Lo Hom Chau v. Director of Marine
Read the full judgment text of HCAL 59/2009 on BabelCite. This High Court CFI judgment was delivered on 7 May 2010.
1. The applicant is a member of the Diaoyutai Islands Action Group, a registered society under the Society Ordinance (Cap 151). The applicant has joined other members of the group in previous voyages to the waters off the islands “to stage peaceful demonstrations symbolising Chinese sovereignty over the Diaoyutai Islands”.
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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 ____________ BETWEEN
____________ Before: Hon Andrew Cheung J in Court Date of hearing: 24 March 2010 Dates of further submissions: 19 & 23 April 2010 Date of judgment: 7 May 2010 _______________ J U D G M E N T _______________ Facts 1.The applicant is a member of the Diaoyutai Islands Action Group, a registered society under the Society Ordinance (Cap 151). The applicant has joined other members of the group in previous voyages to the waters off the islands “to stage peaceful demonstrations symbolising Chinese sovereignty over the Diaoyutai Islands”. 2.In 1996, a Hong Kong protester was drowned whilst carrying out demonstration activities in the waters off the islands. 3.In 1998, one of the protest vessels used was seriously damaged and later sunk after it collided with Japanese military warships in the waters off the islands. 4.In October 2006, another protest vessel (Kai Fung No 1) was approaching the waters off the Diaoyutai Islands when Japanese warships encircled and rammed the vessel. They also hit it with water cannons. The vessel sustained damage and had to return to Hong Kong immediately. 5.In 2008, a Taiwanese fishing vessel was hit by a Japanese warship in the waters off the islands and sank; persons on board were rescued from the sea afterwards. According to the applicant, the Taiwanese fishing vessel was carrying out “purely” fishing activities in the waters off the islands when it was hit by the Japanese warship. 6.In April 2009, the group planned another voyage to the Diaoyutai Islands to stage demonstration there; the applicant was to be the leader. The protesters were to sail to the islands on board the fishing vessel, “Kai Fung No 2” (“the Vessel”), belonging to the applicant. They planned to depart Hong Kong on 2 May 2009. 7.The proposed voyage was widely reported in the media. According to one newspaper (Hong Kong Daily News, 25 April 2009):
8.Similar reports were carried in many other Chinese newspapers for many days. 9.By a letter dated 1 May 2009, the Director of Marine gave a direction to the applicant, refusing permission for the Vessel to leave the waters of Hong Kong. The direction was given pursuant to section 64(1)(a) of the Merchant Shipping (Local Vessels) Ordinance, Cap 548 (“the Ordinance”). The letter reads:
10.The protesters ignored the direction and the Vessel attempted to leave the waters of Hong Kong on 2 May 2009. The Vessel was intercepted. Members of the group were found on board the Vessel. The staff of the Marine Department who boarded the Vessel also found that the Vessel was not fitted with some necessary equipment, in breach of the conditions of the license of the Vessel. No competent engine operator was found on board the Vessel either. 11.For those reasons, by a further letter dated 5 May 2009, the Director decided to continue its direction to refuse permission for the Vessel to leave the waters of Hong Kong. 12.The applicant duly rectified the technical matters spotted by the staff of the Marine Department. In the ensuing exchange of correspondence with the Director, the applicant gave the undertakings that all safety and license requirements would be complied with; the Vessel would not be carrying any passengers on board at any time; and the peaceful demonstration which would be held by the crew on board the Vessel after arrival in the waters off the islands would take the form of fishing only. In other words, the act of demonstration would be fishing – as an act of assertion of Chinese territorial claims to the islands and the waters off the islands. 13.Nonetheless, the Director maintained his previous direction. Application for judicial review 14.In this application for judicial review, the applicant challenges the Director’s direction given on 1 May 2009. Five grounds of challenge were raised but only two are allowed to be run: see thejudgment of this Court given on 14 August 2009 when granting leave to apply for judicial review on a limited basis. Shortly before the substantive hearing, a putative interested party applied to be heard at the substantive hearing to argue three new grounds in support of the challenge. The belated application was refused: see the decision handed down by this Court on 17 March 2010. 15.The two outstanding grounds of challenge are that:
16.The Ordinance was enacted in 1999. According to its preamble, it is an Ordinance “to provide for the regulation and control of local vessels in Hong Kong or in the waters of Hong Kong and for other matters affecting local vessels, including their navigation and safety at sea (whether within or beyond the waters of Hong Kong)”. The Ordinance is divided into 15 Parts and deals with various matters. Part XIII gives the Director of Marine various powers. Amongst other things, section 64 provides:
17.Section 89 of the Ordinance gives the Secretary for Transport and Housing the power to make regulations in respect of local vessels in relation to numerous matters. Amongst other things, regulations may be made for the regulation, control, use and speed of vessels (section 89(1)(a)); the certification of vessels (section 89(1)(b)); the licensing of vessels and the renewal of licence (section 89(1)(c)); the classification of vessels (section 89(1)(k)); and regulating the hiring of vessels and the carriage of passengers and the plying limits (section 89(1)(u)). 18.The Regulation, made pursuant to section 89, provides in sections 4 and 5 thereof as follows:
