Wong Wai Fat and Another v. The Queen
Read the full judgment text of CACC 176/1982 on BabelCite. This Court of Appeal judgment was delivered on 18 March 1982.
1. The appellants, respectively the licensed owner and master of a pleasure vessel, were convicted of having committed a breach of the conditions of the licence of the vessel, by using it for other than pleasure purposes, contrary to regulation 5(3) of the Merchant Shipping (Pleasure Vessels) Regulations, Cap. 281.
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CACC000176/1982 [Mis-use of vessel licensed for pleasure purposes only. Is this breach of condition of -licence?]
BETWEEN:
Coram: Roberts, C.J. Date: 18 March 1982 _______________ J U D G M E N T _______________ The charges 1. The appellants, respectively the licensed owner and master of a pleasure vessel, were convicted of having committed a breach of the conditions of the licence of the vessel, by using it for other than pleasure purposes, contrary to regulation 5(3) of the Merchant Shipping (Pleasure Vessels) Regulations, Cap. 281. 2. Regulation 5(3) of those Regulations states that -
3. "Pleasure vessel" is defined in regulation 2(1) as meaning "any launch, yacht, inflatable vessel, junk, lorcha or other vessel which is used exclusively for pleasure purposes." 4. It is to be noted that that definition was amended with effect from the 17th October, 1981 by inserting 'possessed or' before the word 'used'. However, the alteration is not relevant to this appeal, since the offence occurred on the 10th July, 1981, before the amendment was effected. Agreed facts 5. The agreed facts were set out by the magistrate as follows -
Imposition of conditions 6. The appellants have submitted that the summons discloses no offence in law since the Crown has failed to prove the breach of any condition of the vessel's licence. 7. Regulation 3(4) deals with the imposition of conditions in a licence issued under the regulations, in these terms -
8. Regulation 3(6) empowers the Director to endorse on a licence two specified conditions; one of these may restrict the number of persons to be carried on the vessel; the other may forbid user of the vessel between sunset and sunrise. 9. The appellants contend that regulation 3(6) is exclusive, and operates so as to limit the Director's power to impose conditions in a licence to the matters set out in that paragraph. 10. However, I can find nothing in the wording of regulation 3(6) which could be reasonably construed as limiting in any manner the general power conferred upon the Director by regulation 3(4) to impose such conditions as he thinks fit in a licence. I regard regulation 3(6) as merely illustrating two types of condition which the Director may impose, without in any way restricting his wider power under regulation 3(4). 11. That being so, I find that the Director had power to include, by virtue of regulation 3(4) the conditions which were imposed in the licence. The first of these reads as follows -
12. Thus, if the licensee of a pleasure vessel fails to "comply with and observe" any of the provisions of the principal Ordinance or of the regulations, he has committed a breach of a condition of his licence, for which proceedings may be taken to suspend or cancel his licence under Regulation 3B, or by way of prosecution under regulation 5(3). Did owner fail to comply with any regulation? 13. Has the Crown established that there has been a failure, on the part of the appellants, to comply with any provision of the regulations? It was argued that the answer is to be found in regulation 10, which requires the licensed owner of a pleasure vessel, which is used for purposes other than pleasure, to notify the Director of such use within 7 days and to surrender the vessel's pleasure licence to the Director who will cancel it. 14. The Crown's submission was that the terms of regulation 10 make it clear that the misuse of a pleasure vessel is intended to lead to the cancellation of the licence. It therefore should be inferred that such misuse is so manifestly contrary to the spirit of the regulations, which were designed to prevent pleasure vessels being used for any purpose other than pleasure, that it must be regarded as a breach of the conditions of the licence. 15. I concede that the misuse of a pleasure vessel is intended to lead to the cancellation of a licence. But the regulations do not state that such misuse of itself amounts to an offence or to a breach of a condition. Nor do they prohibit any other user in terms; nor does the licence itself mention user. 16. To find that a misuse of the vessel amounts to a breach of condition, or a breach of the regulations, would require words to be read into the licence or the regulations which are not to be found in them. This is a penal provision and must be construed strictly. Powers of Director 17. In the result, I find that user of a pleasure vessel, for purposes other than those of pleasure, does not ipso facto constitute a breach of the conditions of the licence, or an offence. 18. To achieve this object, it would be necessary to amend either the regulations or the conditions of the licence. 19. However, as matters now stand, the Director is not powerless. Where there is a misuse of a pleasure vessel, the licensed owner has seven days within which he must surrender the licence for cancellation. If he fails to do so, he contravenes regulation 10. This will constitute a breach of a condition of the licence, which will enable the Director either to take proceedings under regulation 5(3) by way of prosecution, or to cancel or suspend the licence under Regulation 3B. The Director is not without weapons, but in this case has used the wrong ones. 20. The appeal succeeds, the conviction is quashed and the fines will be returned to the appellants. Representation: K.M. Chong (K.M. Lai & Li) for Appellants R.R. Rhoda, Senior Crown Counsel, for Respondent. |