HKSAR v. KWAN ON CONSTRUCTION LTD

HCMA1028/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1028 OF 2008

(ON APPEAL FROM FLS 5907 OF 2008)

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J U D G M E N T

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1. On 26 January 2007, the appellant company entered into an agreement with the Government of the Hong Kong SAR to construct a Salt Water Supply System at a site in Penny’s Bay, Ta Pang Po, Lantau (“the construction site”). 

2. Given the nature of the works that were to be performed at the construction site, it applied for and was granted a licence pursuant to section 20 of the Water Pollution Control Ordinance, Cap. 358 (“the licence”).  The licence permitted it to discharge industrial/trade effluent from a sedimentation tank inside the construction site provided that the discharge did not contain more than 30 mg/L of suspended solids.  The licence described the nature of the permitted discharge as being “effluent arising from construction site”.

3. It was the prosecution’s case that on 15 January 2008 the appellant in breach of the licence granted to it discharged from the construction site industrial/trade effluent which contained suspended solids in excess of that permitted by the licence. 

4. The appellant was charged with and convicted of an offence contrary to Regulation 17B(1) of the Water Pollution Control (General) Regulations, which are made under the Water Pollution Control Ordinance, Cap. 358 (“the Ordinance”).  It was fined $6,000.

5. This is the appeal against that conviction.

The facts

6. On 15 January 2008, three inspectors from the Environmental Protection Department (“PWs 1-3”) went to the construction site.  They observed a large quantity of yellowish muddy discoloured water in the sea adjacent to the construction site.  They conducted a dye test to trace the source of this.  The dye test revealed that the discoloured water came from the construction site. 

7. It was the evidence of PW1, Mr Lee Chung Fu, that he saw a large amount of “muddy effluent” being discharged from large steel tanks (these were actually trenches lined with sheet piles) into an adjacent sedimentation tank and thereafter to a surface channel (or drain) which ran for some 200 metres to the sea via a storm water drain.

8. PW2, Mr Tang Chi Keung, also an Environmental Protection Department Inspector, said he saw “effluent” being discharged from the site on that day and he performed a dye-tracing test at the outlet, where water was being discharged.  The location of the dye-tracing test was inside the construction site and was near the sedimentation pool and the surface channel.  

9. PW1 took water samples close to the surface channel within the parameters of the construction site.  

10. PW1 and his colleagues took photographs which were produced in evidence.  These showed the construction site and the location of the discharge. 

11. The Government Chemist certified that the sample of the discharge obtained that day was found to have suspended solids of 72 mg/L — far in excess of that permitted by the licence.

12. The appellant’s representative, a Mr Kevin Speakman, gave evidence on its behalf.  He said that the appellant was responsible for building a pumping station and that in the course of construction metal “sheet piles” were driven 18 metres down from ground level and then the site within was excavated.  Sand was used to infill the area behind the sheet piles.  This created a trench.  Because the trench was below sea level and was itself dug on reclaimed land adjacent to the coast line, sea water would seep into the trench and unless removed would rise to sea level.  Once inside the trench the sea water became mixed with excavated material and other substances.  He said this sea water with sediments is pumped out of the trench into the sedimentation tanks to reduce the solid particles, after which it is discharged into the sea via the surface channel.

13. He said that the final discharge point from the construction site was the storm water drain.  It was his opinion that the water at this point would contain suspended particles below the limit stipulated in the appellant’s licence.

14. In the trial the appellant’s case was firstly that what was discharged from the construction site was in fact underground water mixed with sand and nothing more.  This was not accepted by PW1.  It was his evidence that the water samples he took were different from ordinary underground water and that the suspended particles were not sand.  He said, “what is of concern here is not sand but is suspended solid particles” — as opposed to sand.

15. It was also the appellant’s case that whatever it was that was discharged was not industrial/trade effluent irrespective of the fact that the suspended solids in the discharge exceeded that permitted by the licence.  The magistrate found otherwise and convicted the appellant.

