YAU KWOK LAM, JOHNNY t/a BOLD LAD TRADING CO (HONG KONG) v. ATTORHEY GENERAL

Statute - construction - statute giving effect to international Convention - Animals and Plants (Protection of Endangered Species) Ordinance; Cap.187 - whether a fully fashioned ivory "chop" before any device is carved on its base is an "unworked or simply prepared" part of a tusk within the meaning of the Second Schedule to the Ordinance.

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke, V.-P.:

1. Johnny Yau Kwok Lam - "the Plaintiff" - trades as Bold Lad Trading Company. He exports pieces of ivory to Japan. In Japan the pieces he exports have carved into them the name of the buyer. They are used as personal chops. I shall refer to the piece of ivory which is for our consideration as "chop". He does not desire to apply for and to pay for a licence. The system which has been used by the Department of Argiculture and fisheries - "the Department" - until the issue of a circular setting out a new policy to which later reference is necessary was that a re-export certificate was issued together with a certificate of origin.

2. The Plaintiff sought by way of Originating Summons, naming the Attorney General as the Defendant, two declarations. The first was that the chop is not part of an "unworked or simply prepared" tusk within the meaning specified in the Third Column of the Second Schedule of the Animals and Plants (Protection of Endangered Species) Ordinance - the Ordinance; second:  that the chop is not within the definition "scheduled species" contained in section 2 of the Ordinance. On 23rd December 1987, Godfrey J. granted the first declaration. The Attorney General now appeals that decision.

3. On 3rd March 1973, a convention entitled "Convention on International Trade in Endangered Species of Wild Fauna and Flora" - CITES - was signed in Washington. The United Kingdom adhered to the convention both for itself and for Hong Kong. The English Endangered Species (Import and Export) Act came into force in 1976. The Hong Kong Ordinance was passed on with August 1976.

4. The stated purpose of the Ordinance was:

"To restrict the importation, exportation and possession of certain animals and plants, and parts of such animals and plants; and to provide for matters connected therewith."

5. Contained in section 2 of the Ordinance is a series of definitions. "A scheduled animal" means an animal specified in the second column of the First Schedule. That column includes the Asian and the African elephant. "A scheduled species" is defined as meaning "A scheduled animal, a scheduled animal part .....". "A scheduled animal part" means a readily recognisable part or derivative specified in the third column, of an animal specified in relation to that part or derivative in the first column, of the Second Schedule. The Second Schedule in its second column relates to elephants and its third column reads

"Tusk; if unworked or simply prepared, and any part of any such tusk and powder and waste of any tusk."

6. Section 4 of the Ordinance restricts the importation of a scheduled species, section 5 its export and section its possession. By section 18 of the Ordinance, Governor is empowered to exempt from the provisions of sections 4, 5 and 6 any person or scheduled species. The African elephant has been exempted from the provisions of the Ordinance applying to possession but not otherwise. Section 7 provides that the Director of Agriculture and Fisheries - "the Director" - may issue a licence to import, export or possess scheduled species.

7. The African elephant needs protection because is has become an endangered species mainly as the result of the activities of poachers in the countries in which it survives and, subsequently, of smugglers who deal with an elephant parts.

8. Of recent years, factories have bean set up in countries where there is no proper control of the ivory trade. In them tusks which emanate from dubious sources are lightly worked for export with the intention of avoiding the controls erected by importing countries.

9. Elephant tusks imported into Hong Kong unlicenced have been seized. Their importation into Hong Kong can be done under licence and it is not suggested that any of the ivory which the trading company sought to export was improperly brought here.

10. In July 1987, a conference of the contracting parties to CITES was held. Grave concern was expressed at this practice. The conference adopted resolutions intended to make the control of the ivory trade more stringent. In Hong Kong the Department; landably, decided on a stricter enforcement of the Ordinance than had hitherto been the case. There does not, for example, appear to be any statutory power to issue a re-export certificate. To this end, having sought legal advice, a Circular, dated the 19th November 1987 - "the circular" was circulared to all ivory traders in Hong Kong. This reads:

" I would like to draw your attention to the restrictions under the Animals & Plants (Protection of Endangered Species) Ordinance, Cap.187 regarding the import and export of ivory. The Ordinance prohibits the import or export of elephant tusk, if unworked or simply prepared, and any part of any tusk and powder and waste of any tusk except under and in accordance with a licence issued in advance by this Department.

