THE SECRETARY FOR JUSTICE v. TAK YUE RESTAURANT LTD.

1997, NO. MA 894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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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 the Secretary for Justice against the decision by the magistrate dismissing an information taken out by the Secretary against the Respondent, Tak Yue Restaurant Limited. The information alleges that the Respondent had failed to comply with a Noise Abatement Notice ("the Notice") issued by the Noise Control Authority ("the Authority") and served on the Respondent. The Notice was issued under s.13(1)(c) of the Noise Control Ordinance, Cap.400 ("the Ordinance") and it requires the Respondent to ensure the noise emanated from the Respondent's restaurant does not exceed the limits specified in the Notice. The limits set down are 62dB during daytime and evening and 52dB at night.

2. At the trial, the prosecution conceded that the Acceptable Noise Levels for the area where the Respondent's restaurant was at the time were 65dB for day and evening and 55dB for night time. They are specified in Table 3 of the Technical Memorandum issued by the Authority under s.10 of the Ordinance.

3. In the case stated, the magistrate states that it is his opinion that :

"the Authority had been ultra wires when it arbitrarily prescribed a limit in a notice that departed from the one authorised in the Technical Memorandum. For this reason, I held that the notice was invalid. The information was dismissed....."

4. The Secretary for Justice contends that the magistrate is wrong in law.

5. The questions of law stated for the opinion of this court are :

(1) Whether the magistrate erred in holding that the noise abatement notice was invalid, and

(2) Whether the magistrate erred in acquitting the Respondent in the circumstances.

6. Mr Cheung for the Secretary submits that the noise levels of 65dB during day time and evening and 55dB at night have been set out in the Technical Memorandum as the acceptable levels in the area of the Respondent's restaurant. These are the appropriate levels of noise for the Noise Sensitive Receiver ("NSR") located in the area. They are there to indicate the general acceptable noise levels in that area. Noise emanated from the Respondent's restaurant at night has exceeded 55dB according to the NSR located outside the restaurant. In such circumstances, the Authority is justified to issue under s.13(1)(c) of the Ordinance the Notice and serve it on the Respondent. Mr Cheung submits that the Authority is empowered to specify in the Notice the limits of noise emanating from the Respondent's restaurant with which the Respondent must comply. This is to ensure the level of noise in the area remain acceptable. The Technical Memorandum does not in any way limit the Authority's power to specify noise limits in Noise Abatement Notices.

7. Mr Cheung refers to two Noise Pollution Appeal cases : No.2 of 1991 and No.1-8 of 1994. Suffice to say, Mr Cheung concedes that these are administrative appeals and they do not bind this court. However, they do show the approach by the Board on the noise limits specified in a Noise Abatement Notice with regard to the limits set out in the Technical Memorandum. The Board was persuaded by evidence and decided that although the levels in the Noise Abatement Notice were lowered than those set out in the Technical Memorandum, it was a valid notice. The Board accepted that the levels in the Technical Memorandum were in respect of several noise sources each contributing to the overall noise and the limits in the Noise Abatement Notice were set in order that the aggregate noise from the different sources should not exceed the acceptable levels set out in the Technical Memorandum.

8. Mr Cheng for the Respondent submits that these cases do not assist since they are not decisions on the validity of the Notice. It is submitted that nothing in the Ordinance enables the Authority to set down in such notices noise level limits which are contrary to those specified in the Technical Memorandum and the Authority cannot arbitrarily do so.

9. Section 10 of the Ordinance provides for the issue of Technical Memoranda. In so far as it is applicable to this appeal, it states as follows :

"(1) The Secretary may issue from time to time Technical Memoranda setting out principles, procedures, guidelines, standards and limits for -

(a) the measurement and assessment of noise emanating from any place other than domestic premises, a public place or a construction site;

(b) the issue of noise abatement notices in respect of such noise;

(c) the determination of whether or not a noise abatement notice is being complied with.

(2) The Authority shall be guided by Technical Memoranda issued from time to time under subsection(1) when undertaking any measurement or assessment to determine if a noise abatement notice should be served under section 13(1)(c)."

10. Section 13 of the Ordinance provides for noise abatement notices. It states as follows :

"(1) Where the Authority is satisfied that noise is emanating from any place .... and that such noise, whether on its own or together with noise emanating from any other place : -

(a) is a source of annoyance to any person (other than a person in the place from which the noise is emanating) in any place considered to be a noise sensitive receiver in any Technical Memorandum issued under s.10;

(b) does not comply with any standard or limit prescribed for the purpose of this section; or

(c) does not comply with any standard or limit contained in Technical Memoranda issued from time to time under section 10(1),

the Authority may serve a noise abatement notice in the prescribed form on any or all of the following :

(i) the person making the noise or causing or permitting the noise to be made; or

(ii) the owner, tenant, occupier or person in charge of the place from which the noise is emanating.

(2) A noise abatement notice served under subsection (1) relating to noise emanating from any place may require the person on whom it is served to abate the noise within the period specified therein and to do all things as may be necessary for the purpose, and may require the person on whom it is served to -

(a) ensure that the noise emanating from such place does not exceed any limit or standard specified in the notice.

(b) ......"

11. The Technical Memorandum issued under s.10 is to guide the Authority on how to assess the level of noise emanating from a particular place. It also sets down the way to determine if the noise is beyond a level considered acceptable having regard to the location of the place and the time when such noise emanates. The acceptable noise levels are set down in the Technical Memorandum and they are determined on technical grounds by the Authority. Section 10 gives the Authority the power to do so.

12. For the purpose of issuing noise abatement notices, the Technical Memorandum is relevant to the extent that such notices may be issued if the noise level is above those set down as acceptable noise levels in the Technical Memorandum. The Technical Memorandum is also relevant after the noise abatement notice has been served, to determine if the notice has been complied with. It is relevant in this respect because of the technical principles and procedures provided in it for assessment of noise levels. The power to issue and serve a noise abatement notice is derived from s.13(1)(c) and its exercise must have regard to s.10(2). Beyond these, the Technical Memorandum has no relevance.

13. Section 13(2) enables the Authority to specify its requirements in the noise abatement notice and these requirements include the noise level which the person served with the notice must not exceed. The extent of such requirements as opposed to their nature are at the discretion of the Authority. Nothing in the Ordinance requires the Authority to have regard to the Technical Memorandum when exercising this discretion. The object of the Ordinance is to prevent noise pollution and to abate noise nuisances. The Authority being the person empowered and competent to carry out the objects of the Ordinance, may specify in a noise abatement notice such noise limits as the Authority may think best for attaining the objects of the Ordinance.

14. The Notice cannot be invalid by reason only of the Authority in the exercise of its discretion specifying therein noise limits which are more harsh than those specified in the Technical Memorandum. In any case, the acceptable noise levels in the Technical Memorandum are the noise levels registered by a NSR indicating the general level of noise in the area where the NSR is located and that is the aggregate of several noise sources. The noise limits in the Notice are directed to the Respondent's restaurant and as pointed out in Noise Pollution Appeal No.2 of 1991, in order to achieve the acceptable noise levels in the area, the individual noise sources which together make up the acceptable noise levels in question, must be more strictly controlled or the purpose cannot be achieved.

15. The answers to the questions stated for the consideration of this court are therefore :

Question 1 "Yes".

Question 2 "Yes".

16. Appeal is allowed. The case is remitted back to the magistracy for trial before another magistrate.