HKSAR v. HOP SHING LOONG LIGHTING LTD.

HCMA605/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 605 OF 1998

-------------

--------------

------------------------

J U D G M E N T

------------------------

1. The Defendant was convicted by a Magistrate of an offence under s. 13(6) of the Noise Control Ordinance, namely failing to comply with a noise abatement notice issued under s. 13(1) of the same Ordinance. The Defendant was discharged absolutely. It now appeals against conviction.

2. The proceedings arose out of a noise abatement notice dated 7th May 1997, issued to the Appellant company by the Environmental Protection Department and requiring the Appellant to abate the noise emanating from the ventilating systems at its premises in Wan Chai, within the period from 4th June to 15th August 1997. The maximum noise levels allowed were 65 decibels between 0700 and 2300 hours, and 55 decibels between 2300 and 0700 hours. There is no dispute that the Appellant had substantial works carried out in an attempt to comply with the notice. The works cost about $2 million. The Appellant further suffered business losses of about $7.5 million consequential on the carrying out of the works. However, all was in vain. A sound check on 5th September 1997 showed that the ventilators were producing 69.7 decibels.

3. There are two grounds of appeal, which are set out in the Perfected Grounds of Appeal. I will not repeat them here. The first relates to the validity of the noise abatement notice, and the second to the question whether or not the defence of "due diligence" was available to the Appellant.

Validity of the notice

4. The issue of validity of the notice was raised at the trial. It was the Appellant's contention that the Authority had not complied with s. 13(3) of the Ordinance which reads :

"(3) In specifying a period under subsection (2) within which noise is to be abated, the Authority shall have regard to the nature, difficulty and complexity of complying with any requirement in the noise abatement notice."

Accordingly, though the notice had not been complied with, because of its invalidity, no offence had been committed.

5. The learned Magistrate in fact made no finding as to the validity of the notice. He took the view that the requirement of s. 13(3) did not mean that the prosecution must prove that such due regard had been made by the Director when issuing the notice. The recipient of the notice could appeal to the Appeal Board, and the decision of the Director could be challenged by way of judicial review proceedings. The law already provided the recipient with sufficient procedural protection. The provision in s. 13(3) did not form part of the ingredients of the offence created by s. 13(6) and accordingly, the prosecution did not have to prove compliance with s. 13(3).

6. The Appellant does not contend that s. 13(3) is an ingredient of the offence under s. 13(6) as indeed it is not. The argument is, as I understand it, that once the validity of the notice was questioned, it was incumbent on the learned Magistrate to rule on it. To do so he had to consider whether the prosecution had proved that the Authority had complied with s. 13(3).

7. It seems obvious that if a notice issued under s. 13(1) is not valid, to fail to comply with it will not be an offence. However, the maxim "omnia praesumuntur rite et solemniter esse acta donec probetur in contrariam" applies. The prosecution does not have to prove the validity of the notice; it is presumed valid until the contrary is proved.

8. The learned Magistrate no doubt had this in mind when he decided that on a proper consideration of s. 13, the provision in s. 13(3) does not form part of the ingredients of an offence created by s. 13(6) and also when he considered the effect of the s. 19 appeal provisions as providing protection to the Appellant against being convicted on an invalid notice.

9. Of course the recipient of a notice cannot directly appeal under s. 19 on the ground that the Authority has not complied with s. 13(3). The recipient will not know the matters to which the Authority has or has not had regard. But he can appeal under s. 19(2)(c) on the grounds that the requirements of the notice are unreasonable or unnecessary or under s. 19(2)(d) on the ground that compliance will cause economic hardship seriously prejudicial to the conduct of his business. An appeal on either ground, but particularly the first, would, it seems to me, require the appellate body to consider whether the Authority had complied with s. 13(3). He can also take judicial review proceedings against the Authority and such proceedings would also inevitably entail an inquiry into whether or not the Authority had complied with s. 13(3).

