HKSAR v. CHEUNG CHEUK FUNG

1997, NO. MA 607

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL

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J U D G M E N T

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1. The appellant was convicted before a magistrate of 4 out of 7 summonses (the 1st, 2nd, 5th and 7th) which were issued under s.47A(1) of the Air Pollution Control Ordinance and Regulation 3 of the Air Pollution Control (Smoke) Regulations, Cap.311. The particulars of all the summonses are the same save the date of the offence. He was fined $8,000 on each summons and now appeals against his convictions. To take the particulars of the 1st summons as an example:

"Cheung Cheuk Fung, being a manager of Hang Heung Cake Shop Co. Ltd., when the said Hang Heung Cake Shop Co. Ltd. was convicted of an offence on Regulation 3 of the Air Pollution Control (Smoke) Regulations on 15-10-1996 in respect of summons FLS8096/96 (i.e. on 8-8-1996, being the owner of a premises at No. 2 Sung Ching New Village, Tai Tong Road, Yuen Long, N.T. in Hong Kong, operated a chimney in such a manner that dark smoke was emitted continuously for 7 minutes longer than the legally permitted duration of 3 minutes at any one time), committed the same offence as it was committed with the consent or connivance of, or was attributable to some neglect or omission on your part.

These were then followed by the words on the left hand side:

Period : on 8th August 1996

Location:

HANG HEUNG CAKE SHOP CO. LTD., NO. 2, SUNG CHING NEW VILLAGE, TAI TONG ROAD, YUEN LONG, NT"

These words clearly refer to the date of the offence and the place where the offence was committed. The summonses were amended at the trial by the deletion of the words "committed with the consent or connivance of, or was."

2. Before this Court, Mr. Ching Y. Wong S.C., took objection that the amended summonses disclosed no offence known to the law because what they alleged was that the appellant was the manager of Hang Heung Cake Shop Co. Ltd. on the dates the company was convicted of the offences and not on the dates the offences were committed. This submission cannot bear close examination. The particulars in the bracket of each summons stated that the owner of the premises committed the offence either on 8th August 1996, or on 13th August 1996 or on 23rd August 1996 or on 29th August 1996. No doubt the summonses were badly drafted. But it is clear what each summons alleges is that Hang Heung Cake Shop Co. Ltd. was convicted on 15th October 1996 of an offence under Regulation 3 of the Air Pollution Control (Smoke) Regulations in respect of Summons FLS8096/96 that is (on 8th August 1996 or one of the other dates that appears on the other summonses, being the owner of the premises etc) and the appellant committed the same offence etc. In my view, this is the only interpretation and there is no room for any misunderstanding.

3. The other argument advanced by Mr. Wong is that the magistrate, in making his findings that the offences committed by Hang Heung Cake Shop Co. Ltd. were attributable to the neglect or omission of the appellant, erred in failing to consider or sufficiently consider a number of points. First, it was the prosecution case that the appellant had failed to follow the guidelines of Envior-Chem Engineering Laboratory Co. Ltd. and as a result the nuisance could not be abated. But there was no duty on Hang Heung Cake Shop Co. Ltd. or any of its officers to follow those guidelines because they had not been finally tested and approved by the Environmental Protection Department. Second, there was direct evidence which proved that the appellant did not have the duty to supervise the workshop and therefore could not have been responsible to any degree or at all for the offences committed by the company under Regulation 3. He refers to the meetings on 13th June 1995 and 29th December 1995 and submits that the appellant never represented himself to Mr. Chow Chung-fat that he was in charge of supervising the workshop. The magistrate also wrongly relied upon circumstantial evidence to draw the inferences upon which to base his findings in that the inferences drawn were inconsistent with direct evidence and were unreasonable or incapable of being drawn. In all the circumstances, the convictions were unsafe or unsatisfactory.

4. In my view, the magistrate dealt with all the issues raised at the trial in a well-balanced statement of findings. He found as a fact that the appellant attended all the meetings or tests with officers or staff from the Environmental Protection Department either alone or together with some directors or other employees of the company. He was given operation guidelines and warned of consequences for non-compliance. A good example was the second meeting held on 29th December 1995 when the appellant attended on behalf of the company in his capacity as manager. During this meeting, the operation guidelines were discussed and the staff of the Environmental Protection Department also expressed their concern over the conditions of the dark smoke emission as observed from the Workshop. The appellant agreed that the size of the fire wood used was too large; that the furnaces were overloaded with fire woods; that the moisture of fire wood should be reduced; that the area of the dry room should be enlarged; that the screening of woods should be processed outside the furnace room while all woods inside the furnace room were ready for use in the combustion; that only skilful workers were assigned to operate the furnaces; that a full-time worker ("smoke observer") be assigned to observe the conditions of smoke emission; and to carry out a full scale test. The notes of the meeting were confirmed by the appellant without any amendment.

5. The situation had not improved as subsequent events turned out. Thus Mr. Chow Chung-fat, the environmental protection officer, had to contact the appellant on three occasions to tell him the findings from visits by his staff that the operation guidelines had not been followed. The appellant was again warned of his personal liability as manager of the company. On the third occasion, the appellant told Mr. Chow that he was the manager in charge of the environmental matters and any related prosecution should be directed against him only.

6. Without going into the evidence or the statement of findings in any detail, suffice it to say that there is overwhelming evidence to support the magistrate's findings.

7. The appeal is dismissed.