CHRISTIAN JOSE LUCIEN MASSET v. SECRETARY FOR JUSTICE for and on behalf of DIRECTOR OF ENVIRONMENTAL PROTECTION

HCAL 41/2015

[2018] HKCFI 2110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 41 OF 2015

_______________

_______________

_______________

J U D G M E N T

_______________

A. Introduction

1.  Under section 16A of the Waste Disposal Ordinance (Cap 354) (“the WDO”), a person commits an offence if he deposits waste in any place except with lawful authority or permission of any owner or occupier of the place[1].

2.  Further, under sections 16B and 16C:[2]

(1) The depositing of construction waste on a private lot must be carried out with the valid permission of the sole owner or all the owners of the lot (section 16B(3)).

(2) In order to be valid, the permission must be given in a form specified by the Director of Environmental Protection (“the Director”) and the form giving the permission affixed with an acknowledgment by the Director (section 16B(4)).

(3) The specified form in which the permission is given and acknowledged by the Director (ie, the acknowledged specified form) must be displayed (the required part of it) at all times during the depositing activity (sections 16C(4) and (5)(a)).

3.  In this respect, in relation to affixing the acknowledgement by the Director, section 16C(3) provides that:

“(3) The Director may affix an acknowledgement on a specified form concerning a depositing activity only if –

(a) the form is submitted to the Director, together with the information and documents specified in it, at least 21 days before the intended date on which the depositing activity is to commence; and

(b) the Director is satisfied that –

(i) the owners identified in the form are the persons who appear on the register kept under the Land Registration Ordinance (Cap 128) to be the owners of the lot (owners on record); and

(ii) the form is signed by or on behalf of all owners on record”. (emphasis added)

4.  I will for convenience refer to the requirements provided under sections 16C(3)(a) and (b) as “the Statutory Requirements”.  In other words, under section 16C(3), it is provided that the Director “may” affix an acknowledgement on a specified form “only if” the Statutory Requirements are complied with.

5.  This judicial review concerns the sole question of whether, on a proper construction of section 16C(3), in particular given the use of the word “may”, the Director has a discretion (as contended by the applicant) not to affix the acknowledgement even if the Statutory Requirements are met, or whether the Director is obliged (as contended by the Director) to affix the acknowledgement once those requirements are satisfied.

6.  For the reasons explained further below, the facts leading to the present application are no longer relevant.  However, as a matter of completeness and to provide a flavour to show the significance of the construction question that needs to be decided, I would briefly set out the uncontroversial background facts leading to this application.

B.   Brief background[3]

7.  The owners of various lots (“the Subject Lots”) in Pui O (near Pui O beach) and a lot (“the Wetland Subject Lot”) on the fringe of wetland of Pui O Marsh on Lantau Island gave permission for the depositing of construction waste on the Subject Lots and the Wetland Subject Lot (collectively, “the Lots”).

8.  Applications with the respective specified forms in relation to these permissions for affixing the acknowledgment on the forms were then made to the Director.

9.  The Lots are all situated within the Coastal Protection Area (“the CPA”) as shown on the South Lantau Coast Outline Zoning Plan (“the SLC OZP”).  It is also the applicant’s case that the Lots are located behind the Pui O beach, which is an area of rich biodiversity and natural beauty that also has a resident herd of feral water buffaloes (bubalis bubalis).

10.  The “planning intention” for the CPA as stated in the Schedule of Uses to the SLC OZP is that:

“This zone is intended to conserve, protect and retain the natural coastlines and the sensitive coastal natural environment, including attractive geological features, physical landform or area of high landscape, scenic or ecological value, with a minimum of built development. It is also intended to safeguard the beaches and their immediate hinterland and to prevent haphazard ribbon development along the South Lantau Coast.

There is a general presumption against development in this zone. In general, only those developments that are needed to support the conservation of the existing natural landscape or scenic quality of the area or are essential infrastructure projects with overriding public interest may be permitted.”

11.  Further, the Explanatory Statement for the SLC OZP (at paragraph 7.6) in relation to the CPA also states that:

“These scenic and ecologically sensitive coastal areas should also be protected against land filling, land excavation or stream diversion and encroachment by developments.”

