ASIA DYEING CO LTD AND OTHERS v. THE AUTHORITY

1989, No. MP573

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. Each of the 27 applicants is the owner of a chimney at the Tsing Yi Industrial Centre. Each has a certificate of approval for the chimney issued by the air pollution control authority (the Authority). The plant for which each chimney is an outlet is suitable for the use of heavy fuel.

2. In 1988, the Authority became concerned about the effect of these chimneys and their emissions upon nearby residential areas. In June, he issued to each applicant notices under Sections 9 and 30 of the Air Pollution Control Ordinance Cap. 311 (the Ordinance). Pursuant to s. 31 of the Ordinance, the applicants appealed to the Appeal Board. Before the Chairman of the Board, the applicants, as a preliminary matter of law, sought to have the notices struck out as being invalid.

3. The relevant part of the notice, as amended, given under s. 9 reads:

"Notice is hereby given to you under Section 9 (1) of the Air Pollution Control Ordinance, Cap. 311 (the Ordinance) that your chimney serving the relevant plant, namely, two oil-fired furnaces to wit two steam boilers at the premises occupied by you at T.Y.T.L. 65, Phase II, 2/F., Unit C4, Tsing Yi Ind'1 Centre, Tsing Yi Island, New Territories is in the opinion of the Authority, by the emission of an air pollutant namely sulphur dioxide, contributing to the existence or imminence of an air pollutant nuisance which is prejudicial to health.

    You are required by 12th April 1989 to eliminate such emission of sulphur dioxide as exceeds the emission of sulphur dioxide resulting from the combustion of fuel containing 0.5 percent sulphur by weight.

This notice is given to protect health."

4. The relevant portion of the notice, as amended, given under s. 30 reads:

"Notice is hereby given to you under Section 30 of the Air Pollution Control Ordinance, Cap. 311 (the Ordinance) that your chimney serving the relevant plant, namely, two oil-fired furnaces to wit two steam boilers at the premises occupied by you at T.Y.T.L. 65, Phase II, 2/F., Unit C4, Tsing Yi Ind'1 Centre, Tsing Yi Island, New, Territories is, as it appears to the Authority, emitting a greater quantity of air pollutant, namely sulphur dioxide, than need be by reason of the use of heavy oil fuels, namely oil fuels containing more than 0.5 percent sulphur by weight.

    In accordance with Section 30 (1) of the Ordinance, you are prohibited by 12th April 1989 from using such fuels in such relevant plant."

Each notice went on to point out the penalties for failure to comply with the notice and the provision for an appeal.

5. The Chairman held both notices to be valid and declined to strike them out. The applicants now seek judicial review of the Chairman's decision.

6. For the purposes of this application, Sections 9, 10 and 30 of the Ordinance are relevant. They read:

"9. (1) On any occasion when, in the opinion of the Authority or of an authorized officer, an air pollutant nuisance exists or is imminent, the Authority or such officer shall, subject to subsection (5), as soon as practicable after he has become aware thereof, notify, either verbally or in writing, the existence or imminence, as the case may be, of the nuisance to the owner of any premises in which any chimney or relevant plant is, in his opinion, by the emission of any air pollutant, causing or contributing to the existence or imminence of such nuisance.

    (2) Such notification may require the owner forthwith, or at some future time, and for so long as the notification specifies, or until it is withdrawn -

(a) to reduce to such extent as is specified in the notification the emission of the air pollutant from such chimney or relevant plant, as the case may be; or

(b) in any case where, in the opinion of the Authority or of an authorized officer, such air pollutant nuisance-

(i) is or is likely to be prejudicial to health; or

(ii) imperils or is likely to imperil the safety of aircraft using or being about to use any airport within Hong Kong, to eliminate the emission of such pollutant.

(3) Where a notification requires the elimination of an emission under subsection (2)(b) it shall contain a declaration that it was given to protect health or to preserve the safety of aircraft, as the case may be.

