DCCC338/2015

A A B DCCC 338/2015 B C C IN THE DISTRICT COURT OF THE D HONG KONG SPECIAL ADMINISTRATIVE REGION D CRIMINAL CASE NO. 338 OF 2015 E E ----------------------------------- F HKSAR F v. G G SO PING CHI ----------------------------------- H H Before: HH Judge Douglas T.H. Yau I Date: 7th June 2016 at 9:34 am I Present: Mr. Andrew Bruce, SC, & Ms. Denise Souza, J J Counsel on fiat, for HKSAR K K Mr. Daniel Marash, SC, & Ms. Maggie WONG, instructed by L M/s Stephenson Harwood, for the Defendant L Offence: Misconduct in public office (藉公職作出不當行為) M M ---------------------------- N Reasons for Verdict N ---------------------------- O O 1. The defendant pleaded not guilty to one charge of Misconduct in P Public Office. P Q Q Background R R 2. This case concerns the defendant’s performance of his duties as an S official of the Marine Department. S T T The new law: 2 January 2007 onwards U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 2 - A A B 3. From 2 January 2007 onwards, in order to be issued with a license B to sail within Hong Kong waters, local vessels must satisfy various C C new legal requirements. The Marine Department is the statutory D body responsible for the enforcement of the relevant legal D requirements. E E F 4. The legislations relevant to this trial are the Merchant Shipping F (Local Vessels) Ordinance, Cap.548, the corresponding Merchant G G Shipping (Local Vessels) (Safety and Survey) Regulation, H Cap.548G; and the Merchant Shipping (Local Vessels) H (Certification and Licensing) Regulation, Cap.548D. I I J 5. The regulation which is a direct subject matter is regulation 32(2)(b) J of 548G, governing the provision of life-saving appliances on local K K vessels: L L M “...(b) every local vessel belonging to any class, type, M category or description of vessel specified in any Table in N N Part 2 of Schedule 3 shall comply with the specific O requirements as regards the provision of life-saving O appliances set out in that Table.” P P Q Q 6. Part 2 of Schedule 3 contains “Specific Requirements” for 4 R different classes of vessels in relation to the provision of life-saving R appliances. For the purpose of this trial, the relevant appliance is the S S lifejacket. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 3 - A A B 7. Under Table 1, for Class I or IV1 vessels to operate within Hong B Kong waters, there is a specific requirement of the provision of C C “100% adult lifejacket + 5% children lifejacket” on each vessel D (hereinafter ‘the new lifejacket requirement’). D E E 8. Under s.9(1) of Schedule 8 of 548G, for a period of 12 months after F the coming into force of 548G and thus section 32(2)(b), the section F does not apply to a local vessel to which Table 1 applies. In other G G words, during this deferment period, Class I or IV vessels do not H have to comply with the new lifejacket requirement. This deferment H was referred to as ‘the grace period’ during trial. I I J 9. The responsibility of enforcing the new lifejacket requirement in J Cap. 548G falls with the Local Vessel Safety Section (“LVSS”) of K K the Local Vessel Safety Branch of the Marine Department (“MD”). L L Ship inspectors of the department would conduct inspections on the M vessels, record the results and then issue Certificates of Survey M when they are satisfied that all legal requirements had been met. N N Without a certificate, the vessel cannot operate in Hong Kong O waters. O P P The old law prior to 2 January 2007 Q Q 10. Prior to the enactment of the 548G regulations, the requirement R under the old law was lifejackets for 40% of the maximum number R S S 1 The classification of vessels is found in Schedule 1 of Cap.548D. Class I vessels are ferry vessels, floating restaurant, launch, multi-purpose vessel, primitive vessel and stationary vessel. Class IV vessels T are auxiliary powered yacht, cruiser and open cruise. T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 4 - A A B of passenger, with the remaining 60% being made up of other B lifesaving appliances such as life rafts and buoys. C C D 11. Unlike the new law, there were no specific requirements for D children lifejackets. The old law required all lifejackets deployed on E E local vessels to be suitable for both adults and children. F F The non-enforcement instruction that led to the defendant’s G G present prosecution H H 12. About 3 months after 548G had come into force, the defendant was I posted to the LVSB on 16 April 2007 as the new General Manager I (“GM”) and Principal Surveyor of Ships. J J K 13. It is the prosecution’s case that as the GM and Principal Surveyor of K Ships of the LVSB, the defendant had issued an instruction for the L L non-enforcement of the new lifejacket requirement. Specifically, M the defendant had instructed his sub-ordinate ship inspectors to M follow the old law when inspecting old vessels, and the new law N N when inspecting new vessels (hereinafter “the non-enforcement O instruction”). O P P 14. This instruction was followed by all ship inspectors and the practice Q Q continued until sometime after October 2012. It is the prosecution’s R case that the defendant had never rescinded his non-enforcement R instruction. S S T 15. The event that led to the eventual rescinding of the instruction was T the tragic collision of two local vessels in Hong Kong waters on 1 U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 5 - A A B October 2012 where multiple lives were lost. A Commission of B Inquiry was set up to look into the incident. Officers of the Marine C C Department gave evidence at the Inquiry. One of the matters that D was mentioned was the ‘old vessels old law, new vessels new law’ D instruction issued by the defendant. E E F 16. After the release of the Commission of Inquiry report, the Transport F and Housing Bureau (“THB”) conducted an internal investigation G G on the Marine Department officers. At the conclusion of the THB H investigation, a case was referred to the Marine police. The H defendant was subsequently arrested for the present offence based I I on the non-enforcement instruction he had issued and his failure to J rescind it. J K K 17. Evidence suggest that, sometime after October 2012, the then L L General Manager of the LVSS Mr Leung Wing Fai had given a M verbal instruction for the ship inspectors to enforce in full the M lifejacket requirements under Cap.548G. N N O Elements of the offence O P 18. It is accepted by both the prosecution and defence that the elements P of the offence of misconduct in public office are as set out in the Q Q Court of Final Appeal case of Sin Kam Wah and Anor v HKSAR R (2005) 8 HKCFAR 192: R S S “ 45. … T T (1) a public official; U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 6 - A A B (2) in the course of or in relation to his public office; B (3) willfully misconducts himself; by act or omission, for C C example, by willfully neglecting or failing to D perform his duty; D (4) without reasonable excuse or justification; and E E (5) where such misconduct is serious, not trivial, having F regard to the responsibilities of the office and the F officeholder, the importance of the public objects G G which they serve and the nature and extent of the H departure from those responsibilities.” H I I Issues J J 19. It is admitted fact that the defendant was a public officer with the K Marine Department at all material times. K L L 20. It is not disputed that if the prosecution can prove that the defendant M did issue the non-enforcement instruction, he issued it in the course M of the performance of one of his duties as the General Manager and N N Principal Surveyor of Ships of the LVSB. O O P 21. The issues are therefore whether the prosecution can prove beyond P reasonable doubt that (1) the issuance of the non-enforcement Q Q instruction amounted to ‘wilful misconduct’; (2) the misconduct R was serious misconduct; and (3) there was no reasonable excuse or R justification for the misconduct. S S T The voir dire to determine on the admissibility of the T defendant’s admissions U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 7 - A A B 22. A voir dire was held before the commencement of the trial proper to B determine the admissibility of admissions made by the defendant in C C the form of answers given in reply to a questionnaire issued by the D THB to MD officers for the purpose of the internal investigation; as D well as admissions made during a later interview conducted by the E E THB with the defendant. F F 23. The admissions were ruled out. The ruling is annexed to this G G Reasons for Verdict. H H Trial proper I I 24. The prosecution called 8 live witnesses in the trial proper. The J J witness statement of PW9 was read into evidence pursuant to s.65B K of the Criminal Procedure Ordinance. K L L Summary of the evidence of prosecution witnesses M M PW1 Mr Au Yeung Chun Tak: former Chief Ship Inspector N N 25. Mr Au Yeung was the Chief Ship Inspector (“CSI”) of the MD from O 2005 to 2009 when he retired. O P P 26. The CSI was mainly responsible for safety inspection of local Q vessels. The inspections would be carried out on the safety Q equipment or appliances on board the vessels in accordance with a R R Code of Practice of the MD, and in accordance with the safety S standard required by the department at the time. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 8 - A A B 27. If a new vessel passed the inspection, a Certificate of Survey will be B issued to allow it to sail. If failed, instructions will be issued to the C C vessel owner or ship builder for them to do remedial works to get D the vessel to meet the MD’s requirement. Only when the D requirements are met will a Certificate of Survey be issued. E E F 28. The Local Vessel Safety Section (“LVSS”) within the MD is F responsible for the inspection and enforcement of local vessels to G G the standard required by the MD. H H 29. Before the implementation of the new law, Cap.548G, Mr Au I I Yeung was responsible for the assignment of ship inspection to ship J inspectors. J K K 30. It was usually the ship owners who would make an application to L L the MD to have certain items on their vessels inspected. The MD M did not take the initiative to push the ship owners or shipyards to M apply to have certain items inspected. N N O 31. When the ship owner made an application for inspection, the LVSS O would be informed the day before the intended inspection and P P notification would be given as to where the vessel was located for Q the inspection to take place. Mr Au Yeung, the CSI, would then Q arrange for a ship inspector to conduct the inspection the following R R day. S S 32. The results of an inspection were recorded in a file for that T T particular vessel. The recording had been changing over time. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 9 - A A B When Mr Au Yeung first worked as a ship inspector, they were just B simple notes written on the inspection file of the vessel. By the time C C he became CSI, survey forms were required to be filled out. D D 33. If the vessel passed the inspection, a Certificate of Survey will be E E issued and then displayed on the vessel. F F 34. While Mr Au Yeung was the CSI, there was no requirement for the G G ship inspectors to report to the CSI on the ship inspections. If the H ship inspector found a problem or something that he did not H understand, he would seek advice from Mr Au Yeung or other ship I I surveyors. J J 35. Mr Au Yeung, as CSI, very rarely conducted ship inspections. He K K did have a supervisory role over the ship inspectors. The CSI would L L conduct random checks on the records of ship files to see what the M ship inspector had done. If any problem was found, they would M question the individual ship inspector about the matter. This could N N happen both before or after the ship inspection had taken place. O O 36. After an inspection had taken place, before the time of the new law, P P there was no specific system on how to supervise the results of the Q inspection carried out by the ship inspector. Q R R 37. After an inspection, the ship inspector would write down in the file S the items that he had inspected. If the ship passed the inspection, the S ship inspector would then prepare a Certificate of Survey. This T T Certificate of Survey together with the vessel file will then be given U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 10 - A A B to a ship surveyor. After the ship surveyor had read through the B repot in the files and was satisfied with it, he would then sign the C C Certificate of Survey. D D 38. If the ship surveyor found any problems, the file would be referred E E back to the individual ship inspector for him to look into the F problems. It was under those circumstances that the CSI would be F able to assess the quality of the work of the ship inspectors. G G H 39. In conducting an inspection, reference would be made to the H number of safety appliances that were required to be carried on I I board the vessel according to the law and the Code of Practice. J J 40. In the days before the new law, there was a requirement in the Code K K of Practice as to the calculation of the number of lifejackets that L L were required for individual types of vessels. The calculation of M lifejackets was done with reference to the number of passengers M allowed to be carried on that particular type of vessel. N N O 41. When asked what the source of the method of calculation of O lifejackets requirement was, Mr Au Yeung mentioned that initially P P there was a set of instructions that they called the Blue Book. The Q Blue Book was a MD publication and available for sale to the Q public. R R S 42. From what he can remember, another set of instructions came about S in 1995 and they superseded the Blue Book. Then in 2006, there T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 11 - A A B was another book of instructions which superseded the 1995 B instructions. C C D 43. As far as Mr Au Yeung can remember, none of the said sets of D instructions contained any provisions relating to children E E lifejackets. F F The changing of the law G G 44. Prior to the enactment of the new law, there were a series of reviews H H and meetings about changing from a set of instructions to having I the requirements put into law. According to Mr Au Yeung, there I was no formal notification, but it was said in some