The appeal

16. The amended perfected grounds of appeal dated 18 May 2009 read as follows :

“The learned Deputy Magistrate erred in holding that the Prosecution had proved beyond reasonable doubt that the Appellant had breached the licensing condition as specified in Part B1 of the subject Licence for suspended solids when the prosecution had not proved and established the followings :

(a)    the meaning of ‘Industrial/Trade Effluent’ as stated to be the category of discharge regulated by the subject Licence;

(b)    the nature and composition of the substance discharged by the Appellant;

(c)    that the substance discharged by the appellant was ‘Industrial/Trade Effluent’ as intended to be regulated by the subject Licence;

(d)    that the suspended solids found in the content of the substance discharged by the Appellant constituted a breach of the subject Licence;

(e)    that evidence to show that the Appellant had taken all reasonable steps to prevent a discharge of ‘Industrial/Trade Effluent’ was relevant when there was no proof that the substance discharged by the Appellant was ‘Industrial/Trade Effluent’.”

17. Section 8(1)(a) of the Ordinance provides :

“Subject to section 12, a person commits an offence who discharges (a) any waste or polluting matter into the waters of Hong Kong in a water control zone …”

Waste or polluting matter is not defined.  A person who discharges waste or polluting matter into the waters of Hong Kong may be prosecuted for an offence under section 8(1)(a).  It is a defence to a charge under section 8(1)(a) that the discharge was made pursuant to or in accordance with a licence.  The appellant in this case had such a licence.  It is an offence to discharge in contravention of the terms of the licence.  The appellant was charged with breaching its licence.  The appellant’s licence stipulated that the nature of the permitted discharge was industrial/trade effluent, arising from the construction site and that the discharge and sampling point was to be the discharge outlet of the sedimentation tanks.  

18. It is accepted on the appellant’s behalf that the quantity and composition of any discharge from the construction site was limited by the terms of the licence so that it could not contain suspended solids of 30 mg/L or more.  Nevertheless it is the appellant’s case that that which was discharged from the construction site was not “Industrial/Trade Effluent” but sea water which had entered the trenches which had been excavated on the construction site.  Notwithstanding that the sea water had mixed with other materials in the trench and had been discharged by the appellant via sedimentation tanks back to the sea it was, it was argued, not industrial/trade effluent. 

19. Ms Ho on the appellant’s behalf points out that in the Ordinance the expression “Industrial/Trade Effluent” is not defined.  It is however defined in other ordinances.  In her written submission she observes :

“14.   According to section 2 of the Sewage Services Ordinance, Cap 463, ‘trade effluent’ (工商業污水) means any effluent, either with or without particles of matter in suspension therein, that is wholly or in part produced in the course of any trade, business or manufacture.

15. A similar definition is also found in section 2 of the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations, Cap 123I, which defines ‘trade effluent’ (工商業污水) as any liquid, either with or without particles of matter in suspension therein, which is wholly or in part produced in the course of any trade or industry.”

20. Ms Ho points out that in the Chinese translation in the brackets following “trade effluent” in the above provisions, the Chinese words污水 (i.e. unclean/sewage water) are used. 

21. It is her submission that the word “effluent” in the term “trade effluent” must carry the connotation of unclean/sewage water as opposed to unclean water.

22. As to what amounts to Industrial/Trade Effluent she refers to Yorkshire Dyeing and Proofing Co. Ltd v. Middleton Borough Council [1953] 1 All ER 540, where the expression “trade effluent” was discussed for the purposes of section 14(1) of the Public Health Drainage of (Trade Premises) Act 1937.  The expression was there defined as “any liquid either with or without particles of matter in suspension therein, which is wholly or in part produced in the course of any trade or industry carried on at trade premise and, in relation to any trade premises, means any such liquid as aforesaid which is so produced in the course of any trade or industry carried on at those premises but does not include domestic sewage …” (p. 542E).  Lord Goddard CJ said at p. 542F “I think that the words ‘wholly or in part’ relate to the composition or constitution of the trade effluent, and that ‘trade effluent’ for this purpose means a fluid which is composed partly of the product of the trade or business and partly of something else which in the ordinary course would be water.”

