Ng Keng Yong v Public Prosecutor and Another Appeal

• Judge: Yong Pung How CJ
• Judgment Date: 13 August 2004
• Neutral Citation: [2004] SGHC 171
• Defendant Counsel: Hamidul Haq and Hui Choon Kuen (Deputy Public Prosecutors)
• Published date: 19 August 2004
• Subject Matter: Appellants altered to port instead of starboard,Vessels on reciprocal courses,Whether contributory negligence of other vessel broke chain of causation,Offences,Criminal Law,Collision at sea,Whether vessels approaching each other so as to involve risk of collision,Breach of Rule 14(a) International Regulations for Preventing Collisions at Sea 1972,Section 304A Penal Code (Cap 224, 1985 Rev Ed),Whether appellants' negligence contributed significantly or substantially to collision,Causing death by negligent act,Test for causation,Standard of care expected of trainee,Whether same standard as qualified person
• Year: 2004
• Plaintiff Counsel: Steven Chong SC, Lionel Tan, Ian Teo and Loh Wai Yue (Rajah and Tann)
• Court: High Court (Singapore)
• Citation: [2004] SGHC 171

13 August 2004

Yong Pung How CJ:

1 These were two related appeals by the first appellant, Ng Keng Yong, and the second appellant, Chua Chue Teng, against their respective convictions for causing death by a negligent act not amounting to culpable homicide, an offence under s 304A of the Penal Code (Cap 224, 1985 Rev Ed) (“the PC”). I dismissed both appeals and now give my reasons.

Facts

2 Both the appellants are lieutenants in the Republic of Singapore Navy (“RSN”). The charges against them arose out of the tragic collision between the RSN ship RSS Courageous (“the Courageous”) and the merchant vessel ANL Indonesia (“the ANL”) on 3 January 2003, which resulted in the deaths of four RSN servicewomen.

The vessels

3 The ANL was a Netherlands-registered container ship with a gross tonnage of 51,938. She was 293.5m in length and had a top speed of 24.8 knots (46km/h). The Courageous was a “Fearless Class” anti-submarine patrol vessel which displaced approximately 452 tonnes. At 57.94m, she was less than one-fifth the length of the ANL. She was powered by an advanced twin jet propulsion system, and had a top speed exceeding 20 knots (37km/h).

4 Both ships were equipped with a Gyro compass, radar, Automatic Radar Plotting Aid and other navigational equipment and charts. All the equipment was functioning at the material time.

The sequence of events

5 At about 11.20pm on 3 January 2003, the Courageous and the ANL were both travelling on the eastbound lane of the Traffic Separation Scheme (“TSS”) just off the Horsburgh Lighthouse at Pedra Branca. Both vessels were moving in a north-easterly direction in accordance with the general traffic flow. The ANL was en route from Port Klang, Malaysia, to Busan, South Korea, while the Courageous was some 6 nautical miles (“nm”) ahead of the ANL conducting her regular patrol of the waters.

6 At the material time, the first appellant was the Officer-of-the-Watch (“OOW”) on the Courageous. He was responsible for the safe navigation of the ship. The second appellant was only a trainee OOW, but she had the con, or control of the steering, of the vessel. She made navigational decisions and issued the relevant orders to the rest of the bridge team. As the supervising OOW, the first appellant would only intervene if he was of the view that any of her actions or instructions were wrong.

7 At 11.25pm, the Courageous reached the end of her patrol area. After checking that both sides were clear, the second appellant ordered the Courageous to execute a “U-turn”. This changed her course to a south-westerly direction of 235°, leading her to proceed down the eastbound lane of the TSS against the general flow of traffic.

8 Shortly after, the officer on the bridge of the ANL, Gerrit Easge Botma (“Botma”), observed the red port sidelight of the Courageous on the port side of the ANL. This suggested that the vessels would pass port to port. Meanwhile, on board the Courageous, the Closest Point of Approach (“CPA”) alarm on the radar came on. The CPA alarm was set at three cables (0.3nm), indicating that the closest distance at which the Courageous would pass the target vessel (the ANL) was about three cables.

9 Second Sergeant Goh Chun Yong, the radar plotter on the Courageous, reported the activation of the CPA alarm to the second appellant and informed her that the ANL was at “green 10” (10° on the starboard side). The lookout, First Sergeant Tan Soon Teck, and the petty OOW, Marcus Kuah Yeow Hwee, both confirmed his report. At this time, the vessels were closing in on each other at 31 knots or five cables per minute. Based on the report from the bridge team that the ANL was on the starboard side of the Courageous, the second appellant ordered an alteration to port from 235° to 215° at 11.30pm to increase the CPA. She also ordered a reduction in speed from Step 4 (1,000rpm or 13 knots) to Step 3 (860rpm or 12 knots).

10 Unfortunately, neither the appellants nor the rest of the bridge team realised that the ANL was in fact on the port side of the Courageous. The latter’s alteration to port therefore inadvertently brought the courses of the vessels even closer together. When the CPA did not open up as the second appellant had hoped, she ordered a further alteration to port from 215° to 210° at 11.31pm.

11 A minute later, Botma saw the green starboard light of the Courageous and realised that she had altered to port. As her relative bearing was not changing and the CPA was now zero, Botma alerted the Captain of the ANL, Petrus Paulaus Maria Koop (“Koop”), to the danger of collision. After a quick discussion, they decided to alter the ANL’s course to starboard in accordance with the International Regulations for Preventing Collisions at Sea 1972 (“the Collision Regulations”). The ANL made two alterations to starboard by autopilot between 11.32pm and 11.34pm, bringing her course from 51° to 73°. She also sounded a whistle blast to alert the Courageous.

12 At 11.33pm, the second appellant ordered the Courageous to make yet another alteration to port to 200°. She also ordered the speed to be increased back to Step 4. At 11.34pm, she ordered a final alteration to port to 190°, followed shortly by an order to put the helm hard to port. The first appellant also ordered both engines to “full throttle”.

13 The combination of the ANL’s alterations to starboard and the Courageous’ alterations to port resulted in the vessels colliding at 11.35pm about 1nm northeast of the Horsburgh Lighthouse. The ANL sustained superficial damage to her bow area, and none of her crew of 23 were injured. However, the Courageous sustained heavy losses. Part of her aft section was sheared off and sank. Of her 44 crewmembers, eight were injured and four died.

The inquiry and the charges

14 An inquiry was conducted under s 118 of the Merchant Shipping Act (Cap 179, 1996 Rev Ed) by investigators from the Maritime and Port Authority of Singapore (“MPA”). In their findings, the inquiry team noted that both the ANL and the Courageous “could have exercised better seamanship”. Nonetheless, they found that the collision was caused by “errors in judgment in assessing the situation and the wrongful application of the Collision Regulations” by the Courageous.

15 As the appellants were jointly responsible for negligently navigating the Courageous in an unsafe manner across the path of the ANL, they were subsequently charged under s 304A of the PC for causing the deaths of the four RSN servicewomen. The charges against them were heard together.

The Prosecution’s case

16 The Prosecution alleged that the appellants were negligent in:

(a) navigating the Courageous against the flow of traffic in the TSS;

(b) altering her course in the wrong direction; and

(c) turning to port in a series of small alterations with a decrease in speed.

Navigating against the flow of traffic

17 The 1997 RSN Operations Directive entitled “Guidelines for RSN Craft/Ships Operating in Singapore Territorial Waters” states that RSN vessels such as the Courageous should, as far as possible, comply with the Collision Regulations. At the material time, the Courageous was travelling against the general flow of traffic on the eastbound lane of the TSS. This was a technical breach of r 10(b)(i) of the Collision Regulations, which provides that:

(b) A vessel using a traffic separation scheme shall —

(i) proceed in the appropriate traffic lane in the general direction of traffic flow for that lane …

Altering course in the wrong direction

18 The Prosecution also contended that when the Courageous found herself on a reciprocal or near reciprocal course with the ANL, she ought to have altered her course to starboard in accordance with r 14(a) of the Collision Regulations, which reads:

When two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other.

19 As the ANL was on the port side of the Courageous, an alteration to starboard in compliance with R 14(a) would have ensured that the vessels passed each other safely. By doing exactly what she should not have done, the Courageous placed herself on a particularly hazardous course.

Turning to port in a series of small alterations with a reduction in speed

20 The Courageous made a total of four alterations to port:

(a) 11.30pm: from 235° to 215° (a 20° alteration);

(b) 11.31pm: from 215° to 210° (a 5° alteration);

(c) 11.33pm: from 210° to 200° (a 10° alteration); and

(d) 11.34pm: from 200° to 190° (a 10° alteration).

21 The first alteration was accompanied by a reduction in speed from Step 4 to Step 3. The Prosecution argued that these actions violated r 8(b) of the Collision Regulations, which states that:

Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.

The Defence’s case

22 The appellants denied any negligence on their part. Instead, they claimed that the collision was caused by Botma and Koop’s negligent breach of r 8(b) of the Collision Regulations, set out above. Specifically, they argued that the ANL should have made a decisive alteration to starboard by manual steering, instead of two small alterations using her auto-pilot.

Navigating against the flow of traffic

23 The appellants acknowledged that they were technically in breach of r 10(b)(i). However, a minute of 27 January 2003 from the Office of the Chief of Navy to the MPA entitled “Compliance with COLREGS” states clearly that there can be situations where RSN vessels may be compelled to deviate from the Collision Regulations due to the nature and requirements of military missions and operational profiles. In this case, the Courageous was entitled to patrol against the flow of traffic as it placed her in a good...