STEP IN LTD v. NOISE CONTROL APPEAL BOARD

CACV 302/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 302 OF 2003

(ON APPEAL FROM HCAL NO. 160 OF 2002)

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J U D G M E N T

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Hon Cheung JA :

The facts

1. Chasers is a bar situated in Knutsford Terrace. It is located on the ground floor of a multi-storey building ('the Building'). It has a band playing music with drums and electric guitars. From time to time the noise of the amplified music caused disturbance to the residents of the building at night and complaints were received by the Noise Control Authority ('the Authority'). The Authority's power is exercised by the Environmental Protection Department ('EPD').

2. The applicant is the operator of Chasers. In fairness to the applicant, it had in the past made efforts in reducing the noise disturbance coming from Chasers by installing sound proof facilities inside the bar.

3. There were three complaints from the residents of noise from Chasers between November 2001 and March 2002. At that time the band in Chasers played live music from 11 p.m. in the evening to about 5 a.m. the following morning.

4. Following the complaints, the Authority conducted investigations and on 2 April 2002 it issued a Noise Abatement Notice (NAN) to the applicant to abate the noise.

5. The applicant appealed to the Noise Control Appeal Board ('the Board') to set aside the NAN. The appeal was dismissed by a majority of the Board.

6. The applicant then applied for judicial review to quash the decision of the Board. Chu J. dismissed the application. The applicant now appeals against that decision.

Noise Control Ordinance

7. The NAN was issued under section 13 of the Noise Control Ordinance, Cap. 400 ('the Ordinance') which provides, among other things, that :

‘ 13. (1)	Where the Authority is satisfied that noise is emanating from any place other than domestic
premises, a public place or a construction site and that such noise, whether on its own or together with noise emanating from any other place other than domestic premises, a public place or a construction site, -

(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 section 10;
(b)	does not comply with any standard or limit prescribed for the purposes 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 that 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)	...
(c)	...

(3)	...
(4)	The Authority may, by notice in the prescribed form served on any person on whom a noise abatement notice has been served under subsection (1), cancel the noise abatement notice or vary any requirement therein.
(5)	...
(6)	Any person who, having been served with a noise abatement notice under subsection (1) or a notice under subsection (4), fails to comply with any requirement therein commits an offence.
(7)	Any person who commits an offence under subsection (6) shall be liable -

(a)	on first conviction to a fine of $100000;
(b)	on second or subsequent conviction, to a fine of $200000,

and in any case to a fine of $20000 for each day during which the offence continues.' (emphasis added)

8. An appeal may be lodged against the NAN under section 19(2)(c) of the Ordinance if, among other things, 'the requirements of the notice are unreasonable in character or extent or are unnecessary'.

Noise Abatement Notice

9. The Authority is responsible for the enforcement of section 13(1). In this case the NAN stated that the Authority was satisfied that the activities in Chasers which included 'playing or operating any musical or other instrument and playing amplified music' was a source of annoyance. It required the applicant to ensure that at any time within six months commencing on 2 June 2002 the noise emanating from such activities complied with the following noise limits :

Time Period	Noise Limits
	Indoor	Exterior of Building Facade
Day & Evening (0700 - 2300 hours)	Not exceeding 55 dB(A)	Not exceeding 65 dB(A)
Night (2300 - 0700 hours)	Not audible	Not applicable

10. The indoor assessment point for the noise is at a position of 1.2 metres above floor inside the nearest noise sensitive receivers in the building. The nearest noise sensitive receiver is the domestic flat in the building nearest to Chasers. The outdoor assessment point is at a position of one metre from the exterior of the building facade of the same flat.

The applicant's case

11. It is against the 'not audible' requirement that the applicant lodged the challenge to the NAN. The challenge is that this requirement is unreasonable. The short point raised is that the applicant is prepared to abide by a decibel-based limit but not a 'not-audible' limit because it simply does not know what level of noise from the bar will be audible to a person identified as a 'noise sensitive receiver'.

12. Further the noise audible from the bar may depend on background noise such as traffic noise, air-conditioning noise and noise from people in the street. There may be a sudden drop in the level of the background noise which is totally out of the control of the applicant. If this happens, the noise level from the bar, which may otherwise be inaudible because of the background noise, will suddenly become audible. The applicant will be put into a precarious position because it simply is not in a position to maintain a noise level which is inaudible.

