Merchant Navy Officers' Guild - Hong Kong v. Director of Marine
Read the full judgment text of HCAL 205/2002 on BabelCite. This High Court CFI judgment was delivered on 6 March 2003.
1. The applicant in this matter is a trade union registered under the Trade Unions Ordinance, Cap.332, to promote and protect the interests of merchant marine officers. It currently has a membership of some 8,000 officers. A significant number of these officers serve as crew on high speed craft that operate in and around Hong Kong waters, particularly on the ferry route between Hong Kong and Macau.
Cites 1 case
|
HCAL000205/2002 HCAL 205/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ---------------------
---------------------- Coram: Hon Hartmann J in Court Dates of Hearing: 14 and 17 February 2003 Date of Handing Down Judgment: 6 March 2003 ------------------------- J U D G M E N T ------------------------- Introduction 1.The applicant in this matter is a trade union registered under the Trade Unions Ordinance, Cap.332, to promote and protect the interests of merchant marine officers. It currently has a membership of some 8,000 officers. A significant number of these officers serve as crew on high speed craft that operate in and around Hong Kong waters, particularly on the ferry route between Hong Kong and Macau. 2.There are two companies which operate high speed craft between Hong Kong and Macau. They are authorised to do so in terms of permits issued to them by the respondent, the Director of Marine, pursuant to reg.8 of the Merchant Shipping (Safety) (High Speed Craft) Regulations, Cap.369. The two companies are Shun Tak-China Travel Ship Management Ltd ('Shun Tak') and New World First Ferry Services (Macau) Ltd ('New World'). Apparently, Shun Tak operates jetfoils on the ferry service between Hong Kong and Macau while New World operates catamarans. The ferry services provided by the companies run 24 hours a day. Crews must therefore be employed to operate both day services and night services. 3.The permits which are issued to Shun Tak and New World contain detailed conditions to regulate the working hours of officers. Working hours are regulated to ensure that officers are not made to operate their high speed craft in the busy waters of the Pearl River estuary when they are suffering the effects of fatigue. It is universally recognised that fatigue essentially a deterioration in work performance brought about by both mental and physical stress undermines the safe operation of vessels. 4.In 1982, at or about the time when new high speed craft jetfoils were being commissioned to operate on the Hong Kong to Macau route, the Director of Marine commissioned Hong Kong University to conduct a study ('the HKU study') on the limits at which officers on board such high speed craft could be expected to fulfil their duties without suffering the effects of fatigue. The study was prompted by the Director of Marine's concern as to the possible effects of fatigue on crews operating high speed craft in Hong Kong waters, particularly crews operating night services between Hong Kong and Macau. 5.In or about 1984, after receipt of the HKU study, the Director of Marine began to regulate the permitted hours of duty for crews operating high speed craft on the Hong Kong/Macau route. As the onset of fatigue was a more critical problem for officers operating night services, the permitted hours for those officers were less onerous than for officers operating during the day. 6.The restriction on working hours, however, was not a decision made unilaterally by the Director of Marine. The applicant says that the permitted hours of duty were formulated in the light of and as a result of the following :
7.That the permitted hours of duty were arrived at by a process of consensus is evidenced in the minutes of a meeting of the HSCCC held on 1 November 2001 in which the chairman, the acting Director of Marine, is recorded as saying :
8.The 'agreement' in respect of permitted hours of duty was put into effect in or about 1985 and, although having no compulsory effect at that time, was apparently honoured by all parties. In 1996, when the International Code of Safety for High Speed Craft ('the HSC code') was adopted by Hong Kong, the agreed limitations were then incorporated as conditions in the permits issued by the Director to Shun Tak and New World. 9.Until 18 September 2002, the restrictions on working hours which had been agreed in or about 1985 remain unaltered. However, on that date, after honouring the status quo for some 17 years, the Director of Marine, at the request of New World, and in respect only of the services operated by that company, approved a change to the permitted hours of duty of officers operating the night service between Hong Kong and Macau. The change was permitted on an interim basis only for a period of three months. The practical result was that, for that period of three months, the officers were obliged to work on more onerous terms. This decision of the Director of Marine is the first decision challenged by the applicant. What is sought in respect of the decision is an order of certiorari to quash it or, on the basis that the effects of the decision are now exhausted, a declaration that it was, in public law terms, unlawful. 