HKSAR v. CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD

HCMA 672/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 672 OF 2004

(ON APPEAL FROM TWS 19557/2003)

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J U D G M E N T

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1.  This is an appeal against conviction.  The Appellant was a constractor responsible for a construction site at Penny’s Bay Development, Lantau Island, New Territories where a notifiable work as defined in section 2 of the Air Pollution Control (Construction Dust) Regulation (Cap. 311R), namely site formation was being carried out.

2.  Section 4(1) of the Regulation provides that the contractor responsible for a construction site where a notifiable work is being carried out shall ensure that the work is carried out in accordance with the Schedule.  Section 14(1)(a)(ii) of Part III of the Schedule of the Regulation provides that every main haul road shall be sprayed with water or a dust suppression chemical so as to maintain the entire road surface wet.  “Main haul road” means any road inside a construction site having a vehicle passing rate of higher than 4 in any 30 minutes.

3.  It was alleged in the Amended Summons that the Appellant contravened section 4(1) of the Regulation by failing to spray the main haul road with water or a dust suppression chemical so as to maintain the entire road surface wet.

4.  The trial was in Chinese but at the request of counsel for the Appellant, the hearing of this appeal was conducted in English.

Evidence for the Prosecution

5.  The prosecution called four witnesses but the main prosecution witness was PW2, Mr Tsang, a Senior Environmental Protection Inspector.  He said that on the day of the offence, he went to the site together with PW3, Mr Chow, an Environmental Protection Inspector.  They went to a spot on the site which he indicated as point C in Exhibit P4.  He made observation on the road between point C and point A.  It was a road of about 40 to 50 metres and he was said for 15 minutes and he noticed that there were over 10 trucks passing along that road during that time.  He said that during the course of observation, the road said this was dry and in fact so dry that at one stage when a truck passed by.  The dust that was left in its wake was so sick that it was hard to see the truck clearly with the nicked eye.  Subsequently, he did see a water truck come and spray that parts of the road but prior to that the road surface was dry and light in colour.  

6.  The learned Magistrate at the end of the day accepted him as an honest and reliable witness and found that that section of the road was indeed a “main haul road” as defined in section 14(2) of Part III of the Schedule of the Regulation and based on PW2’s evidence.  The learned Magistrate was satisfied that the prosecution had proved beyond the reasonable doubt that the Appellant had contravened section 4(1) of the Regulation.

Defence Evidence

7.  The defence called three witnesses.  The 2^nd defence witness, DW2 was the site manager and was also a qualified engineer.  His evidence showed that the site had always maintained a sustainable environmental protection system and the contract between the Appellant and the Government stipulated that the site had to have two water trucks. 

8.  DW3 gave evidence as an expert and produced his report which is marked as Exhibit D8.  He challenged the evidence of DW2 in relying only on the nicked eye to decide whether the road surface was dry or not as it was not a scientific method.  The learned Magistrate found both DW2 and DW3 to be unreliable witnesses.

Appeal

9.  Counsel for the Appellant, Mr Poon argued that the learned Magistrate had erred in law and also in fact in deciding that the Defendant had not proved the section 7, Cap. 311R statutory defence and that the learned Magistrate had erred both in law and/or in fact in rejecting the statutory defence.

10.  Section 7 of the Regulation reads:

“It is 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 contingency in the supply of necessary materials, water and equipment;
(b)	weather conditions prevailing at the time of the offence;
(c)	a threat or an immanent 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.”

11.  The learned Magistrate in paragraph 8(2) of his Statement of Findings at page 21 of the appeal bundle said that although he accepted that on the date of offence, the weather was very hot but he did not accept that it was abnormally hot and that he considered that the Appellant should have increased the number of water trucks or the frequency of the spraying of water on the road.  So the learned Magistrate concluded that the Appellant could not rely on the size of the site nor the weather as an excuse that prevented him from complying with this section.

12.  In addition, the learned Magistrate considered that the Appellant had not managed to persuade him that the seven water trucks that the Appellant had utilised that day was sufficient to maintain the road surface of all the main haul roads in a wet condition.

13.  Under the Appellant’ contract with the Government, Exhibit D6 at paragraph 26.28 at page 88 of the appeal bundle, sub-section (2) said this:

“The Contractor shall at his own cost and to the satisfaction of the Engineer install effective dust suppression equipment and take such other measures as may be necessary to minimise dust nuisance.”

At sub-section (14) said:

“The Contractor shall provide, operate and maintain two water lorries to the satisfaction of the Engineering for the sole purpose of suppression of dust every day.  These water lorries shall be operated continuously for sprinkling water on deposition areas, roads and other areas within the site as directed by the Engineer.  Each water lorry shall have a tank capacity of at least 5 cubic metres and shall be equipped with a high pressure cleaner.  The Constructor shall replace water lorries within 2 days when the regular water lorries are unavailable or unserviceable.  When instructed by the Engineer, the Contractor shall provide, operate and maintain additional water lorries of similar nature within 28 days from the date of the Engineer’s instruction.”