    Please note that whether or not a particular piece of ivory has been worked to an extent beyond simple preparation is a question of fact to be determined on examination of the object to be imported/exported. We have obtained legal advice to the effect that normally plainly polished tusks/parts of tusk, plain cylindrical pieces of ivory including those purporting to be chops and all roughly carved items are deemed to be simply prepared ivory in case of doubt prospective importers/ exporters should check with this Department to ascertain whether the specimens in question are subject to licensing control."

11. It was as a result of this Circular that Mr. Yau sought his declaration. He feels that the procedure required in the obtaining of a licence is likely to interfere with his business and that the licence itself may cause complications in his main export market, Japan. The interference and the complications are, of course, of a financial nature. He would have to pay a licence fee and higher duty would be charged.

12. The issue here is the construction of the phrase "unworked or simply prepared" - "the phrase".

13. Before going on to consider the evidence before Godfrey J, and his construction of the phrase I would make reference to a matter which arose in the course of the hearing of this appeal. There was doubt as to whether the proper procedure had been followed in the institution of these proceedings. Should they have been more properly started by an application for judicial review rather than by the issue of an originating summons? Mr. Yau had made no application for a licence but the distinction which concerned the Court was that between public and private law.

14. In O'Reilly and others v. Mackman and others^(l), this issue was considered by the House of Lords. At first instance, Peter Pain J, had held that it was not an abuse of the process of the Court: to bring proceedings in that action by way of writ: and originating summons instead of by an application or judicial review. The plaintiffs were prisoners who were charged with prison disciplinary offences before a board of visitors. The board in each case held an enquiry and found the charges proved imposing penalties. Three of the plaintiffs brought action by way of writ claiming the board had acted in breach of Prisons Rules and the rules of natural justice. They claimed a declaration that the findings and penalties were void and of no effect. The 4th plaintiff started proceedings by way of originating summons in the Chancery Division alleging bias by a member of the board and claiming that the decision of the board was void for want of natural justice. When the defendants applied to strike out the proceedings, Peter Pain J. dismissed the applciations. The Court of Appeal reversed that decision and struck out the proceedings on the ground that they were an abuse of the process and that the plaintiffs only proper remedy was by way of judicial review. The House of Lords dismissed appeals against the Court of Appeal decision.

15. The sole issue before the House of Lords was the procedure by which relief was sought not the right of the plaintiffs to obtain declarations. None of the plaintiffs had any right in private law.   In public law they had a right to challenge that legality of the adverse disciplinary award. Lord Diplock at page 276 made reference to the power of the High Court under 0.15, r.l6 to make declaratory judgments. The language of the order has not been altered since 1853. He went on to consider the development of the order and, generally, the development of procedures available for the judicial control of administrative actions. He made reference to the landmark decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission⁽²⁾ which he categorized as liberating English public law from the fetters that the courts had theretofore imposed upon themselves, so far as the determinations of inferior courts and statutory tribunal's were concerned,

"by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction.''

16. The Anisminic⁽²⁾ decision came before the 1977 alterations to 0.53. Lord Diplock at page 279 broadened what I might call the "Atkin test" (enunciated by Atkin L.J. in Rex. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd.⁽³⁾ by excluding the limitation imposed by Lord Atkin restricting the issue of prerogative writs to those "having the duty to act judicially". That phrase had given rise to many attempts to draw subtle distinctions between decisions that were quasi-judicial and those that were administrative only. He thought the relevance of that form of argument to have been destroyed by Ridge v. Baldwin⁽⁴⁾.

17. Having gone on to consider the handicaps under which an applicant for a prerogative order under 0.53 formerly laboured, contrasted with the new provisions of 0.53 enabling an application for a declaration or an injunction to be included in an application for judicial review, he made reference to the power of the Court; where it transpires in the course of a hearing that the real issue is not an infringement of a right entitled to protection in public law but which might be an infringement of rights in private law, and thus not a proper subject for judicial review, to order the proceedings to continue as if they had begun by writ. But there is no corresponding power to permit an action begun by writ to continue as if it were an application for judicial review.

18. Lord Diplock thought it unwise to stigmatize the wrong use of a procedure as an abuse of the process of the Court by the laying down of categories of cases in which it would necessarily always be an abuse to seek in an action begun by writ or originating summons a remedy against infringement of rights of the individual that are entitled to protection in public law. But he thought that it would as a general rule be contrary to public policy, and therefore an abuse of the process of the Court,:

"... to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means, to evade the provisions of Order 53 for the protection of such authorities."