12.  It is not disputed that, before the Director decided whether or not to affix the relevant acknowledgement on these specified forms:

(1) In the course of inter-departmental notification, the Director was informed by the relevant District Planning Officer that the Lots were all located within the CPA in the SLC OZP;

(2) The District Planning Officer summarized the “Planning Intention” for the CPA to the Director in respect of:

(a) The Subject Lots: “The area is ecologically sensitive in nature. ... enforcement of the zonings [in the SLC OZP] mainly rests with the Lands Department, the Buildings Department and the various licensing authorities. If the activity of the [proposed] construction waste deposition is not acceptable to you and found unauthorised, please take enforcement action under your Waste Disposal Ordinance, Cap. 354, accordingly.”

(b) The Wetland Subject Lot: “It is noted that there is an intended construction waster (sic) deposition at the [Wetland Subject Lot]. As the activity is not in line with the planning intention of the [Coastal Protection Area] zone, the application is not supported.”

13.  On 24 September 2014, the Director decided to affix the acknowledgement respectively on the three specified forms concerning the Subject Lots, where the stated expiry date of the permission was 24 September 2015.

14.  On 24 February 2015, the Director further decided to affix the acknowledgment on the specified form concerning the Wetland Subject Lot.  The expiry date of the permission was stated to be 1 March 2016.

15.  It is common ground that the Director decided to affix the respective acknowledgements under section 16C(3) on these specified forms based only on the consideration that the Statutory Requirements were complied with in each of these applications.  She did not take into account any other considerations in making these decisions.

16.  The applicant is an environmental protection activist.  He lives in Lantau Island and had once been the chairman of Green Lantau Association (a society dedicated to the preservation of Lantau as a place of eco-recreation and education).

17.  After becoming aware of these acknowledged specified forms as posted up on the Lots, on 27 March 2015, the applicant applied for leave seeking to judicially review the Director’s decisions in affixing the acknowledgements on these specified forms.  He asked for the relief of an order of certiorari to quash each of these decisions on the basis that the Director had failed to exercise or properly exercise the discretion entrusted to him under section 16C(3), in failing to take into account various relevant environmental related considerations.

18.  This court granted leave on 20 January 2016 after a hearing.

19.  By the time when the matter came before the court for substantive hearing on 27 September 2016, the respective permissions given by the owners for the depositing of construction waste on the Lots had already expired. It was therefore academic for the applicant seeking to quash the Director’s respective decisions to affix the acknowledgement on these specified forms.

20.  As a result, by way of a summons dated 2 September 2016, the applicant sought to amend the Originating Summons by adding, in addition to seeking the reliefs of quashing the decisions, a further relief for “[a] declaration that [section 16C(3)] confers a discretion on [the Director], to be exercised with due regard to relevant environmental considerations, not to affix an acknowledgement on a specified form concerning a depositing activity in circumstances where [the Statutory Requirements] have been met”.

21.  At the hearing, Mr Stewart Wong SC (leading Mr Robin McLeish) has further confirmed with the court that he would only ask for the relief of declaration, and would not pursue the original relief of an order of certiorari seeking to quash the decisions.

22.  At the same time, Mr Paul Shieh SC (leading Mr Jonathan Chang) for the Director has also confirmed that he would not oppose the judicial review application on the grounds that (a) the applicant lacked the necessary locus to bring this judicial review; (b) there was delay in the application for judicial review; and (c) the matter had become academic.

23.  In light of these fair positions taken by respective leading counsel, as I mentioned above, the only material issue raised in this application is the question of the proper construction of section 16C(3). This is the issue I now would turn to.

C.   The proper construction of section 16C(3)

24.  Relevant to this question are the following provisions in the WDO.

25.  Section 16A provides:

“16A. Prohibition of unlawful depositing of waste

(1) A person commits an offence if he deposits or causes or permits to be deposited waste in any place except with lawful authority or excuse, or except with the permission of any owner or lawful occupier of the place.

