尹照華 v Director of Agriculture, Fisheries and Conservation
Court of Appeal
Miscellaneous Proceedings No. 1085 of 2015
Lam V-P, Yuen and Poon JJA
13 September 2017

Administrative Appeals Board – appeal against decision of Director of Agriculture, Fisheries and Conservation refusing to register local fishing vessel – appeal by way of case stated as to proper construction of s. 14(1)(a) – whether Board erred in applying rectifying interpretation of s. 14(1)(a) – Fisheries Protection Ordinance (Cap. 171)

Section 14(1) of the Fisheries Protection Ordinance (Cap. 171) (the “FPO”) provides “The Director may, on application – (a) by the owner of a local fishing vessel in respect of which there is a valid operating licence on the commencement date … register the vessel … .” X, the owner of a local fishing vessel, had a valid operating licence up to 12 June 2012, but forgot to renew his licence before it expired. The Director of Agriculture, Fisheries and Conservation (the “Director”) refused X’s application under s. 14(1)(a) of the FPO, because he did not, as required by s. 14(1)(a) of the FPO, have a valid licence “on the commencement date”, namely on 15 June 2012. X appealed. The Administrative Appeals Board (the Board) had previously ruled in AAB 44/2013 that under s. 14(1)(a), “on the commencement date” meant “on” that specified date; but in AAB 33/2013 and AAB 32/2013, by adopting a rectifying interpretation, the Board ruled that those words meant “on or before” the specified date. Consequently, the Board stated a case for the Court of Appeal to determine the proper construction of s. 14(1)(a). The proceedings were stayed until the determination of the Director’s application for judicial review of AAB 33/2013 and AAB 32/2013. The Judge held that the proper construction of s. 14(1)(a) was that in AAB 44/2013, since inter alia this clearly reflected the legislative intent of controlling the re-entry of retired vessels; and took into consideration the relevant drafting instructions.

Held, that:

  • The correct interpretation of s. 14(1)(a) of the FPO was that “on the commencement date” meant “on” that date.
  • There was no ambiguity in s. 14(1)(a). In addition to the reasons given by the Judge, the crux of the matter was not whether the word “on” meant “on or before”. The words “is” and “valid” must be read together in the phrase “in respect of which there is a valid operating licence on the commencement date”.  When read together, “is” could not be read as “had been”, and if, on the commencement date, the vessel’s operating licence had expired, it could not be “valid”.
  • The legislative materials relied on by the Board, read in context, did not disclose a failure to reflect the intended purpose of the statute in drafting s. 14(1)(a), namely to have an eligibility criterion relating to the vessel having a valid operating licence under the Merchant Shipping (Local Vessels) Ordinance (Cap. 548), but not vessels which once had, but no longer had on the commencement date, such a licence. There had been no inadvertent mistakes in the drafting of s. 14(1)(a) of the FPO. Thus, there was no room for a rectifying construction.
  • However, drafting instructions per se were not materials which could be referred to in order to identify the purpose of a statute. Here, if the drafting instructions were not included in the papers before the Legislative Council, it was doubted (but not decided) that they could be used as legislative materials.
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