HKSAR v. POLY GAIN ENTERPRISES LTD.

HCMA483/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.483 OF 1998

(On appeal from STS 6881 of 1997)

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J U D G M E N T

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1. This is an application by the Secretary Chief of Justice to case state the decision of W K KWOK Esq., a magistrate sitting in the Sha Tin Magistracy, of no case to answer in respect of an information preferred against Poly Gain Enterprises Limited under Section 13 of the Noise Control Ordinance, Cap. 400.

2. Poly Gain was the occupier of Shop No. 9, Wan Tau Tong Estate Shopping Centre, Tai Po, New Territories, where it ran a restaurant business in the name of Kam Pak Cheuk Seafood Restaurant.

3. On 17 November 1993, as a result of complaints against the said restaurant for noise emanating from its ventilating and refrigerating systems, officers of the Environmental Protection Department visited the said restaurant to measure the noise level. The noise level was found to be excessive.

4. On 5 January 1994, the Noise Control Authority served a Noise Abatement Notice on Poly Gain under Section 13(1) of the Noise Control Ordinance, and on 21 April 1994 it was found that Poly Gain had complied with all the requirements of the said notice.

5. More than three years later, on 7 July 1997, the Environmental Protection Department again received a complaint about the level of noise emanating from the ventilating and the refrigerating systems of the restaurant, and verbal warning were given on 14 July 1997. Such verbal warning, of course, under the Ordinance, did not have any legal effect.

6. On 4 August 1997, measurement of the level of noises emanating from the ventilating and refrigerating system of the said restaurant was again taken and it was found to be excessive. Information was subsequently laid against Poly Gain in accordance with Section 13(6) of the Noise Control Ordinance, on the basis that Poly Gain had failed to comply with the requirements of the Noise Abatement Notice which was issued on 5 January 1994.

7. The learned Magistrate took the view that when the requirement of the said notice was found to have been complied with on 21 April 1994, such Noise Abatement Notice would be discharged, and had ceased to have any validity. He therefore ruled that Poly Gain had no case to answer in respect of the information laid against it. The applicant, the Secretary for Justice, now contends that the learned Magistrate had erred on a question of law and hence the present application.

8. The Noise Abatement Notice dated 5 January 1994 stated the following:

"The authority hereby requires you, within the period from 5 February 1994 to 7 April 1994, to abate the noise and to: (1) Ensure that the correct noise levels of the noise emanating from the aforesaid ventilating and refrigerating systems does not exceed the noise level during the time period listed in Table 1 of the attached annex. When assessed in accordance with the aforesaid technical memorandum under Section 32A; and (2) Notify the authority in writing within a period from 5 February 1994 to 7 April, that the above requirement had been complied with under Section 13(2C) of the Ordinance."

9. The Secretary for Justice contends that once the Noise Abatement Notice has been issued, Poly Gain had to ensure that the noise emanating from the system of the restaurant must not exceed the stipulated noise limit at all times, as long as Poly Gain remains the occupier, or person in control of the said restaurant.

10. It is suggested that such Noise Abatement Notice could only be cancelled or varied in accordance with Section 13(4) of the Ordinance. In other words, until cancelled, or varied, the requirement under the Noise Abatement Notice for Poly Gain to ensure that the noise level must not exceed the stipulated limit, continue to have force and was thus perpetual.

11. Purely on the construction of the Noise Abatement Notice, the learned Magistrate concluded that the notice required Poly Gain to ensure that the noise level would not exceed the relevant noise limit between the time period, which was 5 February 1994 and 7 April 1994. With respect, I agree with such interpretation.

12. It must be remembered that the source of the noise in question was certain ventilating and refrigerating systems which, presumably, when become defective, would create excessive noise. The effect of the notice was to require Poly Gain to rectify such defect within a period which was considered to be appropriate by the authority, having regard to the nature, difficulty and complexity of complying with the requirement in the Noise Abatement Notice - that's under Section 13(3) of the Ordinance.

13. The Ordinance does not require Poly Gain to ensure that the ventilating and refrigerating systems will never become defective again in the future. If it had been the intention of the legislation that requirement under a Noise Abatement Notice should have perpetual validity it would have been spelt out in clearer and more certain terms.

14. As the learned Magistrate had rightly pointed out, the mere creation of excessive noise from places other than domestic premises, public places or construction sites, was not an offence. Under Section 13 of the Ordinance, an offence was committed, not by the creation of the noise but by the failure to comply with the requirement of a Noise Abatement Notice. Is it reasonable that Poly Gain should be held responsible every time there was excessive noise from the ventilating or refrigerating systems just because a Noise Abatement Notice had been served two years, or even 20 years ago when the mere creation of excessive noise is not an offence under the Ordinance? To me, the answer is clear. Quite apart from the wording of the Noise Abatement Notice in question, in my view, once the requirement under the notice had been complied with, the notice will be discharged and will not have any further legal effect. Should it be found that excessive noise are being emanated after such discharge, a fresh notice must be served, and an offence under Section 13 of the Ordinance is committed only when the requirement under the fresh notice has not been complied with.

15. It was suggested in the course of argument, indeed, the same point was made in a memo from the Director of the Environmental Protection Department, that a recipient of a Noise Abatement Notice may switch off or reduce the number of ventilating systems required to be operated at the time of the Noise Abatement Notice check.

16. The suggestion appears to be that unless the Noise Abatement Notice has some perpetual effect, it can be easily circumvented. With respect, such suggestion is an insult to whoever is responsible for carrying out the Noise Abatement Notice check. I am sure proper steps can be taken to ensure that a Noise Abatement Notice check can be properly and effectively carried out.

17. I cannot see how anyone who take a reasonable step to ensure such a check is properly carried out can allow an occupier of a premises to circumvene the situation by just turning down the volume of the noise or the number of the machinery involved. It is, in any event, inappropriate for the court to take into consideration a defective - if that's the correct word to describe it - the defective checking system. In my view, the learned Magistrate had come to a correct decision.

18. There are two questions posed to me, namely (1) whether the said Noise Abatement Notice is of perpetual validity; and (2) whether I err in ruling that there was no case to answer. To those two questions my answers are both "no".