SECRETARY FOR JUSTICE v. FLAME CONSTRUCTION CO. LTD. AND OTHERS

HCMA 942 /2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 942 OF 2001

(CASE STATED FROM FANLING MAGISTRACY
CASE NOS. FLS 1653, 2585, 2586 AND 2587 OF 2000)

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J U D G M E N T

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1. This is a case stated pursuant to the Appellant's application made under section 105 of the Magistrates Ordinance, Cap.227 arising from the magistrate's acquittal of the four Respondents of offences contrary to section 8(1)(a) of the Water Pollution Control Ordinance. The 1st Respondent was charged as the discharger of polluting matter, and the 2nd through to the 4th Respondents as the occupiers of premises from which the polluting matter was discharged into a river bounded by or running through a construction site in Deep Bay Water Control Zone.

Section 8(1)(a) is in these terms:

"(1) 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"

Section 8(1A) will also be referred to in the course of this judgment and it is in these terms:-

"(1A) Subject to section 12(1A), a person commits an offence who discharges any poisonous or noxious matter into the waters of Hong Kong."

The provisions of Section 12 and Section 12(1A ), referred to in Section 8(1)(a) and Section 8(1A) respectively, relate to defences which are of no relevance to this appeal.

2. The facts forming the background of the case were that the four Respondents were contractors and subcontractors occupying the construction site inside the Deep Bay Water Control Zone through which the river ran.

3. On the charged date, the 21 September 1999, excavation work was taking place at a trench on the site. From that trench came a flow of muddy water. Normally that flow was taken by hose to a desilting pond. There were two chambers to that pond and the hose was required to be led to the first chamber. Unfortunately on the day in question a workman, apparently inadvertently, attached the hose to the wrong chamber with the result that an overflow of muddy water went into the nearby river.

4. A few minutes later, exactly how many minutes is not known, the mistake was noticed and corrected by the hose then being attached to the correct chamber.

5. In the meantime the river had, downstream, been discoloured by the discharge. A sample of the discharge was taken from the overflow from the filtration tank and it was found to consist of muddy water containing 73,000 mg. per litre of suspended solids. Evidence before the magistrate suggested the average level of suspended solids in a natural stream in Hong Kong was 5 mg. per litre.

6. The sample which was taken was from the discharge itself prior to it entering the river. No sample was taken from the river, whether upstream or downstream, or at the point of the discharge entering the river.

7. The Magistrate in his findings concluded that although muddy water was capable of being polluting matter in the terms of section 8(1)(a) of the Ordinance it:

"required more proof than what would be required in a case of discharging an alien toxic substance, because mud is a natural substance normally occurring in river banks and river beds".

He went on to say that in a case where the alleged polluting matter was mud or muddy water, the prosecution had to prove, inter alia, as he put it:-

"(a) Quality contrast, i.e. the quality of the river water upstream and downstream by taking samples from upstream and downstream, in order to prove causation,

(b) Pollution at site boundary, i.e. the mud or muddy water was discharged from the site into the river, in order to prove escape, and not merely intra-site mud movements,

(c) Duration of the stated river water mud concentration to prove damage to the environment"

Paragraph (b) above is expressed in those terms by the magistrate because, as I say, the sample taken of the muddy discharge was taken at a point prior to its entering into the river and apparently from a flow over land as it proceeded towards the river.

8. The questions of law proposed by the Learned Magistrate on the above basis are as follows:-

"(1) Whether the discharge of mud or muddy water requires more proof than the discharge of an alien toxic substance and

(2) Whether I erred in acquitting the Respondents".

By question (1), it was accepted before me that the magistrate was not seeking an opinion on the legal burden or standard of proof. It was accepted that the question was simply as to whether evidence was required, as a matter of law, when the substance complained of was a natural substance such as muddy water, as to the actual effect of that substance or matter on the protected water way. So far as question (2) is concerned the Appellant at this hearing informed this court that although she sought answers to the questions proposed by the Learned Magistrate she would not seek, in the event this court was to find the Learned Magistrate was in error, that the verdicts of acquittal be varied.

9. As to the 1st question framed by the case stated, the magistrates concerns stem from, so far as the facts of the present case are concerned, the circumstance that like was alleged to have polluted like. That is, that the muddy discharge the subject of the case, was in effect composed of the same material the river itself was made of, i.e. earth and water, albeit in a different concentration.

10. The learned Magistrate was concerned that in those circumstances where the discharge is alleged to have been "polluting matter" there should have been as a matter of law evidence before him of the polluting effect of the discharge.

11. The issue, on that basis, is whether the legislation in prohibiting the discharge requires more than mere proof of the nature or composition of the matter alleged to be polluting and requires proof of the effect of that allegedly polluting matter on the waterway into which it is discharged.

