were less than 1 nautical mile apart. Since it was too foggy, he could not see the other vessel;

(j) the other vessel continued to move on the left side of “Wang Da 6”, D1 immediately instructed SHI to reduce the speed by switching off the propeller and make a full steer to the left side. These actions were taken in order to avoid the other vessel. However, it was too late and “Wang Da 6” rammed into the right side of the other vessel; and

(k) D1 was very familiar with the route taken and the geographic condition of the accident location.

21.D2 in his cautioned statement stated, among other things, the following:

(a) “Hai Bang Da 199” was equipped with navigation light, radars, GPS and lifesaving appliances;

(b) D2 was at the time navigating at a course of around 200 degrees at a speed of 6.5 knots. The visibility was around 0.5 nautical mile;

(c) D2 and JIN Xianyu were inside the wheelhouse. JIN was steering the vessel while D2 sat by the side observing the radar. He noted from the radar that there was another vessel approaching. The other vessel was 1 nautical mile away and was at a course of around 70 degrees on the right side of “Hai Bang Da 199”;

(d) D2 immediately alerted JIN to reduce the speed to the minimum speed and to issue two long sound signals. At the same time, he got out of the wheelhouse and used the searchlight to issue signals for around 2 to 3 minutes. He then saw a vessel appearing at the course of around 80 to 90 degrees on the right side of “Hai Bang Da 199”. The other vessel was around 0.5 nautical mile away and was dashing towards “Hai Bang Da 199”;

(e) D2 shouted at JIN and told him to quickly steer the vessel to the right side, but he was not sure whether Jin heard what he said. He did not pay attention whether the vessel was indeed steered to the right side. He kept on issuing signals through the searchlight, but the other vessel did not stop and kept dashing towards them; and

(f) the other vessel then rammed into the right side of “Hai Bang Da 199”. D2 immediately asked JIN to report to Marine Department and he alerted the other crew to evacuate. “Hai Bang Da 199” subsequently sank and he was rescued.

22.Shortly before and at the time of the collision, visibility of the area navigated by both vessels was extremely low due to heavy fog.  Yet, both vessels were equipped with radar system and their Masters should be able to take avoiding actions if they chose to. 

23.The track report and radio plots at the material times show that both vessels made little or no substantial alteration of courses when they should have realised that the actions taken by them were not sufficient to avoid the risk of collision.  In the case of “Hai Bang Da 199”, D2 even made the incorrect alteration of course to the left near to the time of collision.

24.According to the track report, “Hai Bang Da 199” maintained a speed of around 6.5 knots while “Wang Da 6” travelled at a speed of around 11 knots throughout when they should have avoided the risk of collision by reducing the speed of the vessels substantially.

25.Subsequent enquiries revealed that JIN was not a qualified and experienced Coxswain. Yet D2 still appointed JIN to be the helmsman and D2 left the wheelhouse at the crucial moment to do visual lookout, leaving JIN the duty of navigating the vessel.

26.At the material times, D1’s conduct, whether by his act or omission, endangered or caused to be endangered the safety of the crew upon the vessels of “Wang Da 6” and “Hai Bang Da 199”.

27.D1, a Mainland resident, has a hitherto clear record in Hong Kong.

28.Mr Andrews, in mitigation for D1, submits that “Hai Bang Da 199”’s unexpected turn to port in the seconds immediately prior to collision turned a mere collision into a calamity.  “Hai Bang Da 199”’s unexpected turn to port had the effect of exposing her most vulnerable part, ie between midships and stern.  Had “Hai Bang Da 199” turned to starboard, the collision would have been a bow-to-bow one and the result might have been much less calamitous. 