19. He made reference to Cocks v. Thanet District Council⁽⁵⁾ - the judgment in which was delivered immediately after that in O'Reilly v. Mackman⁽¹⁾ - and came to the conclusion that to allow the plaintiffs' actions to proceed would be an abuse of the process of the Court, they being blatant attempts to avoid the protections for the defendants provided by 0.53.

20. In Davy v. Spelthorne Borough Council⁽⁶⁾, O'Reilly v. Mackman⁽¹⁾ was considered, as was Cocks v. Thanet District Council⁽⁵⁾, and they were distinguished. Lord Wilberforce at page 276 described the expressions "private law" and "public law" as having recently been imported into English law and described them as convenient expressions for descriptive purposes but warned that in England they must be used with caution. He went on :

"We have not yet reached the point at which mere characterisation of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary courts: to permit this would be to create a dual system of law with the rigidity and procedural hardship for plaintiffs which it was the purpose of the recent reforms to remove."

He thought (p.277) that before a proceeding at common law can be said to be an abuse of process, it must, at least, be shown (1) that the claim in question could be brought by way of judicial review. (2) that it should be brought by way of judicial review. He made it clear that Lord Diplock in O'Reilly v. Mackman⁽¹⁾ was not stating that where proceedings could be brought by way of judicial review that that was the only way that such claims could be brought. There might be exception, in particular where the invalidity of a decision arose as a collateral issue in a claim for infringement of the plaintiff's right arising under private law, and in other instances on a case to case basis.

21. In Gillick v. West Norfolk and Healthy Authority⁽⁷⁾, Lord Scarman at page 178 also made reference to what he called "the nearly fledged distinction in English law between public and private law." Of O'Reilly v. Mackman⁽¹⁾ he said that it could not there be contended any infringement or threat of infringement of any right derived from private law. The only remedy to which the plaintiffs were entitled was a remedy in public law. He did not think the claim of Mrs. Gillick to fall under the embargo imposed in O'Reilly v. Mackman⁽¹⁾ but thought - if he should be wrong on this - that the private law content of her claim was so great as to make her case an exception to the general rule. Lord Wilberforce's collateral issue point. Lord Scarman also thought that procedural problems in the field of public law must be left to be decided on a case to case basis. "Mrs. Gillick was, in my opinion, fully entitled to proceed by ordinary action, even though she could also have proceeded by way of judicial review."

22. Mr. Strawbridge in a helpful submission has referred us to a recent case in these Courts Hermes Pacific Limited v. Commissioner of Customs & Excise⁽⁶⁾, where declaratory relief was granted in circumstances similar to here. He submits that the real question is the construction of the phrase in the Schedule. With him, I entirely agree. As Mr. Chan who appeared for the Respondent to this appeal quite rightly said that both parties want - a decision, neither wished to rely on any argument as to an abuse of process.  Even if the use of proceedings here could be considered an abuse of the process I, for one, would be prepared to assume jurisdiction on the dual issue basis of matters arising both under private and public law. I would not wish to involve these Courts in the rigidity of decision which the amendments to the rules was intended to obviate. I am content to leave it there.

23. The evidence before Godfrey J. consisted of affirmations, the ivory was in evidence before him and we also have seen it. I cannot better his description at page 8 of his judgments:

"It is cylindrical in form and it bears no carving or other artistic design. It is a plain and simple piece of ivory intended to be used as a block from which a chop can be made; made by the process of carving the individual mark of the person whose chop it is to be on the base of the small cylinder."