13. The situation is aggravated by the fact that breach of the NAN constitutes a criminal offence under section 13(6) of the Ordinance. It is an offence of strict liability.

14. The applicant further argues that the requirement of inaudibility was made beyond the power of the 2nd respondent in that it is not a standard recognized by the Technical Memorandum issued under the Ordinance or 'sufficiently certain or reasonable or complied with section 19(2)(c)'.

The practice of Authority

15. This Court had asked at the hearing of the appeal on the practice adopted by the Authority in respect of noise limit before it used the 'not audible' requirement in NAN. Certain information was provided by Mr. Coleman, counsel for the Authority at the hearing. He asked the Court for permission to provide details later on. Subsequent to the hearing, the Department of Justice, acting on behalf of the Authority, further submitted the following information to the Court :

‘ 1. For a long time the Authority has been using the "not audible" standard for controlling music noise during the night time (ie. 2300 - 0700 hours) in respect of outdoor entertainment premises (eg. open-air concerts). This practice accords with the recommendation of the "Code of Practice of Environmental Noise Control at Concerts", the relevant part of which was reproduced in the Form 86A Application for Leave to Apply for Judicial Review in this case.

2. In or about November 1997, the Authority decided to apply the "not audible" standard to indoor entertainment premises as well. To that end, the Authority revised its internal guidelines to provide that if amplified music noise from indoor entertainment premises such as karaoke's, bars and pubs was clearly audible within the noise sensitive receiver during the night period, such noise would in general be considered a source of annoyance to a reasonable person within the meaning of section 13(1)(a) of the Noise Control Ordinance.

3. Since then, the Authority has adopted the "not audible" standard in NANs issued under section 13(1)(a) with a view to controlling noise emanating from entertainment premises where amplified music is played during the period 2300 to 0700 hours. For instance, such a NAN would require the party on whom it was served to "ensure that the noise of music emanating from [its] loudspeakers is not audible when assessed at the nearest domestic premises ... during 23:00 - 07:00 hours".

4. Prior to November 1997, before the "not audible" standard was extended to indoor entertainment premises, the standard for controlling music noise specified by the Authority in NANs issued under section 13(1)(a) was a requirement that the noise concerned (e.g. the noise, including amplified music and voices, emanating from the activities inside the entertainment premises) be "no longer a source of annoyance" to the residents of the nearest domestic premises.

5. In respect of restaurants, where the sources of noise are generally the air-conditioning and kitchen exhaust systems, the Authority has at all material times issued NANs under section 13(1)(c) of the Ordinance, specifying the dB(A) noise limits in accordance with the Technical Memorandum issued under section 10 of the Ordinance. The dB(A) noise limits are considered appropriate for the purpose of controlling machinery noise such as that emanating from an air-conditioning system.

6. However, if amplified music is played in a karaoke room inside a restaurant causing annoyance during the night time period of 2300 - 0700 hours, the Authority has, after November 1997, specified the "not audible" standard in a NAN served under section 13(1)(a) of the Ordinance. Due to the unique characteristics of annoyance caused by music noise during the night time, the dB(A) noise limits contained in the Technical Memorandum are considered unsuitable for addressing such annoyance.'

16. The applicant did not wish to respond to the additional information. I would allow the new information to be used. It provides a fuller background to the understanding of the case.

The 'not-audible' requirement

17. The 'not audible' requirement in abating noise is used not only in Hong Kong but also in places such as England, Scotland (Edinburgh) and the Northern Territory of Australia.

England

18. In England a Code of Practice on Environmental Noise Control at Concerts 1995 ('the Concerts Code') was issued by the Noise Council to deal with the noise level coming from large music events involving high powered amplification held in sporting stadiums, arenas, open air sites and within lightweight buildings. The Code requires that for events continuing or held between 11 p.m. and 9 a.m. the music noise should not be audible within noise-sensitive premises with windows open in a typical manner for ventilation (see Para. 3.2 of the Code). Para. 3.4 further states :

‘ Assessment of noise in terms of dB(A) is very convenient but it can underestimate the intrusiveness of low frequency noise. Furthermore, low frequency noise can be very noticeable indoors. Thus, even if the dB(A) guideline is being met, unreasonable disturbance may be occurring because of the low frequency noise. With certain types of events, therefore, it may be necessary to set an additional criterion in terms of low frequency noise, or apply additional control conditions.'

