IN THE COURTROOM
A case that tested the boundaries of maritime law, corporate accountability, and the duty of care owed to tourists on Sabah’s waters.
On 28 January 2017 — the first day of Chinese New Year — a catamaran carrying 28 tourists from China and three crew members departed from an undesignated jetty in Tanjung Aru, Kota Kinabalu, bound for Pulau Mengalum. The vessel never arrived.
Struck by strong waves in rough seas approximately eight nautical miles from the island, it capsized and sank. Twenty passengers were eventually rescued by fishermen. Four tourists lost their lives. Five people — four tourists and one crew member — remain missing to this day, their fate sealed when the search and rescue operation was finally called off on 2 June 2017 after 126 days — one of the longest maritime SAR operations in Malaysian history.
The subsequent investigation revealed a catalogue of failures. The vessel was a former WWF research boat designed for the calmer waters of Semporna — never built for the open seas off Mengalum. On the day of the tragedy it carried 31 people, nearly three times its permitted capacity of 12. It departed from an undesignated jetty, carried no proper communication device, lacked adequate safety equipment, and its operating licence named the wrong person as skipper.
Three individuals were charged in connection with the tragedy. The criminal proceedings spanned six years.
The Accused and Their Charges
Sharezza Salian, the 25-year-old skipper, was the first to face justice. He pleaded guilty to causing death by negligence and was sentenced to six months’ imprisonment in February 2017. He had taken the overloaded vessel to sea in dangerous conditions.
Leong Vin Jee, the operations manager and son of the company director, faced multiple charges including negligently causing the deaths of four tourists under Section 304A of the Penal Code and causing hurt by negligent use of the vessel under Section 337, overloading, and departing from an undesignated landing point. In March 2019, he was sentenced to two years’ imprisonment.
Chung Ket Siew @ Chung Siaw Ping, Leong’s 70-year-old mother and the registered Director of Syarikat Golden Sailing Travel Tour and Car Rental, faced charges arising from her position as the person legally responsible for the company and its operations. Her case proceeded to full trial.
The charges against all three spanned both the Penal Code and the Ports and Harbours (Sabah Licensed Small Ships) Regulations 2008. In addition, the Sabah Tourism and Culture Ministry revoked the licences of three tour operators connected to the incident.
The Trial: Chung Ket Siew
The trial of Chung Ket Siew was heard before Sessions Court Judge Noorhafizah Mohd Salim with Hamid & Co. and Usman & Partners appearing for the defence. Proceedings ran across multiple dates from 2017 through to judgment in January 2023.
The case raised difficult questions about the nature of corporate liability in a small family-run business. Chung’s name appeared on the company licence as Director, but the evidence showed she had limited involvement in day-to-day operations — with her son Leong acting as the operational decision-maker. The defence explored the gap between formal legal responsibility and actual control, and the extent to which a director could be held criminally liable for the acts of those running the business on the ground.
In August 2018, the court found that a prima facie case had been established and ordered Chung to enter her defence. She gave evidence on sworn statement.
On 17 January 2023, the court delivered its verdict. Chung Ket Siew was found guilty. The court held that, bound by applicable High Court authority, her negligence in her capacity as Director had caused the deaths of four persons under Section 304A of the Penal Code and had endangered the lives and personal safety of the other passengers on board.
In passing sentence, the court emphasised the need for deterrence — not only for the accused personally, but as a message to all those involved in the operation of tourism companies in Sabah. She was sentenced to three months’ imprisonment for the Section 304A offence and two months’ imprisonment for the Section 337 offence, both to run concurrently from the date of conviction. A stay of execution pending appeal was granted.
Why This Case Matters
Corporate liability through a director’s licence. When a company causes harm through negligence, criminal liability does not automatically follow the person who made the day-to-day decisions. It can follow the person whose name is on the licence — the registered director. This case is a stark illustration of why the identity of a company’s registered officers matters, and why nominal directorships carry real legal risk.
The gap between paper and practice. The vessel’s licence named Leong as skipper, but Sharezza was operating the boat. The company was registered under Chung’s name, but Leong ran the operations. Throughout the trial, the court had to examine the distance between what the documents said and what actually happened — a recurring challenge in cases involving small, family-operated businesses.
Safety regulation in tourism. With hundreds of thousands of tourists visiting Sabah annually, this case put the spotlight on whether operators of tourist vessels were adequately regulated and whether enforcement mechanisms were sufficient. The revocation of three operators’ licences signalled that the consequences extended beyond the criminal courts.
The length of justice. From the date of the tragedy in January 2017 to the final conviction of Chung Ket Siew in January 2023, six years passed. Criminal proceedings of this nature — involving multiple accused, overlapping charges under different statutes, and questions of corporate liability — are rarely swift. For the families of the four tourists who died and the five who were never found, that wait is a dimension of the tragedy that the law cannot fully address.
Key Legal Provisions
| Section 304APenal Code | Causing death by negligence. Applies where a person causes death through a rash or negligent act not amounting to culpable homicide. Maximum: 2 years’ imprisonment, fine, or both. The question is not whether harm was intended, but whether conduct fell so far below the standard of reasonable care as to cross into criminal negligence. |
| Section 337Penal Code | Causing hurt by a rash or negligent act. Applies where negligent conduct causes hurt rather than death. Maximum: 6 months’ imprisonment, fine of up to RM1,000, or both. Applied here in respect of the 20 tourists who survived but suffered harm as a result of the capsizing. |
| Regulations 13 & 16Ports & Harbours (Sabah Licensed Small Ships) Regulations 2008 | Regulation 13 requires that skipper particulars on a licence be updated if changed. Regulation 16 requires appropriate safety equipment — including life jackets and life buoys — to be kept on board at all times. Breaches carry penalties of up to 2 years’ imprisonment and fines of up to RM500,000. These provisions attached to the registered Director regardless of who managed day-to-day operations. |
| Corporate liability | Malaysian criminal law does not shield individuals simply because they acted through a company. Where a director’s name appears on a licence and their negligence — by act or omission — contributes to death or injury, criminal liability follows. The Mengalum case is an important illustration of this principle in Sabah’s tourism industry. |
Media Coverage
The case was extensively reported throughout the trial by The Borneo Post, Daily Express, and the New Straits Times, among others:
- Catamaran tragedy: Trial of accused postponed — The Borneo Post, 7 June 2017
- Catamaran tragedy: Trio’s trial deferred to August 7–11 — The Borneo Post, 7 July 2017
- Boat license named Leong as skipper, court told — The Borneo Post, 20 September 2017
- Employee says named as director but never paid — The Borneo Post, 21 September 2017
- Catamaran did not have communication device – witness — The Borneo Post, 31 January 2018
- It was raining when catamaran tragedy occurred – witness — The Borneo Post, 1 February 2018
- One catamaran victim suffered dehydration, second degree skin burns – Doctor — The Borneo Post, 2 March 2018
- Three in Sabah catamaran tragedy to enter defence from Aug 27 to 30 — New Straits Times, 18 July 2018
- Capsized catamaran in good condition, says skipper — The Borneo Post, 27 September 2018
Messrs Usman & Partners & Hamid & Co represented the accused Sharezza in this matter. This article is published for legal education purposes only and does not represent the views of the court or any party to the proceedings.