Chan Chung-fai v. The Pilotage Authority
Read the full judgment text of CACV 24/1979 on BabelCite. This Court of Appeal judgment was delivered on 25 October 1979.
1. On the 27th March, 1978, a collision occurred between the President Roosevelt, which was at the time under the pilotage of the appellant, and the Chamnarn Samut, which was under the pilotage of another Hong Kong licensed pilot, Mr. Kwok.
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CACV000024/1979
----------------- Coram: Roberts, C.J. , Leonard and LI, JJ., (sitting with Lieut. Cmdr. Seath as Assessor) Date of Judgment: 25 October 1979 ----------------- JUDGMENT ----------------- Roberts, C.J. : Board of Investigation 1. On the 27th March, 1978, a collision occurred between the President Roosevelt, which was at the time under the pilotage of the appellant, and the Chamnarn Samut, which was under the pilotage of another Hong Kong licensed pilot, Mr. Kwok. 2. After the collision, a Board of Investigation was established under the Pilotage Ordinance. The Board recorded a full transcript of the proceedings before it and submitted its report, with its recommendations, to the Pilotage Authority. 3. As this is, so we are informed, the first appeal which has reached this court since the enactment of the Pilotage Ordinance in 1971, we think it appropriate to remark that, in our view, the Board of Investigation adopted the correct procedure, in taking a full transcript of the evidence, in annexing to the transcript a summary of its findings and its reasons therefore, and in submitting its recommendations to the Pilotage Authority in a separate document. 4. Section 19 of the Pilotage Ordinance provides that, after due inquiry, a Board of Investigation, if it is satisfied that a licensed pilot has been guilty of misconduct, or has failed in, or neglected, his duties, or is otherwise not a fit and proper person to be a licensed pilot, may recommend to the Pilotage Authority that the licence be cancelled or suspended. The section does not refer to any other alternative recommendations being open to the Board, but we think that there must be implied within that section a right to make no recommendation at all for the suspension or cancellation of a pilot's licence. 5. It is the duty of the Pilotage Authority, who is, by virtue of section 3 of the Ordinance, the Director of Marine, to consider the recommendation of the Board and to cancel or suspend a licence if he thinks fit. Appeals 6. By section 20 of the Ordinance, an appeal lies against the cancellation or suspension of a licence to a judge of the High Court. This right was exercised by the appellant, Mr. CHAN Chung-fai. Yang J. confirmed the findings of the Board, with one exception, but referred the question of penalty back to the Board for reconsideration. 7. There was some argument during the appeal as to whether or not a further right of appeal to this court exists. We think that it does, under section 14 of the Supreme Court Ordinance, which provides that an appeal shall lie as of right from every judgment or order of the High Court in any civil cause or matter. There is nothing in the Pilotage Ordinance to suggest that a decision of the High Court under section 20 is final. Recommendation of Board 8. The recommendation of the Board of Investigation was that Mr. CHAN Chung-fai had failed in his duties as a pilot. The Board stated that the appellant had "failed in his duties as a pilot in the following respects"
9. The Pilotage Authority, having received the recommendation of the Board of Investigation, duly considered the matter, and on the 22nd January of this year wrote to the appellant informing him that the Board of Investigation had produced a report with recommendations, that these recommendations had been given due consideration and that Mr. Chan's pilot's licence was thereby cancelled. The cancellation would have come into effect within three days of the letter, as from the 25th January, 1979. Consideration of Report of Board 10. Although formally the appeal is from the decision of the Pilotage Authority to cancel the licence, it is clear that both the Judge of the High Court and this court can only reach a sensible conclusion if we consider the material which was available to the Pilotage Authority, that is to say, the transcript and the report of the Board of Investigation. And this, with the assistance of Counsel, we have been able to do, in so far as it is necessary for the purposes of the appeal. 11. There are, as I have said, five grounds, though that word is not used by the Board itself, upon which the conclusion of the Board was reached. These are findings of fact and it would be wrong for us to override them, unless as a result of examination of the record we conclude that they were unreasonable and could not be supported by the evidence which was put before the Board. 12. The first ground. The Board found that the President Roosevelt was travelling at an excessive speed in the circumstances. 