Scotland

19. In Edinburgh, Scotland, the following planning condition is attached to new developments likely to make use of the music :

‘ All amplified music and vocals shall be controlled so as to be inaudible in the nearest noise sensitive premises to the satisfaction of the Director of City Development.' (emphasis added)

Where existing licensed premises are seeking a regular extension to the licence beyond 2300 hours, the following condition is placed upon their extension :

‘ All music or vocals must be controlled to the satisfaction of the City of Edinburgh Council's Director of Environmental and Consumer Services so that no noise is audible within any noise sensitive premises.' (emphasis added)

(see Inaudibility in Practice by Steven Williamson)

20. According to Robert Craik in an article entitled 'Inaudibility as a Criterion for Assessing Amplified Music', the not-audible requirement had been used since the early 1980's for assessing amplified music from entertainment premises such as pubs and clubs. He said that

‘ Basically this means that if the amplified music is audible then it is causing nuisance and therefore must be reduced in level.

The use of inaudibility as a criterion has been found over almost 20 years, to provide an effective method of determining annoyance from amplified music. During the night, when most problems occur, there is little tolerance to amplified music and so the difference between the threshold of audibility and annoyance is small.'

Australia

21. In Australia, the Northern Territory Licensing Commission (Decision dated 22 May 2000) had imposed the following condition in respect of an application for licensed premises :

‘ The sound of music or other entertainment shall be at such levels at any time as shall be inaudible to any persons within any other enclosed building in the surrounding area, and in any event at no time shall cause undue disturbance or annoyance to any persons not within the licensed premises.' (emphasis added)

Different view

22. As recognized by the Concerts Code the use of inaudibility as a guideline is not universally accepted as an appropriate method of control. Dibble in a paper entitled 'Inaudibility the Argument Against' argued that

‘ a criterion for nuisance which relies only on subjectivity represents an easy get-out for local authorities seeking to avoid a more difficult approach and is unjust. It has been my position for very many years that whilst indeed there are many situations where music noise should not be allowed to intrude into people's dwellings, an objective criterion is the only fair way of addressing the issue. All other sources of noise are measured objectively so why single out entertainment noise as the sole exception?'

23. However, Dibble who was a member of the working party who contributed to the Institute of Acoustic's 'Draft Code of Practice on Environmental Noise Control from Pubs and Clubs' recognized that,

‘ the objectives of the criteria are ostensibly the same as those of the Edinburgh authority - i.e. to achieve near inaudibility after 2300 hrs - but with a varying degree of tolerance before that curfew hour to allow for frequency of event considerations.'

The 1999 forum

24. The papers presented by Williamson, Craik, and Dibble were part of the papers presented at a forum held on 29 November 1999 by the Institute of Acoustics Scottish Branch.

The two perspectives

25. Whether the 'inaudible' requirement is unreasonable or not should be considered from two perspectives. First, as a concept and second in its practicable application.

26. In my view the use of inaudibility is not a criterion that is so unreasonable both in terms of a concept and practicable application as to offend section 19(2)(c) of the Ordinance.

Inaudibility as a concept

27. It is clear that the inaudibility requirement stated in the NAN is to ensure that annoyance will not be caused to the residents who have to sleep during the time when Chasers is in full swing playing amplified music from 11 p.m. to 5 a.m. The place from which the inaudibility is to be assessed is the domestic flat immediately above Chasers.

28. As pointed out by Craik, during the night there is little tolerance to amplified music and so the difference between threshold of inaudibility and annoyance is small. At the same time the Ordinance provides in section 2 that 'annoyance' means 'annoyance that would not be tolerated by a reasonable man'. Hence, as is expected, this Ordinance is not concerned with extreme situations such as the complaint of noise by someone who is overtly sensitive to noise. What must be stopped by the NAN is annoyance by amplified music that would not be tolerated by a reasonable man. Inaudibility as a concept is not unreasonable.

