HKSAR v. WONG KING KWONG

[English Translation – 英譯本]

HCMA 513/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 513 OF 2005

(ON APPEAL FROM ESS NO. 120 OF 2004)

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BETWEEN

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JUDGMENT

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Background

1. The appellant was convicted after trial before a Magistrate on one count of depositing litter (tobacco) in a public place, contrary to regulations 4(1) and 23(1A) of the Public Cleansing and Prevention of Nuisances Regulation under the Public Health and Municipal Services Ordinance, Cap. 132 of the Laws of Hong Kong. He was fined $1,500. The Appellant appealed against conviction and sentence. After the hearing, I dismissed the appeal against conviction, but allowed the appeal against sentence and reduced it to a fine of $500. I now set out the reasons.

Facts of the case

2. The facts of the present case are simple. The Appellant put out a cigarette at the location of the offence, wrapped it up with a piece of tissue, and dumped it in a bamboo basket on the pavement. The Appellant claimed that “he thought he could throw the rubbish into the bamboo basket”.

3. The Magistrate pointed out that the bamboo basket clearly was not a litter bin owned by the Food, Environment and Health Department (hereinafter “FEHD”). The Appellant’s belief that the Ordinance allowed him to dump the rubbish into the bamboo basket was his misinterpretation of the law. He convicted the Appellant accordingly.

4. The Magistrate ruled that, under general sentencing principles, the total penalty would be $3,500, comprising a fixed penalty of $1,500, an additional penalty of $1,500 and costs of $500. However, having considered the Appellant’s misbelief that he could dump the rubbish in the bamboo basket, the Magistrate exercised his discretion and sentenced the Appellant to a fine of $1,500 without ordering him to pay the additional penalty and costs.

Grounds of appeal

Appeal against conviction

5. Mr Pang, Counsel for the Appellant, submitted that the Magistrate erred in law in ruling that it was illegal to deposit litter into a non-FEHD litter bin. Mr Pang cited regulation 4(1) of the Public Cleansing and Prevention of Nuisances Regulation and argued that the Regulation did not stipulate that litter could only be deposited in specified FEHD litter bins. Besides, neither the Public Health and Municipal Services Ordinance nor the Public Cleansing and Prevention of Nuisances Regulation provided that the public could only deposit litter in designated FEHD litter bins.

The issue

6. As I understand it, the issue in the present case is whether the Appellant has contravened the said regulation 4(1) by throwing a cigarette butt (litter) into a bamboo basket on the pavement.

7. The relevant provision is found in Part II of the Regulation, headed “Prevention of nuisances in streets and public places”. Regulation 4(1) provides as follows:

4(1)      No person shall deposit or cause or permit to be deposited any litter or waste on or in —

(a)     any street or public place;

(b)     the common parts of any building;

(c)     any watercourse, stream, channel, ditch or reservoir;

(d)     any Government property except with the consent of a public officer; or

(e)     any land except with the consent of the owner of the land.

8. The location of the offence — the pavement off No. 110 Belcher’s Street — is both a “street” and a “public place”. The summons in this case described that place as “public place”. The prosecution’s case was that the Appellant contravened regulation 4(1)(a) of the Regulation.

9. According to the above provision, a person who deposits litter or waste in a place or location (except with the consent under (d) and (e)) listed under (a) to (e) commits an offence. The provision does not specify that it is not an offence to put “rubbish” in a litter bin provided by the FEHD. Does this mean that it is also an offence to put “rubbish” in a “rubbish bin” provided by the FEHD?

10. Mr Pang submitted that the Regulation could not possibly allow for such an absurd interpretation. As the Regulation did not specify that “rubbish” had to be put into a “rubbish bin” provided by the FEHD, it was not illegal for the Appellant to put litter into a bamboo basket which was used for containing “rubbish”.

11. I do not accept Mr Pang’s submission. Under section 15 of the Public Health and Municipal Services Ordinance, “the Authority” may make regulations prescribing or providing for, inter alia:

•    the prevention of nuisance or danger to health or person arising from litter or waste;

•    the prevention, control and collection of litter or waste;

•    the removal or disposal of street waste.

12. The Public Cleansing and Prevention of Nuisances Regulation is a Regulation prescribed by the Authority pursuant to the above section 15. It can therefore be seen that the purpose of enacting regulation 4(1) is to protect and maintain public hygiene and health.

13. Regulation 4(1) does not expressly provide that it is not illegal to dump rubbish in a “rubbish bin” provided by the FEHD. However, taking a broad view of the other provisions of the Public Cleansing and Prevention of Nuisances Regulation, in particular regulation 7, it can be seen that it is not against the law to put litter in a container provided by the FEHD.

14. The abovementioned regulation 7 provides as follows:

No person shall deposit or cause or permit to be deposited in a container provided by the Director for the reception of litter anything which is capable of igniting the container or any of the contents thereof.

15. “The Director” means the Director of Food and Environmental Hygiene (see the interpretation in regulation 3). It can be seen that depositing “rubbish” in a “rubbish bin” provided by the Director is not illegal, but it is illegal to deposit into the rubbish bin anything which is capable of igniting it.

16. Furthermore, under section 9 of the Waste Disposal Ordinance, Cap. 354 of the Laws of Hong Kong, the services provided by the “collection authority” (i.e. the Director of Food and Environmental Hygiene: see the interpretation in section 2) include the removal and disposal of street waste.

