HKSAR v. VIBRO (HK) LTD.

HCMA288/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.288 OF 2001

(ON APPEAL FROM ESS 14801 OF 2000)

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J U D G M E N T

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1. This is an appeal by Vibro (HK) Limited against a conviction after trial at the Eastern Magistracy on 22 February 2001. The learned magistrate, Mr Peter Law, found proved an allegation that the defendant company had contravened Regulation 17B(1) of the general regulations attached to the Water Pollution Control Ordinance, Cap.358.

2. The offence occurred at a construction site. The defendant company was undertaking piling works. It was not disputed that polluted water was discharged into the public drainage system at the material time.

3. A very brief summary of the facts is as follows. A very deep hole (about 70 metres) had been bored. It was ready for concrete to be poured in. To avoid the hole collapsing in on itself prior to the concrete being poured in, two methods were used. The top 50 metres (approximately) of the hole had metal casings around the perimetre. The bottom 20 metres had "super mud" poured in. The super mud created sufficient pressure to ensure the hole stayed in tact. When the concrete pouring began, the liquid at the bottom of the hole had to be pumped up and fed through a purifier and then disposed of lawfully or re-used. On this occasion, the pouring of the concrete commenced. It was but one of many piles being constructed at the same time. Each bore hole required about 60 lorries full of concrete to arrive one after the other and pour in their load. To construct an adequate pile, it was desirable that the flow of concrete was continuous. If there was a significant break in the flow of concrete, the pile would be declared 'void' and the operation would have to be done all over again.

4. During the pouring of the concrete, a generator broke down. The effect of the breakdown was that the liquid being pumped up could not be fed through the purifier. The evidence revealed that the breakdown was at about 2.30 p.m. The concreting was stopped. The defendant's witness (DW1) arrived on site at about 3.00 p.m. He needed a replacement generator. For reasons which are not relevant at this stage, no replacement generator was available from the site. A new generator from the company's main site office in Kam Tin was sent for. Barring unforeseen events, it would take about two hours for the replacement to arrive. Timing was critical. If the concreting remained suspended for about three hours, the pile would be declared void. DW1 decided to start up the pouring without the use of this generator and discharge the polluted liquid into the public drainage system.

5. The discharge of liquids at this site was the subject of a licence granted by the Environmental Protection Department. The defence to the information relied on clause 9.2 of this licence which read :

"Bypass of treatment facilities shall be prohibited unless it is unavoidable to prevent loss of life, personal injury or severe property damage or no feasible alternative exists and the licensee shall inform the authority thereof in writing and prove to the authority."

6. At trial, DW1 gave considerable evidence about how much a pile costs and about how much money would be lost if a pile had to be rebuilt having been declared void. He also gave evidence about possible hypothetical dangers to persons and property if the piling operation was stopped with only some of the concrete in place. He, for example, recounted incidents where it had been necessary for professional divers to be sent into flooded half built bore holes and the inherent danger in such an exercise. It was submitted to both the learned magistrate and again before this court that clause 9.2 provided a defence. The complaint made to this court was that that defence had not been properly evaluated and considered by the learned magistrate. In a nutshell, the issue at trial was - was the decision to continue the concreting without a replacement generator motivated by considerations of safety to persons and property or by solely economic reasons namely, a desire not to be put to the considerable expense of starting this pile all over again.

7. As a second limb to his submission, Mr Grounds, who appeared for the defendant company both on appeal and at first instance, argued that because clause 9.2 permitted the bypass of treatment facilities if "no feasible alternative existed", a court could conclude that the prospect of having to rebuild the whole pile came within the definition of "not feasible" if the cost of so doing was prohibitively high.

Grounds of appeal

8. Four grounds of appeal are relied on. In substance, grounds one to three all say the same thing in a different way.

9. Ground one is that the learned magistrate's approach to the evidence was unsafe and unsatisfactory. Ground two is that the learned magistrate failed to direct himself properly on the law and the evidence. No particulars are given of this failure save that it is said that the learned magistrate "merely dismissed the defence case by the simple expedient of rejecting DW1's evidence". Ground three is that the learned magistrate failed to have due regard to the defence case. Some particulars of grounds one and three are given. Ground four is that the conviction was unsafe and unsatisfactory.

10. What this all boils down to is a complaint about the adequacy of the learned magistrate's Statement of Findings. The appellant submits that if the reason they were convicted was that they, in this case, were not able to rely on clause 9.2, the magistrate failed to say why. In short, the defence say that it is not clear why they were convicted.

The Statement of Findings

11. In a seven page statement, the learned magistrate accurately set out the prosecution's case and the defence case. Then, the final three pages are headed "Findings and conclusion". The final four paragraphs of which read as follows :

"9. I found that DW1 did not tell me the truth, his evidence was unreasonable and unbelievable. It is so unreasonable and hard to believe that, in that afternoon, there were so many coincidences. I also found him evasive. I rejected his evidence.

10. Move to clause 9.2 of the said licence, in the light of my findings, I was satisfied that the discharge was not within the categories of 'unavoidable' or 'no feasible alternative exist'. Furthermore, the Defendant could not prove to the Authority it was so happened. I found that clause 9.2 had no application in this case.

