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Writ over Disney fish farm pollution award
Albert Wong
Fish farmer seeks judicial review of `irrational' payout for damage caused by theme park construction. A fish farmer is challenging the government over the amount of compensation she was awarded for marine pollution caused by the construction of Disneyland at Penny's Bay on Lantau.
In an application for a judicial review in the High Court Thursday, Leung Suk-lin of Lamma Island claims that the Agriculture, Fisheries and Conservation Department had failed to appreciate “the fundamental purpose of the compensation scheme,'' which was to refund possible loss of earnings based on the size of her fish farm in the past, and not between 2000 and 2002 when a “raft'' was taken away for repairs.
She alleges that the department had measured the size of her farm based on the area covered by rafts in March 2001 - when one of the rafts had been removed on the department's orders for repairs.
She claims that the farm's size would have been doubled had the raft not been removed.
The plaintiff alleges that when she wrote to the department's appeals board to explain the case, her appeal was dismissed without sufficient regard.
A sum of HK$498,998, based on 595.52 square meters, was awarded in July 2001, but Leung claims the compensation should have been based on her maximum licensed area of 1,194 square meters.
She said that she had been paying license fees for 1,194 square meters all along.
Leung is seeking to quash the original decision and the dismissal of her appeal, and have the department re-assess the amount of compensation she should receive.
According to the writ, “in or about 2000,'' construction work on the Disneyland theme park aggravated marine pollution “in adjacent sea areas which threatened the viability of marine fish culture'' at Sok Kwu Wan, Lo Tik Wan and Ma Wan.
In 2000, the government, through the Agriculture, Fisheries and Conservation Department and the Lands Department, agreed to compensate fish farmers in those areas.
But the compensation “would be based on either the fish culture raft area authorized by the license or the area of the fish culture [rafts] measured on site, whichever was the less.''
The writ claims this “criteria'' does not translate the possible loss of earnings, and does not conform with the “fundamental purpose'' of compensation.
“No government source has so far explained how these criteria were arrived at or where they are authoritatively stated,'' the writ claims.
Leung applied for compensation in February 2001, and inspectors from the two departments measured her raft area at Lo Tik Wan in March that year. They determined it to be 595.52 square meters.
She wrote back to the authorities in May saying that, shortly after those measurements were made, the other raft had returned after being repaired.
Consequently, another measurement was made, determining the total raft area at 1,207.6 square meters.
But when she was informed of the compensation she was to receive in July 2001, it appeared that her farm area had been determined at 595.52 square meters.
The Fishermen's Claims Appeals Board - another respondent named in the writ - heard Leung's appeal more than a year later, in November 2002, but dismissed her arguments, saying “according to the records,'' her farm size was 595.52 square meters.
In May, 2003, the Joint Committee of Hong Kong Fishermen's Organizations wrote to the appeal board further elaborating the reasons for her decreased farm size at the time it was measured, but it was told that the “decisions were final,'' the writ claims.
Leung's application for a judicial review is based on the belief that it is irrational and unreasonable for the Agriculture, Fisheries and Conservation Department to determine her farm's area on measurements made when it had been reduced by about half.
The appeal board also “failed to recognize the reason'' for the decreased size, even though another measurement had been made determining its full potential after Leung had told the department about the return of the raft.
The two departments had failed to recognize the “fundamental purpose'' of compensation, the writ claims. | 