(2) For the purposes of subsection (1), if waste is deposited from a vehicle that is not being used as a public transport carrier, the following persons are regarded as causing the waste to be deposited—

(a) the driver of the vehicle at the time when the waste is deposited from it; and

(b) any person employing that driver to drive the vehicle at that time.

(3) A person charged with an offence under subsection (1) has a defence if he proves that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(4) Without limiting the general nature of subsection (3), a person establishes the defence under that subsection if he proves—

(a) that he acted under instructions from his employer; or

(b) that he relied on information supplied by another person and had no reason to believe that the information was false or misleading,

and in either case that he had no reason to believe that an offence would be committed.

(5) If a person wishes to rely on a defence involving an allegation—

(a) that the commission of the offence was not due to his acting under the instructions of his employer but was due to an act or omission of another person; or

(b) that he relied on information supplied by another person, he is not entitled, without leave of the court, to rely on the defence unless he has served on the prosecutor, at least 7 clear days before the hearing, a notice giving all information he then had that identifies or assists in identifying the other person.

(6)  For the purpose of subsection (2), public transport carrier (公共交通工具) means a public bus, public light bus, taxi, train, light rail vehicle or tramcar.”

26.  Section 16B provides:

“16B. Prohibition of depositing of construction waste on private lot without valid permission

(1) This section applies in relation to the depositing of construction waste on a private lot except when—

(a) the total area on which construction waste has been deposited within the lot, regardless of who deposited the waste, does not exceed 20 m²; or

(b) the depositing forms part of any building works carried out on the lot that commenced in accordance with an enactment specified in Schedule 13.

(2) In calculating the total area for subsection (1)(a), waste containing both construction waste and other waste is regarded as consisting entirely of construction waste.

(3) Subject to subsection (5), a person who deposits, or causes to be deposited, construction waste on a private lot without the valid permission of the sole owner or all of the owners of the lot commits an offence.

(4) For subsection (3), the permission is valid only if—

(a) it is given in a form specified by the Director under section 16C(2)(a); and

(b) the form giving the permission bears an acknowledgement affixed by the Director in accordance with section 16C(3).

(5) For a private lot owned by a sole owner, the reference to ‘a person’ in subsection (3) does not include the owner.

(6)  Section 16A(2), (3), (4), (5) and (6) applies in relation to an offence under subsection (3) in the same way as it applies in relation to an offence under section 16A(1). For this purpose, the reference to ‘subsection (1)’ in section 16A(2) and (3) is taken to be a reference to subsection (3).”

27.  Section 16C provides:

“16C. Specified form for permission for depositing construction waste on private lot and Director’s acknowledgement

(1) In this section—

acknowledged form(經認收表格), in relation to a depositing activity, means a specified form—

(a) in which the permission for the depositing activity is given; and

(b) on which an acknowledgement is affixed in accordance with subsection (3);

depositing activity(擺放活動) means the depositing of construction waste on a private lot;

owners(擁有人), in subsection (3)(b)(i) and (ii), includes a sole owner;

permission(許可), in relation to a depositing activity, means the permission of the sole owner or all of the owners of the lot on which the depositing activity is carried out;

specified form(指明表格) means a form specified under subsection (2)(a).

(2) The Director may—

(a) specify a form in which the permission for a depositing activity is to be given; and

(b) specify in the form any information or document that the Director requires in relation to the permission.

(3) The Director may affix an acknowledgement on a specified form concerning a depositing activity only if—

(a) the form is submitted to the Director, together with the information and documents specified in it, at least 21 days before the intended date on which the depositing activity is to commence; and

(b) the Director is satisfied that—

(i) the owners identified in the form are the persons who appear from the register kept under the Land Registration Ordinance (Cap. 128) to be the owners of the lot (owners on record); and

(ii) the form is signed by or on behalf of all owners on record.

(4) A person who deposits construction waste on a private lot must, at all times during the depositing activity, display in a conspicuous place on the lot a copy of the acknowledged form for the depositing activity.

(5) However, subsection (4)—

(a) only requires the display of the part of an acknowledged form which is specified in the form to be for display; and

(b) does not apply if the depositing activity may be lawfully carried out without the permission given in an acknowledged form.