24. The judge correctly stated that the issue was not was this a plain and simple piece of ivory but was it "unworked or simply prepared". He described the processes which produced from the raw tusk, this plain and simple piece of ivory. First, the tusk is imported from Kenya Trading Companies, before that it has been removed from the elephant; cleaned and dried under the sun.  In Hong Kong the solid elephant tusk is then cut by a band sawing machine. This results in 60% of the ivory remaining for further processing. The ivory is then put into a sawing machine and is cut into long plank like segments. The ivory may be cut into four or five such segments. These segments are then put into a wheel-sawing machine for further cutting and refinement of shape. This results in segments cut into rectangular pieces of about 17cm long and of a width slightly more than the eventual chop. These rectangular pieces are then cut into three rectangular blocks of the same length as the chop. These smaller pieces are put on a drilling machine and cut into a cylindrical shape. The cylindrical shape then has part of its top sawed into an oval shape. This oval shape piece is then polished generally and each piece is re-polished individually. The re-polished oval top shape is then polished with yellow wax and, finally, is polished with white wax. These were described as twelve stages in the manufacturing process of the ivory. Different labourers were employed at different stages of the production.  It was the evidence of Mr. Poon Moon Kee, the sole proprietor of the Shun Yan Ivory Factory; who has supplied chops to the Plaintiff over the last few years, and who spoke of the processes set out, that all the labourers had undergone "long" period of apprenticeship. Here, the work which he described had been done by three separate groups. It was necessary for the workers to be skillful not to damage the ivory, to remove any blemish it might have, and to retain the cylindrical shape. The time taken to perform the acts from the first cutting of the raw tusk to the final white polishing is something which it is difficult to estimate precisely for clearly at most stages described more than one piece of ivory is being dealt with at any one time. But each step takes some minutes. Mr. Poon suggested 75 minutes from the ivory being shaped into plank-shape segments to being cut into rectangular blocks suitable for a chop. This seems exaggerated.

25. The Plaintiff in his affirmation stated the cost of materials for the ivory chop to be $20 per chop and the total cost of the manufacturing process to be $10. He sells his chop for $90 to Japanese importers who in turn sell to Japanese retailers at a price of $480. The wholesale price in the shops becomes $2,400. It is unclear whether that last price includes the placing of the individual name characters on the ivory piece.

26. It is the contention of the Attorney General on behalf of the Director that none of the steps which I have earlier described takes the tusk beyond the description "unworked or simply prepared". The processes described is only simple cutting and polishing. No skill is required as no sophisticated carving has been carried out. The finished piece could be processed into various other items. There were produced in the Court below, and to us, examples of such other items and of what carved ivory looks like. Mr. Strawbridge submits that to take the piece outside the phrase there must be labour intensive cutting; carving and polishing, all of which would require the skill of experienced ivory carvers. Further that the workmanship on the piece should have increased its value to a significant degree and that the shape of the ivory should be its final one in that it is saleable on the streets as it stands. He seeks to draw the distinction between a "simple preparation" and a "special preparation". It is he says a matter for the Director to look at each piece and make a value judgment upon it and that, in so doing, he is entitled to take into consideration the matters enumerated in the Crown's submissions. He points out that the same phrase appears in the Third Column of the Second Schedule in relation to "Rhinoceros" and "Sea Turtles". To describe the manufacturing processes applied to the ivory here as going beyond "unworked or simply prepared" would be to ignore the intention and object of the Ordinance and would leave that phrase with nothing to bite on.

27. I accept that the word "simply" in this context could have the meaning of "simple" or "free from elaboration or artificiality ... plain, unadorned" (Shorter Oxford English Dictionary p.1896). But that is not the only word used and for myself I would have thought that the words "simply prepared" must bear some relationship to the word "unworked". "Unworked" of itself is susceptible of easy definition and - accept that "simply prepared" must be at some stage removed from "unworked". The real issue here is how far removed, and, concomitant with that, was the trial judge wrong when he came to his conclusion that:

"In my judgment, at least after stage six (the cutting of the ivory into three rectangular blocks) to which I have referred, the ivory ceases to be 'unworked or simply prepared'. By the end of the process I have not the least doubt that it has undergone much work and got well beyond the stage of simple preparation."

He accepted that the piece was not yet carved and finally finished but was of the view that this was not the crucial test.

28. In Inland Revenue Commissioners v Collco Dealings Ltd.⁽⁹⁾, the House of Lords had for consideration the construction of a revenue statute. Viscount Simonds at Page 19 said of the appellant's argument:

"It is said that the plain words of the statute are to be disregarded and (these) words arbitrarily inserted in order to observe the comity of nations and the established rules of international law. I am not sure upon which of these high-sounding phrases the appellant company chiefly relies. But I would answer that neither comity nor rule of international law can be invoked to prevent a sovereign state from taking what steps it thinks fit to protect its own revenue laws from gross abuse; or to save its own citizens from unjust discrimination in favour of foreigners. To demand that the plain words of the statute should be disregarded in order to do that very thing is an extravagance to which this House will not, I hope, give ear." (Emphasis supplied)

29. In In re International Tin Council⁽¹⁰⁾ at page 450, Millett J. said, of a submission made to him that the words to be construed were plain and unambiguous and that if a statute is unambiguous effect must be given to it even if it is contrary to international law - reliance being placed on Collco⁽⁹⁾:

"But it is one thing to give effect to plain and unambiguous language in a statute. It is quite another to insist that general words must invariably be given their fullest meaning and applied to every object which falls within their literal scope, regardless of the probable intentions of Parliament."