11. I found that there was a discharge of the liquid in the manner as alleged and the contents in that liquid were above the limit as stipulated by the licence. I was satisfied that the Defendant was in breach of the said licence without any justifiable grounds or good cause.

12. I was satisfied beyond reasonable doubt that the prosecution had prove each and every ingredients of the offence and I was satisfied with the guilt of the Defendant and therefore I convicted the Defendant accordingly."

12. Mr Grounds complaint is that the above passages amount to a failure to provide a proper or adequate Statement of Findings. He complains about a lack of particularity about DW1's evasiveness or about the unreasonableness of what he said. He further submits that by the use of the expression "I rejected his evidence" the defence do not know what was rejected. He also complains that the conclusion that there were "so many coincidences" is not supported by the evidence.

13. He submits that the yardstick by which a statement should be tested is the oft quoted words of O'Connor J, which have withstood the test of time, in R. v. Chong Kam Sau MA 859 of 1985 :

" There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

14. Chong Kam Sau is one of many cases both before 1985 and since in which different courts have commented on the duties of a magistrate when drafting a Statement of Findings and a district court judge when drafting his reasons for verdict. They are all helpful but the fact there are so many is an indication that it is impossible to lay down a definitive test. I shall endeavour to avoid saying anything in this decision which might result in this judgment being added to the list.

15. I return now to each of the complaints summarized above. A failure to particularize "evasiveness" in a witness is not a valid complaint. "Evasiveness" is an assessment of the quality of the evidence given. It is not possible by an examination of the transcript to say that such an assessment was reasonable or not. It is a conclusion that can only be reached by looking at and listening to the witness in court.

16. There is however some substance in the complaint that the learned magistrate referred to "so many coincidences". A brief analysis of the evidence showed there to be only one real coincidence and that was the fact that the only spare generator on site could not be brought to the particular location because a crane had broken down which blocked its path. Other matters which the prosecutor referred to as "coincidences" were not coincidences at all. For example, the fact that the concrete wagons could get to the location whereas the spare generator could not. Evidence, such as this example, may have been suspicious, but describing them as coincidences was unhelpful and inaccurate. It would have been better if he had referred to those points which had been made in the final submission which would have removed the confusion which arose over the use of the word "coincidences". However I do not find that his misuse of the expression "so many coincidences" represents a serious flaw in the statement as a whole.

17. Next, Mr Grounds submits that the sentence "I rejected his evidence" is an over simplistic expedient. Of course, it would not be good enough if a magistrate in a mere few lines said that he had heard the defence evidence, he rejected it and convicted the defendant because he was satisfied the offence had been proved. However a sentence such as "I rejected his evidence" should not be considered in isolation and in a vacuum. There is no merit in Mr Grounds' argument that the defendant does not know what has been rejected. It was submitted that it could mean that the evidence of DW1's name, job description and other non controversial matters was rejected. Taken in its context it is plain that it means that the learned magistrate rejected those parts of DW1's evidence which were material to the defence. Rejection of immaterial matters is of no consequence anyway. In our case it is plain from reading the whole of the Statement of Findings that the learned magistrate had listened carefully to all the evidence, understood it and evaluated it. Having said in paragraph 9 that he rejected the defence evidence he went on in paragraph 10, albeit briefly, to dispose of the specific defence which had been advanced under clause 9.2.

18. The overall thrust of this appeal is that the Statement of Findings is deficient or inadequate or insufficient. It is a general complaint rather than a specific one.

19. No specific material errors of law, fact, procedure or understanding are made out. The substance of the appeal is that the Statement of Findings does not deal fully enough with the issues at trial. Whereas, there may be some substance in the criticism, I find it not to be of sufficient weight or merit to indicate to this court that there may have been an injustice. It would have been preferable, but not essential in this particular case, for the learned magistrate to have been more specific as to his rejection of the evidence advanced which purported to rely on clause 9.2. However, I remain satisfied that the conviction is safe, the defendant had a fair trial, the risk of an injustice does not arise and the Statement of Findings is sufficient.

20. As to clause 9.2, the learned magistrate did not overlook it or the issues which fell to be determined. He concludes these findings in paragraph 10. It is apparent from the earlier part of the statement that he was fully aware of and understood the issues raised by clause 9.2. Given the evidence advanced by the defence it is not surprising that he found it had no application. In any event it was largely a matter of fact with which this court would not interfere. It is simple logic to appreciate that he rejected the suggestion that the concreting was started up again not because of fears about personal safety or serious damage to property if it were not started up again, but because of dollar considerations. Neither was it difficult for the learned magistrate to reject the second limb of the defence submission, namely that because it could have been very expensive to stop pouring there was "no feasible alternative". It was hardly necessary for the learned magistrate to explain his mental process in coming to such a conclusion.

21. Ground four of the appeal, namely that the conviction was unsafe and unsatisfactory, encompasses grounds one to three. It is not made out and I accordingly dismiss the appeal.