HKSAR v. YEUNG KIN CHEE

HCMA1182/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1182 OF 2004

(ON APPEAL FROM FLS 2961 AND 2962 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on 3 November 2004 of keeping livestock in a livestock waste control area without complying with the regulations for the proper disposal of liquid livestock waste.  There were two summonses, both in the same terms but relating to different days.  On the same day as the conviction, the appellant was fined the sum of $20,000 in respect of each charge.  The appellant now appeals each of those convictions.

2. The facts led by the prosecution were that on each of 29 September and 2 October 2003, an officer of the Environmental Protection Department attended a pipe discharging liquid waste into a nullah near the pig farm operated by the accused.  Samples were taken.  The magistrate, having considered all of the evidence, was satisfied that the samples were taken accurately and honestly, and that there was no break in the chain of evidence.  The two dates, 29 September and 2 October 2003, were the dates specified respectively in the charges.

3. On the afternoon of 2 October 2003, one of the witnesses for the prosecution went to the farm of the appellant but was unable to gain entry.  He said, however, that he managed to trace a pipe that led from within the farm of the appellant to a location outside the farm which eventually led to a manhole.  He poured some green dye into a pipe in the manhole and it was seen to emerge in the nullah where the samples had previously been taken.  Prior to that, the prosecution witness testified, that on 30 September 2003, another officer had entered the farm and had seen that the pipe that led from the water treatment facility, otherwise known as the cess pool in the appellant’s farm, down the hill to a point just short of the manhole which led to the sampling point.  The pipe could be traced above the ground all the way until a point some 3 metres short of the manhole.  He inspected the manhole and found a pipe similar in diameter and nature to the pipe from the appellant’s farm which protruded into the manhole from the direction where the appellant’s pipe went underground some 3 metres away.

4. The evidence of the prosecution was that in tracing the pipe from the appellant’s farm to the point where it was adjacent to the manhole, he observed that there were no cuts to the pipe nor any point where another pipe could be joined to that pipe to discharge water into the manhole from a different farm. 

5. The appellant gave evidence and called two witnesses.  It was his case that he had been a pig farmer for about 12 years.  He said in evidence that the pipe found by the witnesses for the prosecution originated in his farm and that it was his pipe.  He testified that he had previously used that pipe to discharge liquid livestock waste from his farm.  He confirmed in his evidence that the point of discharge from this pipe was at the sampling point.  He said that he had ceased to use that pipe for the discharge of liquid livestock waste some two years before and that he had sawn off the pipe and blocked it within his farm area.  It was his evidence that he had not used this pipe for the discharge of liquid waste on the two days referred to in the two charges.

6. After blocking the pipe, he said that he had used a new route to discharge the liquid waste and that that discharge point was a considerable distance from the sampling point.

7. It was his evidence that he was not on his farm on the dates referred to in the charges but that his employees were there.  It was his evidence that after receiving the summonses, Mr Cheung, an employee on his farm told him that he had seen and caught an employee of a neighbouring farm connecting a pipe to the appellant’s pipe to discharge wastewater from that neighbouring farm on 29 September and 2 October 2003.  The witness, Mr Cheung, informed the appellant and showed him the cut in the pipe and the connection used to join that pipe to the pipe from his neighbour.  He marked on a sketch where the illicit connection was made.

8. Mr Cheung gave evidence.  He said that he had worked on the farm for some two years.  He said that on 29 September 2003, he went out of the farm and saw the employee of a neighbouring farm connecting a water pipe to the pipe of the appellant.  He was told by that employee that he was discharging wastewater from the adjoining farm.  On 2 October 2003, he again went out of the farm and found the same man connecting a hose to the pipe belonging to his farm to discharge wastewater through that pipe from the neighbouring farm.  He marked a sketch where the connection was made to the pipe that led from the farm of the appellant to the manhole.

9. The next witness called by the appellant was the employee from the neighbouring farm.  He testified he was caught by Mr Cheung when he was discharging wastewater from the farm where he worked into the pipe owned by the appellant.  He apologised for doing so and marked on the sketch the point where he made the connection.  He said that he only made that connection and discharged wastewater on two occasions, that was 29 September and 2 October 2003.  He said that he did not discharge wastewater through the appellant’s pipe on any other day.

10. The appellant has raised a number of grounds of appeal.  The first is that the magistrate noted that the three witnesses for the defence, each spoke the Hakka dialect.  He argued that the magistrate in doing so had found all the witnesses to have been related and to have rejected their evidence upon that basis.  In fact, the magistrate did not do so.  He said this :

“

54.

DW2 was a Hakka-dialect speaking man, using the same dialect as the defendant and his employee.  He was eager to give evidence for the defendant despite the warning about incrimination.  The manner to which he gave evidence showed to me that he was overly anxious to exonerate the defendant.  Without supplementary evidence as stated above in paragraph 52 and his simple and brief evidence with repetitive apologies to the court, it gave me grave doubts whether DW2 was, in fact, the neighbouring farm’s employee.”

11. There is nothing in that part of the magistrate’s findings to support this ground of appeal.  The main thrust of the appellant’s grounds of appeal is that evidence was given by witnesses on behalf of the appellant indicating that he had not discharged wastewater as claimed by the prosecution.  It is his argument that the prosecution witnesses had lied when they said they found no cut or joinder to the pipe.

12. The magistrate fully considered the evidence of the appellant and his witnesses.  She found material inconsistencies between the evidence of those witnesses.  Those inconsistencies related to the point marked on the sketch by the witnesses as to the position in which a connection was made.  Further, she found there were inconsistencies as to the point in time when the appellant had been told of the connection to his pipe.  And further that the second witness of the defence, the employee of the neighbouring farm, testified that he only cut the pipe belonging to the appellant on 2 October 2003 in order to connect the hose from his farm to that pipe.  The first summons relates to a discharge of wastewater on 29 September 2003, some days before that date.  As a result of these material inconsistencies, and not as a result of the common dialect between the appellant and his witnesses, the magistrate found that she could not rely upon the evidence of the appellant or of his witnesses.

13. The magistrate considered carefully the evidence of the prosecution witnesses.  She was certain that it was truthful evidence and that she could accept it.  She found that the pipe from the appellant’s farm extended from the cess pool on his property to a point very close to the manhole without any evidence of a cut or a place where the pipe could be joined to it.  She also accepted that the pipe in the manhole was in a position which indicated that it was the extension of the pipe which came from the appellant’s farm.  She further accepted that the manhole was connected by pipe to the nullah where the samples had been taken and the only way that the wastewater could have reached the sampling point was from the pipe from the farm owned by the appellant.

14. The grounds of appeal put forward today by the appellant relate to matters of fact.  They relate to the magistrate’s findings in which she did not believe him or his witnesses and therefore was unable to find in that evidence doubts in respect of the prosecution evidence which she found to be true.  I am satisfied that the magistrate, in making her findings, applied properly the principle that it was for the prosecution to prove its case in respect of each summons and that no onus fell upon the appellant.  She found that she believed the evidence of the prosecution to be true and was sure she could rely upon it.  She found nothing in the evidence of the appellant or his witnesses that enabled her to find any doubt in respect of the case for the prosecution.

15. The appellant is in person and I have carefully considered the evidence in the court below as it appears in the depositions and all that he had said to me.  I am satisfied that there is nothing in the grounds raised by the appellant and the appeal against conviction in respect of each of the summonses is dismissed.