23. These are observations with reference to the definition in that legislation.  In the legislation with which we are concerned no attempt has been made to define the expression.  I am satisfied that the reason for this is to ensure that the legislation is not inhibited in its application and that the object of the legislation “to control the pollution of the waters of Hong Kong” is achieved.

24. I consider that the interpretation sought to be placed upon the provision by the appellant is far too restrictive.

25. In the present case the water which had to be pumped from the trenches on the construction site got to where it was and became discoloured with the particles found to be suspended in it, because of the appellant’s activities on the construction site in creating the trenches.  The bottom of those trenches was considerably below the sea level.  It was because of this that the water then flowed into the trenches where it mixed with and became contaminated by particles which were held in suspension.  It was because of this that the appellant was required by its licence to pump this water first into sedimentation tanks and subsequently from there eventually out to sea.

26. The contamination of the sea water was a direct consequence of the appellant’s actions on the construction site.  The fact that they needed a licence to discharge from the construction site demonstrates that it was contemplated from the outset that the appellant would be required to discharge water from the construction site and that that water may require to have contaminants removed.

27. In my opinion in the context of the Ordinance and these regulations the expression “Industrial/Trade Effluent” is not limited to water discharged which is contaminated by components of sewage.  Had that been the intention of the legislation then it would have said so.  Similarly the licence granted would have been expressed not in terms of suspended particles but in terms of the constituents of water contaminated by sewage. 

28. The water that was discharged was unclean water.  It was discoloured because of the suspended solids in it.  I am satisfied that in the circumstances of this case once what is discharged contains that which the licence says it should not (in this case suspended particles in excess of 30 mg/L of suspended solids) then it became “Industrial/Trade Effluent”.  It is not incumbent upon the prosecution to establish the effect of or the nature of the suspended particles in the discharge.  It suffices that the discharge is in excess of that which the appellant is permitted by its licence to discharge.  The licence does not specify the nature of the suspended particles in which case it is not incumbent upon the prosecutor to specify the nature and composition of the substance discharged. 

29. In addition it was submitted on behalf of the appellant that the substance discharged was natural recycled sea water and as such it was not incumbent upon the appellant to render it cleaner than its original condition.

30. This was however not the evidence.  This was not as is suggested “natural recycled sea water”— had it been so then there was no need for there to be a sedimentation tank to remove impurities.  Whilst the sea water which entered the appellant’s construction site was probably unwelcome and a contingency to be catered for it nevertheless was there as a direct consequence of the appellant’s actions.  It had to be returned to the sea in its natural state, which it was not as can be seen from the chemists’ report. 

31. In the final analysis the issue is to an extent quite narrow.  The appellant could only discharge industrial/trade effluent if the suspended particles were below certain levels.  Was the contaminated sea water industrial/trade effluent?  I am satisfied that it was.  The water which entered the construction site became contaminated because of that which was done on the construction site.  It had been altered and altered in as such a way that it would discolour the adjacent waterway into which it was discharged.

32. The appellant discharged industrial/trade effluent in breach of its licence.

33. The magistrate considered that the appellant’s representative at the trial had been an “honest and reliable” witness but nevertheless was satisfied that the offence had been committed.  It is apparent from an examination of the appeal bundle that there is no inherent contradiction in this finding.  He had not been present at the construction site on the day in question.  He had ventured some theories as to the source and nature of the discharges and described in some detail the works being performed.  His suggestion that by the time the discharged water reached the sea it would comply with the terms of the licence was in direct conflict with the evidence that there was a large amount of muddy yellowish water in the sea beyond the storm water drain.  His theory also ignored the fact that the licence required the sample of the discharge to be taken from a point within the construction site adjacent to the sedimentation tank, not at the point where the discharge entered the sea.

34. The appellant’s representative in the trial sought to establish that eventually the suspended particles in the discharged solution would settle and the water would clear.  This may or may not be the case but the critical issue was that it had to be clear when discharged from the construction site and it was not.

35. The due diligence defence sought to be established by the appellant was without substance or merit.

36. The appeal is dismissed.