30. On appeal from the judgment of Millett J.⁽¹¹⁾, Nourse L.J., giving the judgment of the Court of Appeal, entirely agreed with the passage I have just quoted. He went on:

"Like most kinds of statutory construction it was only a matter of common sense."

31. I respect and sympathized with the difficulties which face the Director. The control and indeed strict control of the importation and exportation of ivory is a matter of considerable importance. Where human greed leads to placing of an animal species in danger it affects the whole environment of this planet. It is something to be actively discouraged. We were made aware that various prosecutions in relation to the import into Hong Kong of suspect ivory were awaiting the decision in this case.  I accept that each case must be separately evaluated and that the Director needs some criteria upon which he can base his assessment. The Ordinance seems to have been based upon the provisions of the English Act whose provisions were imported wholesale into it. The Act, however, does not deal with the situation existing in Hong Kong where ivory can be legally imported, legally possessed, legally worked and legally exported. The Director might have been assisted if the Ordinance had dealt with the peculiarly Hong Kong situation.

32. As Nourse L.J. said in In re International Tin Council(11) (the appellate case), statutory construction is a matter of common sense and one must look to the probable intentions of the legislature in giving meaning to the normal and general works used. For my part, I do not find the phrase clear and unambiguous but, and with regret, I find it very difficult to extend to it the meaning which the Attorney General seeks to attach to it. The chop has been worked by skilled workers, albeit not in the sense of skilled artistically, it has been prepared, a preparation which took it a fair distance beyond its unworked state. Whether that could be said of the form the workings take on ivory imported from dubious sources I cannot say. We must look at the actual object which concerns us in this appeal. The mere fact that the requirement for a licence would mean a higher costs to the exporter would in no way inhibit me from holding, had I thought it proper to do so, that this chop fell within the phrase. I confess that I am not vastly concerned about the extra costs to those who deal in animal products such as this. The necessity to protect in Hong Kong an endangered species of nature outweighs whatever minor financial deprivation which might follow stricter control. I appreciate however that there may be difficulties in amending the Ordinance, which might well be answer here, to ensure that all import and export of ivory is under licence.

33. Nevertheless, and bearing in mind all the difficulties which this matter has thrown up, I cannot construe the phrase in relation to the ivory here in the way that the Crown seeks and I cannot say that, in coming to the conclusions he did, the trial judge was wrong. I would dismiss the appeal.

Fuad, V.-P.

34. I have had the advantage of reading, in draft, the judgment of Silke, V,-P. I agree with him that the appeal should be dismissed; but in deference to Hunter, J.A.'s vigorous dissent, which 3 have also had the opportunity of reading in draft, I will add a few observations of my own. These can be quite short for Silke, V.-P. has related the facts and the law with which we are concerned.

35. The expression "unworked or simply prepared" which occurs in the Second Schedule to the Ordinance is not defined. There was no evidence before Godfrey, J. or before us that in the ivory trade the words we are required to construe are known and understood by everybody conversant with that trade to bear a particular meaning so that the Ordinary meaning of the words should give way to a technical meaning.

36. We are bound, of course, to approach the task of construction as enjoined by s.18 of the interpretation and General Clauses Ordinance, Cap.1. Moreover; as the decisions of the House of Lords referred to by Hunter, J.A. show, since the Ordinance is designee: to give effect to a convention, a strictly literal construction is not appropriate.

37. I accept that the word "unworked" in the context in which it is used usually implies something devoid of artistic or ornamental workmanship but I do not think it follows that ivory which, though not skilfully or intricately carved, is nevertheless carefully shaped or fashioned can be said to be "unworked or simply prepared" within the meaning of those words in the Second Schedule to the Ordinance. In the days when billiard balls and piano keys were made of ivory, could it be said that ivory in those forms was "unworked or simply prepared"? I think not.

38. I would also remark that if a substance has been partly worked it cannot, even bearing in mind the objectives of the convention, by the ordinary use of language, be said to be unworked.

