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

HCAL 1928/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1928 OF 2000

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J U D G M E N T

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1. The Applicant in these proceedings for judicial review carries on business as an importer and distributor of dried fish, especially shark fins. It has commercial premises on Bonham Strand East in Sheung Wan where the dried fish is stored and from where it is distributed.

2. By a notice dated 23 February 2000, the Applicant was advised by the Director of Environmental Protection ('the Director') that objectionable odours were issuing from its premises in Sheung Wan. These odours, while not themselves constituting air pollution in terms of the Air Pollution Control Ordinance, Chapter 311 ('the Ordinance') were nevertheless, in the opinion of the Director, sufficient to indicate that air pollution was 'imminent'. Accordingly, in terms of the notice, the Applicant was directed that within 90 days it had to reduce the emission of the odours to an acceptable level.

3. The first order sought by the Applicant is an order of certiorari to quash the decision of the Director, the 2nd Respondent, to issue the notice (formally known as a notice to abate air pollution). The order is sought on the basis that the decision to issue the notice constituted an error in law.

4. Being aggrieved by the Director's issue of the notice, the Applicant appealed to the Air Pollution Control Appeal Board ('the Appeal Board'), a body constituted in terms of Part VI of the Ordinance. The Appeal Board has jurisdiction to determine appeals made in respect of the issue by the Director of notices requiring the abatement of air pollution. In terms of a lengthy, reasoned decision dated 1 June 2000, the Appeal Board dismissed the Applicant's appeal.

5. The 2nd order sought by the Applicant is an order of certiorari to quash the decision of the Appeal Board, the 1st Respondent. This order is sought on two bases; first, that the decision of the Board is Wednesbury unreasonable and, second, that it too was wrong in law.

The background

6. The Applicant has been trading from its Sheung Wan premises since the late 1980s. The premises are situated on a road in an area where a good deal of trade in dried delicacies takes place. To better understand the 'colour' of the area, a recent newspaper article, dealing with the rental of residential properties, described it in the following terms:

"Almost all residential developments are built above commercial centres, such you find rows of shops and restaurants along the road. Passersby cannot miss the smell as they pass along Des Voeux Road, where many shops sell shark fin, abalone, scallops and all types of dried herbs. In spite of the prevailing smell, many locals and tourists visit the shops over the weekend to buy the expensive seafood used in Chinese cooking."

7. The Applicant occupies a shop premises on the ground floor which has large shop windows and which opens directly onto the pavement. The Applicant also occupies 2 rooms on the first floor. These rooms can be reached from within the Applicant's premises, by which I mean that it is not necessary to take public stairs or a public lift. The building in which the Applicant's premises is situated is a multi-storey building, typical of the area, with a podium above the Applicant's premises and rising from that a high residential block. In order to come and go from the residential block it appears that people must walk within reasonably close proximity of the Applicant's premises.

8. The Applicant has always specialised in the import and distribution of dried shark fins. These are purchased from various parts of the world. The fins are sun dried. They are not salted or preserved by the use of chemicals. Invariably, the shark fins (and the other dried fish, mainly fish maw) are delivered in large sacks and are stored in the premises in these sacks. The Applicant trades on both a wholesale and retail basis, most of its business being with restauranteurs. I understand that much of the selling is negotiated over the telephone without any need for inspection. But, of course, if a customer requires, the sacks will be opened for inspection. In addition, it is apparent that the dried fish is sold according to weight, the weights varying considerably from customer to customer. It is therefore necessary within the premises to take out the dried produce, weight it, pack it and arrange for its delivery. In short, it is apparent that the Applicant carries out the everyday commercial activities of an importer and trader of 'finished produce'. By that I mean that the Applicant does not have render, cook, preserve or otherwise alter the produce before it is sold.

9. As for the produce itself, the Applicant claims that, being sun dried, shark fins will remain in good condition for many years and will only begin to decompose if they become wet. Dried shark fins may come in different colours. A darker colour therefore does not signify decomposition. They Applicant accepts that shark fins (and its other dried fish produce) do have an odour but says that this is not a sign of any internal change taking place (akin to decomposition) or of bacterial attack; it is simply the natural smell of the produce in its dried state.

