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Director Of Agriculture, Fisheries And Conservation v Administrative Appeals Board

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date24 February 2017
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL165/2014
CourtHigh Court (Hong Kong)
HCAL165/2014 DIRECTOR OF AGRICULTURE, FISHERIES AND CONSERVATION v. ADMINISTRATIVE APPEALS BOARD

HCAL 165/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 165 OF 2014

____________

BETWEEN
DIRECTOR OF AGRICULTURE,
FISHERIES AND CONSERVATION		 Applicant
and
ADMINISTRATIVE APPEALS BOARD Respondent
and
SHEK CHEUNG TAI
SHEK KWAI TUNG Interested Parties

____________

Before: Hon Au-Yeung J in Court
Date of Hearing: 18 August 2016
Date of Decision: 24 February 2017

_____________

D E C I S I O N

_____________


1. Under section 14(1)(a) of the Fisheries Protection Ordinance(Cap 171) (“the FPO”), if the owner of a local fishing vessel in respect of which there is a valid operating license on 15 June 2012 (“the commencement date”), the Applicant (“the Director”) may register the vessel and issue a certificate of registration to the applicant.

2. The 2 vessels that form the subject matter of this judicial review (“the subject vessels”) had held valid operating licenses at some point in time before but not on the commencement date. The Director refused to register them. The Respondent (“AAB”) applied a “rectifying interpretation”, holding that “on” should mean “on or before” and allowed the appeals.

3. This is the Director’s application for judicial review on 2 grounds:

(1) Ultra vires and/or illegality in that the AAB wrongly construed and applied section 14(1)(a) FPO (“Ground 1”);

(2) Procedural impropriety and/or unfairness in that the Director has had no chance to make submission on the question of legislative intent behind section 14(1)(a) FPO (“Ground 2”).

BACKGROUND

4. In January 2013, Mr Shek Cheung-tai and Mr Shei Kwai-tung (“the Interested Parties”) applied respectively for registration of their vessels as local fishing vessels under section 14(1)(a) of the FPO. Both of them had full operating licenses issued by the Marine Department pursuant to section 15 of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, (Cap 548D) (“the MS Regulation”)

(a) In AA32/2013, Mr Shek Cheung-tai’s vessel originally had his father as license holder. After his father’s death, it was transferred to Mr Shek’s mother and finally to Mr Shek on 17 January 2013. The period of validity of Mr Shek Cheung-tai’s full operating license was from 17 January 2013 to 15 January 2014. This vessel had not been issued with any valid operating license under the MS Regulation in the period from 9 November 2006 to 15 January 2013.

(b) In AA33/2013, Mr Shek Kwai-tung became an owner of his vessel on 8 September 1999. The period of validity of his full operating license was from 11 July 2012 to 10 July 2013. This vessel had not been issued with any valid operating license under the MS Regulation in the period from 8 December 2010 to 10 July 2012. Mr Shek Kwai-tung told the AAB that his vessel had to undergo repairs for about half a year. He was aged over 80 and he had omitted to renew the license in time before the commencement date.

5. In allowing the 2 appeals, the AAB considered that the legislative purpose of the FPO was to limit the entry of new fishing vessels so as to prevent over-exploiting the fishing resources in the waters of Hong Kong and to maintain sustainable development of the fishing industry. It was never the intention of the FPO to ‘break the rice-bowls’ of those fishermen who had, prior to the coming into force of the amendments to the FPO, already been using their fishing vessels to carry on fishing activities (except trawling) in the waters of Hong Kong.

6. The AAB accepted that on the express wording of section 14(1)(a) FPO, the eligibility requirements for registration was that a vessel should have been issued with an operating license, pursuant to section 15 of the MS Regulation, that was valid on the commencement date. See §14 of AA33/2013 (“AAB’s Decision”).

7. However, the AAB relied on 2 sets of legislative materials which referred to “on or before” the commencement date and queried if the draftsman had misunderstood the legislative intent. The AAB applied a “rectifying interpretation”, construing section 14(1)(a) to mean that a vessel can be registered if it had a valid operating license issued under section 15 of the MS Regulation at any time before the commencement date. Hence, “on” the commencement date was interpreted as “on or before”. See §§15-19 of AAB’s Decision.

