Sham Ka Kei v. Commissioner of Rating & Valuation

LDRA000032/1985

Interpretation of statutes - Rating Ordinance, s.36(4) - agricultural land - fishpond - goldfish bred for display purposes - ordinary meaning of fish in agricultural context does not cover fish bred for display - animal husbandry does not cover fish.

IN THE LANDS TRIBUNAL OF HONG KONG

(Appellate Jurisdiction)

Rating Appeal No. 32 of 1985

Coram: His Honour Judge Leathlean, sitting as a presiding officer and M.W. Phillips, Esq., Member.

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DECISION

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1. In this appeal it is not in dispute that the tenement in question is occupied by the appellant and used by him for breeding goldfish with a view to sale for what has been called "display" purposes. The appellant apparently seeks to rely upon the exempting provisions of sub-section (1) of section 36 of the Rating Ordinance (hereinafter referred to as "the ordinance") and in particular paragraph (a) thereof, which relates to agricultural land, and to the definition of "agricultural land" contained in sub-section (4), which reads as follows:-

"(4)     In this section -

'agricultural land' means land used as farm land, a fish pond, a market garden, an orchard or for animal husbandry."

2. Obviously, we need not concern ourselves with farm land, market gardens or orchards.

3. Mr. Chan for the respondent submits that in exempting fish ponds from the application of the ordinance it was the intention of the legislature to exempt only fish ponds as they existed in Hong Kong in 1973 when the definition was first enacted, that is to say, he submits, ponds for breeding fresh water fish for human consumption. In aid of that submission he seeks to pray chapter 5, entitled "Primary Production", of "Hong Kong 1973, Report for the year 1972", page 46 et seq., to which I suppose we are entitled to have regard by virtue of the provisions of sub-section (6) of section 10 ofthe Lands Tribunal Ordinance, and in particular to the following statement at page 49:

"........ Fish ponds........ 4.3 (approximate area-square miles) 11.1 (percentage of whole) Fresh-and brackish water fish farming."

He stresses the absence of any reference to goldfish. As to this, however, we can only say that, granted the subject of the chapter, we would hardly expect it to contain any reference to goldfish, and in our view nothing turns upon this.

4. We are told from the Bar that historically fish ponds were ponds for breeding fresh water fish for human consumption, but that lately, with increased imports of fresh fish from China, they are being increasingly used for breeding goldfish and other tropical fish. Mr. Chan submits that this is sufficiently notorious to warrant our taking judicial notice of it. With respect, we disagree. Neither of us was aware of any such thing, and we hold that it is not notorious, let alone sufficiently notorious, to warrant our taking such notice of it.

5. Mr. Chan goes on to submit that fish farming, which, he urges, is a wider expression than fish pond, is not covered by the expressions fish pond or animal husbandry. Therefore, he argues, by using the expression fish pond the legislature evinced an intention to restrict the types of fish farming to be exempted from the application of the ordinance, and, he goes on, to narrow the interpretation of the expressions farm land and animal husbandry.   Had the legislature intended to exempt all fish farms, he says, it could have said so in terms, but that as it is the expression pond is used so as not to include all fish farms. In support of this submission he has referred us to Craies on Statute Law, 7th (1971) edition, chapter 8, page 125 et seq., which deals with what sources of information outside a statute may be used for throwing light upon its meaning. But, as we indicated during argument, no extraneous sources of information may be used for that purpose unless application of the basic canon of interpretation of statutes, i. e., that they must be construed literally, results in absurdity or something very like it. The decision of the English Court of Appeal in Cresswell (Valuation Officer) v. BOC, Ltd. ⁽¹⁾ is, however, we apprehend, strong persuasive authority for the proposition that while the expression "fish pond" must be given its ordinary meaning it must be given that meaning in an agricultural context, which is, of course, made clear by the fact that what is being defined is "agricultural land". Mr. Chan emphasizes that the appellant's goldfish are destined for sale for so-called "display" purposes, not for human consumption. The ordinance makes no reference to such consumption, as does some rating legislation in England, but the question nevertheless arises whether the ordinary meaning of the expression "fish pond" in an agricultural context covers fish bred for display purposes. So far as we have been able to ascertain no case is exactly in point. The statutes with which some of the cases are concerned themselves go on to define "agriculture" as including "livestock", whereas sub-section (4) of section 36 of the ordinance does not, but, for what it may be worth, in Belmont Farm, Ltd. v. Minister of Housing and Local Government ⁽²⁾ it was held, in effect, by the Queen's Bench Divisional Court in England that a riding school did not fall within the term "agriculture", and in Minister of Agriculture, Fisheries and Food v. Appleton ⁽³⁾ it was held, in effect, by that court that neither did the breeding of cats and dogs for sale for research purposes, Lord Parker, C. J., saying (at page 227)

"........ it seems to me quite clear that whatever extension is provided under the definition of 'livestock' it must be an activity which can properly be brought within the general meaning of 'agriculture'. I find it quite impossible to hold that this activity comes within that extended meaning."

And (later on the same page)

"It may be a matter of first impression, but if they do not come within the word 'livestock' I find it quite impossible to say that they are covered by 'agriculture'."

Melford Stevenson and Cooke, JJ., ccncurred.

6. In our judgment, despite the somewhat cursory definition of "agricultural land" in sub- section (4) of section 36 of the ordinance, fish bred for display purposes do not fall within the expression "fish pond", given, as we hold it must be, its ordinary meaning in an agricultural context.

7. That brings us to the expression "animal husbandry". Again on the authority of Cresswell⁽¹⁾, we think that we can dispose of this quite shortly. In our opinion, had the legislature intended the word "animal" in the expression "animal husbandry" to include fish it would have been unnecessary to deal specifically with fish, and we are of opinion that the word "animal" in the expression "animal husbandry" does not include fish.

8. Finally, Mr. Chan submits that the "ponds" in question are not ponds, but rather tanks. It may be (and we put it no higher than that) that some looking at the photographs might describe them as tanks rather than ponds, but we think that some others might very well describe them as ponds. Mr. Chan referred us to the definition of the word "pond" in the Concise Oxford Dictionary, 7th (1984) edition :

"Fairly small body of still water formed naturally or by hollowing or embanking."

Another definition is to be found in Callis, 82

"A pond is a standing ditch cast by labour of man's hand in his private grounds for his private use to serve his house and household with necessary waters."

However, perhaps neither of those definitions is entirely apposite in the context of the instant appeal. Yet another definition, in the Shorter Oxford English Dictionary on Historical Principles, 3rd (1970) edition, is :

"A small body of still water of artificial formation."

But, however all that may be, in our view the word "pond" in the expression "fish pond" in the definition of "agricultural land" in sub-section (4) of section 36 of the ordinance is of little or no real consequence, being altogether ancillary and subordinate to the word "fish", the object of the definition being, we apprehend, to exempt land used for the breeding of fish (for agricultural purposes) from the application of the ordinance, virtually irrespective of the precise nature of the confines within which they are bred. In other words, we think that the word "pond" in the expression "fish pond" was used by the draftsman purely as a matter of expediency, the expression being commonplace in Hong Kong.  In our opinion, the appellant's ponds or tanks are ponds for the purposes of sub-section (4) of section 36 of the ordinance.

9. The appeal is dismissed.

Dated this 22nd day of April, 1985.

(1) (1980) R.A. 213

(2) (1962) 60 L.G.R. 319

(3) (1970) 1 Q.B. 221