THE QUEEN v. KWONG LUNG CO LTD

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 205 OF 1986

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BETWEEN

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JUDGMENT

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1. The appellant was convicted on a charge of Failing to License a Vessel (contrary to Section 26 of the Shipping and Port Control Ordinance ("the Ordinance").

2. Section 26, which is in Part IV of the Ordinance, provides as follows: -

"(1)    ............every vessel to which this Part applies shall be licensed in accordance with the regulations made under this Part.

 

(2)    If subsection 1 is contravened, the owner and the master commit an offence....................."

 

3. It is common ground that the subject of these proceedings is a dumb lighter more than 50 metres long and permanently moored to part of the seabed comprised in Yau Tong Marine Lot No. 41 leased to the Appellant by His Excellency the Governor Of Hong Kong.

4. The Appellant attacks the conviction on two main grounds: -

(1)    that the lighter was not required to be licensed wherever it may have been moored; and

 

(2)    alternatively, that it was not required to be licensed if it remained on private property.

 

5. The first point taken under the first ground was that the lighter was a dead ship and therefore not covered by any licensing requirement.  This point is answered by reference to the following definitions in Section 2 of the Ordinance:-

                "'vessel includes --

(a)    any ship, junk, boat, dynamically supported craft, seaplane, or any other description of vessel used in navigation; and

 

(b)    any other description of vessel in Hong Kong or in the waters of Hong Kong not used in navigation or not constructed or adapted for use in navigation;

 

'dead ship' means any ship exceeding 50 metres in length which --

...................................;

 

'ship' means any vessel used in navigation other than a vessel propelled by oars or a junk."

6. The Appellant concedes that the lighter is a vessel. Since it is therefore, by definition not a ship, it cannot by definition be a dead ship.

7. Subsections (1) and (2) of Section 25 list the categories of vessels to which Part IV applies whilst subsection (3) lists those to which the Part does not apply.  It is common ground that the lighter does not fall within any of the categories mentioned in subsections (2) or (3).

8. Subsection (1) provides as follows:-

"(1)    .......this Part applies to ----

 

9. On the evidence put before the learned magistrate by way of admissions pursuant to Section 65C of the Criminal Ordinance it was conclusively proved (a) that the Appellant's vessel fell within category (e); (b) that it was a vessel to which Part IV applied; and (c) that it had to be licensed in accordance with the regulations made under that Part.

10. The relevant regulations made under that Part are the Merchant Shipping (Miscellaneous Craft) Regulations ("the Regulations"). Insofar as they are material for the purposes of this Appeal they provide as follows: -

PART II

Classification and Licensing of Vessels

                2.    Under these regulations, vessels, shall be classified as follows: -

Class I : [sc. Certain sampans].

 

Class II : Vessels plying as mechanically propelled vessels, sailing vessels, dumb lighters, cargo lighters, cargo boats or water boats.

 

Class III: Vessels used as fish drying vessels and vessels, other than [sc. floating dry docks, floating workshops and floating restaurants] and vessels used, constructed or adapted principally for dwelling purposes, that tend to remain stationary in any part of the waters of Hong Kong.............

 

3 (1)    The Director is hereby authorized to issue licences under these regulations for use and operation of vessels according to their appropriate classification as in regulation 2 .........................

 

    (2)    In any case of doubt as to the class in which any vessel should be licensed the decision of the Director shall be final. .........................."

12. The Appellant submits that the duty to license imposed by s.25 is to be performed only if the regulations provide a method of licensing that particular type of vessel.  If no such method is prescribed by the regulations then, so the submission runs, a failure to license does not constitute a contravention of s. 25(1) of the Ordinance.  The Appellant contends that the lighter does not fall within any of the prescribed Classes and that therefore there is no authority under Regulation 3 for the Director to issue a licence. Regulation 3(2) does not affect the Appellant's submission because it merely enables the Director to solve any dilemma which may result if a vessel is a type which straddles two or more Classes: it does not empower the Director to include within a Class any type of vessel which is undoubtedly outside the Part II classification.

13. The Respondent contends that the lighter could fall within any of Classes II, III or IV. In my view it cannot fall within Class II. That Class relates only to plying craft: this dumb lighter remains stationary.

14. I think that Class III is better understood if it is set out as hereunder: -

"Class III:

(a)    Vessels used as fish drying vessels; and   (b)    Vessels that tend to remain stationary in any part of the waters of Hong Kong other than --   (i)    [Sc. floating dry docks, floating workshops and floating restaurants]; and   (ii)    Vessels used, constructed or adapted principally for dwelling purposes.

