RE LAU KAM PING
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IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
MISCELLANEOUS PROCEEDINGS NO. 66 OF 1972
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IN THE MATTER of an Application by LAU Kam-ping of Flat E, 1st floor, 78 Yuen Chow Street, Kowloon in the Colony of Hong Kong for leave to apply for an Order of Prohibition and IN THE MATTER of a proposed purported consideration by a purported Board of Reference under the Provisions of Section 30 of the Merchant Shipping (Recruitment of Seamen) Ordinance |
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Coram : Full Court (Blair-Kerr, S.P.J.,Briggs and Huggins, JJ.)
Date: 15 May 1972
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J U D G M E N T
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Blair-Kerr, S.P.J.:
1. The Merchant Shipping (Recruitment of Seamen) Ordinance (hereinafter referred to as “the Ordinance”) was enacted in 1966. Its purpose is to regulate the recruitment of seamen for service in foreign-going ships. The Seamen’s Recruiting Authority (referred to throughout the Ordinance as “the Authority”) is the Director of Marine. A register of the names of seamen who desire to serve in foreign-going ships is kept by the Superintendent of the Seamen’s Recruiting Office: and it is clear from the provisions of the Ordinance that a seaman may not serve on such ships unless his name appears on that register.
2. Under s.17(1) the Superintendent may, in certain circumstances, remove the name of a seaman from the register and under s.28(1) a Board of Reference may confirm such removal. Under paragraph (i) of s.18(1), the Superintendent may suspend the registration of the seaman for any period not exceeding six months; and under paragraph (ii) of the same sub-section, he may suspend the registration of the seaman, that is to say the period of suspension is indefinite; but if he does act under s.18(1)(ii) he is required to refer the case forthwith to the Authority.
3. If the registration of a seaman, whose name is already on the register, is “suspended”, I apprehend that his name is not removed from the register; but it would appear that the effect of suspension is the same as removal to this extent that, during the period of suspension, the seamen may not serve on foreign-going ships.
4. The sections of the Ordinance with which we are concerned in this case are ss.18(1), 21, 29 and 30. So far as relevant, they read as follows:-
“18(1) If, …… it appears to the Superintendent that ……………………………………………………………………….. the seaman has been guilty of misconduct on a ship of such a serious nature as to render it undesirable that the seaman should continue to serve in foreign-going ships ........ the Superintendent may -
(i) ……….
(ii) suspend the registration of the seaman and forthwith refer the case to the Authority.”
“21. The Authority shall refer every case referred to him by the Superintendent under … paragraph (ii) of subsection (1) of section 18 to a Board of Reference ......”
“29(1) If, on the hearing of a case referred to a Board of Reference by the Authority under s.21 ……. the Board …… is unanimously satisfied .…. that …….the seaman has been guilty of misconduct on a ship of such a serious nature as to render it undesirable that the seaman should continue to serve in foreign-going ships ….....the Board …. may, subject to section 30 -
(i) direct the Superintendent to remove the name of the seaman from the register or
(ii) suspend the seaman’s registration for such further period not exceeding twelve months, as the Board .... thinks fit.
(2)If, on the hearing of any such case the Board ... is not unanimously satisfied as to the relevant ground specified in subsection (1) the Board ... shall direct the Superintendent to withdraw the suspension of the seaman’s registration.”
“30. Where on the hearing of a case referred to a Board ... by the Authority under s.21 the Board … considers that it may exercise the power conferred on it by ……....... subsection (1) of section 29 ..…... the chairman of the Board ... shall inform the seaman thereof and the seaman shall be entitled to make to the Board ... such representations with respect to the exercise of that power as he may wish.”