Service of the notice to abate air pollution

10. It appears that for several years occasional complaints had been made to the Director concerning the smell coming from the Applicant's premises. But the Applicant received no complaints direct.

11. In March 1998, the Applicant was visited by the Director's officers who requested that a number of remedial steps be taken. The Applicant claims that these recommendations were (in the main at least) followed and that follow-up inspections raised no further complaints. However, in October 1999 a member of the local District Board referred a complaint to the Director and this resulted in 2 further inspections; one on 27 October and one on 8 November 1999. In respect of the November inspection, 2 of the Director's officers later made witness statements for the Appeal Board hearing. An officer named Tsui Wing Sing said:

"I observed that the shop has tonnes of odourous dried shark fins in gunny sacks stored on the ground floor and first floor of the residential/commercial building. The odour source was quite strong. Odour drifted out from the front door and also leaked into the lift lobby and the lift. Slight to moderate odour was detected in other common areas such as the first floor and the second floor staircases. In essence, the odour source was strong, the residential units were on the same building and slight to moderate odour was detected in common areas. The odour from the shop caused imminence of air pollution." [my emphasis]

12. The second officer, Tsang Kong Fai, gave a statement to the same effect:

"I saw that a large amount of dried seafood product was stored inside the premises. I could scent a strong odour there. During the shop inspection, I observed that there was no proper odour control equipment installed. Odour was not treated before discharged to outside via the gaps and openings of the shop. The odour could drift or diffuse out of the shop into the nearby residential premises and could cause discomfort to the members of the public. Thus, I was satisfied that there was imminence of air pollution from the emission of air pollutant from storage and handling of marine products." [my emphasis]

13. The Director's officers did not assert that the emission of odours at that time constituted air pollution. Their concern rather was related to the 'imminence' of air pollution. This is made plain in the wording of the notice dated 23 February 2000 which was served on the Applicant. That notice, in part, 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."

14. The reasons why the officers should consider that air pollution, although not in existence, was nevertheless imminent, emerge from testimony given by them before the Appeal Board. Essentially, there appear to be 3 reasons:

(i) That if there is more stock in the premises (for example, after a new shipment or if demand improves) there will be a larger source for the emission of odour. The result will be a more powerful and concentrated odour.

(ii) That when the summer months come, the combination of heat and humidity will increase the odour or at least make the odour more of an annoyance. This result, it seems, is borne out by reports from persons who they questioned, the complaint being that the smell was worse when the weather was hotter.

(iii) That on a busy trading day, with goods being taken to and from the premises, with the shop door being opened, and with a large number of people out on the street, the odour would more easily escape and would effect more people.

The legislative framework

15. In its Notice of Application issued in terms of O. 53, r. 3 of the High Court Rules, the Applicant has sought inter alia to quash the decision of the Appeal Board on the ground that its findings were irrational in its limited Wednesbury sense. However, Mr Carolan, who appeared for the Applicant, while he did not abandon this ground, did not seek actively to advocate its merits. As I apprehend it, he believed that the Applicant's challenge could be better articulated by relying on his two remaining grounds. Both of these relate to the true construction of the relevant provisions of the Ordinance.

16. In order to better understand these two grounds, it is first necessary, however, to consider the legislative framework within which the notice to abate air pollution was issued.

17. In terms of section 4 of the Ordinance, the Chief Executive may appoint a public officer to be the Air Pollution Control Authority. The Director is that appointed Authority.

18. In terms of section 10(1) of 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."

19. Accordingly, before an officer may issue a notice, he must be satisfied (a) that an emission of air pollutants is taking place; (b) that the emission arises from a polluting process; (c) that the emission is causing or contributing to air pollution and, (d) that the air pollution, if not yet in existence, is imminent. Something must be said of each of these elements:

(a) That an emission of air pollutants is taking place.

20. There must be evidence that air pollutants are being given off; that is, discharged into the air. Air pollutants are defined in section 2 of the Ordinance to mean "any solid, particulate, liquid, vapour, objectionable odour or gaseous substance emitted into the atmosphere". Smells that are objectionable may therefore constitute air pollutants.

(b) That the emission arises from a polluting process.

