TENG FUH CO. LTD. t/a KONG CHIN TRADING CO. v. AIR POLLUTION CONTROL APPEAL BOARD AND ANOTHER

CACV 588/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 588 OF 2001

(ON APPEAL FROM HCAL 1928/2000)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. This is an appeal from a judgment of Hartmann J. He was hearing an application made by the applicant for judicial review of the decision of the 2nd respondent to issue what was formerly known as a notice to abate air pollution.

2. The applicant appealed to the Air Pollution Control Appeal Board (the Appeal Board) and the appeal was dismissed. The applicant sought also to have this decision judicially reviewed. The Judge declined to make the orders sought hence this appeal.

3. The applicant is an importer of various exotic delicacies including sharks fins. It is also a wholesaler and retailer and distributes large quantities of this delicacy.

4. It has premises at Bonham Strand East which is a mixed commercial and residential area. Large quantities of sharks fins are stored at the premises which are open to the street. The sharks fins which are stored have previously been dried. They are kept in large sacks. The sharks fins are distributed in the course of business and this may necessitate unpacking the sacks, inspecting contents and delivering them to customers. The applicant does not process the sharks fins or engage in any production process thus not bringing it within the ambit of the Public Health and Municipal Services Ordinance Cap. 132 where a licence is required.

5. The applicant accepts that dried sharks fins do have an odour. However it contends that this is not due to any chemical change in the substance.

6. Two officers from the 2nd respondent's office inspected the premises towards the end of 1999. Consequential upon their visits a notice was served on the applicant dated 23 February 2000. Part of the notice read:

"On a visit by authorized officers on 8 November 1999 to the premises occupied by you ... it was found that the emission of air pollutant from the storage of dried seafood, in the form of objectionable odour, caused the imminence of air pollution, in that the said emission would cause discomfort when inhaled by the nearby members of the public and hence air pollution is imminent."

7. The notice was issued under section 10 of the Air Pollution Control Ordinance Cap. 311 (the Ordinance).

"(1) Where the Authority or an authorized officer is satisfied that the emission of air pollutants from a polluting process is causing or contributing to air pollution which exists or which is imminent, the Authority or the authorized officer may give an air pollution abatement notice, either verbally or in writing, to the owner of the premises or to the person carrying out the activity requiring him-

(a) to cease the emission of air pollutants from the premises or to cease the operation of the polluting process;

(b) to reduce the emission of air pollutants from the premises or polluting process;

(c) to take other steps to abate the emission of air pollutants from the premises or polluting process.

(2) In determining whether the emission of air pollutants is causing or contributing to air pollution which exists or which is imminent, the Authority and an authorized officer may take into account-

(a) a technical memorandum;

(b) research material results or publications which indicate that the type of emission may have adverse health effects;

(c) the advice of a medical practitioner;

(d) the advice of the Director-General of Civil Aviation;

(e) the relative location of the emission source and the place affected;

(f) the locality of the place affected;

(g) the time, duration and frequency of the emission;

(h) any of the following effects which, in the opinion of the Authority or the authorized officer, is caused by or contributed to by the emission-

(i) the deposit of dust, grit or particles of any kind;

(ii) an objectionable odour;

(iii) the staining of, corrosion or damage to, a building, plant, equipment or other material;

(iv) the irritation of the eye, nose or skin or any other sensory discomfort;

(v) the disturbance of normal activities by the colour or opacity of the emission;

(vi) an effect which in the opinion of the Authority or an authorized officer may affect public safety; or

(vii) any other effect which in the opinion of the Authority or an authorized officer is unreasonable for a member of the public to suffer."

8. As can be seen this notice did not notify the applicant that the odour constituted air pollution. It was only imminent. What was envisaged was that in certain circumstances the odour would become more pervasive and then become air pollution. There were three circumstances when this might occur. The first was if a greater quantity of sharks fins was stored at the premises than was there when the inspections were undertaken. In this connection there was additional storage space. The second would arise on the onset of warmer or hot weather and the third was if the volume of business increased.

9. By the notice the applicant was required to reduce the emission of odour to an acceptable level within 90 days.

10. The applicant appealed to the Appeal Board as indicated at the commencement of this judgment.

11. The applicant sought an order of certiorari to quash the notice and the decision of the Appeal Board. In addition to this it was contended that the decision of the Appeal Board was Wednesbury unreasonable.

