Kulemesin Yuriy v HKSAR - The Neftegaz67

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Hong Kong

Kulemesin Yuriy v HKSAR - The Neftegaz67

Hong Kong Court of Final Appeal: Ma CJ, Chan, Riberio and Tang PJJ and Lord Clarke of Stone-cum-Ebony NPJ: FACV No. 6 and 7 of 2012: 22 February 2013

http://www.hklii.hk/eng/hk/cases/hkcfa/2013/15.html

Mr Nigel Jacobs QC, Mr Peter Duncan SC and Mr James McGowan, instructed by Ince & Co for the 1st Appellant (FACC No. 6 of 2012)

Mr Gerard McCoy SC and Mr Timothy Brenton QC, instructed by Holman Fenwick Willan for the 2nd Appellant (FACC No. 7 of 2012)

Mr Simon Westbrook SC instructed by the Department of Justice and Mr Robert KY Lee SADPP and Ms Jasmine Ching SPP of that Department for the Respondent

COLLISION: OFFENCE OF ENDANGERING THE SAFETY OF OTHERS: STATE OF MIND REQUIRED FOR THE OFFENCE OF ENDANGERMENT: NARROW CHANNEL AS QUESTION OF FACT: SHIPPING AND PORT CONTROL ORDINANCE (CAP.313, LAWS OF HONG KONG)

Summary

The Court of Final Appeal held that, in relation to the offence of endangering the safety of others under section 72 of the Shipping and Port Control Ordinance (Cap.313) (‘SPCO’), the defendant should be acquitted where the evidence raised a reasonable doubt as to whether he had acted or omitted to act in the honest belief on reasonable grounds that his conduct was not such as to cause danger to the safety of others. Further, for the purpose of the International Regulations for Preventing Collisions at Sea 1972 (‘COLREGS)’, whether a channel was a narrow channel was a question of fact and required a detailed examination of the place where the accident happened and the nature of the channel. The conviction of the 1st Appellant was upheld as he had unreasonably believed that the channel in question was not a narrow channel and had failed to notice alerts raised by the oncoming vessel in the opposite direction. The conviction of the 2nd Appellant was quashed as he honestly and reasonably – albeit mistakenly – believed that his conduct did not endanger the safety of others.

This note has been contributed by Ken T.C. Lee, LLB(Hons), PCLL (University of Hong Kong), BCL(Oxon) and barrister-at-law in Hong Kong.

Background

On 22 March 2008, the “NEFTEGAZ 67” (“N67”), a Ukrainian flagged oil rig supply vessel, collided with the “YAO HUI” (“YH”), a Chinese flagged bulk carrier, in a buoyed channel (“the Channel”) running between the north coast of Lantau Island and the coast near Castle Peak within Hong Kong waters. N67 sank with the tragic loss of 18 of her 25 crew members. YH suffered damage but none of her crew was lost or injured.

The 1st Appellant was the master of N67. The 2nd Appellant was the senior pilot of YH at the time of collision.

The Channel was from east to west with flow towards the west. It was described in the Pilot Book “Admiralty Sailing Directions: China Sea Pilot, Volume 1” as a buoyed channel. It was delineated by six buoys which conformed to and were part of the uniform system of buoyage laid down by the International Association of Lighthouses (IALA). The Channel was delineated on the northern side, from east to west, by bouys CP1, CP3 and CP5; and on the southern side by buoys CP2 and CP4. CP2 was broadly opposite to CP1, and CP4 to CP5. The point of collision between N67 and YH was close to the eastern entrance to the Channel.

The Appellants were charged with the offence of endangering the safety of others in contravention of section 72 of the SPCO. The current version of s.72 provided that:

“Any person who by any unlawful act, or in any manner whatsoever without reasonable excuse, endangers or causes to be endangered the safety of any person conveyed in or being in or upon any vessel or in the sea commits an offence…”

The maximum penalty of the offence was 4-year imprisonment and a fine of $200,000.

The prosecution relied on both limbs of s.72: that (a) the Appellants performed an unlawful act and thereby endangered the safety of others and (b) the endangerment was caused by them in any manner whatever without reasonable excuse. It was alleged that contrary to s.10(3) of the SPCO, both Appellants performed unlawful acts by breaching rules 5 and 8 of the COLREGS, and in additional for the 1st Appellant, of rule 9. (The text of these rules is set out in the footnotes below).

The Judge convicted the 1st Appellant under both limbs, and the 2nd Appellant under the unlawful act limb only. Their appeals against conviction to the Court of Appeal were dismissed, although their sentences were reduced. Both courts regarded the offence as one of absolute liability, so far as the consequence of endangerment was concerned.

COLREGS was made applicable to all vessels while they were within the waters of Hong Kong under s.10(1) of the SPCO. Section 10(3) imposed criminal liability for breach of COLREGS on the owner of the vessel, the master or any person responsible for the conduct of the vessel.

The Appellants appealed against their conviction to the Court of Final Appeal. The following issues were before the Court:

(1) What state of mind of the accused was required for the offence under section 72; in particular, was it incumbent upon the prosecution to prove that the accused had a ‘guilty mind’ (‘mens rea’ in Latin), namely that the accused either intended to endanger or cause endangerment or was reckless as to whether endangerment was caused?