17. As the statutory collection authority, the Director of Food and Environmental Hygiene has set up a mechanism for the collection and disposal of “rubbish” to ensure that public places are kept clean and hygienic.

18. There is no mechanism to ensure that any container placed or deposited without authority on the street or in a public place will be kept clean. Law enforcement officers cannot possibly study such containers one by one to see if they are kept clean in order to decide whether to prosecute any person who has deposited litter into such containers.

19. Besides, regulation 20 of the Public Cleansing and Prevention of Nuisances Regulation provides that:

No person shall, without reasonable excuse, permit a dustbin or receptacle containing waste of any kind to remain in a street or public place for a period exceeding 10 minutes whilst awaiting the arrival of a public waste collection vehicle or any other waste collection vehicle.

20. The above regulation 20 stipulates that it is illegal to permit, without reasonable excuse, a dustbin or receptacle containing waste to remain in a street or public place for more than 10 minutes whilst awaiting the arrival of a waste collection vehicle. It is also illegal to place a dustbin or receptacle containing waste on the street or in a public place.

21. The present case involves an uncovered bamboo basket containing rubbish (that is a receptacle containing waste). The Appellant has contravened the law by putting rubbish in that bamboo basket.

22. In making the above ruling, I have taken into account the other places referred to in regulation 4(1), in particular the common parts of any building.

23. In my view, on a common sense interpretation of the relevant legislation, in a genuine public place such as a street, if a person dumps waste anywhere instead of putting it in a container legally provided by a government organization (such as the FEHD), that person commits an offence.

24. However, in a place to which the public have access, such as a shopping mall or a cinema, a person who puts waste in a container placed in that place by its owner or its agent does not commit an offence because that person is permitted by the owner or its agent to put waste in that container, and the FEHD has an established mechanism for the collection of waste from the relevant place so as to protect public hygiene and health.

25. However, for public hygiene and health reasons, if a person dumps waste anywhere in the relevant place, he commits an offence and may be prosecuted and convicted accordingly.

Appeal against sentence

26. The ground of appeal submitted by Mr Pang is that the Magistrate was misled into thinking that he only had a “limited discretion” in sentencing.

27. According to the transcript, the Magistrate asked the prosecutor whether he had a discretion in sentencing, and the prosecutor answered in the affirmative. The Magistrate considered the special circumstances of the present case and made mention of imposing a fine of $500, but the prosecutor indicated that the Magistrate only had a discretion not to order payment of the additional fine and costs and had no discretion on the fixed penalty. The Magistrate then sentenced the Appellant to a fine of $1,500.

28. Citing the relevant legislation and the case of R v. Sin Yiu Kong [1979] HKLR 294, Mr Pang submitted that the prosecution had misled the Magistrate.

29. Ms Cheung, Counsel for the Respondent, agreed that the Magistrate had been misled on the issue of discretion. Although Ms Cheung stated in her written submission that the fine of $1,500 was not manifestly excessive, she did concede in her oral submission that, if the Magistrate originally intended to impose a fine of $500 but then imposed a fine of $1,500 after being misled, it would be unfair to the Appellant for the prosecution, who was aware that the Magistrate had been misled, to insist on the $1,500 fine.

Judgment

30. I accept the submissions made by Mr Pang and Ms Cheung regarding the Magistrate’s discretion.

31. Under regulation 23 of the Public Cleansing and Prevention of Nuisances Regulation, any person who contravenes regulation 4(1) shall be liable to a fine of level 4 and imprisonment for 6 months.

32. The maximum for a fine of level 4 is $25,000.

33. Section 3 of the Fixed Penalty (Public Cleanliness Offences) Ordinance, Cap. 570 of the Laws of Hong Kong, provides as follows:

(1)        If a public officer has reason to believe that a person is committing or has committed a scheduled offence, he may give the person a notice in the prescribed form offering him an opportunity to discharge his liability to conviction for that offence by payment of the fixed penalty for that offence.

(2)        …

(3)        Subject to section 7, where a person has received a notice under subsection (1) and has paid the full amount of the fixed penalty shown in the notice, he shall not be liable to be prosecuted or convicted for the scheduled offence specified in the notice.

34. The relevant Ordinance also provides for the consequences of not paying a fixed penalty, including a provision that if a summons has been issued by the Authority, a person may, not less than 2 days before the proceedings, terminate the proceedings by paying the fixed penalty concerned together with the additional penalty and a sum of $500 by way of costs (section 13).

35. The legislation on fixed penalties basically aims to provide an administrative measure to speedily deal with offenders and to obviate the need for the relevant persons to appear in court proceedings. If proceedings are held and the offender puts forward no defence or a defence which is frivolous or vexatious, the magistrate shall, in addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty for the relevant offence (section 12).

36. The law does not stipulate that the court must impose the fixed penalty for the relevant offence. Where an offender is convicted after trial, the magistrate may impose a penalty by applying general sentencing principles, including exercising a discretion as appropriate. However, where the circumstances fall within section 12, the penalty must be imposed in accordance with that section.

37. The facts of the present case are exceptional. The Appellant did not dump litter anywhere: he wrapped up the cigarette butt and put it in a bamboo basket which contained rubbish. The Magistrate clearly considered a $500 fine appropriate on the facts of the case. As the Magistrate had been misled and the sentence he originally intended to impose was not wrong in principle, the penalty should be $500 instead of $1,500 in order to do justice to the Appellant. For the above reasons, I set aside the $1,500 penalty and substitute it with a $500 fine.