12. The applicant mounted two main challenges before the Judge. The first was to argue that there must be a "polluting process" to justify the issuance of a notice and the second was to challenge what was meant by "imminence of air pollution".

13. On the first issue the Judge referred to section 2 of the Ordinance where an air polluting process is defined as:

"polluting process includes an activity, process or the operation of a chimney, relevant plant, machinery or equipment that evolves air pollutant."

14. He also placed reliance upon the definition of "air pollution" in the same section:

"air pollution means an emission of air pollutant which either alone or with another emission of air pollutant -

(a) is prejudicial to health;

(b) is a nuisance;

(c) imperils or is likely to imperil the safety of or otherwise interferes with the normal operation of aircraft; or

(d) is determined to be air pollution under a technical memorandum;"

and "nuisance":

"nuisance includes an event which is obnoxious and which results in any of the effects set out in section 10(2)."

15. It was contended before him that simply storing the sharks fins on the premises and distributing them to customers could not amount to a "polluting process" in accordance with the definition.

16. The Judge was satisfied that it did. He adopted a somewhat vivid illustration by asking the hypothetical question whether keeping decomposing carcasses on premises would amount to a polluting process. Clearly it would. While it is not suggested that the dried sharks fins would be in any way comparable to decomposing carcasses it is nonetheless true that they do give off an odour which is clearly detectable and might constitute "air pollution" and become a "nuisance".

17. So far as the imminence of pollution was concerned the Judge was addressed on the ruling which had been given by the Appeal Board. The applicant had argued that the dictionary definition of the word should be applied. This was that the event in question would occur in the near future. This had not been accepted by the Appeal Board. Their interpretation of the legislation was that if it could reasonably have been anticipated on the basis of existing facts that the mischief was foreseeable that would suffice. The Judge accepted that this was a fair interpretation of the legislation.

18. He accordingly dismissed the application.

19. Ground 1 is framed in the most general terms. It is contended that in all the circumstances the Judge was wrong to reach the conclusion he did. It would appear to be constructive to address the specific criticisms contained in the subsequent grounds.

20. Ground 2. The complaint made in this ground is that having referred to the limited nature of the activities undertaken by the applicant the Judge had been in error in holding that the activities came within the scope of a "polluting process" as defined in section 2 of the Ordinance. In particular it was necessary to consider the word "activity" ejusdem generis with the rest of the definition.

21. The submission which was made by Mr Coleman for the applicant was that what was required was some act or activity to be undertaken in respect of the sharks fins. Mere passive storing of the commodity was not enough. He suggested that if this was not the case the legislation would have unduly wide application. It could equally well be argued that if some active step had to be taken by a party before a polluting process would arise the application of the Ordinance would be unduly restricted.

22. What is clear is that the applicant was undertaking commercial activities at the premises in question. The Judge attached importance to the wording of the definition and in particular to the fact that the various activities referred were stated to be inclusive of what was contemplated by the term "polluting process". Applying the relevant principles of statutory interpretation the Judge was right to interpret the term in the way he did. See Bennion on Statutory Interpretation, 3rd Ed., at page 441 on "Enlarging definitions".

23. It should perhaps be added that the example he gave of decomposing carcasses illustrates how in practice his interpretation of what constitutes a polluting process must be right.

24. The complaint made in ground 3 is that section 10(1) of the Ordinance does not apply to emissions of an objectionable odour from a declared offensive trade necessitating a licence under the Public Health and Municipal Services Ordinance Cap. 132. "Processing of sharks fins" is designated as an "offensive trade". This was indicative that the activities conducted by the applicant should not be deemed to be a "polluting process". Over and above this the activities of the applicant were of a harmless nature and were not intended to come within the scope of the Ordinance.

25. This cannot be right. The mere fact that storage and distribution of sharks fins does not constitute an offensive trade under the Public Health and Municipal Services Ordinance is of no relevance.

26. If an odour does emanate from the applicant's premises there is no valid reason why the provisions contained in the Ordinance should not apply. The main point here is that if the recommendations which were made by the officers who attended at the premises towards the end of 1999 had been adopted it may well have been the case that the notice in question would not have been issued.