(4) If any notification under this section is given or withdrawn verbally, such notification or such withdrawal, as the case may be, shall be confirmed by the Authority or an authorized officer in writing as soon thereafter as circumstances permit.

(5) Notwithstanding the preceding provisions of this section, the Authority may, except in a case that falls within subsection (2)(b), instead of acting under this section proceed instead under section 30 to the extent permitted in that section.

10. (1) Subject to subsection (2), any owner who fails to comply with any of the requirements of a notification given to him under section 9 commits an offence and is liable -

(a) in any case where such notification contains a declaration that it was given to protect health or to preserve the safety of aircraft, to a fine of $50,000; and

(b) in any other case, to a fine of $5,000,

and in either case to a further fine of $100 in respect of every one quarter of an hour during the whole or any part of which the offence continues.

(2) A court shall not convict an owner under subsection (1) unless the prosecution proves that the air pollutant nuisance mentioned in the notification existed or was imminent at the time the notification was given to the owner under section 9.

30. (1)Where it appears to the Authority that any chimney or relevant plant is by reason of -

(a) unsuitable design, defective construction or maintenance;

(b) excessive wear and tear;

(c) the use of unsuitable fuel or other material; or

(d) any other cause,

emitting a greater quantity of air pollutant than need be, the Authority may cause a notice to be served upon the owner of the premises upon which such chimney or relevant plant is situate -

(i) requiring him, within such reasonable time as is specified in the notice, to modify, replace, clean or repair such chimney or relevant plant or to take such other steps as are specified in the notice to ensure the elimination of unnecessary air pollutant;

(ii) prohibiting him from using in such relevant plant, after such reasonable time as is specified in the notice, such fuel, or other material, or mixture of fuels, or other materials, as is specified in the notice.

(2) Any owner who fails, without reasonable excuse, to comply with any of the requirements of a notice duly served upon him under subsection (1) commits an offence and is liable to a fine of $30,000 and in addition, if the offence is a continuing offence, to a fine of $5,000 for each day during which it is proved to the satisfaction of the court that the offence has continued."

7. Two definitions contain in s. 2 of the Ordinance are also important. They are:

"'air pollutant' meant any solid, particulate, liquid, vapour or gaseous substance emitted into the atmosphere;

'air pollutant nuisance' means any emission of air pollutant which either alone or in conjunction with any other such emission -

(a) is prejudicial to health; or

(b) is a nuisance to the inhabitants of the neighbourhood; or

(c) imperils or is likely to imperil the safety of or otherwise interferes with the normal operation of aircraft using or being about to use any airport within Hong Kong;"

8. A scheme of enforcement emerges. Although there may be no or no threat of an air pollutant nuisance, the Authority may nonetheless issue a notice to the owner of a chimney or plant, if it is emitting a greater quantity of pollutant than need be. Where, however, the Authority is of the opinion that an air pollutant nuisance exists or is imminent, he must notify the owner pursuant to s. 9 so as to have the emission of pollutant reduced or eliminated. He may, however, proceed under s. 30 if the nuisance is not one to which s. 9(2)(b) applies. It was suggested that the Authority might proceed in the latter fashion if he was not confident of being able to establish a nuisance.

9. In relation to the notices given under s. 9, Mr. Tang who appeared for all the applicants said that in order to give effect to the words "as the case may be" which appear in s. 9(1), the Authority must specify whether the nuisance is in existence or imminent. The Authority may not specify both in the alternative as he has done in the notices issued in these proceedings. The importance of this is because of the penal provisions provided for in s. 10. In particular s. 10(2) restricts the Authority to the time when the notification was given to the owner and at which time the Authority must establish either that there existed or there was imminent a nuisance, but not both.

10. Mr. Whaley, who appeared for the Authority, conceded that s. 9(1) appears to envisage that the Authority should specify whether the nuisance is in existence or imminent. He contended, however, that failure to specify one or the other does not invalidate the notice because the Authority has a duty to act and give notice when one or the other state occurs.