(6) A person commits an offence if the person submits under subsection (3)(a) a specified form, or any information or document specified in it, which the person—

(a) knows to be incorrect or inaccurate in a material particular; or

(b) does not believe to be correct and accurate in a material particular.

(7) A person commits an offence if the person fails to comply with subsection (4).

28.  It must first be noted that sections 16B and C were only added to the WDO subsequently by way of amendments in 2013.

29.  As said above, Mr Wong for the applicant contends that on a proper construction, section 16C(3) confers a discretion on the Director, to be exercised with due regard to relevant environmental considerations, not to affix an acknowledgement on a specified form concerning a depositing activity in circumstances where the Statutory Requirements have been met.

30.  On the other hand, the Director contends that, properly construed, section 16C(3) imposes on her an obligation with no discretion to affix an acknowledgement if she is satisfied that the Statutory Requirements are complied with.

31.  Statutory construction is a question of law.  In this respect, it is well established the court should adopt a purposive approach in construing a subject statutory provision.  It is common ground that the following principles of purposive construction as laid down by the Court of Final Appeal apply:[4]

(1) Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, and that must be ascertained by a proper application of the interpretative process.

(2) The proper starting point is to look at the relevant words or provisions having regard to their context and purpose.  The context of a statutory provision should be taken in its widest sense and includes the other provisions of the statute and the existing state of law.

(3) The purpose of a statutory provision may be gleaned from the provision itself or from a relevant part of the Law Reform Commission or the Explanatory Memorandum to the bill or from a statement of a responsible official to the legislature in respect of the bill.

(4) However, this exercise does not permit the court to attribute a meaning to a statutory provision which the language, understood in the light of its context and purpose, cannot bear.  In this respect, the court should not ignore what may be the plain meaning of the text and construe the statute in whatever manner to achieve a result which the court considers desirable.

32.  Bearing these principles in mind, I now turn to consider the construction of section 16C(3).

33.  As I mentioned above, sections 16B and C were introduced in 2013 as amendments to the WDO.  Hence, in seeking to construe the meaning of section 16C(3), it is relevant and important, for a purposive construction, to look at what was the purpose and context of introducing these amendments.

34.  Both sides agree that for this exercise, the court is entitled to and should look at (a) the public consultation paper (“the Consultation Paper”) entitled “Proposal to further enhance the regulation of depositing of abandoned construction and demolition materials on private land” prepared by the Environmental Protection Department (“the EPD”) in February 2010, which outlined the proposal to amend the WDO, and (b) the Legislative Council Brief (“the LegCo Brief”) prepared by the Environment Bureau and the EPD in June 2013 in introducing the Waste Disposal (Amendment) Bill 2013.

35.  Relevantly, the Consultation Paper states as follows:

“Purpose

This paper outlines a proposal to amend the Waste Disposal Ordinance (WDO) (Cap. 354) to enhance the regulation of depositing of abandoned construction and demolition (C&D) materials on private land. The proposal aims to:

(i) prevent the carrying out of depositing activities on private land which contravene the WDO and cause environmental problems;

(ii) safeguard the existing interest of private landowners by preventing the abuse that arises from depositing activities on private land which are carried out without the consent of the landowners; and

(iii) through a new proposed notification mechanism, enable Government departments to be notified in advance of possible depositing of abandoned C&D materials on private land. As a result, the relevant departments could remind parties concerned of the relevant statutory requirements and thus preventing the occurrence of illegal activities. The proposal will also enhance the enforcement effectiveness of the WDO and inter-departmental co-ordination in respect of enforcement actions.

Background

2. In recent years, cases of fly-tipping of C&D waste and illegal land filling in rural areas of the New Territories have aroused public concern over such activities on private land. Improper deposition of C&D materials on private land may violate land use and planning control, and may also cause environmental hygiene problems, drainage/watercourse blockage, noise/dust nuisance and pollution. Relevant Government departments have taken appropriate enforcement actions against such activities under their respective legislative purview. As problems arising from such activities often cut across different policy areas, the Government has introduced a number of enhanced control and preventive measures to further combat illegal depositing activities.