29.Mr Andrews submits that D1 was not reacting blindly to the situation.  The radio plot chart shows that he was a master of the vessel who was mindful of the situation.  His vessel was perfectly in order, he had qualified men on the bridge and a qualified and competent steersman who was doing his job and following what D1 ordered him to do.  “Wang Da 6” was keeping starboard direction at 19:15.02 hours, not that she had never turned to starboard at all.  The subsequent manoeuvres of “Wang Da 6”, with hindsight, was a wrong decision taken by D1. “Hai Bang Da 199” was probably in the middle of a fog bank when she made the fateful and unexpected turn to port.  D1 did not allow for the effect of the fog patches and failed to react to the fog patches by taking way off “Wang Da 6”.  The speed of “Wang Da 6” was 10 knots at a time when the visibility was just 20 metres ahead of bow.  D1 should have taken way off and he did not.  D1 had tried, but failed to communicate with “Hai Bang Da 199” by whistle and walkie-talkie, but having failed to communicate with the approaching vessel, D1 was at fault in not reducing the speed of “Wang Da 6” in the then prevailing foggy conditions.  Mr Andrews submits that notwithstanding the failings of D1, the accident was primarily caused by the erratic course taken by the other vessel and the effect of the fog bank.

30.Mr Andrews submits that D1 has no prospects to resume his employment as a seaman in whatever capacity, the sea has been his life and it is unlikely he will be able to go to sea again.  The family has struggled hard to survive.  D1’s wife suffers from ovaries cancer and the two children were still at university. Other members of the family had to help out with the medical expenses and the fees for the education of the two children.

31.Mr Andrews submits that I should pass a sentence which would effectively permit D1’s immediate release.  By now, D1 has been in custody for over 14 months.  Mr Andrews draws my attention to the facts and sentences passed in Kulemesin, CACC 19/2010.

32.In sentencing D1, I have borne in mind the facts as admitted by D1, the fact that six seamen were killed and all the matters urged upon me by Mr Andrew on D1’s behalf.

33.The Court of Appeal says at paragraph 24 of the judgment in Kulemesin:

“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 4 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 1st 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.”

34.The 1^st applicant, the master of the vessel “N67”, was found guilty of endangering the safety of the crew of his vessel in that, by unlawful acts, he failed to maintain a proper look-out and failed to take action so as to avoid collision and he failed to keep to the outer limit of the starboard side of a narrow channel.  The Court of Appeal had regard to all the circumstances and took a starting point of 21 months for sentence for the 1^st appellant.

35.In the present case, there were clear breaches of COLREGS by D1:

(1) “Wang Da 6” failed to sound her fog signal at intervals of not more than two minutes one prolonged blast;

(2) D1 failed to keep a proper lookout in that due to poor lookout and poor seamanship, D1 was not fully aware the risk of collision with “Hai Bang Da 199” after radar observations between 7:20.02 pm to 7:30.02 pm;

(3) “Wang Da 6” failed to maintain a safe speed. It maintained a speed at an average of 10.5 knots;

(4) “Wang Da 6” maintained its course and speed and took no action to avoid collision;

(5) D1 violated a cardinal rule of seamanship in that he allowed “Wang Da 6” to change course to port which manoeuvres could and should have been avoided. The turnings to port after 19:20.02 were inexplicable;

(6) D1 did not take proper action to stop and take all the way off “Wang Da 6” using the engine when it was appropriate to do so;

(7) D1 should have ordered his engine astern at about 7:33.32 pm and performed an emergency stop at that time.

36.D1’s failure to stop “Wang Da 6” when he was, or should have been, uncertain of the developing situation ahead, was grossly negligent.  The disaster which claimed six lives would have been avoided if both D1 and D2 had changed their respective courses to starboard or by reducing their respective speeds to minimum and navigated with extreme caution until the risk of collision had passed.  D1’s failed to comply with various requirements of COLREGS and his grossly negligent acts and omissions contributed to the disaster.

37.D1, as the Master of “Wang Da 6”, was in ultimate command of the vessel.  He was responsible for its safe and efficient operation.  All crew members onboard “Wang Da 6” were under D1’s authority and their safety was also D1’s ultimate responsibility. D1 also owed a duty to other seafarers in that he should navigate his vessel in a safe manner.  While D1 might not be reacting blindly to the situation, his command of “Wang Da 6” fell far below what good seamanship required of him.  D1 failed in this important duty and contributed to the death of six seamen.

38.Charge 1 calls for a term of imprisonment.  On the facts before me, a starting point of 2 years’ imprisonment is appropriate.  D1 is entitled to the customary one-third reduction as he pleaded to the charge and he is a man of hitherto clear record.  I can see no exceptional or humanitarian grounds to suspend the sentence.

39.For the reasons given, on Charge 1, I sentence D1 to 16 months’ imprisonment.

Annex 1. Radar Plot Chart