Lo Hom Chau v. Director of Marine

HCAL 59/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 59 OF 2009

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BETWEEN

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Before: Hon A Cheung J in Court

Date of Hearing: 14 August 2009

Date of Judgment: 14 August 2009

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J U D G M E N T

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1.This is an application for leave to apply for judicial review to challenge the decision of the Director of Marine, which has the effect of stopping the applicant from sailing his vessel to the Diaoyutai Islands for staging a protest demonstration there. I should immediately add that according to the applicant, the only act of demonstration will be the carrying out of fishing activities in the relevant waters as an act of assertion that those waters and the islands in question belong to China.

2.Five grounds are relied on in support of the proposed challenge. The Director of Marine, having successfully requested for an inter-partes hearing, has put forward counter arguments in relation to all five grounds. Having considered the arguments and having borne firmly in mind the test at this stage regarding the grant or refusal of leave, ie the test of reasonable arguability, I am of the view that some of the grounds relied on are not reasonably arguable and therefore must be rejected for the purposes of granting leave. I would turn to these grounds in turn.

3.Ground 1 essentially comprises two elements. First, the Director has misunderstood the extent of danger posed by the presence of Japanese warships in the waters in question; the danger is not faced only by protest vessels but by vessels of all kind. Second, the Director simply cannot assume that the Central Government would take no action against the presence of foreign warships in Chinese territorial waters. Likewise, he cannot assume that no protection would be offered to Chinese vessels, including local vessels from Hong Kong, if they were to sail in the relevant area. But what, if any, action the Central Government may take is a matter for the Central Government under the Basic Law. The applicant contends that the Director of Marine has a duty to refer the matter to the Central Government for decision and directions before making any decision in the present case.

4.I do not think the ground is reasonably arguable. Assuming that the safety of the vessel and of those on board is a matter that can be taken into account by the Director, which is the subject of another ground of challenge, the presence of Japanese warships in the area is a known fact. The intention of those warships is again a known fact. Judging from past experience, that vessels travelling to that area will not be protected is also a probability. All these facts and probabilities are matters, in my view, that the Director can take into account.

5.In my view, it is not reasonably arguable that the Director or the HKSAR Government has a duty to refer the matter to the Central Government for directions or decision before the Director can exercise his discretion under section 64(1) of the Merchant Shipping (Local Vessels) Ordinance, Cap 548, to prevent a local vessel from leaving the waters of Hong Kong for the reasons under discussion.

6.It might be wise, if the situation should become a prevalent one, for the Government of the HKSAR to seek directions from the Central Government, but to elevate that possibility to a duty on the part of the Director under the relevant provisions of the Ordinance is unwarranted, nor is it reasonably arguable.

7.As regards the remaining part of this ground, ie the Director may have underestimated the extent of danger faced by vessels sailing to that area, the difficulty with the applicant’s argument is that it does not take his case anywhere. The suggestion that more vessels should be prevented from sailing to the area for the sake of their own safety does not mean that the Director is wrong in disallowing the intended voyage of the applicant’s vessel to the area. It is, with respect, a non sequitur.

8.So for these reasons, I do not think ground 1 is arguable.

9.Ground 2 is a point of construction. As I mentioned at the outset, the demonstration is to be staged solely by means of the fishing activities to be carried out in the relevant waters. The applicant has made clear in the papers and at this morning’s hearing that no other acts of protest will be engaged in whilst in the relevant waters. This raises the question of whether the vessel will be used for a purpose other than fishing, which is prohibited by regulation 5(3) of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap 548D.

10.The argument of the Director is essentially that one must look at the substance of the matter rather than form. The whole purpose of carrying out fishing activities in the waters is to stage a protest demonstration. That plainly goes outside the intended scope of activities that Class C vessels, of which the applicant’s vessel is one, are entitled to undertake. I can see the force of counsel’s argument, but in my view this is a matter that requires further and more careful consideration. It is a question of construction, and one needs to look at the Ordinance, and particularly the intent and purpose behind regulating the type of vessel in question before one can come to a definite view on whether the intended purpose of the applicant’s vessel does not fall within what is permitted under the relevant regulation.

11.As I say, I can see fairly persuasive arguments favouring the Director’s position, but the test really is whether the applicant has a reasonably arguable case with a real prospect of success. I cannot exclude that possibility at this stage, nor is it right to do so. The requirement of getting leave is not meant to exclude reasonably arguable cases.

12.So for these reasons, I take the view that ground 2 is reasonably arguable.

13.Likewise for ground 3, which goes to whether the Director can take into account the question of safety other than safety due to the conditions of the vessel itself; in other words, the question goes to whether safety questions caused by external matters, particularly non-natural causes, can be taken into account by the Director. It appears common ground that safety concerns arising out of the conditions of the vessel can be taken into account by the Director. The question is whether concerns caused by, for instance, threat posed by hostile warships can be taken into account by the Director under the Ordinance.

14.Again I can see the full force of the Director’s argument ably ventilated by senior counsel at today’s hearing, but the Director’s argument carries with it implications. So at one stage counsel took the point that the Director has the power to prevent a vessel from travelling to a war zone or to an area which is affected with a dangerous infectious disease. So one can immediately see the implications of the Director’s argument and the scope of power that he says he has under the Ordinance.

15.In my view, one needs to look carefully at the Ordinance, and not only the Ordinance but also all relevant provisions in other legislation relating to shipping and vessels in this regard, in order to determine whether under the particular Ordinance in question the Director does have the power that he says he has. Maybe there are powers elsewhere, but the important question for our purposes is whether the Director has the power here.

16.Again, in my view, there is a reasonably arguable case here under ground 3.

17.But not so with ground 4, which suggests that regulation 5(3) does not have any extra territorial effect. This argument must be rejected. Upholding such an argument would take away a substantial part of the meaning of the regulation itself, which no doubt is concerned with the safety and seaworthiness of the vessel. In terms of those matters, it does not really matter whether the vessel is sailing in Hong Kong territorial waters or is sailing in the high seas. The argument must be rejected.

18.Ground 5 resorts to the right to demonstration guaranteed under the Basic Law and the Hong Kong Bill of Rights. Nobody disputes such rights. But the problem with the applicant’s argument under this ground is that the intended demonstration is to take place outside of Hong Kong. On the arguments presented by counsel on behalf of the applicant, I simply fail to see how it can be said that the constitutional rights guaranteed under the constitutional documents extend to demonstrations held or to be held outside of Hong Kong.

19.Counsel argues that the Court must look at the matter as a whole; leaving Hong Kong is part and parcel of the intended demonstration. In fact, it is a necessary prior step for staging the demonstration in the waters in question. All that is true, but it does not make the demonstration a demonstration covered by the provisions of the Basic Law. So I do not think this ground is reasonably arguable.

20.In short, leave is granted to the applicant on grounds 2 and 3 only. Subject to arguments, I propose costs in the cause for today’s hearing, with a certificate for two counsel.

[Discussion re costs]

21.Costs in the cause, with a certificate for two counsel.

Mr Dennis Kwok, instructed by Ho, Tse, Wai & Partners, for the applicant

Mr Johnny Mok SC and Mr Jonathan Chang, instructed by the Department of Justice, for the respondent