3. There has been suggestion that the Administration should consider introducing an authorisation mechanism under the WDO that requires owners or legal occupiers of private land (hereinafter referred to as ‘landowners’ for simplicity) to obtain the prior authorisation from the Director of Environmental Protection (DEP) if they intend to permit other person(s) to deposit abandoned C&D materials on their land. We have examined the proposal and concluded that the introduction of an authorisation mechanism in the WDO under which DEP is to authorise such deposition on factors other than environmental grounds (such as land use, planning control and slope safety) will go beyond the authority of DEP, and the legality and reasonableness of such authorisation will also be subject to challenge.

4. Notwithstanding the above, taking account of the fact that such illegal depositing of C&D materials on private land may cause environmental problem, the current difficulties in adducing evidence when enforcing the WDO, and possible infringement of landowners’ interest by depositing activities that are conducted without their consent, the Administration proposes to amend the WDO. The amendment aims to enhance the enforcement effectiveness of the legislation and to safeguard the existing interest of private land owners, so as to prevent the occurrence of possible environmental problems and other problems that may arise from such illegal depositing activities. In addition, the proposal seeks to respond to the public call for introducing a transparent system and enhancing the inter-departmental co-ordination in respect of enforcement actions. The proposed new notification mechanism will serve as a platform for relevant departments to make advanced assessment of the information on intended depositing activities. If such intended activities are found to possibly contravene existing legislation, the relevant departments will remind and advise the parties concerned to avoid carrying out these intended activities to prevent any contravention of existing legislation. On the other hand, the proposed amendment does not aim to expand the existing rights of landowners.

Current scope of control under the WDO

5. Currently under section 16A of the WDO, a person commits an offence if he deposits waste on any land without the permission of the landowner. At present, the parties concerned normally would not inform EPD of such depositing beforehand. Upon knowing such depositing activity, it takes some time for EPD to get in touch with the landowners to ascertain whether the depositors have obtained the required permission in accordance with section 16A of the WDO. Therefore, the authority often faces difficulties in enforcement and adducing evidence.

Proposed amendments to the WDO

6. The Administration proposes to amend the relevant provisions of the WDO in order to enhance the effectiveness of enforcing section 16A of the legislation against unauthorised depositing of abandoned C&D materials on private land. The amended provisions will require any person who intends to carry out depositing activity on land held under private ownership to obtain the prior written permission of all the landowner(s) concerned, and to carry such written permission or its copy during the depositing activity for inspection at the request of the control authority. Under the proposal, a person commits an offence if he fails to produce the valid written permission for inspection on request by enforcement officers.

7. Moreover, the Administration proposes to standardize such written permission to prevent the issue of false written permission without the landowners’ knowledge, so as to safeguard the landowners’ interest. A landowner shall give the written permission by using the form as specified by the control authority, and submit the completed form together with the prescribed documents (which include documents certifying the landowner(s)’s identity, a site plan showing clearly the rivers/streams/watercourses/ponds on the land and the boundary of the affected area etc) 15 working days before the commencement of the intended deposition. If the landowner(s)’s identity tallies with the record of the Land Registry or the Home Affairs Department, and where all the requisite supporting documents are available, the authority will affix a seal on the form and return it to the person concerned within 15 working days. In cases the landowner(s)’s identity as stated on the form does not match with the record of the authority, the authority will not affix the seal on the form and it will also notify the person concerned in writing within 15 working days.

…

10. It must be emphasised that under the proposal, any deposition of C&D waste must continue to comply with all other relevant legislations and lease conditions. As problems arising from such activities may cut across the ambit of various Government departments, we propose to establish a notification mechanism to serve as the platform to enhance inter-departmental coordination in respect of enforcement actions and to prevent non-compliance. The control authority will, upon receiving the specified form and the required documents from the landowner, notify other relevant Government departments, including the Lands Department, Planning Department, Buildings Department, Agriculture, Fisheries and Conservation Department, Drainage Services Department, Food and Environmental Hygiene Department, Transport Department, Highways Department and the relevant District Office(s), for follow-up action where necessary in the light of the actual situation. For instance, if the intended deposition will likely contravene existing legislation, the relevant departments will advise the persons concerned and explain the requirements under the related legislations; or suggest to the person concerned to take preventive measures accordingly to prevent non-compliance with the existing legislations, and carry out inspections as necessary. If any deposition is found to have contravened the relevant legislation, the Government departments concerned may take enforcement actions accordingly.