5. It would appear, therefore, that if a Board of Reference is not unanimously satisfied as to the relevant ground specified in s.29(1), it is required to direct the Superintendent to withdraw the suspension of the seaman’s registration. If the Board is unanimously satisfied as to the relevant ground, it may act either under paragraph (i) or paragraph (ii) of s.29(1). But, in my view, the Board is required to act under one or other of those two paragraphs. In other words the word “may” in the subsection means “shall”. Any other interpretation would mean that the Superintendent’s order suspending the seaman’s registration under s.18(1)(ii) would continue to operate indefinitely, and the legislation would fail to achieve its object namely that the Board should decide whether the name of the seaman should be removed from the register or, alternatively, for what period, not exceeding 12 months, the suspension should remain operative.
6. Turning then to the case before us. On 15th December 1971, the applicant appeared before a Board of Reference. The allegation was that on 2nd September 1970 while serving as a seaman on board a ship at sea some 230 miles from Hong Kong he had misconducted himself and that such misconduct was of such a serious nature as to render it undesirable that he should continue to serve in foreign-going ships [ss.18(1)(c) and 29(1)(c) of the Ordinance]. The misconduct alleged was that he had stabbed the Junior Chief Officer with a triangular file causing multiple lacerated wounds.
7. The Board were unanimously satisfied that the applicant was guilty of the misconduct alleged; and, under s.29(1)(i), it directed that the name of the applicant should be removed from the register of seamen.
8. Pursuant to leave previously granted, on 8th February 1972 the applicant applied for an order of certiorari to remove into this Court, for the purpose of being quashed, the Board’s decisions (1) that he was guilty of misconduct and (2) that his name be removed from the register of seamen.
9. The grounds upon which the relief was sought were:-
(i) that the proceedings before the Board were not conducted in accordance with the provisions of the Ordinance and/or in accordance with the principles of natural justice;
(ii) that the Board, in reaching its decision to direct that the name of the applicant be removed from the Register of Seamen, failed to observe the mandatory provisions of s.30 of the Ordinance.
10. It is clear from the applicant’s affidavit in support that, prior to reaching their conclusion that he was guilty of misconduct, the Board failed to comply with the provisions of s.24. of the Ordinance in a number of respects; and that before directing that the applicant’s name should be removed from the register of seamen, the Board did not comply with the provisions of s.30.
11. My note of what happened on the hearing of the application on 8th February reads in part:-
“Counsel for the applicant:
I understand the Crown will not resist an order of certiorari going in respect of the Board’s direction that the applicant’s name be removed, from the register. We are left then with the proceedings before the Board itself ......... If, as appears, the whole conduct of this inquiry was so unsatisfactory that the proceedings were a nullity ab initic, there is some authority for the proposition that the Board could start all over again.
Court: We agree.
Counsel for applicant:
But if you find that a wrong sentence was imposed I would be content with that, and it may be that the residuary power of the Board to suspend the applicant for 12 months [s.29(1)(ii)] would remain. Under the Ordinance the Board has power to suspend.
Crown Counsel:
I am content if an order quashing the direction that the applicant’s name be removed from the register is made.
Counsel for the applicant:
So, I shall not address you on the other aspect of the application.”
12. The Court thereupon ordered that certiorari issue “to quash the decision of the Board of Reference ….. whereby it was ordered that the name of the applicant be removed from the register of seaman”. I was President of the Full Court on that occasion; and I am in a position to say that the Court did not advert to whether the Board’s direction that the applicant’s name be removed was a nullity. But, clearly, the Board’s direction was a nullity. The mandatory provisions of s.30 were simply disregarded; and this cannot possibly be said to be a procedural irregularity.
13. On 2nd March 1972, the Secretary to the Board wrote to the applicant referring to the order of certiorari and informing him that
“a Board will convene to reach a decision in your case on Wednesday 15th March 1972 ……”
The letter went on to draw the applicant’s attention to s.24(3) and s.30 of the Ordinance, and he was supplied with a copy of the evidence and a copy of “the record of the previous hearing”.