8. The AAB’s Decision differed from an earlier decision in AA44/2013 (differently constituted) handed down 2 months earlier, which held that “on” the commencement date meant “on”.

ISSUES IN THE JUDICIAL REVIEW

9. The Director and the Amicus are agreed as follows.

10. Firstly, the broad legislative intent and purpose of section 14(1)(a) FPO are to promote fisheries protection through limiting but maintaining an appropriate level of fishing effort in Hong Kong, by controlling entry of new vessels and re-entry of retired vessels into the local fisheries industry. This accords with the view of the AAB.

11. Secondly, the threshold for apply a rectifying interpretation is a high one, requiring abundant certainty that the provision failed to give effect to the intention of the legislature. Given the uncertainty within the legislative materials, it is difficult to say that a “rectifying interpretation” was justified.

12. Thirdly, there is no basis to conduct a “remedial interpretation” of section 14(1)(a) (a possible argument raised by the Director) as no question of constitutionality is involved.

13. The Director seeks judicial review on Grounds 1 and 2. The core issue is whether “on” the commencement date in section 14(1)(a) FPO means “on” (Director’s case), or “on or before” (Amicus’ submission which supports the AAB).

14. Mr Lui and Mr Chain differ as to whether there was ambiguity in section 14(1)(a) FPO and in their purposive interpretation of the section.

15. The Interested Parties have not made legal submission. Their concern is really to ensure that the subject vessels are registered.

GROUND 1

Legal principles on statutory interpretation

16. The general principles on statutory interpretation have been set out in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568,Li CJ, at §§11-14. The court ascertains the intention of the legislature as expressed in the language of the statute and adopts a purposive interpretation having regard to the context and purpose of the statute.

“11. In interpreting a statute, the court’s task is to ascertain the intention of the legislature as expressed in the language of the statute. This is of course an objective exercise. The court is not engaged in an exercise of ascertaining the legislative intent on its own ... [but is] seeking the meaning of the words which Parliament used.

12. The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise. In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at 606E, Sir Anthony Mason NPJ stated:

“The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.”

... And the purposive approach (including the mischief rule) has been reflected in Hong Kong in s.19 of the Interpretation and General Clauses Ordinance, Cap.1.

13. The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law. ...

14. The purpose of a statutory provision may be evident from the provision itself. Where the legislation in question implements the recommendations of a report, such as a Law Reform Commission report, the report may be referred to in order to identify the purpose of the legislation. The purpose of the statutory provision may be ascertained from the Explanatory Memorandum to the bill. Similarly, a statement made by the responsible official of the Government in relation to the bill in the Legislative Council may also be used to this end. ...”

17. However, legislative materials are only admissible for identifying the purpose of the statutory provision, not for construing its words: Director of Lands v Yin Shuen Enterprises Ltd & anor (2003) 6 HKCFAR 1, §§21-22, Lord Millett NPJ; PCCW-HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337, §20, Bokhary PJ.

The legislative framework

18. An operating license is not for fishing but for eg travel in Hong Kong waters. A vessel has to be registered with the Marine Department to be able to do fishing. For that purpose, 3 pieces of legislation are relevant: FPO, the Merchant Shipping (Local Vessels) Ordinance (Cap 548) (“MSLVO”) and the MS Regulation.

19. No person may be engaged in fishing with the use or aid of a vessel in any area of the waters of Hong Kong, other than in a fish pond or reservoir, unless the vessel is a “registered vessel”, ie “a local fishing vessel registered under section 14”: sections 2, 11 and 14 FPO. Contravention of section 11 can lead to criminal consequences: section 12 FPO.

20. One of the management measures introduced by the FPO was the registration system for local fishing vessels, governed by Part 5 (sections 13 to 24) of the FPO.

21. Section 14(1)(a) of the FPO provides as follows:

“(1) The Director may, on application—

(a) by the owner of a local fishing vessel in...

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