…

13. The above amendments are proposed to further combat the illegal depositing of abandoned C&D materials on private land and to enhance inter departmental co-ordination in respect of enforcement actions. We are committed to striking a balance between respecting private property rights and combating illegal depositing of abandoned C&D materials on private land.” (emphasis added)

36.  Further, the relevant parts of the LegCo Brief are as follows:

“INTRODUCTION

At the meeting of the Executive Council on 11 June 2013, the Council ADVISED and the Acting Chief Executive ORDERED that the Waste Disposal (Amendment) Bill 2013, at Annex A, should be introduced into the Legislative Council (‘LegCo’) to enhance the regulation of the depositing of construction waste on private land under Waste Disposal Ordinance (‘WDO’).

JUSTIFICATIONS

Fly-tipping of Construction Waste on Private Land

2. Construction waste is defined under section 2 of the Waste Disposal (Charges for Disposal of Construction Waste) Regulation (Cap. 354 sub. leg. N) to mean generally any substance, matter or thing that is generated from construction work and abandoned. Some construction waste is inert and may be reused as construction materials. Examples include-rock, rubble, boulder, earth, soil, sand, concrete, asphalt, brick, tile, masonry and used bentonite. Construction waste is subject to a statutory disposal charge, which some may seek to evade through fly-tipping. This is regulated under, amongst others, section 16A(1) of WDO which provides that a person commits an offence if the person deposits or causes or permits to be deposited waste (including construction waste) in any place except with lawful authority or excuse, or except with the permission of any owner or lawful occupier of the place.

3. Notwithstanding the above control, enforcement against fly-tipping on private land is not effective as it is sometimes difficult to prove the lack of permission of a landowner or lawful occupier. It is not unusual to receive incomplete or conflicting information from the depositor and the landowner or lawful occupier as to whether there was indeed proper permission. Some cases involve uncertainty in ownership due to outdated records (e.g. when the owner on record has deceased). More often than not, we are not able to collect sufficient evidence in a suspected fly-tipping case within the statutory time limit of six months for initiating prosecution. This has undermined the deterrent effect of the control.

4. Fly-tipping of construction waste on private land was observed to have aggravated in the New Territories in the past few years. In a notable case, an agricultural land of over 1,000 m² at Ho Sheung Heung in Sheung Shui was dumped with construction waste in 2009. Having reviewed WDO and conducted a public consultation in 2010, the Administration considered that there is scope to enhance the effectiveness of enforcing section 16A of WDO as proposed below.

The Proposed Enhancement

5. In general, it will enhance the regulatory control if the Administration can become aware of any plans to deposit construction waste on private land before the depositing takes place. The prior notification will help identify the depositing that has indeed been properly authorized thus enhancing enforcement effectiveness. At present, permission for the depositing may be given by any owner or lawful occupier even without the knowledge of individual owners (in cases of multiple ownership). It will better protect the interest of the landowners concerned if such permission has to be given by all owners. Having regard to these objectives, we propose that –

(a) before a person deposits or causes to be deposited construction waste on a private land lot, the person must obtain the valid permission of each and every owner of that lot;

(b) the permission will not be regarded as valid unless (I) it is given in a specified form and (II) the specified form bears an acknowledgement by the Director of Environmental Protection (‘DEP’) which will not be given unless –

(i) the specified form is submitted to DEP, together with certain information and documents relating to the depositing activity as specified in the form, at least 21 calendar days before the intended commencement date of the depositing activity;

(ii) the owners identified in the specified form are the persons who appear from the register kept under the Land Registration Ordinance (Cap. 128) to be the owners of the lot (‘owners on record’); and

(iii) the specified form is signed by or on behalf of all owners on record; and

(c) the personwho deposits the waste must display in a conspicuous place of the lot a copy of the acknowledged form.

