HKSAR v. SIMS TRADING CO. LTD.

HCMA191/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.191 OF 2002

(ON APPEAL FROM STS 8514 OF 2001)

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J U D G M E N T

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1. The appellant, a limited company was convicted after trial before a magistrate of an offence contrary to section 9(1) of the Water Pollution Control Ordinance, Cap.358 ("the Ordinance"). The particulars of the summons were that the appellant, on 13 July 2001 at 4 p.m. at 1-11, Au Pui Wan, Fo Tan, New Territories, did discharge matter namely not unpolluted water into a communal drain in a water control zone namely Toto Harbour and Channel Water Control zone. The appellant was fined and now appeals against conviction.

2. The facts were largely not in dispute. The appellant admitted that it discharged not unpolluted water into the communal drain in a water control zone. Mr Ng Po Wah, a warehouse manager of the appellant gave evidence for the defence that at about 12 noon on 13 July 2001 at the carpark of its premises at the address as specified in the summons approximately 20 gallons of white creamy salad dressing were spilt onto the ground of the carpark. What actually happened was that a pallet keeping the 20 gallons of salad dressing contained in plastic bottles was loaded onto a goods vehicle with the aid of a fork lift truck. In the course of loading, the pallet fell from the fork lift truck and the plastic bottles containing the salad dressing spilt and scattered on the ground of the carpark. Mr Ng immediately directed some of the appellant's workers to clean up the salad dressing. The workers had endeavoured to sweep most of the salad dressing into plastic bags but despite their effort some salad dressing still remained on the ground and the workers used water from the tap to hose and rinse the area clean. Mr Ng believed that if he had not used water to hose and rinse the ground, the salad dressing left on it would cause danger to the workers working there and property thereat if the ground remained wet and slippery.

3. There is no dispute that the offence created by section 9(1) of the Ordinance is an offence of strict liability. At issue is whether the act of the appellant falls within the provisions in section 9(4)(b) which states :

"(4) This section does not apply to-

.....

(b) water used-

(i) for firefighting purposes;

(ii) in connection with an occurrence in which life or property is endangered;

(iii) for the cleansing of streets, thoroughfares, and other areas."

4. What happened in the appellant's carpark was clearly not a firefighting exercise and (i) therefore does not apply. In relation to (ii) and (iii), the magistrate dealt with them in some detail in answer to the submissions of counsel for the appellant. These appear in paragraphs 15 to 18 of her Statement of Findings at pages 11 to 13 of the appeal bundle where the magistrate said :

"15.Ms. Cheng submitted that water was used 'in connection with an occurrence in which life or property was endangered' as stated in section 9(4)(b)(ii). She submitted that the workers lives were endangered if the salad dressing was not cleaned up in that they might slip and fall and hence cause personal injury to themselves. Also if trucks were to drive over the salad dressing they may skid and therefore result in damage to property.

16.Ms. Cheng further submitted that rinsing with water was a flushing exercise for the purposes of cleaning the area as prescribed in section 9(4)(b)(ii). In conclusion she submitted that it was an isolated incident. It was not a deliberate discharge. It was not a discharge in the course of manufacturing and it was a single event committed for the purposes of cleansing and avoiding any danger to the life and property of the persons working in the area.

17.I do not consider that finding the presence of salad dressing on the ground constitutes an 'occurrence in which life or property is endangered.' The 'occurrence' must relate to some matter or substance that is inherently dangerous, like the spillage or presence of petrol or thinner when water can be used to flush it down the drain. Can one flush banana peels down the drain because you can slip on it. I do not think so. If the intention of the legislature was to give to this section such a wide and extensive meaning it would seem to me that the very purpose for which the ordinance was enacted would be defeated with abuse being rampant.

18.Ms. Cheng also submitted that as section 9(4)(b)(iii) permits water being used 'for the cleansing of streets, thoroughfares and other areas' she argues with some force that water, therefore, can be used for the washing away of the salad dressing into the drain. I have two observations to make on this aspect of the matter. The first is that 'cleansing' in the context refers to how streets are normally cleaned or made clean through the use of water. I do not read it as intending to mean that if anything is deposited or found on a street it is permissible to discharge it down the drain as long as water is used but not if water is not used. This is not only strange but does not make sense. I do not think, for instance, that polythene bags dropped on the street can be flushed down the drain. I construe 'cleansing' as referable to the use of water to make the street cleaner and brighter and not intended to mean that any substance or material may be pushed down the drain so long as water is used to achieve that objective. My second observation is that the words 'and other areas' in that sub-section must be read in ejusdem generis with the preceding words 'streets and thoroughfares' and not to private property. To hold otherwise would mean that the legislature intended to give blanket permission to any person in any premises to dispose or push any offensive material down the drain so long as water is used. In my view, this would effectively defeat the object of the enactment."

5. I agree with the magistrate. In construing the particular words in this section, regard must be had to the mischief that the Ordinance seeks to remedy. The interpretation adopted by the magistrate took full account of the object of the Ordinance and the intention of the legislature as reflected in the title of the Ordinance "to control pollution of the waters of Hong Kong". Conversely, if what has been contended by Miss Cheng, counsel for the appellant, is correct, it effectively renders the Ordinance meaningless and unnecessary. Section 9(4)(b)(ii) refers to an occurrence in which life or property is endangered and I take this to mean some immediate or real danger and something has to be done as a matter of emergency to avoid that danger. Although salad dressing would make the ground wet and slippery, it does not, in my view, creates the danger that section 9(4)(b)(ii) contemplates. The possibility of an accident does not satisfy the requirement. Moreover, the salad dressing still on the ground could be cleaned by means other than flushing and rinsing with water into the drain. The alternative means would certainly take longer and involved further expense. The salad dressing that was still on the ground could be absorbed and dried with cloth or covered with sand and if necessary the carpark could be closed or a warning sign put up before or while work was carried out.

6. In this appeal, Miss Cheng raised in argument the defence of reasonable and honest belief which was not argued before the magistrate and as a result she did not deal with it. Miss Cheng relied on the decision of the Court of Appeal in Attorney General v. Fong Chin Yue & Others [1995] 1 HKC 21 and submitted that the evidence of Mr Ng was sufficient to prove on a balance of probabilities that he believed for good and sufficient reasons, though erroneously, that the provisions of the Ordinance had been complied with. I am not persuaded that Mr Ng's evidence does have such an effect. The evidence shows that he clearly knew that flushing and rinsing water into the drain was against the law and that was why he asked his workers to sweep the salad dressing into plastic bags otherwise he would simply flush and rinse it away with water in the first place. It was only after the sweeping process that failed to produce the complete result, he decided to take the easy way out by turning on the tap. Mr Ng did not comply with the Ordinance and he knew he did not.

7. It is necessary to construe the Ordinance in a way that accords with common sense and to carry into effect the object of the Ordinance and what the legislature really intended. The magistrate is, therefore, correct in her interpretation in regard to both (ii) and (iii) of section 9(4)(b).

8. The appeal is dismissed.