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Following is a question by the Hon Leung Kwok-hung and a written reply by the Secretary for Transport and Housing, Ms Eva Cheng, at the Legislative Council meeting today (February 1):
Question:
Regarding the incident of Kai Fung No. 2 being intercepted by the Marine Department of Hong Kong (the Department) while departing from Hong Kong waters on January 3 this year, will the Government inform this Council:
(a) given that according to the letter issued by the Department to the owner of Kai Fung No. 2 as well as some press reports, the Department indicated that it had learned from press reports that Kai Fung No. 2 was heading towards Diaoyu Islands to proclaim territorial rights, and on the ground of the safety of its crews, it refused permission for Kai Fung No. 2 to leave Hong Kong waters, whether it has assessed if it is reasonable for the Department to take enforcement actions solely on the basis of press reports; if the assessment result is in the affirmative, of the justifications for that;
(b) given that the captain of Kai Fung No. 2 needs to go fishing in the sea to earn his living, but the Government obstructed the vessel from leaving Hong Kong waters, how the captain can exercise his rights to leave Hong Kong waters for fishing purposes without being intervened by the Department; and
(c) given that the freedom to enter or leave Hong Kong and the reedom of speech of citizens are safeguarded under both the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap. 383) (HKBORO), whether it has assessed if the Department has contravened the Basic Law and HKBORO in prohibiting Kai Fung No. 2 from leaving Hong Kong on the basis of press reports in this case; if the assessment result is that it has contravened such laws, how the Government will make compensation; if the assessment result is that it has not contravened such laws, of the justifications for that?
Reply:
President,
Under the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation (Cap. 548D) (the Regulation), Kai Fung No. 2 is issued with a full licence for a Class III vessel. In accordance with section 5(3) of the Regulation, Kai Fung No. 2 shall be used exclusively for fishing and related purposes. Given that it was reported in the local newspaper and on the radio on January 3, 2012 that Kai Fung No. 2 would travel to the Diaoyu Islands to symbolise sovereignty, rather than for fishing and related purposes exclusively, the Marine Department (the Department) had the reason to believe that the owner of the vessel would contravene the provision of section 5(3) of the Regulation. The Director of Marine (the Director) therefore gave a direction under section 64(1)(a) (note) of the Merchant Shipping (Local Vessels) Ordinance (Cap. 548) refusing permission for Kai Fung No. 2 to leave the waters of Hong Kong.
After the Director had given a direction to the owner of Kai Fung No. 2 vide a letter dated January 3, 2012, the Department had a meeting with the owner of the vessel and the members of the Action Committee for Defending the Diaoyu Islands, and advised them that the owner of the vessel might provide relevant information or make representation to the Department if there were any changes in the circumstances set out in the letter giving the direction so that the Director could consider withdrawing or revising the direction.
On May 1, 2009, the Director gave Kai Fung No. 2 a similar direction under similar circumstances and considerations. The owner of the vessel filed an application for judicial review with the Court of First Instance of the High Court then. The Court held that the Director's direction and the considerations behind it were lawful and valid. The Court also refused to allow the application of a putative interested party, which was made on the basis of the freedom to travel or leave Hong Kong and the freedom of expression, to be heard at the hearing of the application for judicial review. It was stated in the Court's decision that the Director's direction did not in any way restrict the said party's freedom and right to depart Hong Kong by lawful means or to join any protest demonstration outside Hong Kong. Neither the owner of the vessel nor the putative interested party appealed against the Court's decision.
Note: Section 64(1)(a) - "The Director of Marine may, if he is satisfied that there is reason for doing so, give directions refusing permission for a local vessel or class, type or description of local vessel to enter or leave the waters of Hong Kong."
Ends/Wednesday, February 1, 2012
Issued at HKT 14:15
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