Further at sub-section (17):

“Effective water sprays shall be used during the delivery and handling of all raw sand and aggregate, and other similar materials, when dust is likely to be created and to dampen all stored materials during dry and windy weather.

14.  I agree with the Respondent that the Appellant was complying with the contractual obligation would not and could not in law exempt him from its statutory obligations, i.e. although the contractual obligation was for the provision of two water lorries, the Appellant had by the time of the offence provided seven water lorries on the site. 

15.  There was no doubt that the learned Magistrate found as a fact that the main haul road as identified by PW2 was not maintained in a wet condition at the time when PW2 was making his observation.  The question then remains whether the Appellant could rely on the statutory defence in section 7 of the Regulation.

16.  The learned Magistrate decided that the weather condition or the physical constraints of the site did not prevent the Appellant from complying with the law and that therefore the Appellant had failed to satisfy him that they had exercised due diligence in this case.

17.  Whilst, it is true, as Mr Poon for the Appellant, pointed out on the date of the offence, the weather was exceptionally dry and hot and thus would reduce the effectiveness of the existing water trucks.  This with the greatest respect is what can be called “the nature of the animal”.  The Government had imposed the onus on the person in charge of the construction site to see to it that the dust pollution is kept as low as possible.

18.  The contractor is therefore responsible daily to see to it that resources are sufficient to fulfil his obligations under the Regulations.  In this instance, if the weather became exceptionally hot then the obligation is on the appointed contractor to improve the efficiency of the water trucks either by adding to the numbers or to the frequency of the spraying of the road surface.

19.  Whilst Mr Poon has made much of the fact that the contractor has complied as far as possible with the Government’s demands in the regular meetings between the representative of the Appellant company and the various authorities, that does not detract from the fact that the ultimate responsibility rests on the Appellant to see to it that the regulations are complied with.

20.  I therefore do not accept that the learned Magistrate had erred in finding that the Appellant company had not showed due diligence under section 7.  I would also add that the learned Magistrate was not wrong in finding that the size of the construction site was not a constraint because the Appellant company in signing the contract with the Government must have been confident that its resources are sufficient to manage the site properly and in conformity with the obligations of the contract and the statutory obligations.

Honest but mistaken belief

21.  At paragraph 9 of the learned Magistrate’s Statement of Findings, (page 22 of the appeal bundle).  The learned Magistrate had this to say:

“第4點，辯方依靠（普通法）中“誠 實但錯誤的信念”的答辯（“honest but mistaken belief defence”）。就有關針對上訴人的條例已有法定的免責辯護，本席認為上訴人不能應用這第4點答辯。即使上訴人在法理上能應用這答辯，本席不信納辯方第二及第三證人的證供，因此本席認為，上訴人在事實上亦不能成功答辯。”

22.  The learned Magistrate is therefore saying that because there was already a statutory defence under the Ordinance, therefore he considered that the Appellant could not rely on the common law defence but that even if the Appellant could rely on the common law defence nevertheless he did not believe the evidence of DW2 and DW3 and therefore the Appellant had failed to make out that common law defence.

23.  DW3 was an expert witness called by the defence to show that the reliance by PW2 on the naked eye to determine if a road surface was wet was unscientific and therefore unreliable.

24.  The learned Magistrate found him to be an unreliable witness and lacking in credibility.  I do not agree with the Appellant’s counsel’s submission that the evidence of PW2 is inadmissible.  PW2 was speaking of his observation with the naked eye that the road service was not wet.  He gave the reason that he considered it to be so because of the colour difference and because of the dust whipped up by the passing trucks.

25.  The learned Magistrate was entitled at the end of the day to make the findings as he did as to the witnesses’ credibility and I do not see any grounds for interfering with that decision.

26.  Mr Poon also complaints that the learned Magistrate had erred in law in accepting the evidence of PW2 and found that the offending spot is a main haul road.  He based his submission on the fact that PW2’s evidence as to the road in question that it is not shown in photographs 1 to 5 of Exhibit P2 was contradicted by PW3 and DW1’s evidence because PW3 said that he considered the main haul road was the one shown in photographs 1 to 8.  Therefore, PW3’s evidence cannot corroborate PW2’s evidence.

27.  The learned Magistrate in his findings did deal with the discrepancy but he found that he preferred PW2’s evidence.  PW2, the learned Magistrate found, was the senior person and had been at the site before, so the learned Magistrate therefore preferred his evidence which the learned Magistrate was entitled to do. 

28.  Furthermore, the learned Magistrate was entitled to believe a witness on certain aspect of his evidence and disbelieve him on others.  The learned Magistrate had done so in this case and I see nothing wrong in his approach.

29.  I therefore find that the learned Magistrate was not wrong in finding that part of the road upon which PW2 was counting the vehicle was a main haul road.  Having considered all the submissions in this case, and submissions from Mr Poon were extensive indeed, I am not persuaded that the learned Magistrate had erred either in law or in fact in this case.

30.  I did not find that the conviction was unsafe or unsatisfactory and therefore the appeal is dismissed.