ATTORNEY GENERAL v. CABOT PLASTICS HONG KONG LTD

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 25 OF 1992

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BETWEEN

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J U D G M E N T

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1. This is an appeal by way of case stated by Cabot Plastics Hong Kong Limited from their conviction at the Shatin Magistrate's Court before Mr. L.J. D'Almada Remedios.

2. The Company had been charged with a breach of Regulation 11 of the Air Pollution Control (Furnaces, Ovens and Chimneys)(Installation and Alteration) Regulations - Cap. 311, in that they had installed 6 gas-fired boilers and a chimney without approval.

3. The brief facts were that in February 1988 the Company took possession of land in Tai Po and it was a term of their lease that they would erect a factory on it. In February 1990, they entered into a building contract - in standard R.I.B.A. form - with the Hsin Chong Construction Company. A plan and application were submitted by a specialist sub-contractor in April 1990 pursuant to Regulation 4 for the erection of a chimney of 232 mm diameter. These were approved under Regulation 10.

4. When officers from the Environmental Protection Department visited the site they found that the chimney diameter was 320 mm and 6 gas-fired boilers had been built without any approval under the Regulations.

5. The offence charges the appellants with being the "occupiers of the said premises".

6. Mr. Fok's basic submission is that they were not the occupiers within the definition as they had parted with possession of the site on which the factory was being built to the contractors.

The interpretation of "occupier" is

"(a)     the occupier of premises on which a furnace, oven, chimney or flue is to be installed altered or modified; and

(b)     the person having the management or control or receiving the profit of the business carried on in such premises."

7. It can be seen therefore that there might be two occupiers - one of the actual premises and one who is running the business carried on in the premises.

8. The magistrate found that the appellants came within (b) .

9. These Regulations must be construed in a commonsense manner and looked at as a whole. Regulation 12 provides that an occupier on conviction may be prohibited from operating the chimney, or he may be required to dismantle it or to submit new plans.

10. Although I have heard detailed submissions as to the meaning of "occupier" in other statutes and contexts it must be remembered that the mischief aimed at in these regulations is the prevention of air pollution caused by the operation of furnaces, chimneys etc. The offence is the carrying out of work without approval but it is clear, particularly from Regulation 12 that it is the operation of plant, which has no approval, which is the important factor from a public point of view.

11. The contravention may only be discovered when the plant is operating, but in this case the plant was not in use and the business was not being carried on. Nevertheless the Company had caused to be erected a chimney which they intended should be used for their business.

12. In my judgment, the defendants may well have been the occupier at the time of contravention even though it was the building contractor who was carrying out the construction. Even if I am wrong about that, the construction of 2(b) permits two situations - one where the manager of the business is actually running the business when the contravening chimney is erected, and secondly where he is intending to utilise the contravening chimney in the future.

13. When the defendants came to operate their factory they would have been utilising a chimney which was in contravention of the Regulations.

14. In my judgment, the defendants could have been convicted as "occupier" under either limb of the definition. I have reached the same conclusion as the Magistrate but by a different route. The appeal is dismissed.