Inaudibility in its practicable application

29. Further, in terms of practicable application, the use of inaudibility criterion is not unreasonable. The NAN was recommended by Mr. Chan Kin On, the Environmental Protection Officer who was in charge of the case. Mr. Chan holds a Master of Science degree in Acoustics, Vibration and Noise Control and is a Fellow of the HK Institute of Acoustics. He has been working in the field of acoustics and noise control for 20 years, 12 of which are with the EPD. Mr. Chan had investigated the complaints received in this case. He also had discussions with the representative of the applicant before the NAN was issued. He said this :

‘ Before the NAN was issued, I visited Chasers in the afternoon of 6 March 2002 together with Mr. Anthony Hatton, the director of Chasers. I noticed that noise abatement measures had already been implemented inside the bar. As told by Mr. Hatton, the measures were implemented in 1997. I suggested Mr. Hatton to separate the sound speakers from the ceiling, reduce the sound level of the speakers and install a LED sound level display board so that the bar manager could monitor the noise level. I further suggested that I could liaise with the complainants and Chasers to set up a maximum noise level inside the bar acceptable to both the complainant and Chasers. In my opinion, reducing the volume of the sound speakers and installation of electrical devices to limit the low frequency output of the speakers can be an effective way to solve the problem. (emphasis added).'

30. This is the clearest indication that even when the Authority intends to follow its practice (which has been in place since November 1997) to require a party to observe the inaudibility requirement, it would still liaise with the complainant and that party to find the acceptable noise level for both parties.

31. As pointed out by Mr. Chan, that level is the maximum noise level inside Chasers which is acceptable to the complainant. In the context of the non-audible requirement, it will be the threshold level beyond which the noise will become audible in the flat nearest to Chasers. That level will be monitored by a LED sound level display board inside Chasers.

32. This being the case, in my view, the application of the not audible requirement is not unreasonable at all. If Chasers is to be sanctioned, it will not simply because of noise coming from it. Rather it is because of noise which exceeds the level that has been set beforehand. If that level has been maintained, it will not be audible and there will not be any breach of the NAN.

33. This in fact accords with the Edinburgh practice as discussed by Williamson. These are the relevant extracts from his article :

‘1.	As EHOs we have a responsibility to the complainant and the licensee; to this end we verify complaints first to avoid any unfounded and malicious complaints and then when setting levels we aim to achieve the loudest level possible for the licensee.
2.	Setting a level is carried out with two officers, one in the licensed premises and one in the affected property. The officers are in radio contact and the music level is repeatedly turned up and down until a level is achieved which is acceptable in the affected property and as high as possible in the licensed premises. A variety of tracks (bass dominated) are played to make sure that the level decided upon is the correct one. Once the system is set the licensee's engineer is there to govern the system so as to ensue the set level is tamper-proof. Once a level is set a reference track and position are chosen within the licensed premises and a linear Leq is taken.
3.	The EHOs involved in setting the levels all have their hearing tested and are all in the normal range. The music systems are set to the satisfaction of the EHO but where the complainant stops hearing the music and the EHO continues to hear the music then the level is set at that point. In the circumstance where the complainant continues to hear music whilst the EHO does not, then the system will be set to the satisfaction of the EHO, although it would be normal to run some tests with the music off, without the complainant' knowledge, to establish if they are indeed hearing the music.
4.	Level sets are undertaken when the ambient noise is likely to be representative of the time of day when the equipment will be operated.'

34. The approach of the Authority in Hong Kong is consistent with this approach. After all, the question of annoyance is based on the standard of a reasonable man. The requirement of a pre-setting of levels will be the only effective way of implementing the Ordinance. This provides a built-in safeguard against any unfounded allegation of noise annoyance. With this safeguard in place, the application of the 'inaudible' limit will not have the difficulties which one may initially perceive to be present in the enforcement of the Ordinance.

35. In any event the setting of noise levels would have also to be adopted even if the NAN used decibel-based limit together with the use of others limits relating to, for example, bass sounds.

36. The purpose of the decibel-based limit will be the same as the 'inaudible' limit. Both limits are to ensure that there will not be any annoyance from the noise of amplified music at night. Annoyance happens when the noise becomes audible.

