The Lighthouse Winmore, a Hong Kong registered ship, was alleged to be in violation of sanctions imposed on North Korea by engaging in illicit ship-to-ship transfer of cargo from the vessel to a North Korean vessel. The Hong Kong Director of Marine (the respondent) indicated its intention to close the registration of the vessel and the vessel was detained pursuant to United Nations Resolution 2397.

The owners of the vessel, Win More Shipping Ltd (the applicant), applied for judicial review and sought to challenge: (1) the respondent’s decision to close the registration of the vessel; and (2) the failure of the respondent to make a request to the United Nations Security Council Sanctions Committee to release the vessel from detention.

In relation to the first ground of challenge, the applicant argued, among other things, that the respondent’s decision had no factual basis and that the applicant would be prejudiced as a result. In respect of the second ground of challenge, the applicant argued that the respondent had a statutory duty under art 94 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) to make a request to the Committee to release the vessel.

Held: Dismissing the applicant’s application for judicial review.

On the first ground of challenge, the court held that the applicant’s application for judicial review of the respondent’s decision to close the registration of the vessel was premature. Whilst the respondent had the intention to close the registration of the vessel, the vessel was not de-registered yet. As judicial review is a remedy of last resort and does not lie against any intermediary, procedural or provisional decision which does not give rise to a substantive consequence, the applicant’s application was premature because a final decision had not been meted out and the applicant had not exhausted all alternative remedies.

Turning to the second challenge, the court held that the respondent does not have a duty under art 94 of UNCLOS to make a request for the release of the vessel for the following four reasons.

First, art 94 of UNCLOS does not impose a duty or obligation on a State to make a request for the release of a vessel flying its flag. The duties imposed under art 94 only relate to the administrative, technical and social matters of the ship, including matters of marine safety and welfare of the crew, but have nothing to do with matters such as seeking relief from sanctions imposed by the Committee.

Second, UNCLOS is in the nature of an international treaty and does not give rise to any legal rights or obligations which are directly enforceable in the domestic court.

Third, para 9 of the Resolution contemplates that a request would be made by a 'flag State'. Hong Kong is neither a 'state' nor a 'flag State' and has no legal standing to make any request pursuant to para 9 of the Resolution. Such a request can only be made by the Central People’s Government of the People’s Republic of China (the PRC government).

Fourth, any request under para 9 of the Resolution to the Committee would be a matter of 'foreign affairs' relating to Hong Kong and such responsibility lies with the PRC government as prescribed under art 13(1) of the Hong Kong Basic Law.

The applicant also raised an alternative argument that the respondent should have transmitted the applicant’s request to the Committee via the PRC government. This argument was rejected because any such request would be a matter for the sole discretion of the PRC government.