21. A polluting process is defined in section 2 of the Ordinance, that definition reading:

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

22. By qualifying the definition with the word 'includes', I take that to mean that the definition is not exhaustive and that other forms of polluting process will fall within the ambit of the Ordinance.

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

23. 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;"

24. 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)."

25. 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.

26. 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]

27. 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.

(d) That the air pollution, if not yet in existence, is imminent.

28. A notice to abate air pollution may be issued even if it is not considered that the giving off or discharge of air pollutants is causing or contributing to an existing state of air pollution. But, if there is no existing state of air pollution, that state must at least be imminent.

29. The word 'imminent' is not defined in the Ordinance and is therefore to be given its ordinary meaning. The Oxford English Dictionary (2nd Edition) defines the word in relationship to an event (invariably one that is unpleasant) in the sense that the event is 'hanging over one's head' or is 'close at hand' or 'coming on shortly' or is 'ready to befall or overtake one'. In my judgment, having regard to its ordinary meaning, the word 'imminent' implies a close causal relationship and/or a certain immediacy. In the context of section 10(1) of the Ordinance, therefore, the giving off or discharge of air pollutants must not merely create a possible risk that it may cause or contribute to a state of air pollution, the causal relationship must be more immediate than that. It must be a case where, although future events can never be guaranteed, it can be said that it will almost certainly at some time in the relatively near future cause or contribute to a state of air pollution. In short, unless abatement action is taken, a state of air pollution (or a material contribution to that state) is almost certain to befall and to that extent it is already 'hanging over one's head'. Whether in any particular set of circumstances there is a close causal relationship and/or a certain immediacy is a question of fact.

The Applicant's first challenge: 'polluting process'

30. It is the Applicant's case that the Director may only lawfully issue a notice to abate air pollution if he is satisfied, in terms of section 10(1) of the Ordinance, that the emission of air pollutants is coming from some form of 'polluting process'. On behalf of the Applicant, Mr Carolan submitted that the intention of the Ordinance is clear: it is to prevent some form of 'activity' which impacts on source (or primary) materials and thereby directly creates the emission of air pollutants. Such an activity would include the rending, mixing, cooking, burning or manufacture of products. That this is so, argued Mr Carolan, can be seen in the definition of 'polluting process' in section 2 of the Ordinance. While that definition is not exhaustive, it nevertheless states that the process shall include 'an activity, process or the operation of a chimney, relevant plant, machinery or equipment that evolves air pollutants'.

31. From this basis of interpretation, Mr Carolan argued that if the Applicant had been somehow altering the state of the shark fins (or other dried fish) in its premises by, for example, cooking them, crushing them, mixing them, preserving them or adding them to some manufacturing process then the 'polluting process' anticipated in the Ordinance would be taking place. But no 'process' of any kind takes place, said Mr Carolan. The dried produce is not altered in any way. By taking delivery of the produce, storing it, weighing it and then delivering it to customers the Applicant does not involve itself in any form of 'polluting process, those two words having to be read together.

32. While I accept that the Ordinance clearly intends for there to be some form of 'activity' which brings about the discharge of air pollutants, I cannot accept Mr Carolan's interpretation which limits itself effectively to a form of what may broadly be called an industrial process. I return to the fact that the definition in section 2 of the Ordinance is qualified by the word 'includes'. As I have said, I take that to mean that the definition is not exhaustive and that forms of polluting process outside of Mr Carolan's narrow ambit are also contemplated by the legislation. The word 'process' accommodates a wide range of meanings. The New Shorter Oxford Dictionary (1993 edition) defines it as being 'the action or fact of going on or being carried on'; 'a thing that goes on or is carried on; a continuous series of actions, events or changes'. On that basis, I am satisfied that a 'polluting process will include any form of activity or process of change that gives off air pollutants.

