Chan Pun Yuet v. The Board of Reference

CACV000043/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 43 OF 1973

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Coram: Pickering, J.

Date of Judgment: 20th February 1974.

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JUDGMENT

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1. This, I am told, is the first appeal to a judge from a decision of a Board of Reference established under the provisions of the Merchant Shipping (Recruiting of Seamen) Ordinance (Cap. 135).

2. The appellant is a seaman who, on his own admission, deserted from the vessel "Putten" at Albenir, Canada on or about 22nd September 1970, having previously deserted from another ship at Montreal, Canada in 1968. The proceedings before the Board of Reference related to the second desertion after which desertion the appellant resided for a year and a half in Canada.

3. Upon the appellant's return to Hong Kong the Superintendent of the Seamen's Recruiting Office suspended his registration in the register of seamen in accordance with s. 18(i)(ii) of the Ordinance and referred the case to the Seamen's Recruiting Authority which, in accordance with s.21 of the Ordinance, in turn referred the matter to a Board of Reference. The Board sat in the office of the Director of Marine on 17th October 1973 under the Chairmanship of Mr. M.J. Alexander, J.P.

4. On that occasion, the appellant having admitted this second desertion, and incidentally the first, and the Board being of the opinion that there were no mitigating circumstances, the members unanimously agreed to instruct the Superintendent of the Seamen's Recruiting Office to remove the appellant's name from the register of seamen in accordance with s.29(1)(a) of the Ordinance.

5. Upon the appeal before me the appellant, who was not represented, protested the severity of his punishment advancing, as he had advanced before the Board of Reference, the necessity for supporting his family and the difficulty, since his native dialect is Foochow and his knowledge of Cantonese limited, of obtaining shore-based employment.

6. Upon my doubting my competence to interfere with the decision of the Board of Reference, Mr. William Lee, for the Crown, suggested that s.32 of the Ordinance gave me very wide powers to deal with the matter in any manner I though fit. Upon my querying this interpretation of the section, Mr. Lee was constrained to agree that I could interfere only if the decision of the Board was seen to be "erroneous in point of law" and, as I see it, I am so restricted, by the section, in dealing with an appeal of this nature.

7. Upon the facts I am wholly unable to say that the finding of the Board, the Board being properly constituted, adopting correct procedures, and reaching its decision by unanimous vote of its members, as is required where that decision is to direct the Superintendent to remove the seaman's name from the register of seamen, was in any sense erroneous. Moreover, the sentence was one within the competence of the Board and I am unable to say that in the circumstances it was excessive or wrong in principle. It being impossible to say that the decision of the Board of Reference was "erroneous in point of law", the appeal must be dismissed.

Representation:

Appellant in person.

William Lee, C.C., for respondent.