10. The Appellant company, which had the benefit of legal advice from the outset, did not appeal under s. 19. The correspondence produced at the trial does show that it accepted the requirements of the notice and did not challenge their reasonableness or necessity, nor was the question of economic hardship raised.

11. The parties agree that compliance with s. 13(3) is not an ingredient of the offence under s. 13(6). The Prosecution has to prove the ingredients of the offence. It does not have to prove any other matter which the Defence cares to challenge. The only way that the Appellant could rely on the notice being ultra vires or invalid by reason of a failure to comply with s. 13(3) would be by proving that failure.

12. It is of course true that the Appellant challenged the validity of the notice by cross-examining the prosecution witnesses but in my view this is not enough. There would have to be proof. The only way that proof could be obtained would be by appeal under s. 19 or judicial review.

13. It seems to me therefore that the learned Magistrate was not required to consider whether the notice was valid and make findings thereon. Nor did he misdirect himself that the Prosecution did not bear the onus of proving that the Authority had complied with the provisions of s. 13(3).

14. The first ground of appeal must fail.

"Due Diligence"

15. I turn to the second ground of appeal which is based on "due diligence".

16. It is alleged that the learned Magistrate erred in misdirecting himself that the defence of "due diligence" was not available to the Appellant because the case of R. v. Wang Shih-hung [1995] 1 HKCLR 139, CA was distinguishable and inapplicable, and in failing sufficiently to consider and make findings on whether or not the Appellant had successfully proved the defence of "due diligence" on the balance of probabilities.

17. In fact, the case relied on is A.G. v. Fong Chin-yue which was heard along with Wang's case.

18. Fong's case was brought under s. 17of the Dutiable Commodities Ordinance. It was held that while the prosecution did not have to prove that duty on the goods was outstanding, it was a defence for an accused to prove, on the balance of probabilities, that he believed for good and sufficient reason, though erroneously, that duty had been paid.

19. In addition to the case of Wang Shih Hung, the Appellant also relies on the case of HKSAR v. Paul Y - ITC Construction Ltd., [1998] 2 HKLRD 35, dated 4th June 1998. In that case the defendant was charged with causing equipment to be used in respect of which a construction noise permit was not in force. The offence was contrary to s.s. 6(1)(a) and (5) of the Noise Control Ordinance. The Court held obiter that it would have been a defence for the defendant to prove that it believed for good and sufficient reason, though erroneously, that there had been compliance with the Ordinance.

20. In effect the Appellant here says that the defence of "due diligence" was open to it, if it reasonably, though erroneously, believed that it had complied with the requirements of the notice, and the learned Magistrate ought to have considered that.

21. It seems to me that there are very fundamental differences between the position of the defendant Fong and that of this Appellant. Fong had brandy which was dutiable either someone else had paid the duty before it came into his possession, or he had to pay it. There was a third party involved who might have complied with the Ordinance. The belief related to the actions of that third party.

22. A similar fundamental difference applies between the position of this Appellant and that of Paul Y - ITC. The latter was the main contractor. It employed subcontractors who employed the workers who caused the breaches of s. 6. It could not escape liability for "causing" the breaches, but again there was a third party in the picture, which might have complied with the Ordinance.

23. The difference between the position of these two defendants and that of this Appellant seems to me to be this : in the instant case, there was no third party who might have complied with the requirements of the Ordinance, and about whose actions the Appellant might have held a reasonable but erroneous belief.

24. The Appellant was required to comply with the notice. It did not. It employed a contractor to do the work but obviously it could not escape liability by delegating the work to a contractor. To allow a "due diligence" defence here would be absurd. It would in effect be to say that anyone who has to comply with a statutory requirement can escape liability for failure by saying that he did his best. Doing one's best is mitigation, not a defence. That is how the learned Magistrate saw it and it seems to me that he was quite right to distinguish the case of Fong from the present case.

25. The second ground of appeal also fails. The appeal is dismissed.