39. It is common ground that the Respondent had the licence required by s.4 of the Ordinance (Cap.187) to import the tusks and, presumably, to possess them (s.6) before they were worked upon. if he had not he would have been liable to severe penalties including imprisonment for six months. The same applies to a contravention of s.5 which restricts the export of "scheduled species''. In my judgment, the matter can be tested in this way. Suppose that the Respondent had gone ahead and exported the "chops" without a licence and he had been prosecuted for an offence under s.5 of the Ordinance. Suppose, then, that upon precisely the same facts as were before the judge below, the Magistrate had acquitted him and the Attorney-General had requires a case to be stated. I do not see how a court dealing with the case stated could possibly have held, as a matter of law, that the Magistrate had reached the wrong conclusion on the facts proved before him. The expression "unworked or simply prepared" cannot have a different meaning depending upon whether the proceedings in which the question arose were civil or criminal.

40. I would also comment that if one of the "chops" which were before the Court has been sold in Hong Kong, were the Director's contentions sound, the buyer would have been guilty of an offence contrary to s.6 of the Ordinance unless he has a licence for his possession.

41. I do not find myself able to interfere with the view taken by Godfrey, J. On the evidence I do not see how he could have come to any conclusion other than that the "chops'' he saw were not "unworked or simply prepared" within the meaning of the Ordinance and so I too, would dismiss the appeal.

42. If the Ordinance in its present form has been found not to achieve its objectives it may be that the legislature will have to consider whether it needs to be amended in the manner suggested in the final paragraph of the letter dated 16th October 1957 addressed to the Respondent's solicitors by the Director of Agriculture and Fisheries "..... to extend control to the whole or any part or anything made from the tusk of an elephant (i.e. ivory whether worked or unworked)."

Hunter, J.A. :

43. I wholly agree with my lord the Vice-President's conclusion upon the form of these proceedings, and with his warning that we should try to avoid the excessive rigidity besetting the English courts; what Lloyd LJ called "formalism" in Reg v Take-over Panel, Ex Parte Datafin plc^(l). But I respectfully and profoundly disagree with his conclusion upon the construction of the phrase "tusk, if unworked or simply prepared, and any part of such tusk".

44. The true construction of this phrase has international implications. It is taken from the CITES Convention where it appears in several places in the English language version. We appear to be the first English speaking court to have to construe it. Hong Kong plays a not insignificant role in the world ivory trade. It is therefore a matter of some significance to the survival of the African Elephant whether this court finds the phrase to play a role in the effective control of the ivory trade, or whether it is ineffective for such purpose so that the convention must be considered as a seriously flawed instrument.

45. The legislative chronology is set out by my lord. It is not insignificant that the English Act, upon which our ordinance is based, also contains this recital:

"Whereas a Convention on International Trade in Endangered Species of Wild Fauna and Flora (in this act referred to as the Convention) was signed at Washington on 3rd March 1973, was presented to Parliament in November 1973 and came into force in the United Kingdon on 31st October 1976 :

And where as it is expedient to give effect in the United Kingdom to the restrictions on international trade contained in the convention and to make certain other provisions in connection with the conservation of endangered animals and plants".

It is clear that both the English Act and our ordinance were enacted to give effect to this convention.

46. The first point to follow from this in my judgment, is that the words emphasised by my lord in the speech of Viscount Simmonds in Inland Revenue Commissioners v Collco Dealings Ltd⁽²⁾ have no application at all. That case concerned the construction of an English taxing statute enacted subsequent to the making, but not necessarily to give precise effect to an international treaty. Both Lord Reid and Lord Radcliffe, who took a more moderate and modern view as to the use of an international treaty as an aid to construction, pps 22, and 23, showed that it was the very ambiguity in the connection between the treaty and the statute which meant that the treaty was on construction "no useful aid at all" per Lord Radcliffe.

47. Where legislation is introduced to give effect to an international convention, we are in my judgment bound by authority to give effect to a totally different principle of construction. The first relevant case is Stag Line Ltd v Foscolo Mango Co⁽³⁾ where at p 350 Lord Macmillan says this:

"It is important to remember that the Act of 1924 was the outcome of an International Conference and that the rules in the Schedule have an international currency. As these rules must come under the consideration of foreign Courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principles of general acceptation".

48. In Buchanan & Co v Babco Ltd⁽⁴⁾, the majority of their lordships cited with approval this passage from the speech of Lord Macmillan. Lord Wilberforce restated the principle as follows, p 152 :

"I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation".

49. Finally in Fothergill v Monarch Airlines⁽⁵⁾, all their lordships expressly declined to put a literal construction upon the words in an international convention, and prefered a purposive construction to give effect to the convention's intention, Lord Wilberforce p 272, 275 : Lord Diplock p 279 : Lord Fraser p 285 : Lord Scarman p 290 : and Lord Roskill p 299.