37. Thus analysed, in my view, it makes no difference whatsoever if the NAN specified 'inaudibility' as the limit instead of the decibel-based limit. Both standards are aimed at achieving the same purpose.

38. It may be argued that if both limits will serve the same purpose, then why not simply adopt the decibel-based limit. In my view, the issue here is simply whether the inaudibility limit is so unreasonable that it affects the validity of the NAN. It is this issue that one must address. In my view the answer to the question is no.

39. In this case events have taken their course quickly after the NAN was issued on 2 April 2002. The applicant lodged the appeal and the Board heard the appeal on 15 July 2002. I think one may safely assume that as the appeal was lodged against the NAN, the parties had not chosen to select the appropriate noise level so as to comply with the 'inaudible' limit. The absence of this step, however, does not mean that this limit is unreasonable in its application.

Criminal offence

40. Failure to observe the NAN is a criminal offence and, without deciding the issue, it may be a strict liability offence. However, if the concept of inaudibility is properly understood including the role of the Authority in finding an acceptable noise level, then the use of the 'inaudible' limit is not such a draconian measure which requires the court to treat it as unreasonable.

Background music

41. In advancing the argument on the sudden drop of the background noise, Mr. McCoy S.C., counsel for the applicant, relied on the case of Reynolds v. GH Austin & Sons Ltd. [1951] 2 KB 135 in which Lord Goddard C.J. held at page 144 that

‘ Unless compelled by the words of the statute so to hold, no court should give effect to a proposition which is so repugnant to all the principles of criminal law in this kingdom. This is not to throw any doubt on the well-established principle that if there is an absolute prohibition and the prohibited act is done a penalty is incurred, but hitherto that doctrine has never been applied, as far as I know, to a case where the prohibited act was not that of the defendant, but of some person over whom he had no control and for whom he had no responsibility.'

At page 149 Devlin J held that

‘ Thus a man may be made responsible for the acts of his servants, or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organisations up to the mark. Although, in one sense, the citizen is being punished for the sins of others, it can be said that, if he had been more alert to see that the law was observed, the sin might not have been committed. But if a man is punished because of an act done by another, whom he cannot reasonably be expected to influence or control, the law is engaged, not in punishing thoughtlessness or inefficiency, and thereby promoting the welfare of the community, but in pouncing on the most convenient victim. Without the authority of express words, I am not willing to conclude that Parliament can intend what would seem to the ordinary man (as plainly it seemed to the justices in this case) to be the useless and unjust infliction of a penalty.'

Reynolds was approved by the Privy Council in Lim Chin Aik v. The Queen [1963] A.C. 160.

42. I would respectfully subscribe to the principle set out in Reynolds. However, this case is so far removed from the situation envisaged in Reynolds. Whether the applicant will be punished or not depends entirely on whether the noise coming from Chasers exceeds the preset inaudible limit. This is an act that the applicant is solely responsible.

43. In my view the argument on the sudden drop of the background noise is an extreme argument which is not compatible with the 'reasonable man' standard I have mentioned. Williamson had pointed out that the level sets are undertaken when the ambient noise is likely to be representative of the time of day when the equipment will be operated.

Role of EPD

44. Mr. McCoy further relies on Collier Garland Limited v. Hotchkiss [1957] 97 C.L.R. 475 in which the High Court of Australia held that in considering the validity of a law a court must deal with the law according to its terms and cannot uphold its validity on the ground that in practice it is not enforced accordingly to its tenor; administrative practice is not the measure of the legal operation of a law.

45. Again I would respectfully adopt this approach as well. In this case the Authority obviously has to play an important role in terms of liaising with the parties to work out the appropriate noise level from Chasers so as to ensure that it will not be audible at the noise sensitive receiver. However, beyond that it has no further role to play. After the noise level is set, whether the applicant is guilty of a criminal offence or not, will not depend on the administrative practice of the Authority.

Beyond the power argument

46. This point can be dealt with shortly. Section 13(1) of the Ordinance empowers the Authority to issue the NAN. It also has the powers to set the limit and requires the recipient of the NAN to ensure that the noise does not exceed the specified limit. Section 13 does not restrict the limit to decibel-based limit only. Section 13(1) is wide enough to enable the Authority to impose the 'inaudible' limit.

