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Living on a boat in Hong Kong a ‘legal grey area’, say lawyers as residents face eviction from Discovery Bay Marina Club

Veteran maritime lawyer says regulations against doing so open to ‘wide interpretation’

PUBLISHED : Saturday, 15 September, 2018, 4:51pm
UPDATED : Saturday, 15 September, 2018, 11:32pm

Living on a boat in Hong Kong is a legally grey area, with laws against it open to “liberal interpretation”, experts have said.

The debate over the legality heated up after it was brought to public attention at the end of last month that about 200 families living on boats at the Discovery Bay Marina Club faced eviction in four months, as the club will be closed for renovation by the end of this year.

Boating industry insiders estimated fewer than 2,000 people live on boats across Hong Kong.

Asked how the government would help affected families, a Marine Department spokeswoman simply cited two laws: that a Class IV vessel – including yachts, cruisers and open cruisers – shall be used exclusively for pleasure purposes; and that it is not legal for such a vessel to be used solely as a dwelling. Those who breach this law can face a fine of HK$10,000.

Most of the Discovery Bay houseboats are Class IV vessels. And the government’s view on the legality of houseboats could have a major bearing on their ability to find somewhere else to live.

The second law stipulates no person shall use a vessel as a dwelling within Hong Kong waters unless they got a licence before the regulation was introduced in 2007. Anyone who breaks this regulation can face a fine of HK$5,000 and six months in prison.

From 2013 to August this year, the spokeswoman said, there were 60 prosecutions for using a Class IV vessel not exclusively for pleasure purposes.

Already in shock that they will be evicted, many Discovery Bay boat owners said they were surprised to learn that it might not be legal to live in their boats.

But veteran maritime lawyer Christopher Potts said there was room for argument, subject to the facts of individual cases and interpretation of the laws.

“There is no outright ban on living aboard,” Potts said. “People can and do live on boats within the law. Marinas such as Discovery Bay and Clear Water Bay are specifically designed to facilitate living aboard.”

Potts, a partner at Crump & Co, an international maritime and commercial law firm, said the term “exclusively for pleasure purposes” was open to “very wide interpretation”.

“Could the yacht be used as a gym or massage parlour, for example?” he said. The definition of “dwelling vessel”, Potts said, was also “very permissive”.

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The regulation defines a dwelling vessel as a local vessel used, built or adapted principally for dwelling purposes, and tending to remain stationary in any area of Hong Kong waters.

Potts said these conditions were “very difficult to establish legally”.

Henry Moreno, chairman of a group of 208 affected marina club members, has lived on board for two years with his family.

He argued that all the pleasure boats in the marina were fitted for sea voyages with engines, while boats constructed for dwelling purposes would not have an engine and would need to be towed around. He added that his boat cruised to shipyards in Aberdeen for maintenance every year, so it was not staying in one place.

In addition, he said, his family spent a quarter of a year outside Hong Kong, so they were really just spending many nights on their boat.

“[The boat] is not solely used for dwelling,” Moreno said.

Potts said those arguments were all valid.

“I have sailed and overnighted on many boats in and around Hong Kong for nearly 40 years and never encountered a problem,” Potts said. “I know a number of people who live semi-permanently on boats on marinas, in typhoon shelters and anchored in and around Hong Kong.”

Felix Chan Wai-hon, maritime law associate professor at the University of Hong Kong, agreed that there was a grey area.

For example, he said, the term “dwelling” is not specifically defined in the dwelling vessel regulation, and it could be difficult to give evidence that a vessel tends to remain stationary.

The Marine Department spokeswoman said there were four licensed dwelling vessels in Hong Kong as of the end of last year, and they were moored at Causeway Bay Typhoon Shelter. She said the department would only process the renewal of these four licences and would not issue any new licences.

She declined to comment on why the department stopped issuing new licences, but Potts said it possibly did not see any need for new licences, “in view of the liberal interpretation of the [cited] laws”.