John Lau v. Director of Marine

Case No.CACV 46/1976

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACV000046/1976

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CIVIL APPEAL NO. 46 OF 1976

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BETWEEN
	JOHN LAU	Appellant
	and
	DIRECTOR OF MARINE	Respondent

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Coram: Li, J.

Date of Judgment: 10th December, 1976

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JUDGMENT

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1. The appellant in this case was found by the Board of Reference constituted under the provisions of the Merchant Shipping Recruitment of Seamen Ordinance, Chapter 135 guilty of misconduct against the provisions of Section 18, Subsection 1, Paragraph E. Section 18 provides as follows:

"	If, after considering any representations which the seaman may make on the occasion specified in a notice served on him under Section 17A(2) or 19(1), it appears to the Superintendent that-
	without reasonable excuse, the seaman has failed to comply with an order, direction, requirement or request made, given or issued under or for the purposes of this ordinance by the Superintendent or any other public officer,
	the Superintendent may-
	suspend the seaman's registration for any period not exceeding in the case of desertion 24 months or, in any other case, 12 months; or suspend the seaman's registration and forthwith refer the case to the Authority." (That meaning the Board of Reference).

2. The circumstances under which the appellant was found guilty of misconduct against this Section 18 are as follows: the appellant was suspended from joining a seagoing vessel as from the 1st of October, 1975 until the 31st of March, 1976 for reasons which I need not refer as they are not relevant for the purposes of these proceedings. He joined a ship, however, by the name of DENY or DENY (D-i-n-a-i) in Hong Kong harbour on the 5th of January, 1976 to keep watch for a day. He left the said ship on the 6th of January. On the 7th of January, 1976 the master of Deny found that the officers engaged on board the ship had left the ship. The appellant was persuaded to join the ship and whereupon the appellant told the master as well as the owner that he had been suspended from joining any seagoing vessel and he could not join them. The appellant was persuaded and successfully persuaded to join that ship which sailed eventually to Bangkok on the 7th of January and he returned by air to the Colony on the 27th of January, 1976.

3. All these facts were found proved and in addition the appellant was found to have acted, after he joined the ship, as a seaman, namely, a Second Officer on board the ship during its voyage to Bangkok. From this decision the appellant filed a Notice of Appeal to this court on the ground that the Board's decision was erroneous in point of law. Learned counsel for the appellant at the commencement of the proceedings said that the Notice so filed by the appellant has not given the full particulars of the ground of appeal. Two points only are taken. One is that he was not sure whether a certain letter written by the master of the ship which the appellant joined in January this year had been put before the Board and whether the Board had considered it. The other point is that the Board had completely failed to direct their minds to consider whether the appellant had a reasonable excuse within the provision in Paragraph E of Subsection 1, Section 18 of the Merchant Shipping Recruitment of Seamen's Ordinance.

4. On the assurance by counsel for the Director of Marine that the letter was addressed to the Director of Marine by the master of the ship DENY, learned counsel for the appellant is quite prepared to concede that probably the letter was considered by the Board of Reference. However, I have been urged by learned counsel for the appellant that the Board has committed an error in law in that they had failed to consider the full effect of the excuse that has been put forward by the appellant. Having considered the argument and having perused the record at least three or four times from page to page I find that the primary defence of the appellant before the Board of Reference was that he never joined as a seaman, namely, a Second Officer or as an officer of the watch at all. His case was that he was engaged on board, first of all, primarily as a Cargo Officer which is not within the meaning of the word 'seaman' of the Ordinance; and secondly, when he failed in this attempt his second line of defence was that he was a paid passenger on board the ship for just that voyage. When these failed, he also offered the explanation that when he was asked to join the ship for the voyage to Bangkok, he had already informed the master of the ship as well as the owner that he was disqualified or suspended from joining any seagoing vessel. However, he was assured by the master that the owner would take all the responsibility. On that assurance he joined the ship. That contends learned counsel for the appellant is a reasonable excuse. It is said that the circumstances in which he joined the ship indicated that there was some urgency in the matter. The Board should have directed their mind to that.

5. Looking through the record I find that on page 7 the point did come to the mind of at least one of the members of the Board when the appellant was questioned. On page 7 there were questions directed to this point as follows:

"	Q.	From your record you have already been in a considerable amount of trouble.
	A.	Yes.
	Q.	You have stressed how often you said that you could not go on board the ship in spite of being asked. Should you not have asked the SRO for some guidance?
	A.	I thought that my suspension only applied to foreign-going ships.
	Q.	If you thought that was the case why did you not make sure?
	A.	It says in the letter that I cannot serve on foreign-going ships.
	Q.	But you did so.
	A.	There were no officers on board and I thought I would not be found out by the Marine Department."

And then:

"	Q.	What about going to Bangkok?
	A.	The company said I would go as a passenger."

From the beginning to the end the appellants excuse was that he was going as a passenger which the Board had found to the contrary. Indeed the Ordinance only established this Board of Reference as a form of administrative tribunal vested with some quasijudicial function. They are required to follow certain procedure and announce their findings and no requirement is laid down that they must give their reason for their findings and the Board has not done so. Provided they have followed the procedures properly. There is no ground to upset their finding.

6. I have made observation in the course of the proceedings that apparently there is no record that the appellant was advised that he could ask question of witnesses. It may well be better that if such right of the appellant's as he was told should be put down on record to make things absolutely clear. But in this case whether he had actually been so advised or whether he exercised his right to cross-examination one solitary witness, the officer who presented the case, is of little relevance because most of the evidence tendered by the officer presenting the case were documentary evidence which speak for themselves. In any event the gravamen of the appeal is not that the appellant was deprived of his right of cross-examination but that the Board had failed to consider the question of reasonable excuse.

7. Bearing in mind what I have said a bit earlier the defence of the appellant was that he went as a Cargo Officer or a passenger only and that incidentally he said that he had told the employer and the owner of the ship that he was disqualified. That obviously does not constitute any reasonable excuse at all. It is only fair to refer to the record of the proceedings that at a certain stage of the inquiry, a member of the Board did direct their mind as to whether the appellant had any reasonable excuse. As far as that defence is concerned, if there is any reasonable excuse it is peculiarly within the knowledge of the appellant himself and all the excuse he could bring up at the proceedings was that he had informed the master of the ship and the owner of the ship that he was disqualified. He was prevailed upon to join the ship but that must be his own responsibility. There was no particular urgency in the matter apart from the fact that the ship wanted to sail to Bangkok as early as possible with the minimum requirement of officers and the appellant was prevailed upon to join the ship in order to make up the number. In his own words in answer to a question "There were no officers on board and I thought I would not be found out by the Marine Department." That can hardly be a reasonable excuse. The ship was never in distress. There was no question of matter of life and death. It was just a plain defiance of the order of suspension. If, if any seaman who has been suspended could go on a ship by virtue of the fact that the owner of the ship or the master of the ship was in dire need of the minimum requirement of seamen on board or that he had told the master and the shipowner that he was disqualified and he was nonetheless engaged on board to serve as a seaman, then any disqualification by the superintendent or by the Board of Reference would be a completely 'dead letter'. Then any excuse may well be an excuse.

8. Having considered the matter as a whole I am satisfied that there is no flaw in the proceedings which I can find and the appeal must be dismissed.

Representation: