HKSAR v. KWAN ON CONSTRUCTION CO LTD

HCMA285/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 285 OF 2009

(ON APPEAL FROM KTS 16165 OF 2008)

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REASONS  FOR  JUDGMENT

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1. The appellant was convicted after trial of an offence contrary to sections 5(1) and (2) of the regulations made under section 43 of the Air Pollution Control Ordinance, Cap.311 (“the regulation”).

2. The appellant was fined $5,000.

3. On 22 May 2009, I dismissed the appellant’s appeal and said I would hand down my reasons in due course.  These are my reasons.

Background

4. The particulars of the offence were to the effect that the appellant was responsible for a construction site at an embankment, alongside a stream below a part of the Wilson Trail at Tseng Lan Shue, Sai Kung in the New Territories (“the construction site”).  The prosecution case was that at the construction site work was taking place which was required to be done in such a way as to contain any dust generated.

The regulation

5. Section 5 of the regulation states that :

“(1)    The contractor responsible for a construction site where a regulatory work is being carried out shall ensure that the work is carried out in accordance with the Schedule.

“regulatory work” is defined in section 2 as :

“(d)    any work involving any of the following activities-

          …

          (v)    pneumatic or power-driven drilling, cutting and polishing;
…”

When this is being done, section 22 of the Schedule to the Air Pollution Control (Construction Dust) Regulations requires that :

“        Water or a dust suppression chemical shall be continuously sprayed on the surface where any pneumatic or power-driven drilling, cutting, polishing or other mechanical breaking operation that causes dust emission is carried out, unless the process is accompanied by the operation of an effective dust extraction and filtering device.”

6. It was not disputed that this offence is a strict liability offence. 

The prosecution’s case

7. It was the prosecution’s case that, on 4 March 2008, at 10:40 a.m., the appellant failed to observe the above requirements, when a power-driven cutting operation that caused dust emission was being carried out at the construction site.

8. On the day in question Wong Kwok Keung, an inspector of the Environmental Protection Department, together with his colleague, Liu Ngai Shing went to the construction site.  He saw a male worker operating a hand-held power-driven breaker.  During this time he saw that dust being generated from the surface of a retaining wall which was being trimmed.  No water or dust suppression chemical was sprayed on the surface and no dust-filtering device was being used.  They observed this for about five minutes and then went up to stop the operation.  There they met with one Mr Koo, the foreman of the appellant.

9. Mr Koo was told that the appellant had breached the regulation.  Mr Koo then took a hose pipe and sprayed water on the surface of the area where the employees had been using the power-driven breaker.

10. Photographs taken at the scene and admitted into evidence.  These clearly showed that there was dust being emitted from the surface at that time of the use of the power-driven breaker.

11. On the face of it, the evidence of these officers and the photographs they had taken clearly showed that there had been a breach of the regulation.

The defence case

12. Evidence given on behalf of the appellant was to the effect that they were required to make the surface of the slope even so that rock tiles could be laid.  Wooden planks were laid over the stream to prevent polluting the water.  As the power breaking device was powered by electricity, they did not spray water on the surface.  The surface of the slope was wet in the morning and that before the stream was covered by wooden planks, a shovel had been used to get water from the stream onto the surface. 

13. On the first day of trial, the appellant’s representative indicated to the court that his main argument was that the appellant’s operation was not cutting, but was trimmingthe slope.  That is now the only ground of appeal.  It reads :

“The Learned Magistrate erred in finding that the Defendant company was cutting the slope at the material time and that the offence as alleged in the Summons had been proved.”

14. It was an admitted fact in the trial that :

“At 10:40 am on 4 March 2008, the Environmental Protection Department inspectorates Messrs Wong Kwok-keung and Lui Ngai-shing conducted an inspection to the site.  A worker was using a hand-held electric tool to trim the existing embankment at the site. …”

There was no issue that this operation generated dust.

15. The magistrate, for his part, considered that for the purposes of the regulation, the expressions cutting and trimming were interchangeable.  I agree.  The essence of what it is that the regulation seeks to control is that the “cutting”, “trimming” or indeed “breaking” generates dust.

16. Mr Laskey, on behalf of the appellant, accepts that there is no valid distinction to be made between cutting and trimming.  The thrust of his complaint is that whilst the object of the operation that day was to trim the surface of the slope the process by which this was done was a mechanical breaking of the surface of the slope.  The end result would be that the slope was trimmed but that the process was breaking, not trimming and thus the summons was defective.

17. I do not agree.  There can be no doubt that the operation was to cut or trim the surface of the slope.  The distinction Mr Laskey seeks to make is in the circumstances of this case is illusory.  The regulations intend to control the generation of dust by precisely that which the appellant’s employee was doing.

18. The only real live issue in the trial was whether it could be said that the appellant could rely on section 7 of the regulation which provides a due diligence defence.  That section reads :

“It is a defence to a charge against any person for an offence under section 4, 5 or 6 for the person charged to prove that-

(a)     interruptions or contingencies in the supply of necessary materials, water and equipment;

(b)    weather conditions prevailing at the time of the offence;

(c)     a threat or an imminent threat to human life or building safety;

(d)    the physical constraints of the construction site; or

(e)         circumstances beyond his control other than those referred to in paragraphs (a), (b), (c) and (d),

prevented him from complying with that section and that he exercised due diligence to avoid the commission of the offence.”

19. There is no doubt in my mind that the excuse given that because the device being used was electric powered therefore it would not have been appropriate to spray the surface with water does not satisfy any of the defences provided for in this provision.  Even if this proposition was justified, and I do not think it was, there were other options open to the appellant to contain the dust generated by the operation.  None of these were taken and the fact, as the magistrate found, that the appellant’s employee used a hose to wet the surface with water after the Environmental Protection Department officers revealed their identities speaks for itself.

Conclusion

20. There was no merit in the ground of appeal and the appeal was dismissed.