19.For Class IV vessels, section 6(1)(a) of the Regulation similarly provides that such a vessel shall not be used otherwise than by the owner “exclusively for pleasure purposes”. 20.There is no similar restriction on the use of a Class I or Class II vessel. 21.Schedule 1 to the Regulation sets out the various classes and types of local vessels:
(1) Vessel to be “used exclusively for fishing and related purposes”? 22.As has been mentioned, the Vessel is a Class III fishing vessel. It has been certificated and licensed as such. 23.The first ground of challenge relates to the Director’s view that in the intended voyage to the waters off the islands, the Vessel would not be “used exclusively for fishing and related purposes”, in breach of section 5(3) of the Regulation. 24.It is not disputed that if the Director’s conclusion in this regard was correct, he was quite entitled to take it into account and issue a direction under section 64(1)(a) to refuse permission for the Vessel to leave the waters of Hong Kong. 25.It should also be noted that according to the Form 86, the decision under challenge is the direction given by the Director by letter dated 1 May 2009. No other decision is challenged. 26.In those circumstances, one must consider the facts and materials available to the Director prior to his giving the direction of 1 May 2009 in order to decide whether he has correctly understood or taken into account section 5(3) of the Regulation. 27.In my view, it is plain from the evidence before the Court, including the various newspaper clippings, that originally, the applicant intended to sail on 2 May 2009 with a number of protesters on board the Vessel as non-crew members, that is to say, passengers. According to the newspaper reports, which the applicant does not deny, after reaching the waters off the islands, the protesters would try to land on one of the islands and erect some memorial stones there. And if they were to fail to land on the islands, they would drop protest banners from the Vessel into the sea as an act of demonstration. The newspaper reports did not mention any plan to carry out fishing activities in the disputed waters as an act of demonstration. In those circumstances, I am quite satisfied that the Director was entitled to take the view that in the intended voyage, the Vessel would carry passengers, in breach of section 5(2) of the Regulation. Furthermore, the Vessel would not be used “exclusively for fishing and related purposes”, in breach of section 5(3) thereof. 28.In other words, it is plain that the direction of 1 May 2009 can be supported by reference to section 5(2) and (3) of the Regulation. 29.Strictly speaking, that disposes completely of this first ground of challenge. 30.However, it is also quite apparent, not only from the Form 86, but also from the oral hearing of the leave application, that the applicant’s case is also based on his subsequent undertakings given to the Director in the correspondence following the direction of 1 May 2009. In the correspondence, the applicant attempted to persuade the Director to withdraw the direction, so that the applicant and his fellow protesters could sail the Vessel to the islands subject to those undertakings. It should be remembered that amongst other things, the applicant undertook that the Vesselwould not carry any non-crew members on board; more importantly, the only act of demonstration would be fishing in the waters off the islands. 31.In those circumstances, I am prepared to further consider in these proceedings whether the Director was right to refuse to withdraw the direction in the light of those undertakings, even though the refusals have not been formally specified in the Form 86 as decisions also under challenge. 32.In light of the undertakings, section 5(2) of the Regulation, prohibiting the carrying of passengers on board a Class III vessel, need not be considered any further. 33.The only outstanding provision here is section 5(3) of the Regulation. The crucial question is whether the Vessel, if allowed to sail to the islands in accordance with the undertakings, would be “used exclusively for fishing and related purposes”. 34.In this regard, Mr Philip Dykes SC (Mr Jeffrey Tam with him) for the applicant, argues that one must not confuse a “purpose” with a “motive”. The avowed “motive” of the protesters was to stage a protest demonstration in the waters off the islands. However, that is not something which section 5(3) is concerned with, counsel contends. The only activity that would be carried out in the disputed waters would be fishing. That was the intended purpose for which the Vessel was to be used. In those circumstances, senior counsel submits, section 5(3) would not be breached and the Director has misdirected himself. 35.Counsel also mentions some miscellaneous examples covering vessels, airplanes and vehicles to illustrate the suggested distinction between motive and purpose. 36.I have no difficulty with the distinction itself. My difficulty with the applicant’s argument lies in whether the admitted intention to hold a demonstration in the waters off the islands was merely a “motive” for the voyage, and whether fishing was the exclusive “purpose” for which the Vessel would be used in the intended voyage. 