47. Under section 10(1) of the Ordinance, the Secretary is empowered to issue a Technical Memoranda relating to noise emanating from places other than domestic premises, public places or construction sites. The Technical Memoranda contain principles, procedures, guidelines, standards and limits for the measurement of noise emanating from such places, the issuing of NAN and the determination of whether the NAN is being complied with. A Technical Memorandum had indeed been issued and tabled by the Legislative Council. The limits set out in the Technical Memorandum for acceptable noise levels are decibel-based limits only. The Technical Memorandum does not refer to the 'inaudible' limit.

48. While section 10(2) provides that the Authority shall be guided by the Technical Memoranda when undertaking any measure or assessment to determine if a NAN should be served under section 13(1)(c), it does not require that the limit specified in section 13(2)(a) must be guided by the Technical Memorandum.

49. Section 13(1)(c) specifically refers to the noise that does not comply with any standard or limit contained in the Technical Memorandum. This is not a case concerning section 13(1)(c). In this case the Authority is concerned with the noise being a source of annoyance under section 13(1)(a). While the annoyance is the one caused to the person in the place designated 'as the noise sensitive receiver in the Technical Memorandum', it does not mean there must be a complete adoption of all the matters contained in the Technical Memorandum including its specified limits or standards.

50. This was the approach made by Leong J. (later Chief Judge of the High Court) in Secretary for Justice v. Tak Yue Restaurant Ltd. [1998] 1 HKC 236. I will respectfully adopt the same approach.

Other grounds

51. In the Notice of Appeal, the applicant further said that the 'inaudible' limit is also not sufficiently certain or 'reasonable or complied with section 19(2)(c) (of the Ordinance)'. In my view this is already covered in the 'unreasonable' aspect of the challenge and does not add anything new to the 'beyond the power' argument.

Conclusion

52. In my view Chu J. was correct in her decision. I would dismiss the appeal with costs to the 2nd respondent on a provisional basis.

Hon Yuen JA :

53. The facts have been set out in the judgment of Cheung JA. In my judgment however, this appeal must be allowed. The Noise Control Ordinance has expressly provided that abatement notices cannot contain requirements which are "unreasonable in character and extent" : s.19(2)(c). In my view, an abatement notice which puts a person (the applicant) at risk of strict criminal liability for a sensory perception (audibility) which is personal to a third party and which cannot be objectively verified is unreasonable in character. It is thus ultra vires the Noise Control Authority.

54. Given that human beings have different sensitivities to sound, the requirement that music be "not audible" after 11:00 pm can only be complied with if no music at all is played after that time. If any music is played, at however low a volume, the applicant would run the risk of having a person with particularly acute hearing reporting a breach on the ground that the music was audible to him, even if not to anyone else in the building and hence (to everyone else) it was not a source of annoyance. The complaint would of course also not be capable of objective verification.

55. The test of "not audible" is therefore subjective and uncertain. It has been suggested that it is not, because complaints by persons particularly sensitive to sound are extreme cases which should not be taken into account, and only sounds which are annoying to "a reasonable person" would be caught. I do not agree. Although audible music at night may be a source of annoyance, it is misleading to import the concept of a "reasonable person" from the test of annoyance to the test of audibility. Audibility is a pure test of physical sense (whether one can hear a sound). Annoyance is a test of sensibility (whether, on hearing the sound, a reasonable person would tolerate it - see s.2 NCO). It would be false to say that the sound is "not audible" only because it was not annoying to a reasonable person.

56. Whilst the law assumes the reasonable person has certain moral attributes, I am not aware of what physical attributes one can assume he possesses. In the course of the appeal, the court asked whether there was any evidence of a normal range of hearing in terms of dB(A). Apparently, no assistance could be provided in this respect. However even if there were such evidence, the words "to a person with a normal range of hearing" are not found in the notice under appeal.