(2) Was the Chanel a “narrow channel” for the purpose of rule 9 of COLREGS, and whether the Appellants were in any way navigating in breach of COLREGS.

Judgment

The Court unanimously dismissed the appeal by the 1st Appellant and allowed the appeal of the 2nd Appellant. Riberio PJ gave the leading judgment on Issue (1), and the judgement of Lord Clarke NPJ focused on Issue (2).

Riberio PJ noted that the offence under s.72 had three physical requirements: prohibited conduct, causation and endangerment. He held that it would be wrong to require proof of full mens rea. There might be many cases where the prosecution might face significant problems of proof, as the collision might be the result of a combination of factors arising out of the interaction between two vessels developing over time, making it difficult to establish the facts upon which inference could be drawn regarding each defendant’s state of mind. On a proper construction of s.72, if the defendant was able to rely on evidence which, if unrebutted, raised a reasonable doubt as to whether he acted or omitted to act in the honest belief on reasonable grounds that his conduct was not such as to cause danger to the safety of others, the defendant was entitled to be acquitted unless the prosecution could establish the contrary beyond reasonable doubt.

The offence under s.72 was not a merely regulatory offence, but involved serious criminal liability. A conviction was likely to have serious professional ramifications for the mariners involved. The net of criminal liability cast by s.72 was very wide. It applied to “any person” and covered conduct of any form, so long as it endangered safety. It would in principle be objectionable to find someone guilty in the absence of some culpable state of mind with regard to endangerment which was at the very core of the offence. No deterrent value or social benefit would be gained by punishing persons who lacked such culpable mental states since they could not be expected to behave any differently notwithstanding potential liability.

Turning to the navigational issues, Lord Clarke NPJ held that whether a buoyed channel was a narrow channel was a question of fact. The answer depended upon considering a number of different factors. In particular, it involved a detailed examination of the scene of the accident and the nature of the channel, including its buoys (if any), the geography, topology and bathymetry of the area, the width of the channel, the size and characteristics of the vessels that used it and the manner in which seamen in fact navigated within the channel.

This relevant information had to be available to pilots and mariners so that they were able to judge the true position. Thus, the relevant Admiralty charts, sailing directions and local regulations must be consulted. While official designation of a narrow channel publicized to mariners would be conclusive, the absence of such a designation was irrelevant , unless a particular area was formally noted on marine charts or otherwise publicly stated as not being a narrow channel. That the Hong Kong Marine Department did not treat the Channel as a narrow channel was irrelevant. That opinion was not disseminated to mariners generally, and was in any event plainly wrong.

The Judge was correct to find that the Channel was a narrow channel for the purpose of COLREGS. The Channel was physically narrow. It was created out of a much wider area where the depths were significantly less, such that vessels would be expected to pass safely port to port in accordance with the narrow channel rule. The IALA buoys denoted its lateral limits; under the IALA system, vessels should keep the green buoys to starboard when proceeding in the direction of flow. A letter signed by 96 of the 101 members of the Hong Kong Pilots Association also stated that they considered that rule 9 applied to the Channel.

The fact that vessels could navigate in waters outside the buoys did not mean that the Channel was not a narrow channel. Examples of such channels appeared in numerous ports in Europe and in cases before the courts.

The critical case established against the 1st Appellant was his unreasonable failure to appreciate that the Channel was a narrow channel, his insistence on maintaining his course until the last and his consequent failure to take starboard helm action at any stage.

Further, contrary to rule 5 of COLREGS, the 1st Appellant failed to keep a good lookout. The 1st Appellant did not see YH’s Aldis lamp signals when the vessels were 2nm apart, failed to keep any lookout by radar from the time when they were 1nm apart, and failed to hear YH’s short whistle blasts.

The belief of the 1st Appellant that his conduct did not endanger the safety of others could not have been held on reasonable grounds. Thus, the appeal by the 1st Appellant against conviction was dismissed.

As for the 2nd Appellant, YH entered the Channel in a correct position on her starboard side of the Channel between buoys CP1 and CP2. The 2nd Appellant was aware of N67 from about 21.08hrs on 22 March. The 2nd Appellant’s navigation of YH was conditioned throughout by his honest and reasonable belief that N67 would move to starboard. He kept a proper lookout on N67 and became increasingly concerned that N67 was proceeding down the middle of the Channel and took a series of steps to alert her to the need to move over. Although the Judge criticised the 2nd Appellant for waiting too long before taking sufficient avoidance action by ordering YH to turn to starboard, there was a reasonable doubt that the 2nd Appellant honestly and reasonably – albeit mistakenly – believed that his conduct was not such as to endanger the safety of others. The appeal of the 2nd Appellant was thus allowed.

Footnotes: Relevant rules in COLREGS

Rule 5: Look-out

Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.

Rule 8: Action to avoid collision

(a) Any action to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship….

(d) Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear. ...

Rule 9: Narrow channels

(a) A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable.