尹照華 v. Director of Agriculture, Fisheries and Conservation

HCMP 1085/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1085 OF 2015

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BETWEEN

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.This is a case stated by the Administrative Appeals Board in AAB 35/2013 pursuant to Section 24 of the Administrative Appeals Board Ordinance. The administrative appeal concerns the refusal of the Director of Agriculture, Fisheries and Conservation [“the Director”] on 30 September 2013 to register the local vessel of Mr Wan [“the Interested Party”] under Section 14 of the Fisheries Protection Ordinance Cap 171 [“the FPO”]. The Director took the view that Mr Wan did not satisfy the requirement of Section 14 because his vessel did not have a valid operating licence on 15 June 2012 though there had been a valid licence up to 12 June 2012. Mr Wan said he had forgotten to renew his licence and when he discovered the same he had applied for renewal and renewal was obtained on 10 October 2012. However, the fact remained that his vessel did not have a licence on 15 June 2012, the commencement date in Section 14 of the FPO.

2.There were conflicting rulings on the proper construction of Section 14.  That Section provides:

“ (1) The Director may, on application—

(a) by the owner of a local fishing vessel in respect of which there is a valid operating licence on the commencement date;

(b) by the owner of a local fishing vessel - (i) acquired or constructed after the commencement date pursuant to an Approval-in-Principle Letter issued by the Director of Marine to acquire or construct a fishing vessel which was valid on the commencement date; and (ii) in respect of which there is a valid operating licence; or

(c) by the owner of a local fishing vessel under section 19 or 21,

register the vessel for the purposes of this Ordinance and issue a certificate of registration to the applicant.”

3.The relevant part in these proceedings is Section 14(1)(a).

4.In AAB 44/2013, a decision of 11 July 2014, the Board ruled that in order to be eligible for registration, the vessel must have a valid licence on 15 June 2012.  In other words, “on the commencement date” means “on” that specified date.

5.In AAB 33/2013, another division of the Board decided on 16 September 2014 not to follow the construction adopted in AAB 44/2013.  It construed Section 14(1)(a) by a process of rectifying construction and ruled that “on the commencement date” means “on or before” the specified date.  The same division of the Board used the same construction in AAB 32/2013.  

6.Faced with these conflicting decisions, a third division of the Board which heard the appeal of Mr Wan decided to state a case for the Court of Appeal’s determination of the proper construction of Section 14(1)(a) on 18 March 2015.  The Board made that decision notwithstanding that on 12 December 2014 the Director had applied for judicial review in respect of the decisions of the Board in AAB 32 and 33 of 2013.  

7.After the case stated had been lodged, this Court, after hearing the parties (including Mr Wan) decided to stay the proceedings pending the determination of the applications for judicial review, see our decision of 19 November 2015.

8.The applications for judicial review were heard by Au-Yeung J.  On 24 February 2017, the learned judge gave judgment in HCAL 165 of 2014.  She construed Section 14(1)(a) in the same way as the Board in AAB 44/2013 and held that the other division of the Board erred in the construction of Section 14(1)(a) in AAB 32 and 33 of 2013.  In essence, the judge did not find any ambiguity in Section 14(1)(a) of the FPO and there was no scope for using extrinsic legislative materials to generate ambiguity.  She also rejected a submission by the amicus in that case that the word “on” can be interpreted as “on or before” by way of purposive interpretation.  Her conclusions can be found at [51] and [52] of the judgment:

“ 51. In my view, section 14(1)(a) FPO clearly reflects the legislative intent of, amongst others, “controlling” re-entry of retired vessels.  There is no basis to construe “on” as “on” for new vessels and “on or before” for retired vessels.  Any discretion in the Director is only to extend the time for registration under section 14(3) if the conditions in section 14(1)(a) are satisfied.

52. I am aware that this interpretation is narrow and has draconian consequences for owners like the Interested Parties.  However, if it accords with the legislative intent, the court should give effect to it.” 

9.The judge also considered the possibility of adopting a rectifying interpretation in the way the Board did in AAB 32 and 33 of 2013.  She had these to say at [54] to [56] of the judgment:

“ 54. The principles for rectifying interpretation have been explained in Chan Pun Chung & anor v HKSAR (2000) 3 HKCFAR 392, §5, Bokhary PJ:

‘ In plain cases of drafting mistakes, the interpretative role of the courts properly includes, under certain conditions, the power of adding words to, omitting words from or substituting words in a statute so as to preserve the obvious purpose of that statute.’

55. The conditions as to when a rectifying interpretation may be justified have been set out in the same case, at 407I-408B, Chan PJ and at 397C-H by Bokhary PJ, following Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, at 592:

‘ Before interpreting a statute in this way, the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed;

The alteration in language may be too far-reaching.  ... the insertion must not be too big, or too much at variance with the language used by the Legislature.  Or the subject matter may call for strict interpretation of the statutory language, as in penal legislation.’

56. On Ground 2, Mr Lui and Mr Chain are in agreement.  Given the stringent requirements, it is difficult to justify AAB’s rectifying interpretation.  It was also clearly procedurally unfair for the AAB to allow the appeals on the “rectifying interpretation” ground never foreshadowed, let alone argued, during the hearings: R v Immigration Appeal Tribunal ex parte Sui Rong Suien [1997] Imm R 355, at 363, Collin J (as he then was); Hadmor Productions v Hamilton [1983] 1 AC 191, 232F-233C, Lord Diplock; Murphy v Wyatt [2011] 1 WLR 2129, §§13-19, Lord Neuberger.”

10.The relevant legislative material which the Board had apparently not considered was set out by the judge at [36(e)] of the judgment:

“ (e) The Drafting Instructions:

‘ 11. [the Director] will only register existing local fishing vessels, i.e. vessels already issued with a valid operating license ... before the enactment of this Fisheries Protection (Amendment) Ordinance.’ (underline added);

‘ 19. Apart from existing fishing vessels operating in Hong Kong waters ..., we do not intend to allow any fishing vessels to enter into the local fishing industry. To this end, we propose that [the Director] will announce a specified period during which owners of existing local fishing vessels may apply for registration. [The Director] shall not accept any applications for registration after the specified period, unless the applicant can prove to the satisfaction of [the Director] that the delay in submitting such an application is not due to negligence on his part.’

‘ 21. We propose to set the enactment date of this Fisheries Protection (Amendment) Ordinance as the cut-off date of eligibility of existing local fishing vessels for registration. Eligible existing local fishing vessels are defined as those which are already issued with a valid operating license...on or before the cut-off date, which still remains valid at the time of the application.’ (underline added);

At Table 1, item 4(1)

‘ We propose to set the enactment date of the Amendment Ordinance as the cut-off date deciding on the eligibility of local fishing vessels for registration. Setting a cut-off date will reflect our policy intention to cap the size of the local fishing fleet through this registration exercise. Given there will be a process leading to the enactment of the Amendment Ordinance, existing members of the trade should have sufficient time to decide whether they want to stay on and new comers to decide whether they want to join. ...

Local fishing vessels which have already been issued with a valid operating license ... on or before the cut-off date shall all be eligible for registration.’ (underline added).”

11.The judge attached significance to these materials as follows at [50]:

“ 50. Notwithstanding the clear reference to existing fishing vessels in the legislative materials, they were not treated differently from the new vessels.  Both types of vessels were to meet the same eligibility criteria for registration.  It was never suggested, even for discussion, by the government or Legislative Council that the wording of section 14(1)(a) FPO should permit a local vessel which once had but no longer has a valid operating license on the commencement date to qualify for registration under the new system.  There was no outright prohibition of re-entry of retired vessels but the legislative materials in paragraph 36(e), Table 1 above made it clear that owners of existing vessels needed to make a choice as to whether they wanted to stay on.” 

12.After the delivery of the judgment in HCAL 165 of 2014, this Court gave directions on 9 March 2017 for the present proceedings, directing parties to lodge written submissions.  Further directions were given on 16 May 2017.

13.Mr Wan and the Director lodged written submissions and we have read and considered the same.  Having done so, we are satisfied that we can dispose of this matter without any oral hearing.

14.We are in agreement with Au-yeung J that there is no ambiguity in Section 14(1)(a).  In addition to the reasons given by Au-yeung J, we would add that the crux of the matter does not lie in whether the word “on” means “on or before”.  Rather, the focus should be on the words “is” and “valid” in the phrase “in respect of which there is a valid operating licence on the commencement date”.  They must be read together.  When read together, “is” cannot possibly be read as “had been”, and if, on the commencement date, the vessel’s operating licence had expired, it cannot be “valid”.  The Chinese version of the section is also crystal clear.  It reads:

“ (1) 如 ——

(a) 在生效日期已領有有效的運作牌照的本地漁船的船東提出申請；

(b) 符合以下說明的本地漁船的船東提出申請 ——

(i) 該船是依據一份海事處處長發出的取得或建造漁船的原則批准書(該批准書在生效日期仍然有效)而在生效日期之後取得或建造的；及 (ii) 該船領有有效運作牌照；或

(c) 本地漁船的船東根據第19或21條提出申請，

署長可為施行本條例而應有關申請登記有關船隻，並向申請人發出登記證明書。”

15.“已領有” is a different concept from “曾領有”.  The former refers to a vessel which had already obtained the requisite licence and still having that licence on the specified date, the latter refers to a vessel which once had the requisite licence but no longer had such licence on the specified date.

16.The same meaning is conveyed in the English version by the present tense in Section 14(1)(a): “in respect of which there is a valid operating licence”.  It does not embrace a case where there had once been a valid operating licence. 

17.The more difficult question is whether there is any scope for rectifying interpretation.  In that respect, we agree with the judge that the legal test was set out in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586. 

18.In the Board’s decision in AAB 32/2013, it considered that it was open to adopt a rectifying interpretation in [14] to [19] of its reasons for decision of 16 September 2014:

“ 14. 由此可見，單單依循《漁業保護條例》第14(1)(a)條的文字理解，根據該條提出申請的資格條件是有關本地漁船須在生效日期當天（即2012年6月15日）已領有當時有效的運作牌照。可是，這不是香港現行的法律解釋原則。終審法院在多件案件重申，對成文法的解釋須在初步階段已要考慮語境和目的，而不是只在其後如有歧異或含糊之處才考慮它們（見HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, 段63; HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, 段12至13; Vallejos & Anor v Commissioner of Registration & Anor (2013) 6 HKCFAR 45, 段 77）。

15. 行政上訴委員會的行政上訴第44/2013號裁決（2014年7月11日）引述了《2012年漁業保護（修訂）條例》的詳題，和有關的條例草案委員會的報告，指出條例修訂的主要目的，“是在於引入「一系列漁業管理措施，以控制香港水域捕撈力量」，維護本地漁業的可持續發展。鑑於窮撈濫捕嚴重打擊本地漁業的可持續發展，立法修訂目的之一就是要限制新漁船加入，以防止在本港水域進行過度的捕魚活動”（見段7至9），也指出條例修訂的目的“並不是要把修訂條例生效前已使用本身漁船在香港水域進行捕魚活動（拖網作業除外）的漁民的「飯碗打破」。又或意圖利用立法，把現有的漁船一併趕絕”（見段36）。

16. 本委員會察覺同一條例草案委員會的報告的第9段有下述句語：“據政府當局表示，按條例草案擬議第14條所設的本地漁船登記制度甚為簡單。本地漁船船東如在條例草案生效日期或之前已領有由海事處根據《商船（本地船隻）條例》（第548章）簽發的有效運作牌照，而其船隻主要用作在香港水域捕魚，可申請登記”（斜體字後加）。這一點令本委員會不得不考慮《漁業保護條例》第14(1)(a)條有關申請資格規定的條文，有否涉及草擬上的錯誤而需要在法律闡釋上加以糾正（rectifying construction）（見Bennion on Statutory Interpretation（6^th Ed）第287段，頁788 至797）。

17. 本委員會亦察覺食物及衛生局局長在2011年11月9日提出就同一條例草案二讀時有以下說明：“漁農自然護理署（“漁護署”）署長會為本地漁船登記。有關登記為一次過登記，在漁船的整個使用年期中一直有效，無須續期。漁護署署長只會為那些在條例草案生效日期或之前已領有由海事處發出的有效運作牌照的現有本地漁船登記。在生效日期之後建造或取得的漁船，其船東必須持有海事處在生效日期或之前發出的有效原則批准書，以及在申請登記時能夠出示有關船隻的有效運作牌照，方符合登記資格。船東的登記申請如獲批准，會獲發登記證明書。漁護署署長會備存一份已登記船隻登記冊，供公眾查閱。”（斜體字後加）（見《香港特別行政區立法會會議過程正式紀錄：2011-2012年度》，頁1234）。

18. 本委員會經考慮上文有關條例修訂的目的後，認為草擬條例修訂時肯定存在對條例修訂的目的的錯誤理解，而導致採用了比有關目的狹窄的用語（casus omissus），而公共政策是不容草擬者的失誤而引致不公的（見Bennion on Statutory Interpretation，頁791至795）。

19. 本委員會於是認為，應予《漁業保護修例》第14(1)(a)條糾正性的闡釋，讓在生效日期以前曾已領有相關的有效的運作牌照的本地漁船亦可符合有關的資格規定，由其船東提出登記申請。該等本地漁船亦是現有的本地漁業的捕撈力量的一部份，不是條例修訂要限制的標的。它們亦是符合《漁業保護條例》第2條下的“本地漁船”的定義的“已獲發運作牌照的捕魚船隻”。本委員會亦認為，公共政策支持這糾正性的闡釋，以避免個別個案出現不公平的情況。”

19.With respect, we cannot agree with the approach of the Board.  Quite apart from the error identified by the judge in HCAL 165 of 2014 (in the failure to afford the Director an opportunity to be heard on the question of rectifying construction), in our view the materials identified by the Board do not disclose a failure to reflect the intended purpose of the statute in the drafting of Section 14(1)(a).  In Inco Europe Ltd v First Choice Distribution, supra, Lord Nicholls emphasized that the court must be abundantly sure of three matters before it may resort to rectifying construction:

(a)  The intended purpose of the statute or provision in question;

(b)  That by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and

(c)  The substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.

20.As the judge observed at [36] of the judgment, the legislative materials were not wholly consistent.  It is not permissible for the court (or the AAB for that matter) to be selective in the references to legislative materials in ascertaining whether there had been a failure to reflect the true legislative intent.  None of the cases cited by the AAB at [14] of its decision supports such an approach.  The legislative materials must be read in context.  

21.The clear purpose was to have an eligibility criterion related to the vessel having a valid operating licence under the Merchant Shipping (Local Vessels) Ordinance Cap 548.  Though there may be room for misunderstanding, we are by no means satisfied that the Legislative Council intended to provide for an eligibility criterion which would embrace all those vessels which had once had, but no longer have on the commencement date, a valid operating licence. Objectively speaking, we are unable to say that the adoption of the requirement as it is in Section 14(1)(a) does not reflect the legislative intent in light of the legislative materials.  We are thus not satisfied that there had been inadvertent mistakes in the drafting of that provision.  In the circumstances, there is no room for the application of rectifying construction.

22.We must however sound a caveat as to the use of the drafting instructions as an aid to statutory interpretation.  Drafting instructions per se do not come within the scope of materials which Li CJ regarded as referable in the search for the purpose of a piece of legislation in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at [14].  It is not clear to us if the drafting instructions were included in the papers before the Legislative Council.  If they were not, we doubt if one can resort to them as part of the legislative materials.  However, as the point had not been argued before us, we would reserve our conclusion on the same.

23.For these reasons, we answer the question stated in paragraph 15 of the Case Stated by the AAB on 18 March 2015 as follows:

“ The correct interpretation of Section 14(1)(a) of the FPO is the interpretation given by the Board in AAB 44/2013.”

24.We understand that this outcome may be disappointing for Mr Wan. However, as explained by Au-Yeung J at [30] of the judgment in HCAL 165 of 2014, it seems to us that the problem lies in the apparent lack of mechanism for renewal of a operating licence with retrospective effect.  Bearing in mind the effect of FPO, the result seems to be harsh in cases of excusable inadvertence in failing to renew within time. 

25.In AAB 44/2013, the Board addressed this issue at [37] to [42] of its Reasons for Decision of 11 July 2014.  The issue involved consideration of Sections 16 and 17 of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap 548D and Sections 13(2) and 15 of the Merchant Shipping (Local Vessels) Ordinance Cap 548.  This is not an issue before us and this judgment should not be regarded as our endorsement of the conclusion that there is no room for retrospective renewal of operating licence.     

26.We propose to make no order as to costs in the present proceedings.

The applicant acting in person

Mr Mike Lui, instructed by the Department of Justice, for the respondent