50. The speech of Lord Diplock is particularly instructive. Early in his speech he uses this phrase: "but giving, as one must, a purposive construction to the convention looked at as a whole". He then illustrated the rules which had arisen in relation to the construction of purely domestic legislation by reference to another speech of Lord Simmonds in another revenue case not dissimilar to his approach in Collco⁽²⁾. Lord Diplock referred to the "unhappy legacy of this judicial attitude" which he held to be inapplicable. p 280. He described the appropriate principle in these words at p 281:

"The language of that Convention, that has been adopted at the international conference to express the common intention of the majority of the states represented there, is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux preparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text.

The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience that is an Act of Parliament that deals with purely domestic law".

He then proceeded to cite the above mentioned passage from the speech of Lord Wilberforce in Buchanan⁽⁴⁾ case.

51. The second preliminary point to note in relation to our legislation is that unfortunately it did not enact the whole convention. The convention draws a distinction between export and re-export. Thus where (in the language of the convention) "the specimen" has been imported under the controlled conditions from a proper source, no export permit i.e. licence, is necessary. The appropriate authority in the re-exporting state can certify that the specimen is being re-exported, and that right can be exercised whether the specimen is still a specimen i.e. in controllable condition, or has been "processed in that state" article V para 4. The UK legislature does not seem to have thought it necessary to draw this distinction in the UK legislation, presumably because the prospects of re-export were remote. Unfortunately, as it seems to me, our legislature has followed the English pattern and likewise adopted definitions which admit of no distinction between exports and re-exports.

52. This is unfortunate because where, as here, the import is proper and fully documented, it must be convenient, at least where the re-export is to another convention country, to be able to issue a re-export certificate regardless of the then condition of the subject matter, and without having to consider the question in issue in this case at all. This indeed appears to have been the practice of the Director at least prior to his policy change. But from the copy certificate before us, this can be seen to include a certificate which purports to be given under the CITES Convention, which he, unhappily in my judgment, seems to have no authority to give. Further it seems to be this very lack of flexibility under the ordinance which brought about the change of policy in relation to exports about which the present applicant/respondent complains. Indeed the perversity of this whole case is that the question of construction in issue should not have been of significance to this applicant, and would not have been, had the convention been the fully implemented. The true significance and importance of the question arises not directly in relation to the conduct of the applicant, but from what it may permit others to do in potentially very much dubious trading circumstances.

53. Before turning to the question of construction I wish to make two points on the facts. First the evidence leaves me in no doubt that it was the engraving of the purchasers name or character on the base of the ivory, converting it into a true chop, that accounted for the marked difference between the wholesale price (in Hong Kong terms) in the Japanese shops of HK$480 as opposed to the retail price of HK$2,400. (I refer to para 2 of the affirmation of Peon Moon Kit of 20th November 1987, and the penultimate sentence in para 3 of the affirmation of Yiu Kwok Lam Johnny of 22nd December 1987). Significantly this was the first time that any really skilled work was carried out on the ivory.

54. Secondly in his affirmation describing the work carried on these chops. Mr Peon extolled the skill and the apparent length of training of the men in question. But the photographs of the processes reveal that such skills related to the operation of typical basic workshop machinery freely in use the world over. Such skills are not comparable with those of an ivory Graver. This work has produced a simple piece of shaped and polished ivory, which I would describe as a chop "blank" as it lacks the crucial work on its base.

55. Upon the question of construction the rival contentions can I think be summarised thus. The applicant respondents contended that "unworked" means tusk upon which no work of any sort has been done i.e. it means raw tusk. Any work done on the tusk is relevant for consideration, whether skilled, semi-skilled or unskilled. All the operations carried out by them and described in evidence are relevant, and individually and collectively were sufficient to take this tusk out of this category. The judge was right to adopt this view and to conclude that this tusk "has undergone much work".

56. There was the same quantitative connection between "unworked" and "simply prepared". When construing the latter phrase the court should look primarily to the nature and quantity of the work done, and ask itself the question whether such work could properly be described as simple in quantity. This they say was true up to stage six : untrue at stage seven and beyond. The court was not concerned with the effect of such work in itself, or by comparison with any other work. In particular the court should not be concerned with the overall impact of the work on any progression from tusk to finished ivory.

