HKSAR v. VSL HONG KONG LTD AND ANOTHER

HCMA461/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 461 OF 2011

(ON APPEAL FROM KTS 23641 & KTS23642 OF 2008)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  This is an appeal by the appellants against their conviction by Mr Abu B. bin Wahab on 31 May 2011 of the offence of discharging polluting matter into the waters of Hong Kong in a water control zone, namely Junk Bay Water Control Zone (“the Zone”), on 10 June 2010, contrary to sections 8(1)(a) and 11(1), Water Pollution Control Ordinance, Cap. 358 (“the Ordinance”).

2.  At the material time both appellants were a body corporate trading as Kaden-VSL Joint Venture and were operating a construction site located in Area 65 of Tseung Kwan O, named “Tseung Kwan O Further Development‑Design and Build of Infrastructure Works for Tseung Kwan O Stage I Landfill Site (Phase I) (“the Appellants’ Site”).  Adjacent to the appellants’ site was another site operated by Chun Wo Construction and Engineering Company Limited (“the Chun Wo Site”).

3.  The two sites were separated by dividing hoarding. The Chun Wo Site in certain places directly fronted the Zone.  In other areas it was separated from the Zone by hoarding.  On the shoreline of an area where Chun Wo Site was separated from the shoreline by hoarding was a pier. 

4.  The magistrate succinctly summarised what happened that day.

5.  Around 10:00 a.m. on the material day, muddy water was found entering the Zone near the pier (the Affected Area). 

6.  Around 1:45 p.m. staff of the Chun Wo Site, viz. PW1 and PW2, as well as PW3, were at the Chun Wo Site to look into the matter.  They saw a blue hose with a metal pipe attached running from the Appellants’ Site onto the Chun Wo Site.  The hose went under the dividing hoarding.  Muddy water (or brown water or yellowish water) was discharging from the hose and flowed on the surface of the ground along a trench.  The site agent on the Appellants’ Site was informed.

7.  At around 2:00 p.m. the hose was withdrawn back to the Appellants’ Site and the discharge from the hose ceased.

8.  Around 1:53 p.m. Environmental Protection Department (“EPD”) inspectors including PW4, PW5 and PW6 arrived at the seashore across from the pier.  PW4 was leader of the group.

9.  Around 2:03 p.m. the inspectors went to the high floor of a nearby building to observe.  Turbid and brownish (or yellowish or muddy) water was seen entering the Affected Area.

10.  The inspectors then went on the Chun Wo Site. By this time, the blue hose had already been withdrawn into the Appellants’ Site and there was no more discharge from it. 

11.  Around 2:16 p.m. the inspectors saw brown/muddy-yellowish liquid flowing in a manhole.  This manhole was described in evidence as Manhole 2 and will be so referred to herein.  Manhole 2 was close to the pier and the Affected Area.

12.  A Green Dye Test was carried out at Manhole 2.  The result indicated that water would flow from Manhole 2 to the Affected Area.

13.  Around 2:28 p.m. the inspectors went to the Appellants’ Site and saw a blue hose on the ground near the dividing hoarding. PW4 and PW5 noticed traces of muddy water at the end of the hose.  A sample of materials found inside the hose was collected by PW5.  It is admitted that the sample contained 150,000 mg/L of solids and 7,400 mg/L of chemical oxygen demand and was therefore not unpolluted water within the meaning of the Ordinance.

14.  The inspectors then returned to the Chun Wo Site where a Red Dye Test was carried out.  The test was done this way : red dye was put in the trench.  PW4 then instructed Chun Wo staff to discharge water from where the hose had been seen earlier into the trench.  Water was absorbed into the ground for some 10 minutes before it was seen flowing on the ground surface along the trench.  Water carrying the red dye was later seen flowing in a manhole described in evidence as Manhole 1, proceeding to Manhole 2 and entering the Affected Area.

15.  For a prosecution under section 8(1)(a) of the Ordinance to succeed, the prosecution must prove that the discharge was not made by way of a communal drain (see section 8(1)(3)) which is defined in section 2 of the Ordinance as meaning “a drain that is not used exclusively by one discharger”.

16.  There is no dispute that if there had been a discharge in the Appellants’ Site of polluting water it would have reached the Affected Area, at least some of the way via a drain on the Chun Wo Site.

17.  The magistrate found that the drainage system within the Chun Wo Site was used exclusively by one discharger, i.e. Chun Wo.  He based that finding on what he said was evidence from PW2 (the foreman of the Chun Wo Site) and PW3 (the senior engineer of the Chun Wo Site) “that the drainage system in the Chun Wo Site had been cut off/blocked off from areas outside the site.”

18.  This appeal has turned on the question of whether the magistrate was right to find that the drain through which the discharge would have reached the Affected Area was not a communal drain.

19.  It is not in dispute that the cover to at least one of the manholes under which any liquid from the appellants’ blue hose would have flowed indicated that it was a storm drain.

20.  The court has been referred to the passages in the evidence of PW2 and PW3 from which the magistrate concluded that the drainage system in the Chun Wo Site had been cut off from inflow from outside. It was argued that there is at least some ambiguity as to whether the witnesses were referring to the particular areas with which this prosecution was concerned rather than another area in a distant part of the same site depicted in the right hand photographs of Ex. P8, page 15.

21.  Even if the magistrate was correct in concluding that PW2 and PW3 were saying that the drainage system in the Chun Wo Site had been cut off from inflow from outside, it has to be borne in mind that the ultimate discharge into the Zone was not made within the Chun Wo Site.  This can clearly be seen from the photograph Ex. P9.  The hoarding surrounding Chun Wo Site is some distance from the water’s edge.

22.  The evidence of PW6, inspector of the EPD, was that the drain cover depicted in Ex. P14 (photographs 13, 33 and 34) was “next to the pavement that leads to the pier”.  Ms Leung, for the respondent, has not sought to argue that that was within the Chun Wo Site.  Photograph 34 shows that appears to be green liquid in the drain, which suggests, at least a strong possibility, that that was the green dye used by EPD officers making the Green Dye Test.  It therefore follows that even if the Chun Wo Site drainage system was sealed off against any inflow from outside, this portion of the drainage system outside Chun Wo Site through which any polluting water from Chun Wo Site would have flowed before it reached the water control zone was not so sealed off.

23.  This alone would preclude a court concluding beyond reasonable doubt that any polluting discharge was not made by way of a communal drain.

24.  The prosecution was not in a position to show that PW6 was wrong when he agreed that water from anywhere including hillsides and slopes would pass under that drain cover.

25.  For the above reason I find that the prosecution have failed to prove that any polluting matter that was discharged into the Zone was not made by way of a communal drain.

26.  I allow the appeal.

27.  I order that the appellants’ costs here and below be paid from public funds.