Administrative Appeals — Fishermen Claims Appeal Board quashes finding that Appellants’ fishing trawlers operated outside Hong Kong waters
Based on a careful examination of all the evidence, the Fishermen Claims Appeal Board ruled that — on a balance of probabilities — the Relevant Vessels spent 10% or more of the time operating in Hong Kong waters during the relevant period from 2009 to 2011.
黃華坤 與 跨部門工作小組; 梁金妹、黃華坤 與 跨部門工作小組
|Reference:||Fishermen Claims Appeal Board Case No. SW0197 and Case No. SW0198|
|Court:||Fishermen Claims Appeal Board|
|Before:||Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Court|
|Date of Decision:||15 July 2021|
|Appearance:||Randy Shek, instructed by Paul W. Tse Solicitor, for the successful Appellants|
Trawling has been banned in Hong Kong waters since 2012. The Appellants, who own two trawlers, applied for the one-off allowance payable to eligible fishermen affected by the ban. The Inter-departmental Working Group decided that their vessels were larger trawlers that generally did not operate in Hong Kong waters, which entailed much less allowance payable than that received by inshore trawlers operating wholly or partly in domestic waters. Therefore, the Appellants appealed to the Fishermen Claims Appeal Board.
Allowing the appeal, the Board held that the Appellants’ trawlers operated partly in Hong Kong waters during the relevant period.
Trawl ban and one-off allowance scheme
On 31 December 2012, the statutory ban on trawling in Hong Kong waters came into force. Under a one-off assistance package approved by the Legislative Council Finance Committee, an ex-gratia allowance (“the Allowance”) is payable to eligible trawler owners affected by the trawl ban. An Inter-departmental Working Group (“the Working Group”) was set up to process applications received from fishermen affected by the trawl ban.
Background to the present appeal
These are two appeals from Mr. Wong Wah Kwun, owner of two fishing boats which carry out pair trawling (“the Relevant Vessels”), and his wife Ms. Leung Kam Mui, who co-owns one of those fishing boats with him.
As fishermen affected by the trawl ban, both Mr. Wong and Ms. Leung (“the Appellants”) applied for the Allowance on the basis that the Relevant Vessels operated partly in Hong Kong waters.
The Working Group, which processed their applications, categorized the Relevant Vessels as larger trawlers which generally do not operate in Hong Kong waters during the relevant period from 2009 to 2011. Accordingly, each boat would be granted a lump sum of HK$150,000 as Allowance.
Aggrieved by these findings, Mr. Wong and Ms. Leung lodged appeals with the Fishermen Claims Appeal Board against the Working Group’s decision.
Decision of the Fishermen Claims Appeal Board
The Fishermen Claims Appeal Board considered multiple factors related to the Relevant Vessels, Including their:
• activities during the fishing moratorium;
• length, type, and other boat particulars;
• engine horsepower and fuel capacity;
• 9 sightings of being moored at typhoon shelters during field surveys and boat patrols by the Agricultural, Fisheries and Conservation Department;
• Employment of Mainland Chinese deckhands; and
• Signs of fishing in Hong Kong waters.
Based on a careful examination of all the evidence, the Fishermen Claims Appeal Board ruled that – on a balance of probabilities – the Relevant Vessels spent 10% or more of the time operating in Hong Kong waters during the relevant period from 2009 to 2011. The appeal was allowed.
Randy Shek was called to the Bar in 2008. His main areas of practice include criminal law and public law. He also undertakes instructions for cases involving injunctions, family law, land law, and probate.
Randy has conducted trials and appeals in all court levels, both led and on his own right. He particularly enjoys jury advocacy and is able to accept both private and legal aid instructions.
He also acts in judicial reviews and administrative appeals, including cases before the Fishermen Claims Appeal Board.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.