Environmental Law in Hong Kong

Case 1 HKSAR v Dragages Hong Kong Ltd, HCMA 238/2014

Why did the defendants fail to make out a statutory defence?

According to section 33 of the Noise Control Ordinance (Cap 400), the statutory defence made towards section 6 can be,

1. by reason of the fact of any authorization under any licence, permit or exemption granted under any other Ordinance;
2. in pursuance of the purpose of the prevention of injury to any person or the saving of the life of any person;
3. in pursuance of the purpose of the prevention of damage to property where the circumstances placing the property in danger of being damaged could not reasonably have been foreseen by the person charged with the offence; or
4. in pursuance of the purpose of the prevention of serious interruption or disruption to any public transport system where the circumstances which would otherwise cause such an interruption or disruption could not reasonably have been foreseen by the person charged with the offence.

In HKSAR v. Dragages Hong Kong Ltd (2014), the permit granted to Dragages Hong Kong Limited (D1) only allow the usage of two track laying excavators bearing a quality powered mechanical equipment label showing a sound power level equivalent to or lower than 103 dB(A) at the Site. The Judge agree with the magistrate’s findings that there were six excavators in operation on the day of the offence, which exceed the permitted number. Besides, D1’s representative Mr Liu Hoi-yu indicated that the “quantity of soil excavated” that day was about half of the usual quantity, and he did not believe that five were used to do “soil excavation” work that day by the sub-contractor. However, the magistrate said the lower “quantity of soil excavated” has no evidential value. The Judge also agree with such findings. Thus, it is obvious that the defendants cannot use the section 33(a) of Noise Control Ordinance to defence in this case. One of the Houtai Construction Limited’s (D2) representative Mr Ling Chi said two excavators performed the “soil excavation” while two more performed urgent reinforcement work due to the heavy rain the night before, and others were performed maintenance inspection and adjustment work, normally done on holidays. However, from the video, the Judge found that the six excavators in operation on the day of the offence were carrying out soil excavation and delivery work, not urgent slope maintenance work or preventing injury to or saving life of any person. Thus, D1 and D2 had failed to make out the statutory defence under section 33(b) and (c) of the Noise Control Ordinance. Due to the case happened within the Site boundary, the section 33(d) statutory defence is not relevant.

Why did the common law defence of mistaken belief also fail in this case?

The common law defence of mistaken belief means the defendant had good and sufficient reasons to believe that he had complied with the relevant legislation—even if the belief was mistaken. In HKSAR v. Dragages Hong Kong Ltd (2014), the appellant says the magistrate set an unreasonable high threshold, which is unrealistic and excessively harsh and without considering the appellant’s subjective belief. The appellant should still be able to rely on the common law defence, as it was not aware that its employees would act contrary to its instructions. The Judge agree with the magistrate’s findings that the act of sending staff to inspect the Site have shown that D1 knew that supervision is needed to prevent the sub-contractors from breaking the rules and ensure the compliance on the relevant legislation and permit. The Judge said imposing a sound supervision system with sufficient manpower in the Site during public holidays can minimize the opportunities for D2 not to follow D1’s instructions. There was no arrangement for other supervisors or workers to take over the supervisory duty before the construction site supervisor left the Site. This shows a loophole in the D1’s supervision at the Site on the day. Due to the inadequate supervision, D1 had provided opportunity for D2 to break the rules. The noise produced from operating six excavators at an outdoor site is easy to be heard on-site but no staff from D1 stop the works. This shows the insufficient manpower for supervision to oversee the relevant construction site at all times, where the cost is simply negligible when compare with the profit from the project. Additionally, the progress of construction work or the weather should not affect the responsibility of D1 to supervise the activities carried by its sub-contractors. Thus D1 cannot had good and sufficient reasons to believe that D1 had done all reasonable steps to ensure the compliance with the relevant legislation and permit. Therefore, the common law defense on mistaken belief also failed in this case.

Is it appropriate that common law defences, such as the defence of mistaken belief, should apply to environmental prosecutions?