15. In my view the Appellant's vessel falls squarely within Part (b) of that classification.

16. Mr. Bokhary, Q.C., seeks to avoid that conclusion by arguing that the specific inclusion of dumb lighters in Class II signals the application of the expressio unius est exclusio alterius canon of construction.  Even if it be assumed that that rule applies in construing regulations 2, it would not exclude the Appellant's lighter from Class III.  Dumb lighters may either ply or remain stationary.  Class II embraces only those that ply The express inclusion of those that ply within Class II implies the exclusion of those that remain stationary from Class II.  The implied exclusion from Class II makes them eligible for inclusion in some other Class.  Since Class III embraces all stationary vessels other than those specifically excluded, stationary dumb lighters which fall outside the excluded types must be included within Class III.

17. Reference was made to the respective licensing fees payable in respect of Class II and Class III vessels.  The fees payable in respect of the latter are ten times higher than those of the former. The Appellant argues that it could not be right that the fee for a stationary dumb lighter would be so much greater than that for a plying drab lighter and that, therefore, this is an indication that stationary dumb lighters are not within Class III.  The answer to that argument is that the legislature thinks that it is right: in prescribing the fees payable it has determined that all stationary vessels must pay much higher licensing fees than vessels on the move

18. I therefore find no merit in the Appellant's first ground.

19. In support of the second ground of appeal the Appellant contends that, since the lighter is moored to part of the seabed of which the Appellant is the lessee, the vessel is on private property and therefore not subject to licensing requirements.

20. As mentioned earlier, it was conclusively proved that the vessel was within the provisions of Section 25(1)(e).  The Appellant submits, however, that "the waters of Hong Kong" in which it lies form part of the lease.  To hold otherwise, the Appellant argues, would be to act in defiance of the principle that a lease of land applies to the airspace (and the water-space) above it.

21. The instrument granting the lease begins by specifying the term and the method of fixing the rent. The remainder comprises three parts with the following headings:-

Particulars of the Lot

General Conditions

Special Conditions.

 

22. In the Particulars of the Lot the site is described as delineated and coloured red and blue on sale plan".  The red area apparently indicates the foreshore and the blue the seabed.  The General Conditions impose certain obligations on the lessee.   The final clause exempts the lot from certain statutory provisions which are not material to this Appeal.  The penultimate clause provides as follows:-

"The foregoing General Conditions shall be read and construed as varied or modified by the Special Conditions hereinafter contained..............

 

23. Clauses 21 to 24 of the Special Conditions read as follows:-

 

(21)    The area coloured blue on the plan annexed hereto shall only be used for the erection and maintenance of a slipway or slipways and the purchaser is prohibited from: -

 

(a)	Constructing or erecting anything whatsoever on the area coloured blue other than a slipway of a type and design and of such materials as shall be approved by the Director of Public Works.
(b)	Altering the seabed within the area coloured blue in any way whatsoever except in so far as is necessary for the said purpose.
(c)	Reclaiming the seabed within the area coloured blue or bringing on to or maintaining or allowing to remain on the seabed within the area coloured blue or water above it anything whatsoever other than a slipway and vessels whilst being slipped into or out of the water.
(d)	Using the seabed within the area coloured blue or the water above it for any purpose other than slipping vessels into and out of the water from and to the lot.

 

(22)    The levels at which any slipway within the area coloured blue on the plan annexed hereto shall be constructed and maintained shall be at the sole discretion of the Director of Public Works but in no case shall any structrue or part thereof be above 0.00' Chart Datum at the shore end (i.e. on the line A-B on the plan annexed hereto), and shall fall at a gradient of not less than 1' vertically in 15' horizontally in a seaward direction.  No reclamation or any other structures shall be constructed above these levels within the area coloured blue on the plan annexed hereto.

 

(23)    The tenancy of the area coloured blue on the plan annexed hereto or the construction of any slipway thereon shall be subject to any vessel having the right to pass or repass over the area coloured blue except when a vessel is in the course of being slipped into or out of the water from or to the adjoining land.

 

(24)    In the event of any dispute arising out of the public right of pass and repass over the area coloured blue on the plan annexed hereto the matter shall be referred to the Director of Marine whose decision shall be final.

24. Mr. Bokhary submits that the ejusdem generis rule should be applied in interpreting "any purpose" in Clause 21(d) so as to limit the extent of the prohibition. Such an interpretation would, in my view, contradict the clear intent of the grant.  The Particulars of the Site foreshadow a variance in rights and/or obligations in respect of the foreshore on the one hand and the seabed on the other.  The opening words of Clause 21 then disclose that the lessee's rights in respect of the seabed are very restricted:  The seabed can be used only for slipway purposes.   Sub-clauses (a), (b) and (c) forbid any kind of construction work on the seabed not associated with a slipway purpose and sub-clause (d), consistent with the restricted seabed rights granted, prohibits the use of the water above the leased seabed area for any purpose other than slipping vessels.  The lessee was granted no other rights in respect of either the seabed or the water above it.  There is, therefore, no substance in the Appellant's claim that the water above the leased seabed area constitutes private property not subject to the licensing requirements of the Ordinance.

25. The second ground also fails and the Appeal must be dismissed.