10.On 11 December 2002, the Director of Marine made a decision to extend the changes to the permit for a further three months. This decision is the second decision challenged by the applicant. Again, the applicant seeks an order of certiorari to quash the decision and/or a declaration that, in public law terms, the decision was unlawful. The essential nature of the applicant's complaint 11.It has been stressed on behalf of the applicant that it has no objection to a change in the hours to be worked by its officers on the night service between Hong Kong and Macau provided it is demonstrated that the re-scheduling will not increase their hours of duty to the extent that fatigue sets in and safety is jeopardized. It is the applicant's contention that, in respect of the route between Hong Kong and Macau, there have been such fundamental changes to operating conditions over the past 17-18 years that only a new report on fatigue levels and new recommendations on permitted working hours will be able to demonstrate whether the changes made by the Director on an interim basis are or are not hazardous to safety. 12.In seeking the approval of the Director of Marine to make changes to the permitted hours of officers operating its night service, New World has always accepted that its motivation is economic. This is clearly stated in a letter dated 3 April 2002 sent by New World to 'all operating crew' in its employ. In part, the letter reads :
13.The desire to change the permitted hours of duty on New World's night service was first publicly voiced at a meeting of the HSCCC to which reference has already been made; that is, on 1 November 2001. At that meeting, New World's representative said that, in view of prevailing economic difficulties, ways had to be found to maximise limited resources and consideration should be given to reviewing the restricted work hours of crew members in order to 'enhance work efficiency'. However, at that same meeting, the representative of the applicant is recorded as saying
14.In a letter dated 22 May 2002 addressed to the Director of Marine, the applicant maintained its position that a new safety report should be commissioned. The letter concludes :
15.The applicant said that a new report was necessary because in the period of 17-18 years since the HKU study there had been substantial changes to the physical environment of the route between Hong Kong and Macau. The applicant said that this was caused in part by
16.In its letter of 22 May 2002, the applicant expressed its concern that safety standards were being sacrificed on the altar of financial expediency. In this regard, the letter says :
17.Two months later, in a letter dated 24 July 2002, the applicant cited statistics obtained from an anonymous questionnaire sent to its members. It said that 99.2% of its members were of the opinion that they laboured under greater stress than they had 10 years earlier and 68.1% were of the view that the Director of Marine should commission a new study in respect of fatigue levels. 18.In a letter dated 29 October 2002, the applicant persisted in its view :
19.When the Director made his decision on 18 September 2002 to change the duty hours of New World's night service crew on an interim basis, it was not based on any new study. The Director relied essentially on the HKU study of 1982 and worked within the parametres of the recommendations made in that study. 20.In October 2002, however, after the Director had made his decision to make interim changes to the permissible hours of duty, he did commission a new fatigue study. The new study was not confined to crew operating high speed craft between Hong Kong and Macau although they were included in this study. The objective of the new study has been stated in the following terms :
21.I am told that, hopefully, the results of the new study will be made available to the Director of Marine by the end of current month; that is, by the end of March 2003 when New World's extension will expire. 22.On behalf of the applicant, Mr McCoy has argued that the fact that the Director of Marine put matters in hand to obtain an independent study after he had made his first decision to change the duty hours of crews on night services indicates that the Director must have recognised what he has termed 'the enormity' of his omission to have such a report in place before he made his decision. The fact that the Director then made a decision to extend the interim changes for a further three months before he had received the results of the study, said Mr McCoy, compounded the enormity of his original omission. A summary of the applicant's grounds of challenge 23.As stated by Mr McCoy, the core issue to be determined in these proceedings may be expressed in the following question : was the Director of Marine entitled in law to make the conditions related to permitted hours of duty of officers operating the night services more onerous without first having available to him the results of a new fatigue study? 24.Mr McCoy's core issue finds expression, directly or indirectly, in each of the applicant's grounds of challenge to the decisions of the Director of Marine. The individual grounds may be summarised as follows :
