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Secretary For Justice v Flame Construction Co. Ltd. And Others

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date02 November 2001
Year2001
Judgement NumberHCMA942/2001
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000942/2001 SECRETARY FOR JUSTICE v. FLAME CONSTRUCTION CO. LTD. AND OTHERS

HCMA000942 /2001

HCMA 942 /2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 942 OF 2001

(CASE STATED FROM FANLING MAGISTRACY
CASE NOS. FLS 1653, 2585, 2586 AND 2587 OF 2000)

____________________

BETWEEN
SECRETARY FOR JUSTICE Appellant
AND
FLAME CONSTRUCTION CO. LTD. Respondents
ZEN PACIFIC CIVIL CONTRACTORS, LTD.
CHINA STATE CONSTRUCTION ENGINEERING CORPORATION
NGO KEE CONSTRUCTION CO. LTD.

____________________

Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 26 October 2001

Date of Judgment: 2 November 2001

____________________

J U D G M E N T

____________________

1. This is a case stated pursuant to the Appellant's application made under section 105 of the Magistrates Ordinance, Cap.227 arising from the magistrate's acquittal of the four Respondents of offences contrary to section 8(1)(a) of the Water Pollution Control Ordinance. The 1st Respondent was charged as the discharger of polluting matter, and the 2nd through to the 4th Respondents as the occupiers of premises from which the polluting matter was discharged into a river bounded by or running through a construction site in Deep Bay Water Control Zone.

Section 8(1)(a) is in these terms:

"(1) Subject to section 12, a person commits an offence who discharges-

(a) Any waste or polluting matter into the waters of Hong Kong in a water control zone"

Section 8(1A) will also be referred to in the course of this judgment and it is in these terms:-

"(1A) Subject to section 12(1A), a person commits an offence who discharges any poisonous or noxious matter into the waters of Hong Kong."

The provisions of Section 12 and Section 12(1A ), referred to in Section 8(1)(a) and Section 8(1A) respectively, relate to defences which are of no relevance to this appeal.

2. The facts forming the background of the case were that the four Respondents were contractors and subcontractors occupying the construction site inside the Deep Bay Water Control Zone through which the river ran.

3. On the charged date, the 21 September 1999, excavation work was taking place at a trench on the site. From that trench came a flow of muddy water. Normally that flow was taken by hose to a desilting pond. There were two chambers to that pond and the hose was required to be led to the first chamber. Unfortunately on the day in question a workman, apparently inadvertently, attached the hose to the wrong chamber with the result that an overflow of muddy water went into the nearby river.

4. A few minutes later, exactly how many minutes is not known, the mistake was noticed and corrected by the hose then being attached to the correct chamber.

5. In the meantime the river had, downstream, been discoloured by the discharge. A sample of the discharge was taken from the overflow from the filtration tank and it was found to consist of muddy water containing 73,000 mg. per litre of suspended solids. Evidence before the magistrate suggested the average level of suspended solids in a natural stream in Hong Kong was 5 mg. per litre.

6. The sample which was taken was from the discharge itself prior to it entering the river. No sample was taken from the river, whether upstream or downstream, or at the point of the discharge entering the river.

7. The Magistrate in his findings concluded that although muddy water was capable of being polluting matter in the terms of section 8(1)(a) of the Ordinance it:

"required more proof than what would be required in a case of discharging an alien toxic substance, because mud is a natural substance normally occurring in river banks and river beds".

He went on to say that in a case where the alleged polluting matter was mud or muddy water, the prosecution had to prove, inter alia, as he put it:-

"(a) Quality contrast, i.e. the quality of the river water upstream and downstream by taking samples from upstream and downstream, in order to prove causation,

(b) Pollution at site boundary, i.e. the mud or muddy water was discharged from the site into the river, in order to prove escape, and not merely intra-site mud movements,

(c) Duration of the stated river water mud concentration to prove damage to the environment"

Paragraph (b) above is expressed in those terms by the magistrate because, as I say, the sample taken of the muddy discharge was taken at a point prior to its entering into the river and apparently from a flow over land as it proceeded towards the river.

8. The questions of law proposed by the Learned Magistrate on the above basis are as follows:-

"(1) Whether the discharge of mud or muddy water requires more proof than the discharge of an alien toxic substance and

(2) Whether I erred in acquitting the Respondents".

By question (1), it was accepted before me that the magistrate was not seeking an opinion on the legal burden or standard of proof. It was accepted that the question was simply as to whether evidence was required, as a matter of law, when the substance complained of was a natural substance such as muddy water, as to the actual effect of that substance or matter on the protected water way. So far as question (2) is concerned the Appellant at this hearing informed this court that although she sought answers to the questions proposed by the Learned Magistrate she would not seek, in the event this court was to find the Learned Magistrate was in error, that the verdicts of acquittal be varied.

9. As to the 1st question framed by the case stated, the magistrates concerns stem from, so far as the facts of the present case are concerned, the circumstance that like was alleged to have polluted like. That is, that the muddy discharge the subject of the case, was in effect composed of the same material the river itself was made of, i.e. earth and water, albeit in a different concentration.

10. The learned Magistrate was concerned that in those circumstances where the discharge is alleged to have been "polluting matter" there should have been as a matter of law evidence before him of the polluting effect of the discharge.

11. The issue, on that basis, is whether the legislation in prohibiting the discharge requires more than mere proof of the nature or composition of the matter alleged to be polluting and requires proof of the effect of that allegedly polluting matter on the waterway into which it is discharged.

12. To answer the questions framed by the case stated it is necessary to look at the construction of the relevant legislation. The legislation, it is true, on its face is not couched in express terms which require proof of any actual effect upon or of damage being occasioned to the protected waterway.

13. I am told there is no authority in Hong Kong law as to the construction of section 8(1)(a) and the related section 8(1A). I am told further that there is no authority which counsel have been able to find in the common law jurisdictions which courts in Hong Kong are familiar with which throws any light on the construction of similar legislation other than the cases of R.v. Dovermoss Limited (1995) Env. L. R. 258 and R.v. Eggar (unreported).

14. In Dovermoss the court was concerned with many issues unrelated to this case stated but did briefly touch upon the question of whether animal slurry on a farm was polluting matter for the purpose of similar English legislation.

In that case the court said:

"It will, of course, be a question of fact and degree whether the matter does pollute the waters. Obviously, a very small quantity poured into a large watercourse may have no polluting effect at all. It is so diluted that it does not...

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