33. In the present case, the Applicant carries on a commercial activity. It is the bringing of the dried fish to its premises, it is the opening of the sacks in order to inspect the contents, it is the weighing of the produce, the wrapping and the carrying of it in and out of open doors which brings about the discharge of air pollutants. In short, the 'polluting process' is the activity (or business) of trading in a particular type of produce. To illustrate my meaning, I take an extreme example: the storage of animal carcasses which are in a state of decomposition. If those carcasses, because of decay, are giving off air pollutants it would, in my view, patently defeat the intention of the legislation to say that the mere activity of carrying the carcasses into a premises and storing them would not amount to a 'polluting process'. Indeed, I would go so far as to say that two processes of pollution would be taking place in this instance; the 'internal' process of decomposition and the 'external' process of bringing the carcasses to the premises and storing them.

34. Accordingly, I am satisfied that, at the time the notice was issued, the Applicant was carrying out an activity which the Director's officers may reasonably have found to be a 'polluting process' in terms of section 10(1) of the Ordinance.

35. By way of a footnote, for the sake of completeness, it should be mentioned that Mr Carolan made reference to several extracts from Hansard to support his submissions as to the intent of the legislation and the mischief it sought to curb. With respect, however, I do not believe those references support his contentions.

36. In introducing the Air Pollution Control Bill, the Secretary for Home Affairs explained to the Legislative Council (Hansard, 27 April 1983):

"In this Bill we are considering air pollution arising from static sources - furnaces, factories, chimneys and the like. These operations are divided into two sorts: those obviously likely to give rise to serious pollution on the one hand and the rest on the other.

The first sort of operation we have called 'specified processes'. There are provisions for licensing these processes plant by plant. The planning, design, construction and operation are required to take place under controlled conditions so that the best practical methods can be incorporated from the beginning. Plants already in operation when the law comes into force are exempted from licensing until the plant is replaced or expanded. The whole process of pollution control is done plant by plant. There are 81 plants of this sort operating in Hong Kong now.

For the rest the Bill proposes generally to follow the practices that have been in use for over twenty years under the Clean Air Ordinance. Here operators proceed unfettered unless they are causing a nuisance to people round about. If this happens they are shown how to reduce the nuisance and, when necessary, there are powers to require operators to put things right. [my emphasis]

37. There is no suggestion that the Applicant has been carrying on an operation of the kind termed a 'specified process'. Accordingly, the Applicant's commercial activities proceed unfettered unless they are causing a nuisance to people round about.

38. When dealing with the legislation's concern for this type of everyday nuisance the Secretary for Home Affairs said:

"This Bill is not aimed at an old man puffing his pipe or a hawker boiling up some wan tun min, or even people pulling chestnuts out of the fire. The concept of nuisance which is used in the Bill, though the subject of pages of discussion in learned law books, clearly involves serious and unreasonable interference with the comfort and convenience of other people."

39. While I accept that the central focus of the legislation was to curb air pollution coming from various kinds of industrial operations, there is nothing in the Hansard references shown to me to suggest that the clear intention of the legislators was to restrict or confine the mischief of air pollution to such industrial operations. The legislation, in my view, was also aimed at 'nuisance' falling under the common law definition of that word, namely, any act or omission which constitutes an interference with or annoyance to members of the public.

The Applicant's second challenge: 'imminence of air pollution'

40. It is the Applicant's second contention that the Director, in issuing the notice to abate air pollution, and the Appeal Board, in confirming the correctness of that decision, were both wrong in law in finding that air pollution was 'imminent'. This was so, first, because they interpreted the meaning of the word 'imminent' incorrectly and, second, because it was irrational to come to a finding, in the circumstances of this case, that air pollution was imminent.

41. In its ruling of 1 June 2000, the Appeal Board was urged to find that air pollution was not imminent. In this regard, the following is recorded in the ruling:

"Counsel for the Appellant submitted that we should adopt the ordinary dictionary meaning of the word 'imminent' which he said was something which was about to happen. He argued that since despite complaints there had been no enforcement for 12 years, this showed there was no imminence proved but to the contrary the past history proved pollution was not imminent. We do not accept the basis for this argument. There could be many reasons for not issuing a notice in the past, lack of resources, varying situations, the difficulty of being on the spot at the right time when the worst emissions took place, were all factors noted by the Officers. However Mr Tsui noted there was a recognition of the problem for years and we do not think lack of enforcement follow up can amount to proof that there was no pollution in the past or that there will be no potential for such in the imminent future."

42. The Appeal Board - I believe quite correctly - recognised that the word 'imminent' does not imply the visitation of a mischief for the first time. There may, therefore, have been occasions in the past when the Applicant's activities did amount to air pollution but were not sanctioned. But that does not exclude further air pollution from being imminent.

43. The Appeal Board went on to give a limited definition of the word 'imminent' within its statutory context.

"In this context, without attempting a complete definition, we take the view that in circumstances where the emission of enough air pollutant is not proved or the existence of actual air pollution is not found or the pollutants or pollution are too variable or unconfirmed or receptors are not identified, but there is a potential for air pollution in future by reason of existing factors changing or increasing or new factors developing, and in a period of time which is proportionate and reasonable to consider, or such factors are reasonably forseeable or likely in a reasonable time, then imminence of air pollution is established. It is clear that the Officers had considered such matters in their conclusion that imminence of air pollution was established, they clearly expressed the opinion that there would be air pollution when the hot weather came coupled with handling and delivering of the sacks with the doors wide open, and we considered that the evidence established enough factors to justify such a conclusion." [my emphasis]

44. That definition has been criticized by Mr Carolan for not reflecting the true meaning of the word 'imminent'; for essentially neglecting the immediacy that is inherent in the word and failing to recognise that a mere 'potential' for the mischief to occur is not sufficient. It must be 'hanging over one's head' or 'about to befall one'.

45. While I accept that the definition may to an extent be criticised, I do not believe that the definition materially undermined the findings of the Appeal Board. They were findings, in my judgment, which were to the effect that the mischief of air pollution was manifestly threatening the Applicant's activities and that all it would take would be a shift in conditions; for example, the onset of hot weather and/or an increase in the Applicant's activities for there to be a state of air pollution. As to when such a shift was almost certain to take place, it was clearly the Appeal Board's view that it was to be in the relatively near future, certainly with the onset of hotter weather. The factual findings of the Appeal Board were not simply that there was a potential but that the potential was great and likely to be realised in the near future; that is, in just a few months. That, I believe, is the only reasonable interpretation to be given to those findings.

46. Among the matters taken into account by the Appeal Board were the following:

"- A clear source of objectionable odour namely the hundreds of sacks of dried unprocessed sea food;

- It was not properly packed, despite advice, not being in any air tight wrapping or container;

- The premises in which it was kept and the way in which it was stored was primitive so that at the time of the investigation it leaked out through cracks in the doors and through doors which were not properly shut;

- Despite the allegedly low quantity stored by comparison to other times, the smell emitted was still significant, it still caused discomfort to some;

- It was asserted that the smell was less since the storage was less, so the corollary would be that if more was stored and handled more often, the smell would be worse, and there was clearly capacity for more storage;

When the doors were opened for delivery or collection, especially if this took place lasting up to an hour as stated by the Appellant's Branch Manager, this would clearly cause increased nuisance and emissions;

- In hot conditions such as approaching summer, the situation gets worse because the rate of decomposition increases and hence the smell from decay increases;

- The proximity of the receptors."

47. Mr Carolan has argued that there was no acceptable evidence before the Appeal Board that there was, in fact, any increase in decomposition in the hot weather. It was his case that there was no decomposition at all, either in hot weather or cold, as the fish products were all properly sun dried. But even if the Appeal Board was labouring under a mistake of fact, I do not believe it would have changed its findings. Whatever the cause, there was evidence that in the hotter weather the smell constituted a greater annoyance to members of the public. Whether hot weather itself makes such odours more difficult to tolerate or whether the hot weather brings about some internal change in the dried fish does not affect the result; namely, an increase in the annoyance of the smell and thereby the constitution of a public nuisance.

48. In all the circumstances I am satisfied that neither the Director nor the Appeal Board were wrong in law in finding that in respect of the Applicant's activities, air pollution was imminent. Nor, in my view, can it be said that such findings were in any way perverse or irrational. The application for judicial review is therefore dismissed. Costs are awarded to the 2nd Respondent, to be taxed if not agreed. The 1st Respondent, quite properly, chose not to be represented. But should the 1st Respondent have incurred costs, liberty is given to apply within 30 days.