25.During the course of his submissions, Mr McCoy said that two further grounds of challenge detailed in the notice of application to apply for judicial review would not be pursued. They were, first, that the Director of Marine had acted ultra vires in not conducting a proper exercise of consultation before making his decisions and, second, that his decisions had been vitiated by bias on his part. The effect of the interim changes 26.Before moving to consider the applicant's various grounds of challenge, something must be said of the practical effect that the Director of Marine's interim changes actually had on what had been for some 17 years the permitted hours of duty of officers operating night services. 27.The HKU study (which focused on jetfoils only, not catamarans) recommended that, to avoid the dangers of fatigue, officers operating night services between Hong Kong and Macau should be subject to the following limitations of duty :
28.Exactly the same limitations were imposed by the Director of Marine but, within those limitations, cycles of duty were agreed with all interested parties, including the applicant. The one was a cycle of 96 hours (four days), the other a cycle of 72 hours (three days). 29.The interim changes made on 18 September 2002 increased these two cycles of duty to one of 120 hours (five days) and one of 96 hours (four days). But while the total working hours per month were increased, as I understand it, the limitations recommended by the HKU study and adopted by the Director were not affected. The interim changes obliged officers to work a monthly average of between 118.5 and 126 hours; an increase, yes, but still well within the HKU study's recommended maximum 160 hours per month. 30.According to Mr Ismail, counsel for the Director of Marine, while neither the daily nor monthly limitations were affected, the interim changes meant in practice that officers were now obliged to perform either two or three extra nights duty per month. They lost some 'leisure time' in each month but nothing else. Mr McCoy, however, argued that the increase in duty obligations meant that 'recovery periods' between cycles of duty were reduced. On the basis that fatigue is invariably an accumulative condition, Mr McCoy submitted that this reduction was a matter which, in the interest of crews and the public alike, could only legitimately be approved if a fresh study demonstrated that it would not induce fatigue and thereby endanger safety. 31.It is to be emphasised, however, that the introduction of increased hours by the Director of Marine was subject to a number of conditions. These appear in the letter from the Director dated 18 September 2002 addressed to New World. In part, the letter reads :
Having detailed the required rates of compensation payable to the officers for the extra hours of duty, the letter continues :
32.The interim changes approved by the Director of Marine were, in addition, subject to the following specific conditions which were listed in the amended permit :
33.On behalf of the Director of Marine, Mr Ismail emphasised that the interim permission granted to New World related only to its existing fleet of five catamarans. It did not relate to three new catamarans which were in the process of being commissioned. Mr Ismail also emphasised that, in the expert opinion of the Director of Marine, the catamarans operated by New World were less arduous to operate than the jetfoils operated by Shun Tak, the HKU study, of course, having focused on jetfoils only and, in respect of those more difficult vessels, having recommended a maximum of 160 hours duty per month. 34.The Director of Marine's second decision under challenge; namely, his extension of the interim period, was made subject to the same conditions that applied to his first decision. This appears from the Director's letter dated 11 December 2002 addressed to New World. In part, the letter reads :