57. Insofar as it is suggested that an "acceptable maximum noise level" has been set by the EPD after consulting the complainants and the applicant, it is not clear to me on the evidence that that has been done. If such a level has been set, I do not see why the abatement notice should not have said so, in appropriate technical terms. Whilst the Ordinance does not explicitly require noise limits or standards in abatement notices to be expressed in terms of dB(A), it is clear from s.10 that emphasis is laid on technical means of measuring and assessing noise. In any event, there is nothing in the notice indicating that the requirement of "not audible" is just shorthand for a level which has been set.

58. For the reasons discussed above, I take the view that since (1) the "reasonable person" test must be rejected conceptually as a test of audibility, and (2) a test on the basis of a normal person's range of hearing appears to be impracticable as well, the requirement in the notice that the music be "not audible" is unreasonable as strict liability should not be allowed to ensue from subjectivity and uncertainty.

59. The fact that a "not audible" requirement has appeared in codes of practice or planning conditions in other places does not affect the legality or otherwise of the notice here, which is governed by the terms of the Ordinance. There has been no judicial decision to which this court has been referred which touches on the legality of such a requirement in other jurisdictions.

60. I would accordingly allow the appeal with costs to the Applicant here and below.

Hon Hartmann J :

61. I too am of the view that this appeal must be allowed. I agree with the reasoning of Yuen JA. I would, however, add the following complementary observations.

62. In terms of s.13 of the Ordinance, being satisfied that noise coming from the applicant's bar between 2300 hours and 0700 hours constituted a source of annoyance, the Authority served a noise abatement notice on the applicant. The notice is specific in its terms. During the restricted hours no noise issuing from the applicant's bar is to be audible; that is, capable of being heard, at certain identified noise assessment points.

63. The noise assessment points are situated in the proximity of the applicant's bar, one of them being inside domestic premises in the same building as the bar and directly above it. The applicant does not have ready access to these points, certainly not to the domestic premises of which I have spoken. The applicant is therefore unable, on an unrestricted basis, to monitor whether, at the physical locations at which a breach is to be assessed, sound coming from the bar is or is not audible.

64. That handicap is compounded by the inherent subjectivity of the restriction itself. I say that because the sole basis upon which a breach of the notice is to be determined is the unqualified criterion of audibility. Noise created in the applicant's bar during the restricted hours must not be capable of being heard by any person at one of the noise assessment points and it matters not the level of the noise or whether that person is of average hearing or of sensitive hearing. As Yuen JA had said, the words "to a person with a normal range of hearing" are not found in the notice. Nor, in my view, can they be implied. Accordingly, whether the applicant does or does not commit an offence of strict liability by being in breach of the notice will depend on the individual sensitivities of a complainant unaffected by any moderating standard. Those sensitivities, of course, being dependent to a material degree on the physical and emotional make-up of the individual and how that make-up may or may not change over the course of a night, are entirely subjective.

65. During the course of the hearing, mention was made of importing the 'reasonable person' test, presumably as a moderating standard. But what does "audible to the reasonable person" mean? As Yuen JA said, audibility is a pure test of physical sense. A reasonable person may be good of hearing or hard of hearing. The importation of a 'reasonable person' test can only be relevant if an issue of sensibility arises; if, for example, in terms of the notice any sound heard must also constitute an annoyance. But the notice does not incorporate any such concept. As I have said, the sole criterion is audibility.

66. In my judgment, therefore, the notice served on the applicant offends the Ordinance in that, as envisaged in s.19(2)(c) of the Ordinance, it is unreasonable both in character and extent. As Yuen JA has said, a criminal offence of strict liability should not be allowed to ensue from such subjectivity and uncertainty, more especially when objective criteria may be imposed. As such, in issuing the notice, the Authority acted ultra vires its statutory powers.

67. I note that the Authority has offered to assist the applicant to calculate and set what the Authority deems to be an acceptable maximum noise level. This is on the basis presumably that, if the level is not exceeded, then it is estimated that sounds coming from the bar will not be audible at the defined noise assessment points. Of course, adherence to any such level will not absolve the applicant of criminal liability if noise emanating from its bar should for any reason be audible to any person. Moreover, in my view, it begs the question why, if technical specifications can be set that are capable of such objective monitoring, the Authority should not set them.

Hon Cheung JA :

68. By a majority the appeal is allowed with a provisional costs order that the 2nd respondent is to bear the costs of the applicant both in respect of the appeal and below.