informal J J briefings that some new laws would be enacted. K K 45. Prior to the new law coming into force, Mr Au Yeung did have L L occasions to meet with certain organisations about the proposed M new laws, but he cannot remember a specific title for the meetings M or informal meetings. N N O O 46. Before trying to promote the new law, the MD had conducted many P seminars with the representatives of the industry and the shipping P firms. Mr Au Yeung did not attend every meeting. Usually the Q Q assistant director, the Chief (as translated, should mean General) R Manager and the Senior Ship Surveyors of the MD would attend R those meetings. The industry was represented by the Hong Kong S S and Kowloon Motorboat and Tug Boat Association, the Cargo T Traders Association, and several fisherman associations. T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 12 - A A B 47. As far as Mr Au Yeung can remember, during the time before the B enactment of the new law, the Chief Manager of the MD who C C attended those meetings was a Mr Lee Kwok Fai Michael, who was D also the Principal Surveyor of Ships at the time. D E E 48. Mr Au Yeung recalled that in the meetings that he did attend, the F industry was concerned about the impact the enactment of the new F law would have on them, in particular the financial burden that G G would be imposed on them in the event that something would have H to be added following the enactment of the new law. H I I 49. In relation to the proposed new requirement that there be children J lifejackets under the new law for individual type of vessels, Mr Au J Yeung could not remember there being any specific objection from K K the industry representatives about children lifejackets. L L M 50. From what Mr Au Yeung understood, the following message was M conveyed to the objecting parties about the enforcement of the new N N law. The message that was conveyed by the MD was that following O the enactment of the new law, the new law will mainly be directed O at new vessels, and there would not be much impact on old vessels. P P Following the enactment of the new law, the old vessels will only Q be required to comply with the old law. Q R R 51. Mr Au Yeung could not remember clearly who gave that assurance, S but the seminars or meetings were chaired by his supervisors. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 13 - A A B 52. Mr Au Yeung remembered that the new law that came into force on B 2 January 2007, Cap. 548G, included a requirement for children C C lifejackets in relation to Class I vessels. D D 53. According to Mr Au Yeung, following the enactment of the part of E E cap.548G that dealt with children lifejackets, the instructions given F to them all along were that they would continue to adopt the F standard required by the old law when dealing with old vessels. As G G far as his understanding at that time, a vessel that was licensed H before the new laws were enacted would be considered an old H vessel. In practical terms, a vessel licensed before 1 January 2007 I I would be an old vessel. J J 54. There were no specific instructions as to the lifejackets, or other K K items, that were required to be carried on board an old vessel. The L witness’ understanding was that the old vessel would just be L M required to comply with the requirements as shown on their M Certificate of Survey. It was a general instruction and encompassed N N everything, therefore would have included lifejackets as well. O O 55. The said message and the impression Mr Au Yeung had as to the P P enforcement of the new law were conveyed at the said seminars. Q There were also LVSS sectional briefings held both before and after Q the enactment of the new law, where he and his colleagues were R R informed about how the new laws would be enforced. S S Post enactment of new law sectional briefings T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 14 - A A B 56. Mr Au Yeung attended most of the post enactment sectional B briefings. It would usually be the General Manager or the Principal C C Surveyor of Ships who was in charge of the briefings, also referred D to as informal discussions. D E E 57. Some of the briefings were convened by Lee Kwok Fai Michael, F and then it was the defendant who convened them after Lee’s F departure and the defendant’s arrival in April 2007. G G H 58. Matters relating to the LVSS were discussed at the briefings, the H colleagues present would exchange their ideas or feedback about I I the problems that they faced after the enactment of the new law. J J 59. As far as Mr Au Yeung can remember, there was no specific K K discussion in relation to lifejackets at the briefings that he had L L attended. The instruction was that for existing vessels, the M inspection were to be done in such a way that the old vessels would M be required to carry the old equipment or apparatus. N N O 60. Mr Au Yeung is unable to say which one individual gave the O specific instructions. However, it is his evidence that Lee Kwok Fai P P Michael did say that old vessel would have to follow the old laws. Q Q 61. The witness also heard the defendant talk about this matter at the R R briefings, but he can no longer remember what the defendant said. S Mr Au Yeung supposed that a colleague might have talked about a S type of vessel or a particular case and asked whether the old vessel T T would have to follow the old law. It is Mr Au Yeung’s evidence that U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 15 - A A B none of the colleagues at the briefings had raised any objection to B that practice. The general impression he still retains is that the C C defendant had talked about the old vessel would follow the old law D and the new vessel would follow the new law. D E E 62. Mr Au Yeung and the other ship inspectors and ship surveyors F continued with their ship inspections based on that instruction, that F is to say, “old vessels follow old law, new vessels follow new law”. G G H 63. As the CSI, Mr Au Yeung did have to give further instructions to H his subordinates in relation to the “old vessels follow old law, new I I vessels follow new law” arrangement. He told them that the old J vessels would be inspected in the old way. J K K 64. In practice, the assigning of tasks to ship inspector remained the L L same after the enactment of the new law. The main difference was M the incorporation of the use of computers after the enactment. M Computers were used to assign work, to record information about N N the equipment or apparatus that was carried on board of each vessel, O such as life rafts, life buoys and lifejackets. O P P 65. After the enactment, the actual Certificate of Survey was printed Q out from information stored on the computer. Once the ship Q inspector was satisfied with the record as shown on the computer, R R he would update the information on the computer and the S Certificate of Survey will be issued. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 16 - A A B 66. The Certificate of Survey included information about the number of B fire extinguishers, lifejackets, etc. If there were children lifejackets C C on board the vessel, the information about children lifejackets D would appear on the Certificate of Survey. D E E 67. Supposing the vessel was required to carry children lifejackets F under the new law, and following the inspection it was found that F the vessel did have children lifejackets on board, such information G G will be included on the Certificate of Survey. H H 68. For old vessels, under the old law, there was no requirement to I I carry a specific number of adult or children lifejackets, what was J provided for was a certain percentage of lifejackets. As far as Mr J Au Yeung could remember, it was lifejackets for 60% of the K K number of passenger that can be carried. The remaining 40% L L related to the provision of life rafts or other buoyant apparatus. This M percentage was later corrected in cross-examination to 40% M lifejackets. N N O 69. Mr Au Yeung’s monitoring of ship inspectors regarding ship O inspections remained the same before and after the enactment of the P P new laws. The monitoring was by way of random checks of the Q information in the vessels’ files. Q R R 70. As at the time of Mr Au Yeung’s retirement in 2009, there had been S no change of the “old vessels follow old law, new vessels follow S new law” practice in the MD and was continued to be carried out. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 17 - A A B Cross-examination of PW1 Mr Au Yeung B C 71. In cross-examination, Mr Au Yeung confirmed that several months C before the enactment of the new law, he was informed about the D D proposed contents of the new laws, Cap. 548G, and that they had E discussed the matter internally. The witness did receive various E drafts of the legislation from a Chan Ming Yau and was given the F F opportunity to comment on them. G G 72. Shortly before the passing of the new laws, Mr Au Yeung received H H information about the final version to be gazetted. He was therefore I aware that there was to be a year grace period in relation to several I items, including lifesaving equipment. J J K 73. After the new law had begun to operate, it was the witness’ job to K communicate with the ship inspectors to ensure that they would L L comply with the new law. If a subordinate raised a problem about M the implementation of the new law, Mr Au Yeung would inform his M superiors. N N O 74. Mr Au Yeung confirmed that the “old vessels follow old law, new O P vessels follow new law” policy was decided under Lee Kwok Fai P Michael. When the defendant came to be the General Manager, the Q Q matter just carried on as before and the defendant did not say that R this practice had to be stopped. The matter was not even raised, it R just carried on as an existing policy. S S T 75. Mr Au Yeung confirmed that, even before the new law (regulation T 548G) became operative, there was already an arrangement with the U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 18 - A A B industry that the policy of “old vessels follow old law, new vessels B follow new law” would apply. C C D 76. Mr Au Yeung was not able to say whether the industry D representatives were extremely dissatisfied with the new laws when E E they saw the contents, but he was able to say that when they became F aware of the “old vessels follow old law, new vessels follow new F law” policy that will be adopted, they did not raise any objection as G G to other matters, to put it another way, they were ‘very happy’ about H the policy. H I I 77. Mr Au Yeung agreed with counsel for the defendant the following. J Since under the old law, there was no provision for 100% J lifejackets, but under the new law there was a requirement for 100% K K lifejackets, if the new law were to apply to old vessels, then first of L L all they will have to buy more lifejackets and some of the old M lifesaving equipment will have to be written off. M N N 78. Mr Au Yeung agreed that on an old vessel, in order to increase the O lifejackets percentage from 40% under the old law to 100% under O the new law, the vessel might need to alter the seats in order to P P create storage space for the additional lifejackets. To do that, the Q vessel might have to be taken out of service for a period. There Q would be some losses suffered by the ship owner or operator, but R R the degree depends on the requirement that were imposed on that S particular vessel. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 19 - A A B 79. The witness was shown photos (D-7(1) and (2)) of the upper deck B of a Star ferry. Mr Au Yeung confirmed that the racks of lifejackets C C seen in the photos did not use to be there when he used to inspect D this type of ferries. D E E 80. Mr Au Yeung was one of the subjects of the THB internal F investigation and had been interviewed by THB officers. According F to the record of interview, at page 95, line 35, when asked whether G G it was feasible to implement the new law entirely on the first day, H the witness answered that it was not, and that there might be riots H and everyone would come to the MD. I I J 81. Mr Au Yeung explained his then answer as follows. As at 1 January J 2007, if there was no grace period, then all the Hong Kong boats K K would stop at the same time because all the boats will have failed L L the requirements under the new law and so on that day all the M licensed ships in Hong Kong would have to be stopped. If strict M compliance was required on day one, then none of the ships will N N pass the inspections. O O 82. Mr Au Yeung also said in the interview that the new law will be P P difficult to implement fully on day one because all the vessels will Q have to change everything immediately and the possible reaction of Q the shipowners might be to march to the front door of the MD. R R S 83. Mr Au Yeung confirmed that Lee Kwok Fai Michael instructed S them to follow the policy of “old vessels follow old law, new T T vessels follow new law”, but the witness did not know why Lee U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 20 - A A B Kwok Fai Michael had so instructed. The instruction was not B specific to lifejackets but to everything. Lee Kwok Fai Michael did C C not say when the policy would come to an end. During the time that D Lee Kwok Fai Michael was the GM of LVSS, the defendant was not D working in LVSS. E E F 84. It is Mr Au Yeung’s evidence that in so far as the topic of “old F vessels follow old law, new vessels follow new law” policy, he did G G not have any contact with the defendant before the enactment of the H new law in Cap. 548G. H I I 85. Mr Au Yeung confirmed that, none of the LVSS officers who were J present at the briefings or meetings with industry representatives J had raised any objection to the instruction of “old vessels follow old K K law, new vessels follow new law”, or to say that it was against the L L law. M M 86. Mr Au Yeung was aware of ‘MD approved lifejackets’. Certain N N lifejackets manufacturers would give lifejackets to the MD for O testing. If passed, the lifejackets would become ‘MD approved O lifejackets’. P P Q 87. As far as the witness was aware, some of those lifejackets would be Q suitable for both adult and children. This type of lifejackets had R R been widely used ‘at the initial stage of the MD’. Over the past 10 S or 20 years, many lifejackets manufacturers had joined the S competition and many different models have appeared from T T different manufacturers. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 21 - A A B 88. Mr Au Yeung could confirm that in addition to ‘MD approved B lifejackets’, ‘International Maritime Organisation’ approved C C lifejackets are also approved by the MD. D D The Code of Practice E E 89. In 2007, after the coming into force of the new law, a ship inspector F F would refer to the Code of Practice and the new 548G regulations G when conducting an inspection. G H H The morning meetings I I 90. The morning meetings were from time to time held at MD J headquarters in Central. They were mostly organized by the GM of J LVSS. The meetings were to allow for interactions between the K K officers. Those present at the meetings would include the senior L surveyor of ships, surveyor of ships, Chief Ship Inspector, ship L inspector of different ranks. All or some of them may be present on M M any occasion. No records were kept of what was said at these N meetings. N O O 91. According to Mr Au Yeung’s recollection, before the defendant P took up the post of GM of the LVSS, the defendant had not attended P any of the said morning meetings with the LVSS. Q Q R Re-examination R S 92. During re-examination, Mr Au Yeung was asked if the instruction S for “old vessels follow old law, new vessels follow new law” was T T still in place and followed when the grace period expired on 2 U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 22 - A A B January 2008. His answer was that the temporary suspension B practice continued to be carried out at that time. There was however C C no specific person who said that it would be carried out, nor did D anyone say that it would not be carried out. D E E 93. As far as Mr Au Yeung was aware, up until the time of his F retirement in August 2009, the said instruction had not been altered, F modified or rescinded. G G H 94. Mr Au Yeung confirmed that at the time when the new law was H about to be implemented, it was his concern that there be some form I I of grace period. J J 95. After the grace period, he had not heard of any further concern K K voiced by the industry over the new regulations. To be fair, Mr Au L Yeung’s posting at that time may not have required him to be in L M direct contact with industry representatives and so the fact that he M had not heard of further concern does not necessarily mean that N N there were none voiced to others. O O PW2 Mr Tung Hon Ming: Deputy Director of Marine P P 96. Mr Tung is a Deputy Director of the Marine Department. He was Q Q the Assistant Director in 2009, overseeing 3 different branches R within the MD: the LVSS, the Ship Safety Branch, and the Ship R Registration and Seafarers Branch. Each of the 3 branches had a S S GM and they were all under Mr Tung’s supervision. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 23 - A A B 97. Mr Tung would therefore be the defendant’s immediate superior B when the defendant was the GM of LVSS. C C D 98. Mr Tung’s duties included matter of policy and policy development, D but he had never dealt with any of the policy or regulations of E E Cap.548G. F F 99. It is Mr Tung’s evidence that up to October 2012, he had never G G heard of an instruction within the LVSS for the implementation of H the “old vessels follow old law, new vessels follow new law” policy. H He first heard of it when he was being questioned by the interviewer I I in the internal investigation conducted by the THB. J J 100. Mr Tung knew that the investigation was at first to be conducted by K K the MD but later taken over by the THB. He was not involved in L L any way in the investigation work that preceded the THB M investigation. M N N The March 2013 meeting O O 101. Mr Tung attended a regular Monday morning meeting in March P 2013 where the issue of enforcing lifejackets was discussed. For P these regular meetings, usually the Director, Deputy Director, all Q Q the assistant directors, department secretary, Chief Treasury R Accountant and Principle Information Officer would attend, unless R someone was on leave or on a business trip. Mr Tung remembered S S that the defendant was present at this particular meeting. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 24 - A A B 102. To the best of his recollection, Liu Hon Por (PW3) asked at the B meeting if anyone knew who gave the temporary suspension C C instruction in relation to the legislation about enforcing lifejackets D and the defendant answered that it was he who gave that instruction. D Mr Tung can no longer remember what followed that answer or E E what else did the defendant say. Mr Tung also cannot remember if F the defendant was asked why he gave that instruction. F G G 103. Mr Tung first heard about the instruction after some of his H colleagues of the MD testified before the Commission of Inquiry. H Some other colleagues heard about the evidence and later I I mentioned it to him. Mr Tung’s immediate thoughts were of how J they could remedy the situation. J K K 104. In cross-examination, Mr Tung agreed with counsel for the L L defendant that the role of the GM of the LVSS is to monitor and M perform policy related work. The GM would not go to the wharfs or M slipways to check if ship inspections were being done properly, he N N would rely on the Senior Surveyors on feedback of any problem in O relation to inspections. O P P 105. By the time that Mr Tung was promoted to Assistant Director of Q Marine (Shipping Division) in 2009, the new law, i.e. Cap.548G, Q had been in operation for over 2 and a half years. In his time as R R Assistant Director, he had never heard that any of the ship S inspectors or surveyors had any problem with the implementation S of the Cap. 548G regulations. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 25 - A A B 106. It was suggested to Mr Tung that in 2009, around 12,000 vessels B were required to be inspected but the witness believed that to be C C incorrect, because most of the leisure boats for self-use were not D required to be inspected and so the number would be less. Mr Tung D however cannot remember the number. E E F 107. Mr Tung had not participated in any of the meetings between F officers of the MD and industry representatives either before or G G after the Cap. 548G regulations came into operation. H H 108. Mr Tung was then asked about lifejackets and their use by adults I I and children in Hong Kong. It is his evidence that one type of J lifejackets approved by the MD was suitable for both adults and J children. He doesn’t know if this type of lifejackets was widely K K used in Hong Kong in local vessel back in 2007. He is able to say L L that manufacturing of this type of lifejackets had stopped for many M years and so most of the lifejackets currently in use in local vessels M are not of this type. N N O 109. Mr Tung confirmed that there is currently no legal provisions in O Hong Kong for the use of infant lifejackets, and there had never P P been such provisions. Q Q 110. Mr Marash went through previous legislations regarding R R lifejackets requirements and pointed out to the witness that, up until S the enactment of the new law in January 2007, all lifejackets on S board Class L Hong Kong vessels were required by law to fit both T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 26 - A A B adult and children. Mr Tung was unable to respond to that because B he said he would have to see all the relevant legislations first. C C D 111. If lifejackets suitable for both adults and children were not being D used on board local vessels, and if that was an extensive problem, E E Mr Tung believes that the department head would have told him. F During his time at the MD, Mr Tung had never been told about local F vessels not carrying the correct type of lifejackets. G G H PW3 Liu Hon Por Francis: retired Director of Marine H I 112. Mr Liu was the Director of Marine from 2011 to 2014. He was the I Acting Deputy Director in 2007 and was promoted to Deputy J J Director in 2008. He is now retired. K K 113. Mr Liu’s main area of business was with the Port Control and L L Planning and Services Branch, which did not concern areas such as M the LVSS. While he was the Director of Marine, the management M and operation of the LVSS was mainly handled by the Assistant N N Director of LVSS (Ship) Branch. O O P 114. Mr Liu confirmed that as Director, he had held regular Monday P morning meetings at the headquarters of MD. The meetings were Q Q usually concerned with management matters. R R The March 2013 meeting S S 115. During the end of February 2013, while on a few days’ leave, Mr T T Liu read in the newspapers about some colleague telling the U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 27 - A A B Commission of Inquiry for the Lamma IV incident that he had B received certain instructions, which prompted him to ask about the C C matter upon his return from leave at the morning meeting. D D 116. As far as Mr Liu can remember, those present at the meeting E E included Mr Tung Hon Fai and the defendant. At the meeting, Mr F Liu referred to the news report he saw and asked what had F happened. The defendant replied and said he had given an G G instruction. Mr Liu can no longer remember the details but the gist H of what the defendant said was that he did not totally follow the new H requirements on lifejackets in the new legislation, that he had given I I some instructions in relation to lifejackets. J J 117. Mr Liu believes that it was as reported in the newspaper, something K K about new ships following new regulations, and for old ships the L L regulation would not be applied so strictly. Mr Liu can no longer M remember what the defendant said those instructions were. M N N 118. Mr Liu then asked for the reason why the defendant did so and the O defendant answered that, as far as Mr Liu can remember, because O the industry had reflected to him that the operation cost would P P increase after the new regulations were implemented and some Q companies may have to be closed down. Q R R 119. Mr Liu asked the defendant if he had sought the opinion of the S Department of Justice before making the decision and he replied S that he had not. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 28 - A A B 120. The meeting then proceeded to deal with how they should follow B up with the matter, how they could find out the vessels that were not C C compliant with the regulations and to ask them to comply with the D new requirements in relation to lifejackets as soon as possible. D E E 121. Mr Liu cannot remember if he had asked at that meeting if the F defendant’s instructions were still in existence. He cannot F remember what he had said with respect to the lifejackets question, G G nor what specific instructions did he give. Mr Liu believes that what H he said was that all vessels should comply with Hong Kong law, H with no more specificity than that. I I J PW4 Ms Chui Kit Wan Catherine: Senior Executive Officer, J THB K K 122. Ms Chui is a Senior Executive Officer and was involved in matters L L in relation to the Lamma IV incident. M M 123. Ms Chui was in attendance at a meeting held on 6 March 2013 at N N the MD. Ms Chui was allowed to refresh her memory with the notes O O (exhibit P-10) that she made after the meeting. Although the notes P is dated June 2013, they were made with the aid of the P contemporaneous notes that she had kept shortly after the meeting. Q Q The contemporaneous notes are however nowhere to be found. R R 124. In addition to Ms Chui, also present at the meeting from the THB S S were the Permanent Secretary for Transport, the Deputy Secretary T of Division 5, the Principle Executive Officer (Transport) Special T Duty, Senior Executive Officer (Transport) Special Duty; and U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 29 - A A B Director of Marine (Liu Hon Por), Deputy Director of Marine B (Tung Hon Ming), Assistant Director of Shipping (the defendant), C C Assistant Director of Port Control, Assistant Director of Maritime D Logistics (a Mr Chik) of the Marine Department. D E E 125. Ms Chui’s notes reads as follows: F “3. When asked by the Permanent Secretary whether the F non-enforcement of the statutory requirement on the G G provision of lifejackets enacted in 2007 and to take effect on 2 H January 2008 (Cap.548G, Schedule 8), as said by MD H colleague at the CoI hearing on 1 March 2013 was known to I I the MD Management, Mr So [the defendant] admitted the J following: J K K • As stipulated in the Ordinance, the new statutory requirement L L should apply with effect from 2008 that the local vessels must M provide 100% adult lifejackets + 5% children lifejackets on M N board. N • There was grace period allowed for the vessels already O O P in-service (舊船) to continue adopting the requirement before P Cap. 548 came to effect. Q Q R • It was he who gave instruction about giving the grace period R but no end date was stated, and only verbal instruction was S S given T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 30 - A A B • It was his own decision to give grace period and he did not seek B legal advice prior to making the decision C C D • He said that at that time the trade faced economic downturn and D had raised difficulties in running the business and showed E E reluctant to buy ‘additional’ lifejackets” F F 126. Ms Chui agreed in cross-examination that the defendant did say G G words to the effect that the lifejackets on local vessels were suitable H H for both adults and children. I I PW5 Mr Wong Hon Chung: Chief Ship Inspector since 2009 J J 127. Mr Wong joined the MD in 1984 as an assistant ship inspector of K the Ship Inspecting Division. He was later seconded to the Labour K Department. He ultimately returned to the LVSS of the MD in 2005 L L and took up the post of Senior Ship Inspector. M M 128. The role of a Senior Ship Inspector is similar to that of a ship N N inspector, but the Senior Ship Inspector would inspect more O complicated vessels because he would be more experienced. O P P 129. Mr Wong was promoted to the rank of Chief Ship Inspector in Q 2009 and remained in that post until he started his retirement leave Q on 18 January 2016. R R S 130. The role and responsibility of the Chief Ship Inspector is mainly to S arrange daily work for the ship inspectors. He would also assist in T T answering questions at public consultation meetings, as well as U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 31 - A A B assisting the Senior Ship Surveyor in their day to day work in B making arrangements. There is no supervisory work involved. C C D 131. At the time the new law came into force in around January 2007, D Mr Wong was a Senior Ship Inspector in LVSS. He remembers that E E because it was the first time inspections were being conducted after F the coming into force of the new law, some colleagues asked how F they should inspect the existing vessels. The message that Mr Wong G G got was to follow the old practice, i.e., follow the practice of the last H Certificate of Survey. H I I 132. It should have been the morning of 2 January 2007 that Mr Wong J first heard of those discussions. J K K 133. The said directions were given at the office. Since they were an L L open office, once it was said, all the colleagues who had to inspect M vessels could hear. M N N 134. Mr Wong explained that the said practice meant that in relation to O life safety appliances, they would follow the last Certificate of O Survey issued to the vessel when they inspected the vessel. P P Q 135. Mr Wong was not informed what ‘existing vessel’ was and had to Q refer to the definition in the regulations, and he understood that to R R mean the local vessels that were already licensed before 2 January S 2007. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 32 - A A B 136. There was no specific time frame for the duration that the B instruction would operate, just taking the replacement gradually, C C which Mr Wong understood to mean, for example, one life buoy D would be replaced by 2 lifejackets, if say, at the time of the D inspection 10 buoys of an existing vessel were damaged and had to E E be replaced, they will be replaced by 20 lifejackets, until the vessels F complied with the requirement of 100% lifejackets. F G G 137. When asked, from 2 January 2007, what would happen if on the H inspection of an existing vessel it was found to be non-compliant H with the lifejackets requirement under the new law, Mr Wong I I answered that, according to the said instructions, the inspection J would continue to be carried out and gradually the vessel would J comply with the requirements under the new law of 100% K K lifejackets. Meanwhile, a Certificate of Survey would still be issued L L to that existing vessel. M M 138. The MD would rely on the full cooperation of the shipowners to N N gradually reach the new law requirements. O O 139. Under the new law, there is a 5% children lifejackets requirement P P for certain type of vessels. When asked if, as ship inspector, Mr Q Wong had seen this 5% children lifejackets requirement being Q implemented, Mr Wong replied that, because at that time he R R inspected only existing vessels, to his understanding the vessels S kept replacing according to the old law until they complied with the S new regulation under Cap.548G. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 33 - A A B 140. Mr Wong spoke about the key differences in relation to life saving B appliances between the old and new law. Under the old law, there C C was no requirement to have 100% lifejackets on board and the D lifejackets could be substituted by life buoys. The total of life buoys D and lifejackets added together should be 100%. E E F 141. Under the new law, 100% lifejackets is required. It is Mr Wong’s F evidence that there is little difference between the old and new law. G G Both required 100%, just that the combination is different. H H 142. The instructions were not amended, modified or rescinded. Only I I until after the October 2012 Lamma IV incident, then the J management notified Mr Wong and his colleagues that they had to J follow the regulations. That notification came from the then GM of K K the LVSS Mr Leung Wing Fai and it was a verbal instruction. L L M 143. The Defendant was the Principal Surveyor of Ships and the M General Manager of the “Local Vessel Safety Branch” between 16 N N April 2007 and 12 August 2010. The defendant was then replaced O by Mr Wong Chi Kin as GM and later Leung Wing Fai took over as O GM in 2011. P P Q 144. The witness had never had contact with Wong Chi Kin or Leung Q Wing Fai over, nor had the witness heard them said anything about, R R the “old vessels follow old law, new vessels follow new law” S policy. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 34 - A A B 145. Mr Wong confirmed in cross-examination that he was aware of B ‘HKMD approved lifejackets’, and that they refer to lifejackets C C which had been tested and approved by the MD. The department D would also accept ‘Safety of Life at Sea’ (“SOLAS”) standard D lifejackets in addition to HKMD approved lifejackets. E E F 146. Mr Wong confirmed that he did tell the THB officer during the F internal investigation that from time to time, he would hear from G G people in the industry, especially the ones using lots of life buoys, H talking to him about how if the buoys were all changed to H lifejackets will result in an increase in volume and they will have to I I find suitable space for the lifejackets. J J 147. Mr Wong also confirmed that according to section 4 of the K K Merchant Shipping Local Vessels Safety and Surveyor Regulation, L L each life buoy is taken to be for use by 2 persons on board the vessel; M and in the Code of Practice at 2.5, it is stated that one life buoy is M deemed to support two adult persons. N N O PW6 Mr Yu Kick Chuen Phillip: Senior Ship Inspector O P 148. Mr Yu was tendered for cross-examination. P Q Q 149. Mr Yu was referred to the Certificate of Survey of a vessel that he R had inspected while he was working as a Senior Ship Inspector at R the MD in 2010. S S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 35 - A A B 150. According to the 2011 Certificate of Survey of the vessel ‘Tung B Fai’, the vessel was built in 1994. Mr Yu believes that the ship C C would have been in operation perhaps 1 or 2 years after that. D D 151. At the time when Mr Yu inspected Tung Fai in 2011, he did the E E inspection by following the Certificate of Survey of the ship that F was prepared by another colleague. F G G 152. Mr Yu was asked about an asterisk that was placed next to the item H of ‘child lifejacket(s)’ under the heading ‘This vessel is provided H with the following life saving appliances and radio equipment:’. Mr I I Yu said he did count the number of adults and children lifejackets J on the vessel in that inspection, he put the asterisk there because J when he made reference to the preceding Certificate of Survey, an K K asterisk was used there as well, i.e., the Certificate of Survey L L covering the 2010 to 2011 period. M M 153. The asterisk against the ‘child lifejacket(s)’ indicates that there is N N one lifejacket for each person. Mr Yu was not able to give a clear O answer as to whether that means children lifejackets or adults O lifejackets. P P Q 154. Mr Yu was then asked if he was aware at the time that it was a legal Q requirement that there had to be 5% of children lifejackets in R R relation to the number of passenger the ship was licensed to carry. S Mr Yu’s answer was ‘Because at the time I did my work by S following the Certificate of Survey’. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 36 - A A B 155. When asked if he actually checked the number of lifejackets, Mr B Yu said that he just took a look to see how many lifejackets there C C were, since the passenger number was 50, 5% would be around 3 D lifejackets. It should be the case that Mr Yu was satisfied that there D were sufficient lifejackets. E E F 156. In re-examination, Mr Yu was asked about the asterisks against F ‘adult lifejacket(s)’ and ‘child lifejacket(s)’, whether he could have G G put in a number instead of an asterisk if he wanted to do so. Mr Yu H said yes, and added that “because it was like this in the preceding H one”, meaning the Certificate of Survey immediately preceding the I I one in 2011. J J PW7 Mr Yuen Chin Wai: ship inspector K K 157. Mr Yuen joined LVSS in 2006 as a ship inspector. It is his evidence L L that, after the enactment of the new law in 2007, for those vessels M licensed before 2007, their inspections should follow the old law in M relation to safety appliances. N N O O 158. Mr Yuen cannot remember the source of those instructions. He had P continued to apply the old law standard in the inspection of the old P vessels. Mr Yuen left LVSS in 2011. Q Q R 159. Mr Yuen was shown the Certificates of Survey produced by PW6. R It is his evidence that the form was only used in January 2007, after S S the new law had come into effect. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 37 - A A B 160. Mr Yuen explained the procedure he adopted as a ship inspector in B 2007 when the computer recording system was implemented. Mr C C Yuen would do the survey, return to the office, enter data into the D computer and then print out the Certificate of Survey. D E E 161. In relation to the D-15 Certificate of Survey, a [-] hyphen against F an item meant that there was no such item on the vessel. It was a F commonly used symbol amongst ship inspectors. G G H 162. Mr Yuen was not able to give a meaningful answer as to the H meaning of the asterisks against the lifejackets items. I I J PW8 Mr Lee Kwok Ching: ship inspector J K 163. Mr Lee joined the MD in 1988 as a trainee ship inspector. He was K then seconded to the Labour Department for about 11 years. He L L returned to the MD and joined the LVSS in 2009 as a ship inspector. M He remained in the post until his pre-retirement leave in June 2013. M N N 164. Since Mr Lee joined the LVSS as ship inspector only in 2009, he O O had no idea about the previous situation in relation to lifejackets P requirements. As for the lifejackets requirement when he joined the P LVSS, the new law required 100% adult and 5% children Q Q lifejackets. This is applicable to new vessels, meaning vessels that R come into being after the enactment of the new law. R S S 165. As for vessels that came into being before the new law, one would T usually have to follow the preceding ship inspection report and T Certificate of Survey. Mr Lee was however unaware of what the old U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 38 - A A B law was in relation to old vessels. No one had explained to him why B that was the case, but when Mr Lee returned to the LVSS in 2009, C C all or most of his colleagues were doing that. Mr Lee is not able to D recall the source of this instruction or practice. D E E 166. As far as Mr Lee can remember, in all the new vessels that he had F inspected, they were all in compliance with the new law, in that F they all had 100% adult and 5% children lifejackets. G G H 167. In relation to old vessels, and in particular the inspection of H lifejackets, Mr Lee would look at the number of lifejackets stated I I on the previous Certificate of Survey and then count how many J lifejackets there were on the vessel. He would then conduct a J random sample check to see if the lifejackets complied with the K K quality requirements, e.g. whether strings were coming off of the L L lifejackets, and whether they were of the approved type. M M 168. Mr Lee recalled that the lifejackets were of different sizes. They N N were in most cases adult lifejackets, but some of them were suitable O for use by both adults and children. That information was not O however noted specifically on the Certificate of Survey. P P Q 169. This “old vessels follow old law, new vessels follow new law” Q practice carried on to be applied until after the October 2012 R R Lamma IV incident. Thereafter changes were made “gradually”. Mr S Lee however can no longer remember anything about those changes S because many different things were happening at that time. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 39 - A A B PW9 Mr Wen Tsz Kit Bondy B C 170. Mr Wen is the Chairman of Hong Kong & Kowloon Motor Boats C & Tug Boats Association Limited. His witness statement was read D D into evidence pursuant to s.65B of the Criminal Procedure E Ordinance, Cap.221. E F F 171. According to Mr Wen, the purpose of his association is to liaise G with government departments, mainly the Marine Department, to G reflect the opinion of the association and the industry on behalf of H H their members. The Marine Department would also ‘disseminate I information’ to the industry through his association. I J J 172. It was not until 2006 that the Marine Department formally invited K Mr Wen’s association to attend meetings in relation to the drafting K of 548G, and to inform them and the industry about the contents of L L the new law. M M 173. It is Mr Wen’s evidence that, as a result of the late invitation to the N N drafting process, his association’s knowledge of the new legislation O O was inadequate when it came into force in 2007. P P 174. It was not until the boat owners had their boats inspected did they Q Q realize the problems, including the new lifejacket requirement by R the Marine Department. R S S 175. The boat owners raised their concern to Mr Wen’s association and T Mr Wen reflected those concerns on the quantity of lifejackets to T the department. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 40 - A A B 176. The association also held meetings with staff of the Marine B Department to discuss the matter. C C D 177. The association related to the department that since the majority of D the boats were old, there were difficulties in implementing the new E E lifejacket requirement on board. Alterations will have to be made F and the boat owners might face financial difficulties when making F the alterations. G G H 178. It was the association’s view that the old law did not mean to be H unsafe. There were other lifesaving equipment available on board, I I including life rafts and buoys, etc. J J 179. As far as Mr Wen could remember, during the meetings with the K K Marine Department, someone mentioned ‘natural elimination’ and L ‘new legislation for new boats, old legislation for old boats’. Mr L M Wen is unable to say when the meetings were held. M N N 180. ‘Natural elimination’ meant that when the equipment on the old O boats are subject to normal wear and tear, boat owners will change O into new equipment as required by the new legislation. P P Q 181. ‘New legislation for new boats, old legislation for old boats’ meant Q that after the implementation of the new legislation, newly-built R R boats have to meet the requirements of the new legislation. Whereas S for boats built before the implementation of the new legislation, S they would be allowed to continue to use the equipment originally T T available on board. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 41 - A A B 182. Mr Wen remembers that in early 2010, his association held a B meeting with staff of the Marine Department to discuss the issue of C C lifejacket shortages. At that time, the department dealt with the D issue by way of ‘natural elimination’ and ‘new legislation for new D boats, old legislation for old boats’. E E F 183. Mr Wen’s association and the industry jointly staged two protests F in March and September 2013 respectively. The reason for the first G G protest was that, after the Lamma IV tragedy, the Marine H Department told the association verbally to pass a message to the H boat owners and the industry that the 548G new lifejacket I I requirement were to be strictly followed immediately. J J 184. Mr Wen remembers that 2,000 odd lifejackets were needed in total K K at that time and the boat owners were not able to purchase them in L L such a short period of time. That led to the first protest. M M 185. The second protest was staged when the Marine Department N N sought to implement compulsory legislation in accordance with the O measures or equipment suggested in the expert report of the O Commission of Inquiry of the Lamma IV incident. P P Q 186. The industry disagreed with the expert report and was of the view Q that those measures or equipment were not suitable. There were R R also ship owners who were simply unable to purchase the S equipment or implement those measures. That led to the second S protest. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 42 - A A B The defendant’s no case submissions B C 187. At the end of the prosecution case, the defendant made a no case C submission on the ground that no properly directed jury could D D convict the defendant on the charge based on the evidence as E presented to the court by the prosecution. E F F 188. Having heard from both parties, I ruled that there was a case for the G defendant to answer. G H H The defendant’s case I I 189. The defendant elected not to give evidence on the general issue and J did not call any defence witnesses. J K K 190. According to Mr Marash’s closing submissions, the defendant’s L case is that, if the defendant did issue the non-enforcement L instruction and did fail to rescind it, his conduct was not misconduct M M so serious as to warrant criminal sanctions and as such the N seriousness requirement under the Sin Kam Wah formulation would N not be satisfied. O O P 191. Furthermore, it is the defendant’s case that he had reasonable P excuse to issue and not rescind the non-enforcement instruction, the Q Q excuse being the need for the defendant to ensure the ‘smooth R implementation’ of the new lifejacket requirements under R Cap.548G. S S T T Findings of facts U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 43 - A A B 192. I find first of all that all prosecution witnesses are honest and B reliable witnesses. C C D 193. The defendant is of good character and therefore less likely than D otherwise might be the case to commit the crime. E E F 194. I find, however, that given the nature of the prosecution case and F the defence raised, the defendant’s good character is of minimal G G relevance when deciding whether he is guilty of the offence. H H The non-enforcement instruction I I 195. Based on the evidence of the prosecution witnesses, I find what the J J practice of “old vessels follow old law, new vessels follow new K law” meant was that, when local vessels that had previously been K issued with a Certificate of Survey and had been issued a license to L L sail in Hong Kong waters are due for their annual (or biannual and M quadrennial) inspection, the MD ship inspectors will check if the M lifejackets on board were in accordance with the pre-548G legal N N requirements. If they were, the vessels will be recorded as having O O satisfied the legal requirements and a Certificate of Survey will be P issued on that basis, even if they do not comply with the new P lifejacket requirements under Cap.548G. Q Q R 196. I find that, based on the evidence of PW2 Mr Tung Hon Ming, R PW3 Mr Liu Hon Por Francis and PW4 Ms Catherine Chui, the S S defendant did in fact issue an instruction to his subordinate ship T inspectors in April 2007 that they did not have to enforce the new T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 44 - A A B lifejacket requirements under s.548G in relation to local vessels B which already held a previously valid Certificate of Survey. C C D The time of the issuing of the non-enforcement instruction D E 197. PW1 Mr Au Yeung remembers the defendant did talk about the E “old vessels follow old law, new vessels follow new law” practice F F at the post 548G enactment briefings, but can no longer remember G what the defendant said. The general impression he still retains is G that the defendant did say that old vessels would follow the old law H H and new vessels would follow the new law. I I 198. PW2, 3 and 4 all recall hearing the defendant admitting that he was J J the person who had issued the non-enforcement instruction at the K 6th March 2013 meeting. K L L 199. I find that although the exact time of the issuance of the M non-enforcement instruction is unclear, based on the evidence of M the prosecution witnesses, it can be inferred that the instruction was N N issued by the defendant after he had taken up his position in April O and that the practice of “old vessels follow old law, new vessels O P follow new law” had carried on up to the defendant’s departure P from the LVSS. Q Q R The existence of a similar instruction prior to the defendant’s R arrival S S 200. The evidence of Mr Au Yeung prove that prior to the defendant’s T T arrival, and even before the enactment of 548G, there had been talks U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 45 - A A B between the then GM of the LVSS Mr Lee Kwok Fai Michael and B representatives of the industry, when the representatives voiced C C their general concern over the difficulties in the implementation of D the various new requirements under 548G. The concerns were not D limited to lifejacket requirements. E E F 201. I find that an assurance was given by the then GM to the F representatives that the old legal requirement will continue to be G G applied in relation to old vessels. H H 202. I find however that when the defendant arrived at the LVSS and I I took up the position of GM and Principal Surveyor of Ships, he J must have known about the statutory deferment period, as well as J the practice in relation to old vessels that was in place. The reason K K for this finding is as follows. L L M 203. The new legislation was enacted just 3 months before the M defendant was posted to the LVSS. It was impossible for the N N defendant not to know that there was a new enactment that affected O the running of the LVSS so significantly. O P P 204. The defendant was not only the General Manager but the Principal Q Surveyor of Ships. Although he may not have to conduct day to day Q ship inspections, it was his duty to know about the work of the ship R R inspectors and to ensure, through the help of the Chief Ship S Surveyor, that the inspectors are doing a proper job. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 46 - A A B 205. There is no evidence to suggest that the defendant was not aware of B the “old vessels follow old law, new vessels follow new law” C C practice at any time. It was never put to any of the prosecution D witnesses that the defendant was not aware of the practice. D E E 206. There is of course the evidence of the defendant admitting at the F March 2013 meeting that he was the person who issued the F non-enforcement instruction. G G H 207. The only irresistible inference is therefore that the defendant knew H about the practice of “old vessels follow old law, new vessels I I follow new law” when he joined, and that he had issued the J non-enforcement instruction nevertheless. J K K 208. The fact that Lee Kwok Fai Michael had issued a similar L instruction as the GM of LVSS prior to the defendant’s arrival does L M not mean that the defendant cannot be guilty of the offence. He had M the authority and the opportunity to rescind the previous instruction N N but he chose to issue the non-enforcement instruction instead. O O The reason for the defendant issuing the non-enforcement P P instruction Q Q 209. There is no direct evidence from the defendant to explain his R decision to issue the non-enforcement instruction. R S S 210. My finding of the reason behind the defendant’s decision is T therefore necessarily by way of the making of an inference, based T on what the prosecution witnesses said the defendant had said at the U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 47 - A A B March 2013 meeting, as well as on evidence showing the concern B the industry representatives had over the implementation of the new C C regulations. D D 211. PW2 Mr Tung attended the March 2013 meeting and gave E E evidence that the defendant had said that he was the person who F issued the non-enforcement instruction. F G G 212. PW3 Mr Liu, the then Director of Marine, was at the same meeting H and gave evidence that he had heard the defendant said the same H thing. He also heard the defendant answered that the reason why the I I defendant issued the instruction was because the industry had J reflected to the defendant that the operation cost would increase J after the new regulations were implemented and some companies K K may have to be closed down. L L M 213. PW4 Ms Catherine Chui gave evidence that the defendant said he M was the person who gave the verbal instruction for a “grace period N N allowed for the vessels already in-service ( 舊 船 ) to continue O adopting the requirement before Cap.548 came to effect”; that no O end date to that practice was stated. P P Q 214. There is also the evidence of Mr Au Yeung and Mr Wen (s.65B Q statement), suggesting that the industry had always been concerned R R about the cost implications of the new legislations and their S resistance against immediate full implementation of the provisions S in the new Cap.548G. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 48 - A A B 215. When the pieces of evidence are put together, what one can deduce B is that the defendant seemed to have decided not to apply the new C C lifejacket requirements because he was told by the representatives D that they were either not ready or unwilling to fully implement the D new laws. E E F 216. There is no direct evidence as to the thinking process of the F defendant, nor the factors that he had taken into consideration G G before deciding to issue the non-enforcement instruction. All that H we have is the said evidence as the basis for inferences as to the H defendant’s then state of mind to be drawn. I I J 217. I find that based on the evidence available, the inferred reason as to J why the defendant issued the non-enforcement instruction is he K K wanted to appease the industry representatives who were not happy L L with the new lifejacket requirements. M M Was the defendant’s conduct wilful misconduct? N N 218. I find that the defendant was a public official at all material times O O while he was the General Manager and the Principal Surveyor of P Ships of the LVSS. P Q Q 219. I find that when the defendant issued the non-enforcement R instruction, and when he failed to rescind the non-enforcement R instruction, he was acting in the course of the performance of his S S public duties as the General Manager of the LVSS. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 49 - A A B 220. I find that the non-enforcement instruction was in fact followed by B all the ship inspectors. C C D 221. I find that the defendant had never rescinded the non-enforcement D instruction. E E F 222. Although there is evidence to suggest that the “old vessels follow F old law, new vessels follow new law” practice had been in place G G before the defendant’s arrival at LVSS, I find that the defendant had H the power to order the practice to stop at any time after he had been H posted to the LVSS. I I J 223. Furthermore, based on the evidence of Ms Chui, the defendant had J confirmed that he was the person who had issued the K K non-enforcement instruction at the March 2013 meeting. This is L L proof that the issuing of the instruction was deliberate and not M inadvertent. M N N 224. I find that the defendant’s decision to instruct his subordinates to O not enforce the new law on lifejacket requirements is obviously a O misconduct. P P Q 225. I find that the defendant’s issuance of the non-enforcement Q instruction was a wilful misconduct in the sense that he issued the R R instruction deliberately. S S 226. In relation to the defendant’s failure to rescind the T T non-enforcement instruction, I find first of all that there is no direct U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 50 - A A B evidence to prove why the defendant did not rescind his B non-enforcement instruction. C C D 227. There is also no evidence to suggest that the defendant had D forgotten to rescind the non-enforcement instruction. Furthermore, E E given that one of the main duties of the defendant as the General F Manager and the Principal Surveyor of Ships is to oversee the work F of the ship inspectors in their ship inspection, I find it impossible G G that the defendant could have forgotten about his decision to H instruct his subordinates not to follow the new lifejacket H requirements. I I J 228. I therefore find that the defendant’s failure to rescind the J non-enforcement instruction also a wilful misconduct in the sense K K that it was deliberate and not inadvertent. L L M Was the misconduct so serious as to warrant criminal M sanctions? N N Legal principles O O 229. In the case of HKSAR v Ho Hung Kwan Michael (2013) 16 P HKCFAR 525, the Court of Final Appeal considered the element of P seriousness in a misconduct of a public officer charge. Q Q R 230. There the appellant was a doctor employed by the Hospital R Authority working at an out-patient clinic. On 16 occasions the S S doctor booked appointments in the names of his parents and 6 year T T old son for consultation at the clinic. On each occasion, he bought U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 51 - A A B tickets for consultation, wrote out consultation summaries and B prescribed medication on the computer and later obtained the C C medicine. The total cost of all the medicines to the Government was D $247. D E E 231. The parents were in Australia and the son was attending F kindergarten at the time of these consultations and they never F attended the clinic. G G H 232. The appellant's family members were entitled to public medical H services when they were in Hong Kong and had previously made I I use of the services at the clinic. J J 233. There is no express rule set by the Hospital Authority which K K required that a doctor must diagnose his patients inside the clinic, L L although generally expected to do so. M M 234. The appellant explained that the diagnoses of his parents were N N conducted over long-distance telephone calls while that of his son O were done at home. He thought that in order to obtain medicines for O his family members he had to follow the procedure at the clinic. P P Some of the medicines obtained were either mailed to his parents or Q delivered to them by relatives. Other medicines were placed at Q home for future use. He conceded that he could not personally R R verify his parents' symptoms without seeing them face to face or his S son's condition without the necessary equipment. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 52 - A A B 235. The appellant was charged with 2 counts of misconduct in public B office (Charge 1 and 5), 3 counts of fraud (alternatives to charge 1), C C and 22 counts of gaining access to computers with criminal or D dishonest intent (alternatives to charge 5). D E E 236. He was convicted by the Deputy Magistrate of charge 1 and F acquitted of charge 5, the other charges were left on file and no F verdict was given. His conviction on charge 1 was upheld on appeal G G by Deputy High Court Judge A Wong (as he then was). H H 237. The issue on appeal to the Court of Final Appeal is succinctly set I I out in paragraph 11 of the judgment: J J “11. The common law offence of misconduct in public office K K was affirmed in Shum Kwok Sher and the ingredients of this L L offence were reformulated in Sin Kam Wah: the offence is M committed where a public officer in the course of or in M relation to his public office wilfully and intentionally N N misconducts himself by act or omission, without reasonable O excuse or justification and the misconduct is serious, not O trivial, having regard to the responsibilities of the office and P P the officeholder, the importance of the public objects which Q they serve and the nature and extent of the departure from Q those responsibilities. R R S S 12. The crucial question to be decided in this case was T whether what he did amounted to misconduct which was so T serious as to constitute the offence of misconduct in public U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 53 - A A B office. The Magistrate and the Judge took the view that it B was.” C C D D 238. In deciding whether the appellant's conduct was serious E misconduct, Chan PJ referred first of all (at paragraph 25) to the E following remark of Sir Anthony Mason NPJ in Shum Kwok Sher: F F G “69. The difficulty which has been experienced in defining G with precision the elements of the offence stem not so much H H from the various ways in which they have been expressed as I from the range of misconduct by officials which may fall I within the reach of the offence. This is because, to quote the J J words of PD Finn, “Public Officers: Some Personal K Liabilities” (1977) 51 ALJ 313 at p.315: K L L The kernel of the offence is that an officer, having M M been entrusted with powers and duties for the public N benefit, has in some way abused them, or has abused N his official position. It follows that what constitutes O O misconduct in a particular case will depend upon the P nature of the relevant power or duty of the officer or P of the office which is held and the nature of the Q Q conduct said to constitute the commission of the R offence.” [Chan PJ’s emphasis] R S 239. At paragraph 26, Chan PJ made the following remark: S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 54 - A A B “26. In considering this important question, one must not lose B sight of the object of this offence. It is clear from a review of C C the authorities that this offence is aimed at punishing an abuse D by a public officer of the power and duty entrusted to him for D the public benefit or of his official position. E E F 27. In Shum Kwok Sher, when he was formulating the F ingredients of the offence of misconduct in public office, Sir G G Anthony Mason NPJ considered that to constitute the offence, H the conduct in question must be serious misconduct, not H I trivial and this is to be determined having regard to: (i) the I responsibilities of the office and the office holder, (ii) the J J nature and extent of the departure from those responsibilities. K He regarded that this is consistent with the concept of abuse K of office. But he acknowledged that there would be borderline L L cases between this common law offence and disciplinary M offences.” M N N 240. Chan PJ then went on to the English Court of Appeal case of Re O A-G's Reference (No 3 of 2003) [2005] QB 73 and cited the O following remarks of Pill LJ: P P Q “...Having considered the authorities, we agree that the Q misconduct complained of must be serious misconduct. R R Whether it is of a sufficiently serious nature will depend on S the factors stated by Sir Anthony Mason NPJ along with the S seriousness of the consequences which may follow from an T T act or omission. An act or omission which may have as its U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 55 - A A B consequence a death, viewed in terms of the need for B maintenance of public standards to be marked and the public C C interest to be asserted, is likely to be more serious than one D which would cause a trivial injury. This factor is likely to D have less significance where, as in Shum Kwok Sher, the E E allegation is of corruption where the judgment upon the F conduct may not vary directly in proportion to the amount of F money involved.” (Chan PJ’s emphasis) G G H H 241. Chan PJ went on to consider cases where corruption, dishonesty or I other illegal practices are not involved: I J J “30. In other cases, where corruption, dishonesty or other K illegal practices are not involved, the consequences of the K misconduct may not be obvious. Nevertheless, this must be a L L factor which is also relevant when considering whether the M misconduct is serious enough as to merit criminal sanction. I M do not think the prosecution is disputing the relevance of this N N factor. Nor can this be disputed. This factor was not O O mentioned in the discussion of this offence in Shum Kwok P Sher. That was a case of granting preferential treatment to a P close relative in relation to some government contracts and Q Q the seriousness of such misconduct and its consequences R could be readily seen. I also do not think the list of factors R mentioned in that case was intended to be exhaustive. Further, S S in most cases, the consequences of the misconduct will T usually have been considered when one is examining the T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 56 - A A B nature and extent of the departure from those B responsibilities.” C C D D 242. Chan PJ then referred to the following passage of Bokhary PJ’s E judgment in the case of Chan Tak Ming v HKSAR (2010) 13 E HKCFAR 745, where he discussed the approach to be adopted in F F considering whether any misconduct was serious enough as to call G for condemnation and punishment. G H H “...trivial misconduct will of course not support a charge of I misconduct in public office. That said, the question is whether I the offence is serious having regard to - as stated in that item J J (5th item of the reformulation) - the responsibilities of the K office and the office holder, the importance of the public K objects which they serve and the extent of the departure from L L those responsibilities. It is in that way - and not by saying that M it must be sufficiently serious since it is not trivial - that one M goes about deciding whether the necessary seriousness N N exists.” O O P 243. It is Chan PJ’s view that “One must consider all the circumstances P of the case including the factors mentioned above. It would be Q Q wrong simply to conclude that if the misconduct in question is not R trivial, then it must be serious enough to merit criminal sanction. It R is a high threshold for the prosecution.” S S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 57 - A A B 244. Chan PJ went on to cite from Pill LJ's decision in Re A-G's B Reference (No 3 of 2003), at paragraph 56: C C D “It supports the view expressed in the criminal cases, from R v D Borrow to Shum Kwok Sher that there must be a serious E E departure from proper standards before the criminal offence is F committed; and a departure not merely negligent but F amounting to an affront to the standing of the public office G G held. The threshold is a high one requiring conduct so far H below acceptable standards as to amount to an abuse of the H public's trust in the office holder. A mistake, even a serious I I one, will not suffice. The motive with which a public officer J acts may be relevant to the decision whether the public's trust J is abused by the conduct.” K K Motive not an element of seriousness L L 245. In the case of Chan Tak Ming v HKSAR mentioned above, one of M M the certified questions of law for the Court of Final Appeal to N answer was, “to what (if any) extent is a significant personal benefit N to the defendant a part of the element of seriousness in the O O definition of the offence of misconduct in public office?” Bokhary P PJ gave the Court's answer as follows: P “26. I turn now to the second certified question of law. As to Q Q this question, it is to be noted that the Sin Kam Wah R re-formulation makes no mention of personal benefit to the R defendant. And that is for a very good reason. Misconduct in S S public office may be committed for personal benefit to the T T defendant or for motives other than that one. It may be U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 58 - A A B committed, for example, to benefit others or to harm others. B Indeed, it may be committed for no discernible or provable C C motive. That is how the second certified question of law D should be answered.” (my emphasis) D E E F Applying the legal principles to our present case F G 246. In our present case, the factors that I find relevant when G considering whether the defendant's conduct was so serious as to H H warrant criminal sanction are as follows. I I 247. The defendant issued an instruction which directly contradicted the J J legal requirements under the new law. In situations of vessels K licensed before 2 January 2007, in the period from the expiration of K the deferment period onwards, instead of the statutory requirement L L of 100% adult plus 5% children lifejacket, they would still be M allowed to operate in Hong Kong waters if they met the requirement M of the old law, that is to say, 40% lifejacket, with no specific N N requirement for children lifejacket. O O 248. According to prosecution witnesses’ evidence, it would seem that P P in following the defendant’s non-enforcement instruction, the MD Q ship inspectors were relying on the ship owners or operators to Q voluntarily update the lifejackets they carry on the vessels. There R R was mention in evidence of replacement based on wear and tear, but S no time frame was imposed on the ship owners or operators for such S replacements. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 59 - A A B 249. Without an end date on the non-enforcement instruction, it would B appear that a ship owner or operator could have continued to be in C C breach of the new lifejacket requirements (subject to the grace D period) indefinitely if they considered that the original pre-548G D lifesaving appliances were still in working order. E E F 250. Although there is no evidence to suggest that the old law had been F dangerous or that it had led to any loss of lives or hindered rescue G G efforts as a result of the old lifejacket requirement, I find that it can H be inferred that the updating of the old law implied that the H legislature considered it necessary to make the amendments in I I relation to lifejacket requirements on local vessels to ensure the J safety of passengers on local vessels. J K K 251. There was a 12-month period of deferment of the application of the L L lifejacket requirement for certain classes and types of vessel. M Although this court is not told the reasoning adopted by the M legislature behind the deferment, it can be inferred that there N N appeared to have been no immediate urgency in the enforcement of O the lifejacket requirement under s.32(2)(b) at the time. O P P 252. Having said that, I find that whether there is urgency in the Q enforcement of a law is not a factor open to consideration for the Q public official tasked with the enforcement of that law. It is not for R R the official to decide that, since there was no urgency in the matter, S he could choose not to enforce certain parts of the enactment. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 60 - A A B 253. The defendant had suggested that as long as lifejackets were MD B approved, dual purpose lifejackets are as safe as children lifejackets C C when used by a child. There is however no expert evidence before D me to allow me to make a decision on the matter. There is also no D evidence that the defendant had consulted any experts on the matter E E prior to his making of the decision to issue the non-enforcement F instruction. F G G 254. In any event, I find that it is not for the defendant to supplant the H decision of the legislature and decide himself that the new lifejacket H requirements were just the same as the old ones, that it would not I I make any difference to safety, and order that the new law not be J implemented regarding certain type of vessels. J K K 255. I have given specific consideration as to whether the defendant’s L L non-enforcement instruction was merely negligent and came to the M conclusion that it was not. It could arguably be so had the M non-enforcement been a one-off incident directed at one vessel. It is N N not merely negligent when the instruction is a blanket one applying O to all old vessels. O P P 256. I find that the defendant’s departure from his duty not merely Q negligent but amounted to an affront to the standing of the public Q office held. R R S 257. The seriousness of the defendant’s misconduct lies in his decision S to disregard the will of the legislature and replace it with his own. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 61 - A A B 258. Although I find that there is no evidence to suggest any dishonest, B corrupt or malicious motives behind the defendant’s decision to C C issue the non-enforcement instruction, nor behind his decision to D not rescind it afterwards, the answer given by the Court of Final D Appeal in Bokhary PJ’s judgment in Chan Tak Ming is unequivocal, E E which is that the motives behind the commission of the offence of F misconduct in public office is not part of the element of seriousness. F G G 259. Therefore, even though there is no evidence to suggest that the H defendant harboured any dishonest, corrupt or malicious motives H behind his decisions, his misconduct is still capable of being so I I serious as to attract criminal sanctions. J J 260. I am aware that the threshold of seriousness is a high one, but I K K nevertheless find that the defendant’s conduct in the issuance of the L L non-enforcement instruction and his failure to rescind it thereafter M was conduct so far below acceptable standards as to amount to an M abuse of the public’s trust in the defendant as a senior public officer. N N O 261. The defendant’s instruction was a blanket one covering all local O vessels licensed prior to the enactment of the new law. I find that it P P can be inferred that the vessels affected must be numerous, given Q that by definition local vessels included ferries, multi-purpose Q vessel and stationary vessels 2 . The extent of the defendant’s R R departure from his responsibility to enforce the relevant provisions S is large and the nature serious. S T T 2 See Schedule 1 of Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap.548D U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 62 - A A B 262. Lifejackets are lifesaving equipment. They are placed on vessels to B enhance the chance of someone overcoming a life threatening C C situation at sea should an accident occur. For the defendant to D instruct his subordinates to ignore the regulations governing the D provision of lifejackets on a certain category of local vessels, he E E was acting against the the explicit requirements of the legislation. I F find that the consequences of the defendant’s non-enforcement F instruction potentially serious. G G H 263. Having taken into consideration all the circumstances, I find that H the defendant’s misconduct is serious enough to warrant criminal I I sanctions. J J Was there a reasonable excuse? K K 264. Mr Andrew Bruce for the prosecution conceded that the defence L L had satisfied the evidential burden required for the raising of the M defence of having a reasonable excuse for the defendant’s M misconduct. It is Mr Bruce’s submission that the prosecution had N N proved beyond reasonable doubt that the excuse put forward is not a O O reasonable excuse. P P 265. As I found above, the excuse put forward by the defendant for Q Q issuing the non-enforcement instruction is the ‘smooth R implementation’ of the Cap.548G regulations, in particular the new R lifejacket requirements. S S T 266. When stripped down, I found that the reason behind the T defendant’s issuance of the non-enforcement instruction was to U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 63 - A A B appease the industry representatives. I find that this is the excuse B that the prosecution has to prove unreasonable. C C D 267. For the following reasons, I find that this excuse does not amount D to reasonable excuse or justification for the defendant to issue the E E non-enforcement instruction and to not rescind it afterwards. F F The duties of the defendant G G 268. It was the duty of the defendant as the Principal Surveyor of Ships H H and General Manager of the LVSS to supervise the ship inspection I work of the ship inspectors. I find that it was the duty of the I defendant to ensure that the inspections were carried out in J J accordance with the relevant legislations, in particular Cap.548G. K K What the defendant should reasonably have done L L 269. I find that if the defendant encountered problems with the M M implementation of the new lifejacket requirements, the reasonable N step to take was for him to discuss the matter with his superior and N state his opinion that more time should be given to the industry O O beyond the grace period. It would then be for the Director of Marine P to decide whether to act on the defendant’s opinion. P Q Q 270. What the defendant could not and should not have done was to R R make the decision that there was no need to comply with the new S law in relation to old vessels, and to instruct his subordinates not to S enforce the law. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 64 - A A B 271. The defendant must have been aware that he had no statutory B power to exempt vessels from compliance with the new law C C (subject to the statutory deferment period). The defendant must also D have been aware that the Director of Marine does have the power to D exempt vessels from compliance; to allow alternative apparatus; or E E even to extend the deferment period, being powers granted to the F Director under sections 69(1) and 83 of Cap.548, and section 87 of F Cap.548G respectively. G G H 272. According to the evidence of the defendant’s then immediate H superior Mr Tung (PW2), the defendant had never brought up the I I issue of non-enforcement with him, nor was he aware of any J non-enforcement instruction. J K K 273. The defendant did not consult his superior, did not obtain legal L L advice before he decided to issue the non-enforcement instruction. M He also did not notify his superior nor sought legal advice on the M matter after the issuance of the non-enforcement instruction. N N O 274. I find that I cannot agree with the defendant’s proposition of O ‘smooth implementation’ being a reasonable excuse for P P non-enforcement of the law. Q Q 275. The defendant’s non-enforcement instruction was not a qualified R R instruction. There is no evidence to show that the defendant had S ordered his subordinates to make clear to the ship owners during S inspections that they should gradually comply with the new T T lifejacket requirements. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 65 - A A B 276. There is no evidence to suggest that there was a time frame for the B operation of the non-enforcement instruction. The non-enforcement C C instruction was a simple instruction to ignore the legal requirements D and carry on as before in relation to certain local vessels. D E E 277. The defendant chose to instruct his subordinates to not enforce the F relevant lifejacket requirements. He chose to allow this instruction F to continue to be in operation even beyond the deferment period. He G G did not instruct the General Manager taking over the LVSS from H him to consider whether it was necessary to continue with or H rescind the non-enforcement instruction. I I J 278. I find that it was not for the defendant to second guess the J intentions of the legislature. It was not for the defendant to decide K K which law should or should not be enforced. It was not for the L L defendant to choose appeasement over enforcement. M M 279. I find that taking into consideration the importance of lifesaving N N equipment requirements and the 12-month deferment period O already given to the industry to comply with the new legal O requirements, the appeasement of the industry is not a reasonable P P excuse for the defendant to decide to issue the non-enforcement Q instruction to his subordinates, nor is it a reasonable excuse for his Q failure to rescind the instruction at any time thereafter. R R S 280. I find that the prosecution had proved beyond reasonable doubt that S the defendant did not have any reasonable excuse or justification to T T issue the non-enforcement instruction, nor did he have any U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 66 - A A B reasonable excuse or justification to not rescind the instruction B thereafter. C C D Conclusion D E 281. I find that the prosecution had proved beyond reasonable doubt all E the elements of the offence and convict the defendant accordingly. F F G G H H Douglas T.H. Yau I District Judge I J J K K Annex L L Ruling on the admissibility of M the defendant’s admissions made in answer to a questionnaire M and the subsequently derived evidence N Monday, 18 April 2016 at 2:30pm N O O Background P 1. A collision between two local vessels took place on the evening of 1 st P October 2012. Many lives were lost. A Commission of Inquiry was Q Q established and a report prepared and released. The Commission was R critical of the operation of the Marine Department. R S S 2. Subsequent to the release of the report of the Commission of Inquiry, an T internal investigation was conducted by the Transport and Housing Bureau T on the officers of the Marine Department. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 67 - A A B 3. Questionnaires were devised and sent out to various officers of the MD, B including the defendant. C C D 4. The defendant completed the questionnaire. Some of the answers related D to a verbal instruction supposedly to have been given by the defendant to E E his subordinates. The instruction was for them not to enforce a regulation F regarding children lifejackets on local vessels. F G G 5. The completed questionnaire was sent to the THB. A few days later, H officers handling the internal investigation conducted an interview with the H defendant. I I J 6. The defendant took part in the interview and was asked, among other J matters, about the answers he gave in the questionnaire. The defendant K K made further admissions and gave his own explanations. L L 7. The THB considered the defendant’s conduct improper and decided to M M refer the defendant’s case to the Marine Police. The Marine Police did take N over the investigation and commenced criminal investigations into the N defendant’s conduct. O O P 8. The defendant was subsequently asked to take part in Police interviews. P The defendant was properly cautioned and he exercised his right to silence. Q Q R 9. The defendant was later charged with the common law offence of R misconduct in public office, which is the subject matter of the present trial. S S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 68 - A A B 10. The prosecution sought to adduce the defendant’s answers given in B response to the questionnaire, and the contents of the interview conducted C C by the THB with the defendant as evidence in support of the prosecution D case. D E E 11. The defendant objected to such production, arguing that the answers F were not given voluntarily. Furthermore, even if they were given F voluntarily, the circumstances of the making of the admissions was unfair G G and the court ought to exclude the evidence in exercise of its residual H discretion on the ground of unfairness. H I I Applicable legal principles J 12. The defendant has a right against self-incrimination. The admissions J would only be admissible if the prosecution can prove that they were made K K voluntarily. Voluntariness would not be proved if the admissions were L L made in situations of inducement or oppression. M M 13. There is a residual discretion to exclude the admissions on the ground N of unfairness even if they were made voluntarily. N O O Issues P 14. Can the prosecution prove that the answers given by the defendant in P the questionnaire were given voluntarily, in the sense that there was no Q Q inducement or oppression that had coerced the defendant into give those R answers. R S S 15. If the prosecution cannot so prove, then the admissions in the T questionnaire and at the THB interview ought to be excluded. T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 69 - A A B 16. If the defendant did make the admissions voluntarily, should the court B exclude them in exercise of its residual discretion on the ground that due to C C the circumstances of the obtaining of the admissions, to allow them to be D adduced as evidence would mean that the defendant will not be able to D have a fair trial. E E F Findings F 17. I find first of all that there is no evidence to show that inducements had G G been offered to, or oppression applied on the defendant to cause him to H give the answers he did give in the questionnaire and during the interviews. H I I 18. I find, however, that given the circumstances of the obtaining of the J answers to the questionnaire, I should exercise my discretion so as to J exclude the defendant’s admissions and their derived evidence on the basis K K that the defendant will not be able to have a fair trial should they be L L admitted into evidence. M M 19. My reasons are as follows. N N O Facts O 20. I find the following facts to have been proved. P P Q 21. At question 12 of the questionnaire, the THB specifically mentioned Q the assertion made in front of the Commission of Inquiry by Mr Wong R R Wing Chuen about a Mr So giving the verbal instruction not to enforce a S regulation relating to children lifejackets on local vessels. The THB was S therefore aware of the allegation when the questionnaire was being T T prepared. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 70 - A A B 22. Before the questionnaires were sent out and during their preparation, B the THB also had reason to believe that the defendant had made C C admissions to his superiors about the said non-enforcement verbal D instruction. D E E 23. The contents of the questionnaires were ‘tailor-made’ for individual F officers of the Marine Department. In other words, the questions were F specific to the role and function of the individual recipient of the G G questionnaire. The questionnaire sent to the defendant was tailor-made to H include specific questions on the non-enforcement instruction. H I I 24. The THB investigation team had obtained legal advice from the J Department of Justice as to the wordings to be used in the letter J accompanying the sending out of the questionnaire and the opening K K remarks to be used when they interviewed the defendant. L L M 25. It was pointed out by the prosecution in the cross-examination of the M defendant when he gave evidence in the voir dire that it was impossible N N that the defendant would not have appreciated that he might be subjected to O criminal investigation. The basis of this proposition is common sense and O the fact that the matter was widely reported and commented on in the P P media. Q Q 26. Applying the same logic, I find that it would have been an irresistible R R inference that the THB, when they were tailor-making the questionnaires S for the officers of the MD, would have anticipated that the internal S investigation would likely lead to criminal proceedings against the subjects T T of the questionnaires, that is to say, any of the MD officers. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 71 - A A B 27. The THB must have known that, if what Wong Wing Chuen said at the B CoI was true, and if the defendant answered truthfully, the defendant’s C C answer would be a self-incriminating admission. D D 28. There was no mention in any of the correspondence between THB and E E the defendant that he might become the subject of a criminal investigation. F There was also no mention at all in the questionnaire, nor its accompanying F letter, that the defendant might become the subject of a criminal G G investigation. H H 29. There was also no mention of whether the defendant could have chosen I I not to answer the questions in the questionnaire. J J 30. Although nowhere in the questionnaire or the accompanying letter does K K it say that the defendant is required or commanded to answer, given the L L fact that the THB was the governing body of the MD and therefore the M request or invitation to answer came from someone in authority, and given M the fact that the defendant was a Civil Servant bound by the Civil Service N N Regulations to follow reasonable orders given by his superiors, it is not O unreasonable for the defendant to believe that he had no choice but to O answer the questionnaire. P P Q Wordings of the 22nd August 2013 accompanying letter Q 31. It is stated at the first paragraph of the accompanying letter that the R R defendant was ‘especially invited’ to ‘provide information in relation to S the attached investigation questionnaire’. S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 72 - A A B 32. The defendant was also invited to meet with investigating unit of the B THB on 25th September 2013. C C D 33. Having extended the ‘invitation’, the THB then proceeded to ‘formally D remind’ the defendant that he should answer the questionnaire by himself, E E and should not discuss the questionnaire and the contents of the response F with any persons who are or may be required to be investigated. F G G 34. The wording of this ‘reminder’ seems to suggest that the defendant H could not even answer the questionnaire with the assistance of his legal H advisor, should he chooses to engage one. I I J 35. The THB then informed the defendant as to the possible use of the J information that he was going to provide: K K L “The information you are providing on the questionnaire is L collected for the THB’s investigation against MD’s officers or M relevant purposes, and may be used in actions against relevant M persons later (including disciplinary actions).” N N 36. I find that the wording of this sentence, in particular the failure to O mention any possible criminal proceedings and the specific mention of O disciplinary actions, tends to suggest to the reader that the worst that could P P happen was disciplinary action against the provider of the information. Q Q 37. The THB then gave instructions as to what the defendant was permitted R R to do with the questionnaire and response: S S T “As regards the current investigation’s questionnaire and response, T you can only use them in the current investigation and relevant U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 73 - A A B purposes; and you cannot disclose or use them for any other B purpose. Also, the information involved in the current investigation C may also include confidential information. You shall not C use/disclose these information for other purposes without authorisation.” D D 38. What constituted ‘relevant purposes’ was not defined or explained in E E the letter. The wording of the first sentence is such that the reader is left to F guess what the THB meant by the defendant using them in the current F investigation since it was the THB that was going to be using the G G information. H H 39. The reader might have understood the first sentence to mean that the I I THB did not want the contents disclosed to the press. But then the second J and third sentence together warned the defendant about the same thing, J that is to say, the information in the questionnaire and the responses may K K be confidential and therefore not to be disclosed ‘for other purposes’ L L without authorisation, from the THB presumably. M M 40. The THB thanked the defendant ‘for sincerely cooperating with us by N providing information to the Investigating Unit’ at the closing of the letter. N O O 41. The letter was copied to the Director of the Marine Department, the P superior of the defendant. P Q Q Wordings in the 19th July 2013 letter from the THB R 42. The 22nd August 2013 accompanying letter was preceded by a shorter R letter dated 19th July 2013 sent from the THB to the defendant. S S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 74 - A A B 43. In the 19th July letter, the THB informed the defendant that a B comprehensive investigation on whether MD officers misbehaved in their C C work had commenced based on the ‘Report of the Commission of Inquiry D into the Collision of Vessels near Lamma Island on 1 October 2012’. D E E 44. The THB mentioned about future interviews and use of questionnaire F to collect information, and then stated that they ‘hope all people can fully F cooperate with the [Investigating] Unit and provide truthful information’. G G H Wording of the preamble at the 25th and 26th September interview H 45. At the first day of the interview, Mr Wong for the THB informed the I I defendant that the information collected at the interview may be used for J actions against relevant people, including disciplinary proceedings. This J part of the preamble is similar to the wordings used in the 22 nd August K K accompanying letter. L L 46. There was mention of the information collected being forwarded to M M different government departments for follow up action, including the N Department of Justice. There was no mention of the possibility of criminal N proceedings against the defendant. O O P 47. Mr Wong then purported to inform the defendant of his rights, but he P started out by telling the defendant that the interview was to clarify the Q Q answers given by the defendant in the questionnaire, that the THB officers R may feel that they wanted more information from the defendant, or ask him R about information they obtained from other sources during their S S investigation. T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 75 - A A B 48. The defendant was then told that if he did not know the answer or was B not sure about the answer to their questions, or that he could not remember C C clearly, all he had to do was to tell the truth. If the defendant did not D understand the question or was unclear about it, he could ask the officers to D repeat or clarify and the defendant can take time to think before answering. E E The defendant must answer loud and clear so that everyone in the room F could hear him and so that his answer could be properly recorded. F G G 49. The defendant was then informed that during the whole of the H interview process, he ‘may choose to keep silent’. Mr Wong however H immediately notified the defendant that should the defendant so chooses, I I ‘the investigation unit will continue with the inquiry of the incident based J on all the relevant information’. J K K 50. Mr Wong eventually finished up the preamble with wordings similar to L L that in the 22nd August accompanying letter, that is to say, to remind the M defendant that in relation to the matters touched on in the interview, he M ‘can only use them in this particular investigation and you must not N N disclose to – or use for other purposes. The current investigation may O involve confidential information. Well, you cannot use or publicize these O information before you obtain the authorization to do so.’ P P Q 51. I find that although Mr Wong did purport to inform the defendant of his Q rights, the only right he informed the defendant was his right to remain R R silent. The informing comprised of 10 Chinese characters (你可以選擇保 S 持緘默嘅 ), which was then immediately followed by a reminder that S should the defendant chooses to remain silent, the Unit will continue to T T investigate the matter with the relevant information. Mr Wong did not U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 76 - A A B make clear what the relevant information may be. It would not be B unreasonable to infer that the defendant would have understood that the C C relevant information would include the answers he had given in response D to the questionnaire. D E E 52. I find that the reminder of the defendant’s right to silence inadequate F and misleading in that Mr Wong seemed to have qualified the right with an F implicit warning that even if the defendant chose to remain silent, they will G G still use the material they obtained via the questionnaire against the H defendant. H I I Wordings of the prepared declaration in the reply to the J questionnaire J 53. The response to the questionnaire carried a pre-printed declaration, K K which is a regurgitation of the warning about usage of the information in L the 22nd August accompanying letter. L M M 54. There was also a pre-printed declaration that the defendant understood N that the information he was to provide was for the investigation against N MD officers and relevant purpose, and may be used for actions against O O relevant people (including disciplinary proceedings). P P 55. There is no mention of possible criminal proceedings in the Q Q declarations. R R The overall effect of the wordings in the materials relating to the THB S S investigation and the collection of information and finding of T unfairness T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 77 - A A B 56. Taking the 19th July, 22nd August 2013 letters, the prepared preamble in B the reply to the questionnaire and the preamble in the interview, I find that C C it is an irresistible inference that those preparing the material were fully D aware and mindful of the possibility of infringing the defendant’s privilege D against self-incrimination if the defendant was told that he had no choice E E but to answer truthfully. F F 57. I find the material was therefore drafted in such a way that they did not G G explicitly force the defendant to give his answers, but at the same time did H not explicitly remind him of his right to silence. H I I 58. I find an irresistible inference that those THB officials preparing the J materials already had in their minds possible criminal proceedings in the J future based on the answers they are going to get back. K K L L 59. I find that those who drafted the questionnaire and the accompanying M letter had deliberately chosen not to inform the recipients about the right M against self-incrimination. I find that they had deliberately chosen not to N N tell them that they could exercise their right to silence by not answering the O questionnaire. O P P 60. I find that the THB’s failure to expressly state in the materials that Q criminal proceedings is a possibility and their failure to remind the Q defendant of his rights, coupled with the position of authority that they R R were in, did lull the defendant into a false sense of security that he was not S and will not be the target of a criminal investigation, and did cause the S defendant to honestly believe that he had no choice but to answer the T T questions. U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 78 - A A B 61. I find it unfair that the THB did not warn the defendant that the answers B he gave in the questionnaire might be used in criminal proceedings against C C him. D D 62. I also find it unfair that the THB did not inform the defendant of his E E right against self-incrimination. F F 63. Given the gravity of the accusation against the defendant, that is to say, G G misconduct in a public office, I find it unfair that the defendant was not H given an option to choose whether to answer or not the questions set out in H the questionnaire. I I J 64. As at the time of the interview, the defendant had already been coerced J into making the admissions in response to the questionnaire as described K K above. I accept the defendant’s evidence as to his state of mind when he L L decided to confirm the admissions he had made in the questionnaire, which M was that since he had already made the earlier admissions, there was no M point in exercising his right to silence at the interview. To exclude the N N questionnaire answers but not the interview admissions would therefore O also be unfair. O P P Conclusion Q 65. I have carefully considered the evidence and submissions from both Q parties and find that the defendant did make the various admissions R R voluntarily. I find however that given the circumstances of the obtaining of S the admissions, this is a proper case for me to exercise my discretion to S exclude the admissions on the basis of unfairness against the defendant, T T and I do so exercise my discretion to exclude the questionnaire, the U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V  - 79 - A A B defendant’s reply given in response to the questionnaire and the audio B recording of the interviews on 25th and 26th September 2013 together with C C their transcripts. D D E E F F G G H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U CRT21/7.6.2016 DCCC338/2015/REASONS FOR VERDICT V V