Threatened redundancies 35.Certain papers put into evidence by the Director of Marine suggest that the applicant's principal concern in respect of the increased hours of duty was focused not so much on safety but rather on a fear that longer working hours would mean that less crews were required and this, in turn, would have the consequence of redundancies being put into effect. 36.No doubt the applicant, as a trade union formed to protect the interests of its members, was concerned with the possibility of redundancies, especially if Shun Tak, a much larger employer of marine officers, was to seek the same concessions from the Director of Marine. No doubt also the applicant was concerned to ensure that, if its members were obliged to work longer hours, they would be adequately compensated. But these collateral concerns, in my view, do not in any way denigrate from what, on all the evidence, appears to have been and still remains a fundamental concern of the applicant that the interim changes made by the Director constitute a threat to public safety. The first ground of challenge : legitimate expectation 37.The applicant has contended that at all times it had a legitimate expectation that the procedures adopted in the early 1980s when permitted hours of duty were assessed with the benefit of an in-depth study and then agreed by a process of consultation would again be adopted before any substantial changes were made to those hours of duty. The rationale for that expectation, said Mr McCoy, lay in the issue of public safety. If in 1982, in order to ensure public safety, the Director of Marine recognised that permitted hours of duty could only be assessed on the basis of a safety report, even in the absence of a specific promise, his actions at that time constituted an assurance that there would be no further changes which might jeopardize public safety unless the same or a similar procedure was again adopted. 38.Mr McCoy did not make mention of any stated promise or representation made by the Director of Marine and the evidence reveals no such promise or representation. Mr McCoy's argument was to the effect that the Director's actions in the 1980s constituted the necessary representation. 39.Out the outset, it is essential, I believe, to recognise that, while an expectation or hope that some benefit or advantage will continue to be enjoyed or that some administrative measure will be adopted, may well be entertained by a reasonable man, it will not for that reason alone amount to a legitimate expectation that has consequences in public law. See, for example, Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374, per Lord Diplock at 408. That being the case, the fact that the applicant considered it wise for the Director of Marine to adopt procedures which the Director had employed in the past in similar circumstances, cannot of itself bind the Director. If such a principle was to apply, it would mean that every time a decision-maker in the public arena adopted a particular procedure in the discharge of his administrative responsibilities he would be estopped from adopting any different procedure thereafter. 40.Similarly, a demand, no matter how prudent, that a decision-maker adopt a similar procedure to one previously employed will not give rise to a legitimate expectation. 41.If an expectation is to have consequences in public law it must arise from a promise or representation made by the decision-maker (or somebody capable of binding the decision-maker) which, even if implied, is clear and unambiguous. In Ng Siu Tung & Others v. Director of Immigration (2002) 5 HKCFAR 1, the Court of Final Appeal accepted as a general principle that it was fundamental that a representation relied upon to support a legitimate expectation must be clear and unambiguous. I emphasise again that a legitimate expectation cannot flow from some generalised expectation of justice or what, in the context of the circumstances, an applicant considers to be a wise course of action or one that is fair to it. 42.Whether a legitimate expectation exists is a question of fact. In the present case a great many documents have been placed before me together with explanatory affirmations. On that evidence, however, I have been unable to identify any clear and unambiguous representation made at any material time by the Director of Marine, whether stated or arising from his conduct, which could give rise to the legitimate expectation that Mr McCoy has advocated. The fact that the Director is now seeking a new study does not affect the issue; there is, in my view, nothing to support Mr McCoy's contention that the new commission is evidence of the fact that the Director of Marine has recognised the 'enormity' of his omission to obtain a report earlier. In any event, as Mr Ismail stressed, the new study is not restricted to the effects of fatigue on night crews on catamarans plying the Hong Kong/Macau route. It is instead a comprehensive study of the working patterns of officers on board all manner of high speed craft operating in and around Hong Kong waters. The new study may, in part, have been prompted by the applicant's lobbying. But a positive response to lobbying is not proof of an pre-existing legitimate expectation of the kind Mr McCoy has attempted to identify. 43.The first ground of challenge must therefore fail. The second ground of challenge : the decisions were ultra vires 44.S.107(1) of the Merchant Shipping (Safety) Ordinance, Cap.369, provides that :
Reg.8 of the Merchant Shipping (Safety) (High Speed Craft) Regulations, made pursuant to s.107 of the Ordinance, states, in part :
In so far as it may be necessary to underscore the point, s.46 of the Interpretation and General Clauses Ordinance, Cap.1, provides :