12. To answer the questions framed by the case stated it is necessary to look at the construction of the relevant legislation. The legislation, it is true, on its face is not couched in express terms which require proof of any actual effect upon or of damage being occasioned to the protected waterway.

13. I am told there is no authority in Hong Kong law as to the construction of section 8(1)(a) and the related section 8(1A). I am told further that there is no authority which counsel have been able to find in the common law jurisdictions which courts in Hong Kong are familiar with which throws any light on the construction of similar legislation other than the cases of R.v. Dovermoss Limited (1995) Env. L. R. 258 and R.v. Eggar (unreported).

14. In Dovermoss the court was concerned with many issues unrelated to this case stated but did briefly touch upon the question of whether animal slurry on a farm was polluting matter for the purpose of similar English legislation.

In that case the court said:

"It will, of course, be a question of fact and degree whether the matter does pollute the waters. Obviously, a very small quantity poured into a large watercourse may have no polluting effect at all. It is so diluted that it does not make it impure, foul or filthy. This is a question for the jury.

"It appears to us that this case could equally well have been charged as a noxious matter since it is obvious that it was likely to cause harm. It is not necessary in such a case to establish actual harm. The likelihood or capability of causing harm to animal or farm life or to those who use the water is sufficient."

It can be seen that the court proceeded on the basis that the likelihood or capability of causing harm, or of actually polluting the watercourse were the appropriate tests.

15. A perhaps conflicting decision was referred to in the commentary to Dovermoss. That was the case of R.v. Eggar for which no citation unfortunately can be found. But the commentary does carry with it an excerpt from the judgment of the Crown Court where it was said:-

"What the statute is concerned about, in my view, is the nature of the material being discharged into controlled water. It is not concerned with the nature of the controlled water. One does not have to look at the controlled water, mix it as it were, with what is being discharged into it and say to oneself, 'As a result of what had been discharged, has that water been harmed or lowered in quality?'

One looks at the nature of the discharge and one says:

'Is that discharge capable of causing harm to a river, in the sense of causing damage to uses to which a river might be put: damage to animal, vegetable or other - if there is such other life which might live in a river, or damaging that river aesthetically? ... One looks at that test in relation, it seems to me, to a natural unpolluted river, and if the discharge is capable of causing harm, then the offence is made out; the material amounts to polluting matter."

16. The emphasis in that judgment was on the nature of the pollutant itself rather than on its actual effect on the waterway. So it can be seen that in the very few authorities which apparently exist on this point there is perhaps a difference in approach.

17. In my judgment the matter is resolved by an examination of the terms and purpose of the legislation itself. So far as section 8(1)(a) and section 8(1A) are concerned, they address and prohibit discharges of a stated nature, i.e. waste matter, polluting matter, so far as section 8(1)(a) is concerned, and poisonous and noxious matters, so far as section 8(1A) is concerned.

18. The ordinance does not carry within it definitions of waste matter, polluting matter or of poisonous or noxious matter. But they are ordinary words and their meaning can be determined from ordinary usage. In Dovermoss the dictionary meaning of "to pollute" was, quite properly, approved. I will refer to that meaning later in this judgment.

19. As a starting point to the Magistrate's first question, the legislation in Hong Kong is constructed simply so as to prohibit certain sorts of matter being discharged into protected waterways. It does not, in its terms, expressly require that the prohibited matter discharged be proven to have had in fact a polluting, poisonous or noxious effect. Its language is addressed to the nature of the discharged matter rather than the effect of the discharged matter upon the waterway.

20. For that reason waste matter which is in its nature wholly defined by its composition and perhaps by origin and which is in no way in meaning defined by its effect on the environment is and can be included in section 8(1)(a) together with polluting matter.

21. But to state simply that proof only of the nature of the discharge is required without proof of its effect is perhaps to ignore that so far as the other three categories of prohibited matter are concerned in section 8(1)(a) and Section 8(1A), that is polluting, noxious and poisonous matter, their nature as such is defined by their effect. That is, whether a matter is noxious, i.e. harmful, is determined by whether it harms something or someone, whether it is polluting or poisonous depends upon the effect it has upon the substance or organism it is injected into or absorbed by.

22. Nevertheless, in my judgment what the legislation requires to be established is only the nature of the matter discharged. No actual effect or likely effect or possible effect upon the waterway needs to be proven as an element of the offence.

23. In my view that is the clear construction of the legislation. If it were otherwise, one would expect the legislation to be expressed in simple terms of prohibiting the actual pollution or poisoning of a waterway or of the rendering of that waterway noxious. Instead the legislation is directed at prohibiting a discharge of a particular nature into a waterway or waters.

