HKSAR v. PAUL Y. - ITC CONSTRUCTION LTD. AND ANOTHER

IN THE COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.183 & 272 OF 1997

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J U D G M E N T

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1. There are two appeals against conviction under section 6(1)(a) of the Noise Control Ordinance of causing to be used powered mechanical equipment for the purpose of carrying out construction work without a valid construction noise permit. The Appellant in both appeals is Paul Y. ITC Construction Limited.

2. In Case No. 183 the Appellant was the main contractor of the building works at Citiplaza 1 at Tai Koo Shing. At about 7.30 p.m. on 12 July 1996 a Senior Environmental Protection Inspector observed that a mechanical excavator and a concrete pump immediately outside the site were being operated by workers employed by the Appellant. Further investigation revealed that the Appellant did not have a Construction Noise Permit authorising the operation of mechanical equipment during restricted hours. The Appellant was subsequently summoned to appear before a magistrate for contravention of the section and was fined $70,000.

3. In Case No. 272 the company was also convicted of two similar summonses and was fined $7,000 and $34,000 respectively. Very briefly the background of the latter case was that on Sunday, 10 November 1996 at 8.35 a.m. a police constable of Sau Kei Wan Police Station responded to a noise complaint and proceeded to the construction site of Citiplaza 1. Upon arrival he noticed that a mechanical crane was being operated outside the site. Investigation revealed that there was no permit covering such operations on a Sunday. The Appellant company and the site foreman were summoned before a magistrate.

4. The section in question reads :

"...any person who at any place between the hours 7.00 p.m. and 7.00 a.m., or at any time on a general holiday, uses, or causes or permits to be used, any powered mechanical equipment for the purpose of carrying out any construction work other than percussive piling-

(a) in respect of which a construction noise permit is not in force; or

(b) otherwise than in accordance with the conditions of a construction permit in force in respect thereof,

commits an offence"

5. Mr Grounds for the Appellant advanced two grounds which are common to both appeals.

6. Ground one of the appeal is that the learned magistrate had erred in law in treating the offence as one of strict liability when, upon a proper construction of the section, it should be otherwise. Counsel for the Appellant submitted that if the legislature intended that the offence created by the section was to be one of strict liability, it could have used express provisions to that effect. The example cited was section 10 of the Water Pollution Control Ordinance, Cap. 358. The section reads :

" ...it shall not be necessary for the prosecution to prove that the acts or omissions in question were accompanied by any intention, knowledge or negligence on the part of the defendant to any element of the offence."

7. Mr Grounds has repeatedly highlighted the point that it had been the intention of the legislature to create an offence of strict liability, they would have indicated that in no uncertain terms in the wording of the section. Since there is no such positive indication in section 6(1)(a), the converse must be true. With respect, this line of argument is over-generalized. If the wording of a particular section in a statue is unclear as to whether an offence of strict liability is created, as in the present case, it remains very much the duty of the court to determine the true nature of the offence.

8. I think the answer to this argument lies not in drawing an analogy with the Water Pollution Ordinance but in the wording of the Noise Control Ordinance itself. A comparison of the wording of section 4(2) and section 6(1)(a) will illustrate my point. Section 4 of the Ordinance covers the situation where a person makes or causes to be made any noise which is the source of annoyance between the hours of 11.00 p.m. and 7.00 a.m. In section 4(2) if a owner, tenant or occupier "knowingly" permits or suffers noise which is a source of annoyance to emanate from domestic premises, that person commits an offence. However, in section 4(1) which deals with any person making noises from such premises, the word "knowingly" does not appear. So there is a clear distinction within section 4 itself. Where the word "knowingly" appears there is a clear requirement of mens rea as an element of the offence in subsection (2). When the same word does not appear it must be the clear intention of the legislative that the offence created under subsection (1) of the Ordinance is one of strict liability.

9. Turning now to section 6 which is directed at noises from construction sites, neither the word "knowingly" nor any other word which indicates the requirement of mens rea appears in this section. In my view this supports the argument that the legislature did not intend section 6(1) to create offences which require the proof of mens rea. But this is, however, not conclusive.

10. The leading case in this area of the law is the Privy Council opinion in Gammon (Hong Kong) Ltd. and Ors. v A-G of Hong Kong [1984] 2 All ER 503. In the frequently quoted passage by Lord Scarman at p. 508 :

" In their Lordship's opinion, the law relevant to this appeal may be stated in the following propositions....: (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statue; (4) the only situation in which the presumption can be displaced is where the statue is concerned with an issue of social concern; public safety is such an issue; (5) even where a statue is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statue by encouraging greater vigilance to prevent commission of the prohibited act."

11. For the purpose of this appeal, I only need to concentrate on propositions 4 and 5 in the passage quoted above. The object of the Ordinance is to make provisions for the control and abatement of noise pollution. Hong Kong is such a densely populated and congested place that her people is subjected constantly to the risk, if they are not already happening, of all forms of pollution with noise being one of them. The concept of space had always been synonymous with luxury. In a confined environment sound travels far and unwanted noise travels even further. The limited degree of privacy and quietude that our people are enjoying must not be allowed to be eroded any further. It is with this broad principle in mind that I think I must be right in saying that any form of pollution is a subject of acute social concern.

12. Counsel for the Appellant had quite fairly referred me to the House of Lords case of Alphacell v Woodward [1972] 2 All ER 475 in which one of the issues their Lordships had to decide was whether in a charge of causing polluting matter to enter a river, contrary to section 2(1) of the Rivers (Prevention of Pollution) Act 1951 the prosecution was required to prove that the Defendant had knowingly, intentionally or negligently caused polluted water to enter the river. It was argued before their Lordships that the section should be read as if the word "knowingly" appeared before the word "caused" and therefore requiring mens rea. Mr Grounds adopted a similar line of argument in the present case. In declining to adopt this approach in construing the section Lord Salmon observed at p. 491:

" If this appeal succeeded and it was held to be the law that no conviction could be obtained under the 1951 Act unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners. As a result, many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness".

13. If one is to give effect to the spirit of the Hong Kong legislation, the correct approach must be that proof of intention or negligence of the offender is similarly not required.

14. For the reasons given, I conclude that the offences created under section 6(1) of the Ordinance are offences of strict liability. That disposes of the first ground of appeal.

15. The second ground which is common to both appeals is that there were no or no sufficient evidence to enable the learned magistrate to find that the respective Appellants had caused powered equipment to be used in the manner alleged by the prosecution.

16. In Appeal No.183, from the exhibited photograph the company's name was discernible on the concrete pump and it was open to the learned magistrate to conclude that the operation of the machinery was "caused" by the Appellant.

17. In Appeal No. 272 it was contended that neither the site foreman nor the company could have permitted or caused the use of the crane as operation of the machineries was the responsibility of a sub-contractor. In so far as the learned magistrate had referred to the case of A-G v Shun Shing Construction and Engineering Co. Ltd. [1986] HKLR 311 he must have found that the Appellant was responsible for all the machinery at the site. There were sufficient evidence before the learned magistrate to enable him to come to the conclusion as he did.

18. For the reasons given above, both appeals must be dismissed.