45.The common law, of course, has long recognised the power in public administration not simply to do what a statute directly authorises but to do what is incidental too or consequential upon the terms of the statute. In this regard, see for example the Attorney-General & Ephraim Hutchings v. The Great Eastern Railway Company (1880) 5 App Cas 473, per Lord Selborne at 478 :
46.Finally, it is to be recorded that, within the permit issued to New World, in terms of paragraph 8 of the conditions, it is stated that :
In short, the Director of Marine, in the exercise of his licensing powers, reserved the right to agree to variations of permit conditions provided his agreement was recorded in writing. 47.In my judgment, it is plain from the description of the statutory scheme that I have given that the Director of Marine has the power to both impose conditions on the issue of permits and, as an incident of that power, the power to vary those conditions from time to time. 48.But Mr McCoy's submissions, as I understand them, have gone not to a breach of any stated terms of the statutory scheme but rather to a breach of its fundamental scope and purpose. The scheme, said Mr McCoy, was manifestly founded on the requirements of safety. That being the case, in the exercise of his discretion, the Director was not entitled to take as a primary consideration the commercial interests of individual operators if to do so meant displacing the paramount consideration of safety. 49.Mr McCoy submitted that, while the Director of Marine had the power to vary conditions to make hours of duty less onerous, he had no power to vary the conditions in order to make them more onerous unless he could be assured that it would not endanger safety. But in the present case no such assurance could be obtained, said Mr McCoy, without first obtaining a new safety report, not in light of the fact that the HKU study was 20 years old and that operating conditions were today materially different. 50.In my judgment, however, Mr McCoy's core argument must fail. If there was evidence that the Director of Marine had ignored safety considerations in agreeing to the variation of New World permit, I would perhaps accept that he had acted either ultra vires or in a manner that was Wednesbury unreasonable. But the evidence, in my view, is not to that effect. To the contrary, the evidence indicates that the Director of Marine was at all times conscious of his duty to ensure requisite levels of safety and acted as he saw fit in accordance with that duty. In this regard, it is clear that, inter alia, the Director of Marine took into account the following matters :
51.Mr McCoy argued that the Director of Marine had no power to approve interim changes which made the working hours of officers more onerous before he determined whether the proposals themselves, which were intended for permanent application, were suitable for approval. Essentially, as I understand it, that is another way of saying that the Director was under a duty to obtain a safety report before making any changes, interim or otherwise. But I can see no reason why a decision-maker cannot legitimately make changes on an interim or transitional basis. Indeed, I can see many circumstances in which it would be manifestly the most desired step to take. If in the present case the Director of Marine had ignored safety considerations or had made changes which went outside of the recommended limits of the HKU study then perhaps I would find more substance in Mr McCoy's argument. But, for reasons already given, it is apparent that the Director took full account of safety measures and did not step outside of the recommended limits of the HKU study. 52.Mr McCoy submitted that the decisions of the Director of Marine were ultra vires in that the Director took into account irrelevant considerations; namely, that the changes were in line with the requirements of the STCW95 Convention and the HSC Code. I can find no substance in this submission. First, both the Merchant Shipping (Safety) Ordinance and the Regulations oblige the Director of Marine to have regard to international agreements applied to Hong Kong in so far as they relate to the safety of vessels. In considering the changes (under challenge) the Director was therefore under a statutory responsibility to ensure that they were 'in line with' the requirements of the STCW95 Convention and the HSC Code. Second, a study of the Convention and the Code shows that both deal with matters of safety, including (in the Code) matters relating to fitness for duty, rostering of crews and other arrangements necessary to avoid fatigue. Third, even if the Convention and the Code, in the present case, contained little of direct relevance, the Director was still entitled to state the fact that, in respect of those matters which did have some relevance, they were not in conflict with the changes proposed by New World. 