Marine Accident's Shadow Over Hong Kong Justice

The integrity of the Hong Kong judicial system has been tarnished by an official report that clearly shows a combination of arrogance, ignorance and prejudice evident at all levels of the prosecution and judicial systems has resulted in a Ukrainian sea captain being unjustly jailed for three years.

That was the outcome of a 2008 collision in which 18 sailors aboard the Ukrainian supply vessel Neftegaz-67 died. Meanwhile the judges eventually exonerated the Hong Kong pilots of the Chinese owned vessel, the bulk carrier Yao Hai.

The conduct of the case as well and its outcome cast a large shadow over Hong Kong's maritime management and could have diplomatic consequences.

As reported in Asia Sentinel in March 2010, the original guilty verdict on the Ukrainian Captain Kulesin and some of his crew was greeted with astonishment by most of the maritime industry in the territory as being contrary to published maritime regulations and practices for vessels in Hong Kong waters as laid down by the only competent authority - the territory's Marine Department - as well as basic international rules for avoiding collisions at sea. The Department - not the judges - is the sole authority on maritime regulations.

But the courts, prompted by the Hong Kong pilots, chose to apply a rule that did not exist in the area where the collision took place. The judgment was upheld by a Court of Final Appeal in February when judges waxed volubly on maritime issues of which they were clearly ignorant.

Now the ignorance of judges determined to find a convenient foreign scapegoat has been further exposed by the public release of the report of the government's Marine Accident Investigation Commission. The report by this independent panel of maritime experts was completed in 2009 before the men were even charged. It largely exonerated Ukrainian Captain Yurii Kulesin and placed most of the blame for the collision on the Hong Kong pilots.

It states unequivocally and in words which any seafaring person can understand:

"Yao Hai which was a give-way vessel to Neftegaz-67 appeared to have failed to comply with the following International Regulations for Preventing Collisions at Sea 1972 (COLRGS).

a) Rule 16 (Action by Give-way vessel)

b) Rule 6 (Safe speed)

c) Rule 8 (Action to avoid Collision)"

However the report was deemed inadmissible evidence when it came to the trial of Kulesin and others - including the later-exonerated pilots.

So how come prosecutions were launched of Kulesin in the face of the evidence of the inquiry by the independent investigation carried out by under the auspices of the Marine Department, the authority which sets local rules?

Here the story enters very murky waters indeed. Because it involved deaths, another investigation was done by the Marine Police. By the agency's own admission the Marine Police are mainly staffed by regular policemen and its duties mainly confined to anti-smuggling activities, cruising around on small often high-speed craft. It has no responsibility for devising maritime regulations or directing traffic through Hong Kong's busy waters.

Yet the government chose to advise prosecution without discussing the issue with the Marine Department. The Department of Justice proceeded on this basis but after the first hearing amended the charges to accuse Kulesin of acting contrary to the Rule 9 of COLREGS in a narrow channel. It borrowed this extra charge from the defense playbook of the pilots, again without consulting the Marine Department. The report of the Investigation made no reference to Rule 9, clearly indicating that it was not an issue.

Quite why the prosecution pursued this course in defiance of what is actually written on Hong Kong charts and in Marine Department regulations is unclear. What is known however is that the Pilots' Association is a self-perpetuating monopoly which for that reason alone merits investigation by other authorities.

The publication of the Investigation report has attracted no attention from the Hong Kong media which, like its justice system, seems happy to let the a Ukrainian go to jail while local pilots get off thanks to judges who make up maritime rules as they go along. The facts of the case were always clear enough because the precise movements of both vessels were tracked by the extensive radar system covering local and adjacent waters.

But publication will certainly enable the International Maritime Organization (IMO) to take another look at Hong Kong's bizarre proceedings. And the Ukrainian government, which lacks representation in Hong Kong, may feel inclined to ask some nasty questions of Beijing which it will have to pass on to the territory's Chief Executive, C.Y. Leung.

If properly briefed, Leung would be advised to acknowledge the gross miscarriage of justice which has been perpetrated and pardon Kulesin, or at least release him now.

In any case, foreign legal minds are likely to look at the case and worry about the quality of Hong Kong's system and ability to provide justice when foreigners from little-known countries are up against a local cartel.