24. It may well be that to establish the nature of the matter in question some evidence is required of the general properties of the matter to prove that that it is in fact, in its properties, noxious or poisonous or a pollutant. But the legislation does not require that it be shown to have in fact harmed, poisoned or polluted the particular waterway the subject of the charged offence.

25. Accordingly if the discharged matter is in fact proven to be waste matter or polluting matter or a noxious or poisonous matter in its nature then that is all that has to be established pursuant to section 8(1)(a) or, in my judgment, section 8(1A).

26. Some matter may, with proof of its composition only, be able to be established as waste, or polluting, or noxious or poisonous by nature. Some, perhaps extreme, examples would be amounts of a highly toxic substance such as cyanide or radioactive materials discharged into a protected waterway. Proof of such matter, upon proof of its physical or chemical properties only, may as a matter of fact be sufficient to establish it as noxious, or poisonous or polluting matter.

27. Some matter may be more ambiguous in its characteristics and be able to be established as poisonous or noxious or polluting in its nature only upon proof of further matters such as the quantity of matter involved. It may well be that in the majority of cases brought under this legislation the prosecution will lead evidence that the waterway was in fact harmed, or life in it was poisoned, or that its natural quality was degraded in some way. Such proof would be one factor, often perhaps the most important factor, bearing on the question whether the nature of the matter or substances discharged was in fact poisonous, noxious or polluting.

28. Equally, whether matter was "waste" matter would also often depend upon proof of the origin as well as the composition of the material. But such evidence is not required as a matter of law, and there may well be cases where the composition of the discharge without more is such as to allow an inference to be drawn that, as a matter of fact, the discharged material was noxious or poisonous or polluting matter or waste matter.

29. In short assuming the application of the proper definition of waste, polluting, noxious or poisonous matter, any finding whether the substance discharged was waste, noxious, poisonous or polluting matter is a finding of fact. And as with all such findings the evidence sufficient to establish that fact will vary from case to case.

30. In the present case the issue before Magistrate was whether the particular discharge was of polluting matter. That as I say is a question of fact.

31. Firstly, as to one of the concerns expressed by the Magistrate, it seems to me that matter may be polluting matter whether or not it consists of a natural or a man made substance. Many natural substances are pollutants. Crude oil is an unfortunately common example.

32. Many natural substances may become pollutants as the result of human intervention. Sawdust residue from a wooden mill may well be a pollutant, whereas the timber from which it came may not be. The question is whether the matter, whether natural or not, is a pollutant, i.e. whether it is a substance, which has the intrinsic property of making other substances with which it is intermingled "physically impure, foul or filthy, dirty, stained, tainted or befouled" in terms of the dictionary definition adopted in the Dovermoss case.

33. It was argued before me that the prohibited matter had to be proved to be polluting to water and that had to be assessed in respect of some ideal of a "reasonable" waterway. That was apparently a concept supported in the commentary to Dovermoss. I disagree. By determining whether or not matter is a pollutant by its effect on a particular waterway whether real or imaginary the essential purpose and intent of the legislation is being ignored.

34. What is attacked by the legislation is the discharge of matter of a certain nature. Liability or criminality under the legislation does not depend on any actual effect or supposed effect on a particular or ideal waterway, though as I say proof of actual effect may go some way towards establishing the nature of the matter which was discharged.

35. In my view all that has to be proven is that so far as a protected waterway or Hong Kong waters are concerned the matter alleged to be polluting has the intrinsic property of dirtying or befouling other substances in the terms of the definition of polluting I have referred to and for the reasons that I have given that there does not have to be any proof that the particular water way was in fact polluted. Indeed it may be that the particular waterway is already so polluted and noxious that the additional polluting matter has no measurably adverse effect upon it. That does not matter. The legislation is not designed to excuse the discharge of polluting noxious or poisonous matter simply because the receiving water has already been polluted, poisoned or rendered noxious by previous offences.

36. Nor does it matter that the particular polluting matter discharged is less toxic than the abused waterway itself, it is still the discharge of polluting matter. Though that may well be a factor which mitigates the sentence.

37. In the present case mud comprising 73,000 mg of solid particulate per litre of water was discharged. In my judgment that is a substance which the Learned Magistrate, as a matter of fact, was entitled to find on the evidence accepted by him had as an intrinsic property that of making substances to which it was added or intermingled "foul or filthy, dirty, stained, tainted or befouled".

38. Accordingly it was open to him on the evidence before him to find the offence proven regardless of the fact that in his view there was no evidence, or no sufficient evidence, of the actual effect of the discharge on the particular waterway.

39. His first question, so far as it is a question of law, is accordingly answered "No".

40. Given the position of the Appellant, so far as she no longer seeks the existing verdicts to be overturned, there is no need for me to answer the second question and I decline to do so.