53.In any event, even if there is some substance in the argument that the Director of Marine, in referring to the Convention and the Code, took into account matters which were not directly relevant to his decision, there is nothing to suggest that in so doing the decision of the Director was in any way distorted or undermined or may have been different if he had not fallen into error. Judicial review, it must be remembered, is a discretionary remedy. If an irrelevant or immaterial factor has been taken into account, whether that is considered to be an act that is ultra vires or an act that is Wednesbury unreasonable, it will not provide a remedy in the courts unless there is something of substance which has been lost to an applicant flowing from the fault. It is not the function of a court to penalise technical breaches which of themselves have no consequence. This principle is consistent with the concept that a court should not substitute its own decision for that of a decision-maker. 54.The second ground of challenge must therefore fail. The third ground of challenge : the decisions were Wednesbury unreasonable 55.In advancing this challenge, Mr McCoy submitted that, in principle, even if the Director of Marine had the power to change permitted hours of duty on an interim basis without first obtaining a new safety report, for him to have done so, however, in light of all the relevant operational factors, was an act which was so unreasonable that no reasonable authority would ever have done so. The operational factors to which Mr McCoy referred included increased harbour traffic, reclamation, the higher speed of vessels, crowding of shipping lanes and the like. 56.In support of his argument, Mr McCoy made reference to the letter of 18 September 2002 written by the Director of Marine to New World. In that letter (cited in para.31 supra) the Director of Marine said that he had no intention for the time being of incorporating the propose changes into New World's existing permit but would allow them as an interim measure. From this, Mr McCoy contended that the Director appreciated at the time that it would "require extra time and possibly additional consultation in terms of both expert opinion and comment from crew members before a final decision could be logically arrived at". Mr McCoy continued by saying that, in the circumstances, there was no rationale whatsoever for the Director to approve the interim measures in the absence of such consultation and comments. In so doing, the Director had acted irrationally. 57.I must reject that submission. The fact that the Director chose to bring about changes in the first instance by way of interim measures does not imply that he appreciated that further investigation was required before any change at all could be made. Caution may often dictate that changes are not immediately to be made on a permanent basis but are to be put into effect by way of some form of transitional arrangement which is subject to close monitoring. The Director of Marine had a discretion whether or not to make the changes. Having decided that they were warranted, it was then a matter for him to decide how best in the circumstances those changes were to be made. In this, he had a broad range of matters to consider. It was for him to decide what matters were relevant and what were not; it was for him to decide what weight he gave to the relevant matters. It was equally for him to decide how best he should proceed to exercise the discretion given to him by the legislature, whether to do so on an interim basis or by some other route. As Lord Brightman said in Reg. v. Hillingdon London Borough Council, ex parte Puhlhofer [1986] 1 AC 484, at 518 :
Lord Brighman continued :
58.In a case such as the present, I am satisfied that Lord Brighman's words correctly reflect the law. As such, they present a formidable obstacle to the applicant's challenge. While another decision-maker may have proceeded along a different path to the Director of Marine, while the Director's decisions may perhaps be open to valid criticism, that is not to the point. For the applicant to succeed it must be able to demonstrate that the Director's decisions were so unreasonable that that they fell outside the broad parameters allowed by Lord Brightman. In my judgment, the applicant has fallen far short of any such demonstration. The matters to which I have referred in para.50 supra may also be cited here to illustrate that, in respect of a difficult and contentious issue, the Director of Marine proceeded with entirely rational caution, aware at all times of the imperatives of safety. 59.Accordingly, the third ground of challenge must also fail. Conclusion 60.For the reasons given in the body of this judgment, the application for judicial review must be dismissed. There will be an order nisi awarding costs to the respondent, the order to be made final 30 days from the date of handing down this judgment unless the matter is earlier set down for argument.
Representation: Mr Gerard McCoy, SC instructed by Messrs Richards Bulter, for the Applicant Mr Anthony Ismail, instructed by Department of Justice, for the Respondent |
Cases cited in this judgment