27. In ground 4 complaint is made that the Judge engaged in what Mr Coleman described as a circular argument. According to him the Judge was in effect saying that "air pollution" means an emission of an objectionable odour constituting air pollution because it was a nuisance which was because it had the effect of causing an objectionable odour.

28. What was required was something other than the thing itself.

29. This is to a large extent a repeat of the contentions being advanced in the second ground of appeal.

30. The Judge's analysis of the position was not circular. This was how the Judge stated the position at p. 9 of his judgment:

"(c) That the emission is causing or contributing to air pollution.

The giving off or discharge of air pollutants need not, therefore, be the sole cause of the air pollution; it is sufficient if it contributes towards that pollution. As for the core term 'air pollution', that too is defined in section 2 of the Ordinance, the definition being:

'air pollution means an emission of air pollutant which either alone or with another emission of air pollutant -

(a) is prejudicial to health;

(b) is a nuisance;

(c) imperils or is likely to imperil the safety of or otherwise interferes with the normal operation of aircraft; or

(d) is determined to be air pollution under a technical memorandum;'

In these proceedings, it was accepted that the odour emitted from the Applicant's premises did not (nor does it today) constitute an odour prejudicial to health. What was suggested rather was that air pollution was imminent because the odours would constitute a nuisance. A nuisance is also defined in section 2 of the Ordinance, the definition reading:

'nuisance includes an event which is obnoxious and which results in any of the effects set out in section 10(2).'

Again, by qualifying the definition with the word 'includes', I take that to mean that the definition is not exhaustive and does not therefore exclude the ordinary common law meaning of nuisance.

The 'effects' referred to as being set out in section 10(2) of the Ordinance are defined under section 10(2)(h) as follows:

'any of the following effects which, in the opinion of the Authority or the authorized officer, is caused by or contributed to by the emission -

(i) the deposit of dust, grit or particles of any kind;

(ii) an objectionable odour;

(iii) the staining of, corrosion or damage to, a building, plant, equipment or other material;

(iv) the irritation of the eye, nose or skin or any other sensory discomfort;

(v) the disturbance of normal activities by the colour or opacity of the emission;

(vi) an effect which in the opinion of the Authority or an authorized officer may effect public safety; or

(vii) any other effect which in the opinion of the Authority or an authorized officer is unreasonable for a member of the public to suffer.' [my emphasis]

Accordingly, in my view, if air pollutants, such as objectionable odours, are emitted into the atmosphere they may be held to be causing or contributing to air pollution if they are obnoxious - that is, offensive, odious or, in that vein, objectionable - and if it is unreasonable to expect a member of the public to be forced to suffer them."

31. This was not a circular argument. It set out a chain of causation which led to a logical conclusion.

32. Ground 5 is that the Judge erred in holding that the air pollution complained of was "imminent".

33. Mr Coleman submitted that what had to be established for something to be "imminent" was that it would occur in the near future.

34. This contention has not been made good. The Judge correctly found that change necessarily included the potential for change.

35. The fact that the storage space was not fully utilised was a material factor. It had to be assumed that on occasions the facilities would be fully utilised and then the quantity of sharks fins being stored would be substantially increased thus adding to the noxious odour emanating from the premises.

36. Associated with this was the extent of the utilisation of the premises. It was highly probable that on occasions the number of customers etc. coming and going from the premises would exceed the number when the inspectors undertook their inspection.

37. In this event the doors of the premises would remain open for longer periods thus leading to a situation where more objectionable odour would escape.

38. Lastly there was the question of an increase of the odours with the onset of warmer weather.

39. Mr Coleman submitted that there was no evidence that there was any decomposition of the sharks fins. This is not correct. Both of the officers who gave evidence before the Board expressed the view that the sharks fins would be subject to some decay and that this would increase the amount of the odours.

40. Over and above this one of the nearby residents who gave evidence before the Board expressed the opinion that the smell got worse in the summer months.

41. There was sufficient evidence before the Board to enable them to conclude that air pollution was imminent according to the criteria laid down in the legislation.

42. It goes without saying that the decisions impugned were not Wednesbury unreasonable.

43. In conclusion the Judge was right to reject this application. Accordingly the appeal is dismissed and we make an order nisi that the applicant will bear the costs of this appeal.