For most environmental pollution offences are strict liability offences which is not necessary to prove mens rea in order to establish the criminal liability. For example in the Water Pollution Control Ordinance (Cap 358) section 10 (1997), it stated that if the defendant caused matter to enter the waters of Hong Kong or inland waters or a communal sewer or communal drain or caused matter to be deposited shall not be necessary for the prosecution to prove that the acts or omissions in question were accompanied by any intention, knowledge or negligence on the part of the defendant as to any element of the offence. Either subjective or objective fault in any form on the part of the defendant is not required to be proved. However, generally, it will still need to prove defendant is voluntary to act the offence and usually only the central element of the criminal prohibition does not require proof of mens rea (Jackson, 2003). In R v Wang Shih-hung, R v Fong Chin-yue (1995), the Judge concluded that the duty of proof of knowledge was outstanding for prosecution and the defence of mistaken belief was excluded neither by the language of the statutory provisions under which defendant was charged nor by the express inclusion of such a statutory defence in relation to an alternative offence. It is appropriate for the defendant to use the defence of mistaken belief to prove on the balance of probabilities that he reasonably though incorrectly held an honest belief (Jackson, 2003). The prosecution have to prove beyond reasonable doubt that defendant was not acting under a wrong belief at the time when the defendant use the defence of mistaken belief. As example can be found in HKSAR v Dragages Hong Kong Ltd (2014), the Judge have shown that the liability of defendant, having an overall control of the Site, have eliminate the possibility of common law defence by using mistaken belief.

What principles of sentencing were applied on this appeal?

In this appeal case, the Judge included the element of deterrence when considering the sentence. Generally, such sentence may prevent other potential criminals from committing the same offence, creating a deterrent effect on society. It also may prevent the persistent offender from committing similar offences again (Jackson, 2003). A deterrent sentence is effective on the offender who has a clear record (Jackson, 2003). In HKSAR v. Dragages Hong Kong Ltd (2014), with a clear record of D1 already have 26 times similar conviction and the highest fine it has been ordered to pay for previous similar conviction is HKD 50000, this reflected that D1 did not learn any lesson from previous conviction and the fines imposed is too low which may create the incentive to contravene the legislation. The Judge viewed this as an aggravating feature. The appellant had referred a number of cases to show that the fine of HK$80000 is not consistent with the sentence normally imposed in similar cases. However, due to the fact that those cases appeals against conviction, not sentence, there is no information, such as the criminal record of appellants, provided on the sentencing consideration. Together with the fact that six excavators were used in this case, which is much more serious than the cases appellant had referred, and the value of the contract, the Judge agree with the magistrate who adopted a more stringent approach to sentencing, imposed a fine of HKD 80000 on D1, to deter D1 and other potential offenders.

References

HKSAR v. Dragages Hong Kong Ltd (2014, HCMA238/2014) HKSAR v. Paul Y-ITC Construction Ltd(1998, 2 HKLRD 35) Jackson, M. (2003).Criminal Law in Hong Kong. Hong Kong University Press. Noise Control Ordinance (Cap 400) (1997) R v Wang Shih-hung, R v Fong Chin-yue (1995, 1 HKCLR 193) Water Pollution Control Ordinance (Cap 358) (1997)

Case 2 Chu Yee Wah v Director of Environmental Protection, CACV 84/2011

Why did the Court of Appeal rule the decision of the Director of the EPD should not be overturned?

In the Court of Appeal, the Judge decided allow the Director’s appeal with the following reasons, The judge agree that EIAO incorporates two approaches, to impose limits on the quantities of polluting matter which given activity may emit and to provide a framework for specific directives imposing quantitative limits on the extent to which the environment may be polluted, and requires using the best available techniques to prevent, or minimise the emission of polluting matter all the time. Therefore, the extent of the pollution footprint of a designated project do not affect the proponent to minimise pollution under the supervision of EIAO. It is not necessary to require a stand-alone assessment in the TM or the SB for the DEP’s decision on the choice of mitigation measure. Furthermore, the judge state that there is no equivalent stipulation for a “stand-alone analysis” in the SB nor the TM, but a prediction of cumulative impact and minimization of pollution. The judge believe that without a stand-alone assessment the Director still perform her duty on identify the mitigation measures in the EIA report have tried to mitigate and minimize all impacts from the project. What is necessary for the DEP to perform her duties is sufficient description or analysis of the proposed project and relevant mitigation measures. In response to those issues on more technique issues, such as the choice of key pollutants being measured and the standard adopted, the judge stated that what information is required to be contained in an EIA report and what information needed for the DEP to perform her duties is a question of professional judgment. As the SB state that the choice of key pollutant is expressly left to the project proponent to identify and justify. It is not irrational or Wednesbury unreasonableness for the DEP to accept the proponent’s explanation and exclude the measurement of some pollutants in the EIA report. Besides, under the tight timetable set by EIAO, adopting some standards, such as AQOs, to represent an acceptable environment quality with no harm to health or well-being of people is reasonable. For air quality impacts, using an enforced AQOs, rather than a more stringent AQOs still in consultation stage, for consideration was not irrational nor Wednesbury unreasonable. Together with there was no suggestion that a stand-alone assessment was necessary in the large number of comments received from public, the judge in the Court of Appeal concluded that the decision of DEP should not be overturned in this case.