11. Further, the words "is prejudicial to health" which appear in the notice are a clear indication that the nuisance is in existence rather than imminent at the time of issue of the notice. The applicants, therefore, can have had no doubt as to what was being alleged against them and cannot have been prejudiced in the preparation of their appeals.

12. Consequently, Mr. Whaley submitted that this is a matter of particularity and not a matter which affects the validity of the notice.

13. The words complained of do not necessarily add anything, and are therefore not vital to a notice. Thus, if the words are omitted so that a notice simply reads "contributing to an air pollutant nuisance", there is no doubt in my mind that such a notice would be valid, being clearly aimed at an existing nuisance. In the present case, where the notice is clearly aimed at an existing nuisance, I fail to see how the addition of the words can affect the validity of the notice.

14. Accordingly, I am satified that Mr. Whaley and the Chairman are correct. The notices issued under s. 9 are valid. The application in respect of these notices must fail.

15. Mr. Whaley relies upon the use of unsuitable fuel as provided for in s. 30 (1)(c) in respect of the notices issued under this section. He contended that the Authority is empowered to make a value judgment as to whether the quantity of pollutant being emitted is greater than need be, that is to say, in excess of what the Authority considers acceptable. He said that the words should be given their plain meaning and, having regard to the remedial nature of the legislation, no restriction should be placed upon this meaning. He acknowledged that the Authority had originally approved the installation of the chimneys and associated plant and the use of heavy fuel in them. He argued, however, that what may have been an acceptable fuel or level of emission of pollutant at the time of installation may subsequently have become unacceptable in view of technological advances or because of the deterioration of the quality of the air in the vicinity of the chimneys. The Authority should not be inhibited from acting under s. 30 to safeguard the public interest.

16. Mr. Tang accepts that the Authority is not so inhibited and that he may take enforcement proceedings under s. 30, provided that one of the criterion set out in s. 30(1) is met.

17. It is amazing how often "plain words and meaning" give rise to legal debate in a court. For my part, however, I have no difficulty in discerning the meaning of s. 30(1). It is aimed quite clearly at an owner who has failed properly to construct, maintain or operate a chimney. The words "than need be" are governed by paras. (a) - (d) and not by the subjective view of the Authority. "Unsuitable fuel" means unsuitable to the chimney or plant in which it is being used and not unsuitable to the Authority having regard to all the circumstances.

18. Thus, the words "than need be" apply where too much pollutant is being emitted because the fuel is unsuitable to the chimney or plant and not because of the nature of the fuel. It is not an issue, as I have set out, that the applicants' chimneys are designed for use with heavy fuel. The fuel is, therefore, not unsuitable to the chimneys. While they emit pollutant, they do not emit more than is necessary having regard to the nature of the plant and the use of fuel for which the plant was designed.

19. In his decision, the Chairman said this:

"I say that the Authority, being a statutory body entrusted to enforce air pollution control, is empowered to set out a value judgment on the acceptable level of air pollutant..... I also say that whilst it is one thing for the Authority to approve the plan of a plant or chimney which uses heavy fuel, it is quite another that the emission of air pollutant from combustion of that heavy fuel exceeds a tolerable limit which the Authority can lay down in compliance with the circumstances of a particular time and the condition of a particular region. In other words, whilst heavy fuel is suitable for use in such plant or machinery, it is by reason of the emission of sulphur dioxide in excess of the Authority's value judgment that it is considered unsuitable. In my view, the approval of plans of plant or chimney which uses heavy oil is not equivalent to an immunity to whatever mischief that may be brought about by such use."

20. In my judgment, the Chairman was wrong in his interpretation of s. 30. Accordingly, I grant the relief sought. The Chairman's decision is quashed and the notices issued under s. 30 are set aside.