13. It appears from the terms used by Yang J. in his judgment that he had some doubts about this. He comments that the Board did not analyze the speeds of the two vessels, but decides that the Board was entitled to come to the conclusion that the speed of President Roosevelt was excessive in the circumstances. The judge also noted that the members of the Board included two Master Mariners and said that their knowledge and experience ought to be respected, unless their findings were inconsistent with, or otherwise not supported by, the evidence. 14. We have had the advantage, which Yang J. did not. of the presence of an assessor. We have come to the conclusion that there was material upon which the Board could have reached the conclusion that the speed of the President Roosevelt was excessive. However, we do not feel that her speed was, in the event, a factor of much significance in the collision. Nor is it a factor to which great weight should be given when approaching, as we shall have to do shortly, the question of whether the penalty imposed upon the appellant was a reasonable one. 15. The second and third grounds, which are closely linked, both relate to the decision of the appellant to pass to the east of No. 12 buoy, thus taking the President Roosevelt into an area where it was likely that there would be a considerable quantity of shipping. Indeed, the evidence was that shipping was present within the prohibited anchorage whereas, on the other hand, the area to the west of Buoy No. 12 was empty. 16. Mr. Stone, for the appellant, very properly conceded that he did not wish to argue that the Board or Yang J. was wrong in finding these two factors to be established and to be matters which indicated a degree of failure by the appellant in carrying out his duties. 17. The fourth ground was that an "end-on situation" existed and that the President Roosevelt by going to port had contravened the rules of the road and the normal practice at sea. Mr. Sceats, for the respondent, did not seek to upset the finding of Yang J. that the Board of Investigation had been wrong in its fourth ground. 18. On the fifth ground, the Board found that, when collision was imminent, the appellant made worse an already dangerous situation by failing to ensure that the President Roosevelt altered course to starboard in time. Yang J. deals with this at pages 6 and 7 of his judgment and finds, and we see no reason to disagree with him, that the appellant gave contradictory orders at the crucial moment. 19. Captain Jordan, the Master of the President Roosevelt, gave evidence a passage of which was quoted by Yang J. as follows
20. The judge goes on to say that
21. It seems to us that the conclusion of the judge and of the Board, that the appellant became confused, was justified. It was almost as if he became frozen at the moment of crisis, when he acted in contradictory ways and was superseded by Captain Jordan. 22. We have therefore come to the conclusion that the Board of Investigation was justified in finding that the appellant had failed in his duties as a pilot. Penalty 23. The question, however, remains as to whether the penalty which was imposed upon the appellant was excessive. It has been argued that the imposition of a penalty by the Pilotage Authority is a matter of discretion for the Authority, with which we should not interfere. 24. We were referred by counsel for the appellant to a guardianship case, In re 0(1). Davies L.J. comments at p.757
25. Although a decision of the Pilotage Authority is not the decision of a court but of an administrative body, it is an administrative body which is subject to the supervision of the courts. Therefore by analogy, we consider that we are entitled to act in the way in which Davies L.J. says that appellate courts should act. 26. In considering the question of penalty, Yang J. commented as follows:
27. He then refers the case back to the Board to reconsider the appropriate penalty, though he expresses no view as to what the Board should recommend when the matter was referred back to it. But we think it likely that he would not have referred the matter back to the Board unless he had thought that the Board might wish to consider altering its original recommendation. 28. We are effectively left with three of the five grounds on which the Board based its decision untouched, one overturned and one to which we would give a somewhat lesser weight than we think the Board may have given to it. 29. We have been told that, so far as is known, there are no instances in recent years of the cancellation of a Pilotage licence in Hong Kong. No doubt, the failure of the appellant in the exercise of his duties as a pilot on the 27th March, 1978 was serious, but we do not think that it was so serious as to justify the cancellation for life of the appellant's licence. We think that the seriousness of the matter would be sufficiently met by a suspension of the appellant's licence for a period of eighteen months, running from the 25th January, 1979. 30. We make no order for costs in relation to this appeal. Representation: Stone, Q.C. & Waung (Wilkinson & Grist) for appellant Sceats & McCallough for the Crown/ Respondent (1) (1971) Ch. D. 748. |