57. The appellant Director of Agriculture & Fisheries on the other hand, contends for a test that is basically visual. You should look at the product in question, at the result of what has been done to it, and ask whether it still remains fundamentally ivory waiting to be worked, i.e. basically raw material.

58. "Unworked" he contends has a particular meaning, but one that is readily understandable in its context. The concept is of unworked, as opposed to worked ivory. Worked ivory is that which has been turned into a work of art by the manual skills of the true ivory craftsman. By contrast unworked ivory is that which has yet to receive such highly skilled attention. The worked is readily distinguishable from the unworked by the quality and added value of the work done. Further if unworked is given a wider meaning to cover any form of work two-things follow. First the simple cutting of a tusk into parts would suffice to prevent the cut part ever being an "unworked" part of "such tusk". Secondly no content, no effective meaning would be given to the work "unworked" at all. On the Director's construction it is easy to envisage circumstances when a tusk would be a "unworked" but more than "simply prepared". You would then have a true disjunctive, requiring an answer to two separate questions. But on the applicant's construction any preparatory work would be sufficient to render the tusk no longer "unworked". So that there would only be one real question in any case : does the work take the item beyond simple preparation?

59. There is a simple qualitative connection between the two phrases : "unworked" as ivory : and "simply prepared" for such purpose. Before the skilled ivory craftsman starts his work, preparatory work such as cutting, shaping, cleaning and polishing may be needed it is to this that the phrase "simply prepared" relates. It is simple and unsophisticated compared with that of the later craftsman. It is a necessary preparation to render the ivory fit to receive the attention of such craftsman. My lord the Vice-president's citation from the Shorter Oxford Dictionary is wholly apposite.

60. The whole phrase, the Director submits, was chosen by the authors of the convention to meet the mischief at which it was directed, the particular problem created by the illicit killing of African Elephant for their tusks. Such material inevitably and naturally is traded towards those countries where skilled ivory craftsmen practice. Such countries are the natural destination. Once the ivory has reached one of them, and is worked in this sense, all prospects of control end. Neither the tracing and identification of worked ivory, nor the control of finished products is practicable. So the first question to be asked is whether the ivory is "unworked" i.e. is still susceptible of practicable control.

61. Preparatory work on the other hand, being much simpler and less skilled, can be carried out at a variety of places short of the ultimate destination. In particular, it can, and we are told is now being carried out in large measure in countries adjacent to Africa : those countries to which illicit ivory can all too readily be smuggled. If the applicant's contention be correct the power of convention countries to control the movement of illicit ivory will be emasculated. Such risk, submits the Director, must have been prefectly apparent to the authors of this convention. They cannot have intended this phraseology to be read in such a way when it can readily be read in a way which gives it effect.

62. I have no hesitation in accepting the Director's submission. Either we adopt a literal construction which emasculates an international convention, or we adopt a purposive construction which supports and gives effect to it. Upon my reading of the above authorities we are bound to prefer the second course. Further it is difficult to see how the authors of this convention or of this legislation contemplated anything more than basically a visual test. The inspector of goods at the point of import in a receiving country has little choice. No problem arises when the goods are properly documented and come from another convention country but any other documentation or assertion from abroad could not be verified and would have to be treated with reserve. The Director must I think be right in saying that the question in every case is one of fact and degree, and that this must be judged by the visual impact of the ivory in question. It is a short step to conclude that this must depend more upon the quality of the work and preparation so manifested, than upon the quantity of preparatory steps that may be said to have been taken. The Director's test is understandable, workable and effective. Further it gives meaning and content to both parts of the phrase which the respondent's construction does not.

63. For my part therefore I would allow this appeal.

Silke, V.-P.:

Order

64. To avoid further costs we shall hand down this judgment. The appeal is dismissed there will be an order nisi as to costs that the successful respondent do have the costs of the appeal.

(1) [1983] 2 A.C. 237

(2) [1969] 2 A.C. 147

(3) [1924] 1 K.B. 171

(4) [1964] A.C. 40

(5) [1983] 2 A.C. 286

(6) [1984] 1 A.C. 266

(7) [1986] 1 A.C. 112

(8) Civil Appeal No. 155 of 1987 (unreported)

(9) [1962] A.C. 1

(10) [1987] Ch. 419

(11) Times Law Reports 29th April 1988

(1) [1987] QB 815, 845

(2) [1962] AC 1

(3) [1932] AC 328

(4) [1978] AC 141

(5) [1981] AC 251