What did the judge mean by his statement at p.24 of the case: “The Judiciary cannot manage the environment”?

The Judge stated that “the Judiciary cannot manage the environment” to show the limitation of court. The court can only apply law enacted, cannot interfere the political decisions. In this case, the applicant challenged on the use of AQOs which without PM2.5 cannot measure the health impact from the project. However, the criteria set in the AQOs is a matter of policy, courts cannot interfere the numbers set. Therefore, even though PM2.5 did have significant health impact of human and the new AQOs was under consultation that time, it is still not irrational for the proponent to adopt the AQOs without requirement on PM2.5 in the EIA report, which still meet the requirement in the SB. Moreover, the information required for the policy decision making is based on a professional judgement of the DEP. Though the TM required DEP to consider a number of information, but as TM is only a general guidelines to all projects, not law, it is unnecessary for every project to use the same set of information with different characteristics. It is reasonable to specific each project through SB and exclude unnecessary information to ensure the cost-effectiveness of the EIA assessment. The court can only review on the content in the EIA reports met the requirements in the SB or the TM if there such requirement stated and the construction of the TM and the SB. For example, the applicate said 2031 cannot represent the “reasonably worst case scenario” as required by the SBs and there is no proof that the AQOs will not be breached before 2031 as a result of the HKZM projects going into operation. The approach of court was to justify the requirements in the SB and review the interpretation and application in the EIA report, not concerning technically whether 2031 can or cannot represent the “reasonably worst case scenario” a or would the AQOs be exceed before 2031. The court found that there is no requirements that the year of “reasonably worst case scenario” in SB clause 3.4.1.4(iv)(a) to be different from the 15 year study required in SB clause 3.4.1.4(iv)(b). Therefore, there is no misinterpretation and misapplication of these two clauses in the EIA report. The wisdom of the decision, the adequacy of the criteria in TM and SBs to meet their purposes nor the adequacy of the air quality objectives in forced are policy, a matter for the Executive, not for courts. Thus they are not the concerned in this judicial review. The courts can only apply law to identify who are guilty and punish who committed law.

What are the constraints which bind a court when reviewing a decision of the HK Government (the Executive)?

The Basic Law imposed a constitutional division of power into different branches of government, which draw a clear line between different branches to clarify their function and powers. In order to ensure the act of executive obey law, a process, called judicial review, is used to review any binding and authoritative decisions of the Government if any rise the issue through the application process. The courts have the power to strike down the concerned decision. However, there are several constraints bind a court during the process. Firstly, judicial review can only applies to the acts of the executive authorities of the HKSAR. As it is a tool to mainly regulate the conduct of the executive act of the government, it does not apply to legislature Secondly, during the review process, the courts will only consider whether acts of the executive authorities of the HKSAR on three grounds, including

1. contrary to the Basic Law and therefore invalid as being unconstitutional;
2. Contrary to the principle of procedural fairness; or,
3. Irrational or Wednesbury unreasonable.

Otherwise, the courts cannot conduct the judicial review and interfere the decision of the executive authorities. Additionally, the Courts also do not have power to review a government acts that interfere with individual rights potentially regarded as an act of state under a broad definition.

Why is a separation of powers between the judiciary and the executive important for the rule of law in Hong Kong?

The foundation of the rule of law is, from the notion of Aristotle, government is the best when it is done by law not by man. This requires to ensure the individual liberties through regulating behaviour by means of law only and punishment only in accordance with the law. Hong Kong have the basis of constitutional division of power into different branches of government. The power is shared among the executive, the legislature and the judiciary. Between the judiciary and the executive, separation of powers can prevent the Government abuse its power, particularly from exercising whims to people who has not breached the law and found not guilty. In order to ensure there is no concentration of power within any branch, certain powers of each branch are checked and balanced by powers of supervision conferred on the other branches. According to the Chapter 4 of the Basic Law, the Government must follow the law when setting policy, operate within laws and the courts have the role of checking the constitutionality of the actions of the executive. Public can apply for a judicial review when they found the administrative decisions of the executive authorities found irrational or Wednesbury unreasonable Moreover, the final adjudication is granted to the Court of Final Appeal, though on some issue, such as the NPCSC interpretation, this is arguable. This judicial system regulate inside itself, thus ensure the discretion from other branches. These support the dependence of the judiciary in Hong Kong.

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