Fisheries Protection

Under s10 of the Ordinance, any licensee who within the controlled areas uses in fishing for sea fish any ring net or similar net commits an offence. As Chen was found pumping fish from a ring net into his 90-ton trawler within the controlled area, he has been charged under this section. The first issue is whether a fisherman without licence can be liable for the offence under s10 of the Inshore Fishing Ordinance. Under the strict literal meaning of the provision, and the language rule – expression unius exclusion alterus, only the licensee can be liable for this offence.

This is a big absurdity of the provision under the literal interpretation, it completely defeat the purpose of the legislation. The court may apply the Mischief Rule in interpreting s10 by determining the mischief the legislation sought to remedy and considering the ordinance as a whole. The purpose of the Ordinance is to prevent the exhaustion of coastal fish stocks by vessels using sophisticated equipment which may include ring net. Then a licensing system was established as a means of control of coastal fishing.

By applying the Mischief Rule and taking the Ordinance as a whole, s10 may not only cover licensee but also person without licence. In case, Adler v George (1964)7, it was established that court would take a similar view to extend the literal meaning of the legislation in solving absurdity. The second issue is whether the meaning of 'fishing' covers 'pumping of fish'. It is assumed that the word 'fishing' in s11 cannot be found from the interpretation section and any other sections of the Ordinance, extrinsic aids have to use to find out the literal meaning.

In the interpretation section of the Fisheries Protection Ordinance8, 'fishing' includes the capture of fish. The natural meaning of 'fishing' includes a series of process from setting the net, pulling the net inside water, catching / capturing fish and pumping fish from the net. If the natural meaning of 'fishing' has been taken, pumping fish from a ring net in the controlled area like Chan may be liable for the offence under s10 of the Ordinance. If Chan takes the narrower meaning of fishing – 'capture of fish' under the Fisheries Protection Ordinance in arguing his case, he may not be liable for an offence under s10.

It is because fishes were captured outside the controlled area, and Chan was only pulling or pumping his catches from the ring net inside the controlled area. However, the meaning of 'fishing' under the interpretation section of the Fisheries Protection Ordinance is still ambiguous. Section states 'Fishing' includes capture of fish, but it does not rule out other process in normal fishing. Therefore, the court may take a wider natural meaning of 'fishing' in reading s10 of the Ordinance. Then pumping fish out of the net is a part of the fishing process.

Chan would be liable for the offence under s10. (c) Possible liability of Danny under the Inshore Fishing Ordinance by using a small ring net inside controlled area without licence The first issue to be examined is whether Danny's motor boat can be class as an operating vessel under 100 tons. It is assumed that the word 'vessel' used in the licensing section cannot be found from the interpretation section and any other sections of the Ordinance, extrinsic aids have to use to find out the literal meaning.

Fortunately, the word 'vessel' bears the similar meanings in s3 of the Interpretation and General Clauses Ordinance9 and s2 of the Fisheries Protection Ordinance. The Interpretation and General Clauses Ordinance takes a wider meaning of vessel to include any ship or boat and any description of vessel used in navigation. In the Fisheries Protection Ordinance, 'vessel' means any vessel used for fishing, and any junk, sampan, native craft or boat. By applying the language rule – ejusdem generis, Danny's motor boat can be classified as vessel under either ordinance.

If Danny would like to use ring net with his motor boat inside the controlled area, he should apply for a licence under the Inshore Fishing Ordinance. The second issue is whether using a much smaller ring net for holiday or leisure purpose can be exemption from the licensing system of the Ordinance. There would be an ambiguity here as the ring net used by Danny was much smaller than those normally used in Fishing. It is arguable that since the words used in s10 are 'ring net or similar net', any size of the ring net would be sufficient for the purpose of the Ordinance.

The ambiguity may be resolved by applying the Mischief Rule of construction. It would be legitimate to consider the preamble or the main principle of the Ordinance to the present provision to ascertain the mischief. Clearly it is to preserve fish stocks by stopping large vessels using sophisticated equipment for fishing in coastal area. It is arguable that the small net used by Danny in catching fish inside the controlled is too negligible to have any impact to the coastal fish stocks. Therefore, Danny may not be liable for the offence under s10 of the Ordinance by using his small ring net for fishing inside the controlled area.

However, it can be argued that the court would not allow the preamble to create any ambiguity in the body of the Ordinance. In Powell v Kempton Park Racecourse Co. Ltd (1899)10, the judge stated that if the enactment is clear then no preamble can qualify or cut down the enactment. In conclusion, it is advisable for Danny to get a licence and operate his net out of the controlled area.

1 Carter v Bredbeer [1975] 1 WLR 665. The House of Lords noted the courts had been moving away from the literal rule to the Golden Rule type of construction. 2 [1980] AC74 3 Cap. 26 Sales of Goods Ordinance, s3 (3) 4 Cap. 26 Sales of Goods Ordinance, s3 (4) 5 Cap.

1 Interpretation and General Clauses Ordinance, s3 Interpretation of words and expressions. 6 [1987] A. C. 303 7 [1964] 2 QB 7 Division Court ruled that the defendants were guilty of an offence as the literal meaning of the statute was extended from within the vicinity to actually inside the prohibited area. 8 Cap. 171 Fisheries Protection Ordinance, s2 Interpretation 9 Cap. 1 Interpretation and General Clauses Ordinance, s3 Interpretation of words and expression