37.In my view, the intention to hold a demonstration by means of carrying out fishing activities in the waters off the islands was much more than a motive for sailing to the islands. In fact, it was the very purpose of the voyage, and the Vessel was to be used for that purpose. 38.According to the dictionary meaning of “purpose”, it is a thing to be done; an object to be attained; an intention; an aim. It may also mean the reason for which something is done or made, or for which it exists; or the result or effect intended. (Shorter Oxford Dictionary, 6th ed, Vol 2). 39.As a matter of ordinary English usage, the whole purpose of the intended voyage was to carry out the demonstration, that is to say, to assert Chinese sovereignty over the islands and the territorial waters thereof. To hold a demonstration in the waters to assert the relevant rights or claims was the purpose of the voyage for which the Vessel was to be used. Fishing was merely the form which the intended demonstration was to take. The act of fishing in the disputed waters would bring out or manifest the rights or claims which the protesters intended to demonstrate about. 40.Looking at the Ordinance and the Regulation as a whole, it is plain that a primary concern of the legislation is the safety of a vesselat sea, and its fitness for its intended use. Sailing in sea can be dangerous. A vessel is only certificated and licensed as a fishing vessel because its design and built is fit for use as a fishing vessel. Furthermore, its crew members will have to be relevantly competent for the intended use. 41.Viewed in this light, the underlying purpose of section 64(1)(a) of the Ordinance and section 5(3) of the Regulation is not difficult to see. The safety and fitness requirements of a vessel to be used for fishing purpose may well be very different from that of a vessel to be used for other purposes. Since a Class III vessel is only certificated and licensed for used as a fishing vessel, using the vessel for any other purpose could potentially endanger the safety of the vessel and its crew members. A vessel used for protest demonstration in the high seas or in disputed territorial waters may encounter difficulties and dangers not usually faced by a fishing vessel carrying out normal fishing activities at sea. Such a protest vessel would entail quite different safety and fitness considerations and requirements from an ordinary fishing vessel for use in normal fishing activities. This is so even where the demonstration is to take the form of fishing, particularly if the intended message to be conveyed by the act of fishing (ie the subject matter of the demonstration) is generally known, or is known to those hostile to the cause of the protesters. Indeed, the facts of the present case provide one of the best examples. Hostile reactions from Japanese warships have been encountered in similar voyages in the past. 42.On a purposive approach, therefore, I also take the view that the proposed voyage in which the only act of demonstration would be fishing would contravene section 5(3) of the Regulation. 43.Thus analysed, I do not agree that the Director has misdirected himself in relation to the application of section 5(3) of the Regulation when dealing with the applicant’s requests for the withdrawal of his earlier direction of 1 May 2009. 44.For those reasons, even on this more generous approach to the Form 86, the first ground of challenge cannot be sustained. 45.It is submitted on behalf of the applicant that the content of the demonstration, whether it is of a particular political flavour, would not be relevant to a decision to stop a vessel from leaving Hong Kong. For a decision-maker to be influenced by considerations such as this is to take irrelevancies into account. Counsel relies on R v London Borough of Ealing, ex parte Times Newspaper Ltd [1987] IRLR 129. 46.I have no difficulty with this submission so far as it goes. However, I consider that it has no application in the present case. It is plain in the above analysis that the Director’s consideration based on section 5(3) of the Regulation did not turn on the political content of the proposed demonstration. 47.In any event, in so far as it is suggested that the Director’s decision was influenced by ulterior political considerations, that is not a ground set out in the Form 86 and no evidence has been filed by either side in relation to it. It would be wholly unfair and wrong to allow the matter to be raised at the substantive hearing. In so far as it is sought to be raised, it is disallowed. 48.As for the miscellaneous examples given by counsel, I do not find it necessary to deal with them here. They are fringe examples turning on their own facts, and do not really assist in the proper understanding of section 5(3) of the Regulation and its application to the facts of the present case. 49.Mr Dykes argues that so long as the intended activity or purpose is not covered under another class of vessels in the Regulation, it is a permissible activity or purpose for a Class III vessel. I reject the argument. This construction flies in the face of the specific wording of section 5(3), which expressly says that a Class III vessel “shall be used exclusively for fishing and related purposes”. It does not say that the Vessel can be used for any purposes not covered by any other classes of vessels in the Regulation. 50.For the sake of completeness, I simply note that The Hague Convention 1907[2], to which the parties’ attention has been drawn, provides:
51.When commenting on the above article, Jack Goldsmith & Eric Posner, A Theory of Customary International Law[3], 54 explains that:
52.Apparently, the Convention as such is not applicable to Hong Kong and does not, in any event, have any direct application to the issue under discussion. Nor is there any suggestion that section 5(3) of the Regulation has been drafted with reference to article 3 of the Convention even though the words “used exclusively” appear in both provisions. Nonetheless, article 3 provides an interesting example of the recognition that fishing vessels may be used in real life for many purposes other than fishing, and of the use of the same words (“used exclusively”) to limit the purpose for which a fishing vessel is used to fishing for the purposes of the relevant legal provisions. (2) “Safety” concerns 53.I move on to the second ground of challenge. The applicant’s case is that as a matter of proper construction of section 64(1) of the Ordinance, it does not give the Director the power to prohibit a vessel from leaving the waters of Hong Kong on the ground that the vessel would encounter dangers in the sea. Safety as a relevant consideration is only restricted to the seaworthiness of the vessel, competence of the crew, and matters of the same sort. 54.Mr Dykes argues with force that to hold otherwise would mean that the Director could, in the name of safety, specify any area in the high seas as a “no-go zone”. Counsel points out that section 26 of the Ordinance specifically provides that where the Director reasonably believes that it is necessary in the interests of safety to close any areas of the waters of Hong Kong to any vessels, or to any vessels belonging to any class, type or description of vessel, he may, by notice in the gazette, close that area to such vessels or vessel, as the case may be. Section 26(2) provides, in effect, that such a notice has a maximum validity period of 6 months. Counsel’s point is that on its proper construction, section 64(1) cannot have been intended to confer on the Director, via the backdoor, the sweeping power to close any area in the high seas as a no-go area on the ground of safety. 55.There is force in this argument. 56.Mr Johnny Mok SC, Mr Jonathan Chang with him, very wisely, in my view, clarifies with the Court that the Director does not assert, for the purposes of these proceedings, that he is entitled, under section 64(1) of the Ordinance, to consider safety (in the sense used in the present discussion) as a standalone reason for giving a direction. Safety only comes into the picture in the present case, counsel explains, as a concern expressed by the Director in the light of the Vessel’s intended contravention of section 5(2) and (3) of the Regulation. In other words, the Director was concerned about the safety of the Vessel and of those on board, in the light of the fact that the Vessel was going to carry passengers in its intended voyage to the islands and of the fact that demonstration activities were planned to be held after arrival. Mr Mok argues that the wider question posed by the applicant in his second ground of challenge simply does not arise in the present proceedings. 57.The Court accepts that the safety matters raised by the Director in his letter of 1 May 2009 and in the subsequent correspondence were raised in the context of the Vessel’s threatened contravention of section 5(2) and/or (3) of the Regulation. In my view, they were legitimate concerns to be raised in connection with the threatened contravention. Safety (in the sense used in the present discussion) was never used by the Director in his letters as a standalone ground for giving the direction or for refusing to withdraw it. 58.Mr Dykes contends that the provisions in question actually interfere with Hong Kong residents’ rights to travel and to leave Hong Kong, guaranteed under article 31 of the Basic Law. He submits that the provisions must be construed in the light of this constitutional background: Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480, 494F-495C. 59.Mr Mok rightly points out that article 31 of the Basic Law has never been relied on by the applicant in the Form 86 as such. For my part, I am not sure if article 31 is truly engaged here. The applicant and his fellow protesters were and are, at all material times, free to travel and to leave Hong Kong, in accordance with the relevant immigration requirements. Put at the highest, the right to travel or to leave Hong Kong would only be marginally engaged. Rather, I would have thought that article 105 of the Basic Law, concerning, amongst other things, the protection of the right of individuals and legal persons to the use of property, is more in point. However, not only is article 105 not relied on in the Form 86, but it is also quite plain that limitations and restrictions on the use of property can be easily justified on grounds of safety and of public interest. I do not wish to dwell on any of these matters as they have not been raised in the Form 86, nor have they been argued at the hearing. 60.It is apparent that given the Director’s concession (for the purposes of these proceedings), the wider question of preventing vessels from leaving Hong Kong for the sake of safety (in the sense used in the present discussion) does not arise, and the Court does not need to go into any arguments pertaining to the same. 61.For those reasons, the second ground of challenge must also fail. Outcome 62.The application for judicial review fails. It is dismissed. I make an order nisi that the applicant pay to the Director the costs of these proceedings, including all costs previously reserved, to be taxed if not agreed. 63.I thank counsel for their assistance.
Mr Philip Dykes SC and Mr Jeffrey Tam, 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 [1] “Bao Diao” (“保釣”) means, literally, the defence of the Diaoyutai Islands. |
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