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Following is a question by the Hon Jeffrey Lam, and a written reply by the Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council (February 27):
The legislation banning trawling in Hong Kong waters (trawl ban) came into operation on December 31, 2012. Affected trawler vessel owners and local deckhands employed by them are entitled to ex-gratia allowances (EGA) and one-off grants. Some fishermen affected by the trawl ban have complained to me that the working group for vetting and approval of EGA applications, comprising representatives from the Agriculture, Fisheries and Conservation Department (AFCD) and other relevant government departments, has adopted unclear criteria in assessing whether the fishermen belong to the tier of “not mainly dependent on Hong Kong waters for trawling operations”, and the Government-appointed Fishermen Claims Appeal Board (FCAB), which is responsible for handling appeal cases, also has an unreasonable composition. In this connection, will the Government inform this Council:
(a) given the composition of FCAB with three lawyers, one accountant and one professor in ecological conservation but no fishermen representative, of the reasons for the authorities not appointing any fishermen representative to FCAB;
(b) as the authorities have indicated that they would collect information through “appropriate channels” for FCAB to assess whether the affected fishermen belong to the tier of “not mainly dependent on Hong Kong waters for trawling operations”, of the details of the “appropriate channels”; and
(c) whether AFCD has considered making public its patrol records (including information in respect of the time, number, frequency and areas of patrol) used for assessing the EGA amounts; if it has, of the details; if not, the reasons for that?
To help restore the fisheries resources in Hong Kong waters and promote the sustainable development of the fisheries industry, the Government has been gradually implementing various fisheries management measures as recommended by the Committee on Sustainable Fisheries in its report submitted to the Government in April 2010. Apart from banning trawling activities in Hong Kong waters, we are also processing applications for registration of local fishing vessels so as to prohibit non-local fishing vessels from fishing in Hong Kong and control the fishing effort in Hong Kong waters. The Government has revised the mechanism and terms of the Fisheries Development Loan Fund, with a view to better meeting the requirements of the fisheries sector. The Government is also reviewing the propriety of issuing new marine fish culture licences in fish culture zones with surplus carrying capacity. We provide assistance to fishermen to upgrade their knowledge and skills by arranging various training courses, workshops and seminars, including assistance to help them venture into ecotourism. The Chief Executive announced in his 2013 Policy Address the setting up of a Sustainable Fisheries Development Fund of $500 million to provide for financial assistance for projects and researches conducive to the sustainable development of the fisheries industry.
The subsidiary legislation to ban trawling activities (the trawl ban) in Hong Kong waters came into operation on December 31, 2012. The Finance Committee (FC) of the Legislative Council (LegCo) also approved, in June 2011, a one-off assistance package to trawler vessel owners, local deckhands employed by inshore trawler owners and fish collector owners affected by the trawl ban and for implementing other related measures. In disbursing the ex-gratia allowance (EGA), the Government has made reference to the method for determining the EGA for fishermen affected by marine works projects and set up an interdepartmental working group (IWG) comprising representatives from the Agriculture, Fisheries and Conservation Department (AFCD) and other relevant departments (including the Marine Department) to handle all matters relating to applications received under the one-off assistance scheme.
Bound by the policy, proposal and guiding principles pertaining to the assistance package as set out in FC Paper FCR(2011-12)22, the Administration, when apportioning the EGA payable to different groups of claimants, would have to ensure that the allowance paid is proportional to the impact of the trawl ban on individual applicants. For inshore trawlers which operate wholly or partly in Hong Kong waters, their owners are the most affected by the trawl ban and should therefore receive a higher amount of EGA. A total amount of $1,190 million of EGA will be apportioned amongst eligible inshore trawler owners. For larger trawlers which generally do not operate in Hong Kong waters, the impact of the trawl ban on them is far less than that facing inshore trawlers. Having taken into account the fact that this group of larger trawlers may lose the option of trawling in Hong Kong waters under certain circumstances, FC approved the payment of a lump sum EGA of $150,000 to each larger trawler.
When processing the applications, the IWG has to determine whether an applicant is eligible for EGA and take a view on the category of the subject vessel, i.e. whether it is an inshore trawler or a larger trawler. If the subject vessel is an eligible inshore trawler, the EGA payable will in general depend on the number of successful applications as well as other apportionment criteria determined by the IWG. When apportioning the EGA concerned, the IWG has further divided inshore trawlers into two tiers: (1) those which are mainly dependent on Hong Kong waters for trawling operations (higher tier); and (2) those which are not mainly dependent on Hong Kong waters for trawling operations (lower tier). The IWG would consider all relevant data and information related to the application before making a professional judgment on the category to which a subject vessel belongs. The data and information considered include:
(i) the particulars of the vessel such as its type, length, hull structure and design;
(ii) the number and capacity of the engine(s), and the type and number of net gear used, etc;
(iii) information about the vessel as captured by the local licence and/or Mainland documentation;
(iv) the number of deckhands working on board the vessel and their identity;
(v) frequency at which the vessel was seen moored in typhoon shelters and the seasonal pattern, as borne out by AFCD’s field validation surveys at major typhoon shelters in Hong Kong in 2011;
(vi) the frequency at which the vessel was seen navigating or operating in Hong Kong waters and the seasonal pattern, as borne out by AFCD’s boat patrols in Hong Kong waters from 2009 to 2011;
(vii) means of fuel and ice replenishment pertaining to the vessel;
(viii) means of sales and volume of fish catch; and
(ix) other relevant information, including information provided by the applicant and information on the applicant or his vessel obtained by the IWG from other sources.
The IWG believes that the above information and data empirically reflect the operation pattern of trawler vessels in Hong Kong waters.
As at February 19, 2013, the IWG has issued 1 103 notifications to applicants. Decisions on 14 applications are pending for various reasons (such as the need to await the provision of further information or documents by the applicant). Some successful applicants have already collected the EGA payments from AFCD since November 2012. As at February 19, 2013, 645 applicants have collected the EGA payments, involving a total amount of approximately $820 million. In line with past practices, the Government has set up a Fishermen Claims Appeal Board (FCAB) comprising non-official members to process appeals by the applicants against the decisions of the IWG. The IWG has also retained 30% of the total amount of the EGA due to owners of inshore trawler vessels, thereby providing room to cover possible successful appeal cases as may be determined by the FCAB. The FCAB will adjudicate the appeal cases initiated by affected trawler owners to ensure that the decisions made by the IWG on EGA payments comply with the government policy. The secretariat of the FCAB is located at the Food and Health Bureau.
My reply to the various parts of the question is as follows:
(a) The main terms of reference of the FCAB are to see to it that the criteria for EGA applications established by the IWG and its decisions on eligibility and the amount of EGA granted comply with the government policy and are fair and reasonable (in the public law sense) to the applicants.
With a view to avoiding conflict of interests, the Administration has not appointed any practitioners in the fisheries sector to this FCAB. This is in line with previous practices when appointing members to the FCAB for marine works projects in recent years.
(b) According to the procedures, the FCAB will avail the opportunity for the appellant (i.e. the fishermen) and the respondent (i.e. the IWG) to make a submission, and for them to respond to questions and engage in cross-examination. Witnesses presented by the two sides will also have the opportunity to respond to questions and engage in cross-examination. Should the FCAB consider it necessary, it may gather relevant information through appropriate channels (such as obtaining the views of a third party expert). Both the appellant and the respondent would be apprised of the information obtained by the FCAB in respect of the appeal case. The secretariat will make the necessary arrangements as far as possible, thereby assisting the FCAB to carry out its work in a fair and impartial manner.
(c) In assessing the eligibility of an applicant, the vessel type and the amount of EGA to be granted, the IWG considered all relevant data and information related to the application, such as the frequency at which the vessel was seen navigating or operating in Hong Kong waters and the seasonal pattern, as borne out by AFCD’s boat patrols in Hong Kong waters from 2009 to 2011. Over 1 600 patrols, which covered all major fishing locations in Hong Kong waters, were conducted by AFCD between 2009 and 2011.
AFCD also conducted field validation surveys at major typhoon shelters in Hong Kong in 2011 to find out the frequency at which trawlers were moored in typhoon shelters and the seasonal pattern. Over 400 surveys were conducted. Survey officers inspected the entire typhoon shelter and recorded information including photos of trawlers. In assessing individual cases, the IWG also made reference to the records made in the field validation surveys at typhoon shelters concerning the vessels under application. The appeal process has been initiated. Should it be so requested by the FCAB, the IWG will give a clear account of the information used in processing the cases, including the relevant information of the vessels in the appeal cases collected in the above mentioned boat patrols and field validation surveys at typhoon shelters, to the FCAB and each appellant. The appellant may make reference to the information for making representations. The FCAB would then make a ruling in a fair and impartial manner.