14. Pursuant to leave given by this Court on 14th March, on 11th April the applicant applied for an order of prohibition
“to prevent the sitting of a purported Board of Reference on the 15th day of March 1972 or at any time to consider purportedly under the provisions of s.30 of (the Ordinance) what penalty the said purported Board ought to impose upon the applicant purportedly under the provisions of s.29(1)(i) or (ii) of the said Ordinance.”
15. In essence, the applicant’s submission was that:
A Board of Reference has no existence apart from statute; it can come into existence only if a case has been referred to the Authorityby the Superintendent and if the Authority has referred the case to a Board under s.21; the hearing of the case referred to this Board concluded on 15th December; the Board is now functus; the quashing of the Board’s direction that the applicant’s name be removed from the register does not operate to revive the Board’s powers so as to enable it to reconvene itself and continue thehearing which concluded on 15th December 1971.
16. Counsel for the applicant relied upon two cases viz. R.v. Willesden Justices(1) and R. v. Arundel Justices(2). R. v. Willesden Justices(1) was a case in which the applicant was found guilty and fined £20 in respect of a traffic offence, the maximum penalty for which was a fine of £5. He applied for an order of certiorari to quash the order of the justices. In granting the order, Lord Goddard C.J. said (p.399):-
“ .... if a sentence be imposed which is not authorised by law for the offence for which the defendant is convicted, that makes the conviction bad on its face and being a bad conviction, it can be brought up here tobe quashed, and when so brought up, must be quashed, for this court has no power, and never has had any power, on certiorari to amend the conviction.”
17. In R. v. Arundel Justices(2), the applicant had been convicted of a traffic offence and fined £20. He was also disqualified from holding a driving licence for 12 months. It was common ground that, in the circumstances of his case, the law did not permit the justices to disqualify him for a period exceeding one month. Lord Parker referred to a case reported in Vol.117 of the Justice of the Peace Journal (p.177) in which Lord Goddard C.J. is reported to have said:-
“We do not quash the conviction or penalty because s.6(2) of the Road Traffic Act 1930 points out that the order of disqualification is different from the conviction and it expressly gives power to a disqualified person to appeal against the order of disqualification as if it were a conviction. That shows that it is something separate and it is perfectly easy to sever that part of the order which deals with disqualification from that part of the justices’ adjudication which deals with the penalty. We cannot, in quashing the order for disqualification, substitute the right period, but there is no reason why we should quash that part of the order which deals with the penalty.”
Accordingly the Divisional Court quashed the order of disqualification for 12 months.
18. In appellate procedure (which, of course, is entirely statutory) a clear distinction is drawn between conviction and sentence; and we are so accustomed these days to dealing with appeals that we sometimes tend to forget how, in olden times, the Court of King’s Bench reviewed the proceedings of inferior courts by prerogative writ.
19. The old writ of certiorari ran:-
“We being willing for certain reasons that all and singular orders made by you be sent by you before us, do command that you do send forthwith before us all and singular the said orders with all things touchingthe same, as fully and perfectly as they have been made by you and now remain in your custody or power, together with this our writ, that we may cause further to be done thereon what of right and according to the law and custom of England we shall see fitto be done.”
20. It appears that in those days the law and custom of England regarded the order of the inferior tribunal as comprising both the conviction and sentence. There was no question of severing the two. If it appeared that the inferior tribunal had exceeded its jurisdiction or that there was an error apparent on the face of the record, the conviction and sentence would be quashed; and that was the end of the whole matter.
21. In modern times,the Divisional Court has, somehow, managed to draw a distinction between conviction and sentence on the one hand and ancillary orders (such as orders of disqualification under the Road TrafficActs) on the other, although I must say that, speaking for myself, I find the reasoning in R. v. Arundel Justices(2) very difficult to follow. Of course, a person can “appeal” against a disqualification order. A person can also “appeal” against a sentence passed upon him without questioning the correctness of the conviction upon which it is based. But we are not concerned here with appellate procedure; and, for purposes of certiorari, I would have thought that an order of disqualification was as much a penalty as a fine of £20. I apprehend that 200 years ago, the courts were not called upon to decide whether they should make an order disqualifying a person from holding a licence to drive a stage-coach; and cases such as R. v. Arundel Justices(2) appear to me to be valiant attempts to mould these old prerogative writs (now orders), and their antiquated procedure, into a modern setting.