6. The proposed new procedures represent enhanced control because at present depositing of construction waste on private land may lawfully be carried out with the permission of any owner or lawful occupier and the permission may be given in any form, even in the absence of the knowledge of all other owners if multiple ownership exists.

7. On top of the enhanced regulatory control, with the prior notification mechanism, we will also be able to alert other relevant departments that depositing of construction waste may commence in a particular private lot such that they may take precautionary measures as appropriate. For instance, they may contact the landowners and offer necessary advice on legislation relating to the depositing of construction waste and any associated adverse environmental impact in a timely manner before the depositing actually commences.

…

OTHER OPTIONS

10.  It is not a viable option to subject the depositing of construction waste on private land to DEP’s authorization.  This is because requiring DEP to authorize such depositing on factors other than environmental grounds (such as land use and slope safety) will go beyond DEP’s authority under environmental legislation.  The legality and reasonableness of such authorization-will also be subject to challenge.” (emphasis added)

37.  In this respect, the Explanatory Memorandum of the relevant Bill also states:

“Currently, the depositing of any waste in any place in general is regulated by section 16A of the Waste Disposal Ordinance (Cap. 354) (Ordinance). The object of this Bill is to amend the Ordinance to provide for an enhanced regulatory regime for the depositing of construction waste on a private lot, which is in addition to the existing regulation under section 16A of the Ordinance.”

38.  Read as a whole and objectively, the following matters are clearly borne out by these legislative materials:

(1)  First, the concern for the need for introducing the proposed amendments was about the regulatory control of depositing construction waste on private land.  It had been also made clear that it was also about safeguarding the existing interest of the owners of private land.  See: paragraphs 1(ii), 4 and 10 of the Consultation Paper, and paragraph 5 of the LegCo Brief.

(2)  Second, as at that time before the proposed amendments, the legislature had decided to regulate and control the depositing of construction waste on private land in the environmental context through the WDO by way of section 16A (which relates to the depositing of any waste in any place with the authority or permission of its owners or occupier).

(3)  Third, section 16A is all and only about whether the depositing of waste (including construction waste) has been permitted by the lawful owners or occupiers of the place.  It is an offence if there is no permission.  It is not an offence if the permission has been given.

(4)  Fourth, as at that time, the EPD (being the prosecutorial authority under the WDO) had experienced difficulties in enforcing section 16A in relation to the depositing of construction waste on private land.  The difficulties as identified were: the difficulty in proving the negative, ie, the lack of permission of a landowner or lawful occupier; incomplete or conflicting information received from the depositor and the landowner or lawful occupier as to whether there was indeed proper permission given by the landowners; the uncertainty in ascertaining ownership due to outdated records.  These difficulties in hindering effective enforcement were made even more pronounced given the limited 6‑month prosecution period as at that time, the parties would not inform the Director beforehand of any anticipated depositing activities.  See paragraph 5 of the Consultation Paper, and paragraph 3 of the LegCo Brief.

(5)  Fifth, the expressly stated objective of the proposed amendments was to enhance the regulatory control of depositing construction waste over private land through addressing the identified difficulties encountered in the enforcement of section 16A.  See in particular paragraphs 5 and 6 of the Consultation Paper, paragraph 6 of the LegCo Brief, and the Explanatory Memorandum.

(6)  Hence, the amended provisions will require any person who intends to carry out depositing activity on private land to obtain the prior written permission of all the landowner(s) concerned, and to produce the valid written permission or its copy during the depositing activity for inspection at the request of the control authority.  See paragraph 6 of the Consultation Paper and paragraph 5 of the LegCo Brief.

(7)  Further, under the amendments, the landowner’s written permission is proposed to be standardized to prevent the issue of false written permission without the landowner’s knowledge.  The landowner shall give the written permission in the specified form to be submitted (with the information and documents specified in the form) to the control authority for verification prior to the commencement of the intended deposition.  The control authority will affix a seal on the submitted form only if the landowner’s identity on the form tallies with Government records.  See paragraph 7 of the Consultation Paper and paragraph 6 of the LegCo Brief.