22. Be that as it may, I do not think that the jurisdiction exercised by the Board of Reference under s.29(1) of the Ordinance could be described as criminal in character; and if that is so, there is ample authority for the proposition that the Board of Reference may reassemble and consider what action to take consequent upon their being unanimously satisfied that the applicant was guilty of misconduct.
23. In R. v. Northumberland Compensation Appeal Tribunal:Ex Parte Shaw(3), the Appeal Tribunal had assessed compensation on the wrong basis; and upon applications being made to the Divisional Court for orders of certiorari and mandamus, having said that certiorari would issue to quash the order of the Tribunal, Lord Goddard C.J. said (p.724):-
“We do not think it necessary to grant mandamus in this case, because once the order is quashed it follows that the applicant will be able to go back to the appeal tribunal ……”.
24. The appeal(4) from that decision to the Court of Appeal was dismissed. Denning L.J. said (347):-
“The King’s Bench does not substitute its own views for those of the tribunal, as a Court of Appeal would do. It leaves it to the tribunal to near the case again, and in a proper case may command it to do so.”
And at p.354, he said:-
“The decision must be quashed, and the tribunal will then be able to hear the case again and give the correct decision.”
25. As regards proceedings before Boards of Reference my note of counsel’s submission on behalf of the applicant reads:-
“Proceedings before Boards are in two stages. Firstly there is an inquiry to determine whether the seaman is guilty of misconduct. In this case the Board made a finding to this effect and that finding was not disturbed by the order of certiorari issued on 12th February. Secondly, the Ordinance prescribes further procedure before a penalty is imposed.”
With that submission, counsel for the respondent was in general agreement; and it seems to me therefore that counsel are in agreement that the proceedings before the Board are severable. That being so, there is no question of the order of 12th February operating so as to quash the entire proceedings; and what it amounts to is simply this: On 15th December the Board directed that the applicant’s name be removed from the Register; the certiorari proceedings operated as a stay; the Board’s direction was quashed on 12th February and the clock was put back, so to speak, to the stage where the Board had made their finding of guilt, but they had not yet given any direction or order under paragraph (i) or paragraph (ii) of s.29(1) as, in my view, they are required to do. If it were not so, the applicant would be faced with an intolerable situation in that the Superintendent’s suspension order would stand for an indefinite period; and, clearly, that was not the intention of the legislature.
26. I would refuse this application for an order of prohibition. The Board of Reference should now reconvene; and, after complying strictly with the provisions of s.30, they should take action either under paragraph (i) or paragraph (ii) of s.29(1). If they decide to act under paragraph (ii), their order may be for as short a period as one day’s suspension if they think that the period of suspension following upon the order of the Superintendent is sufficient in all the circumstances. If, on the other hand, they think that it is undesirable that the applicant should ever serve again in foreign-going ships (and as to that I express no view whatsoever) they will no doubt make an order under paragraph (i), leaving the applicant to exercise his rights under s.32 and s.14.
| (W.A. Blair-Kerr) President |
B.M.W. Downey (Messrs. Gordon Hampton & Winter)for Applicant.
B.P. Clancy, C.C. for Respondent
(1) (1948) 1 K.B. p.397
(2) (1959) 2 Q.B. p. 89
(1) (1948) 1 K.B. p.397
(2) (1959) 2 Q.B. p. 89
(2) (1959) 2 Q.B. p.89
(2) (1959) 2 Q.B. p.89
(3) (1951) 1 K.B. p.711
(4) (1952) 1 K.B. p.338