(8)  Sixth, the depositor must still ensure that the intended depositing activity complies with all other relevant legislations and lease conditions.  The control authority will, upon receiving the specified form from the landowner, notify other relevant Government departments for follow-up action where necessary. If the intended activity is found to possibly contravene existing legislation, the relevant departments will remind and advise the parties concerned, and if any deposition is found to have contravened the relevant legislation, the relevant departments may take enforcement actions accordingly.  See paragraph 10 of the Consultation Paper and paragraph 7 of the LegCo Brief.

(9)  Seventh, in this respect, the amendments also enabled a notification system to be introduced whereby various related Government departments would be notified in advance by the Director of anticipated construction waste depositing activities over a private lot when an acknowledgement application was made.  The various departments could then be able to look into and assess the questions of whether the anticipated depositing activities might result in any potential breach of other related regulations and statutory provisions, and to take preventive measures or necessary actions against the depositors as they regard as necessary.

39.  In the premises, when these materials are read and understood objectively as a whole, it is clear to me that the purpose and the context of introducing sections 16B and 16C by way of amendment was to (a) address the mischief in relation to the difficulties hitherto encountered by the EPD in enforcing section 16A (in relation to the depositing of construction waste on private land), and (b) introduce a notification system to enable various relevant government departments to be notified in advance by the Director of possible depositing of construction waste on private land to facilitate more efficient relevant enforcement actions under other relevant statutory regulations.

40.  This context and purpose supports a construction that section 16C(3) is intended to be only concerned with having a more easily ascertainable and prior proof of a valid owners’ permission for depositing construction waste on private land.  In other words, it supports a construction that once the Statutory Requirements are complied with, the Director should affix an acknowledgement on the specified form.

41.  This construction is further buttressed by the use of the specific word “acknowledgment” in section 16C(3).  As submitted by Mr Shieh, ordinarily understood, the word refers to the admission or confirmation of the objective existence or validity of something.  It does not generally denote a discretion not to “acknowledge” that something if it does in fact exist.  In the circumstances, had the draftsman intended to give the Director a discretion, it would be very unusual for him to specifically use the word “acknowledgment” for this section, instead of another word which generally denotes a discretion such as “permission” or “approval”.

42.  In this respect, the court notes that the ordinary or natural meaning of the word “may” is “an ability to do something”[5] and generally denotes a discretion.

43.  However, as rightly submitted by Mr Shieh, the intended meaning of the word “may” in a statutory provision is still dependent on the context upon which the word is used.  There are cases in which, for various reasons, as soon as the person who is within the statute is entrusted with the power it becomes his duty to exercise it.

44.  In Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, the court, after reviewing a line of authorities, observed that the words “it shall be lawful” (which ordinarily mean having the lawful authority to do something but is not obliged to do so) and other permissive words to that effect (including in some cases, the word “may”) could in the right context be intended and be construed to mean having an obligation to do something.  Lord Blackburn said at pp 241 - 245 as follows:

“I do not think the words ‘it shall be lawful’ are in themselves ambiguous at all. They are apt words to express that a power is given; and as, primâ facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, primâ facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf. Where there is such a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it. It by no means follows that because there is a duty cast on the donee of a power to exercise it, that mandamus lies to enforce it: that depends on the nature of the duty and the position of the donee. The earliest case in point of date in which I find this doctrine touched on is Alderman Backwell's Case. The statute 13 Eliz. c. 7, s. 2, enacted that the Lord Chancellor or Lord Keeper, upon every complaint made to him in writing against such person, being bankrupt, ‘shall have full power and authority by commission under the great seal of England,’ to issue a commission, and this power was, by 1 Jac. 1, c. 15, s. 3, extended to bankrupts under that Act. When the Exchequer was closed in 1676, many bankers who had deposited their money there were unable, in consequence of the bad faith of the Government, to meet the demands of their own creditors. Alderman Backwell, who was one, fled to Holland, leaving his son to make what terms he could with the creditors, and apparently the Government helped him. Lord Keeper North seems to have done all he could, and a great deal more than he ought, and kept the creditors at bay for seven dears. But at last, in 1783, even he could not delay longer, and according to the report ‘the Lord Keeper declared, though the words in the Act of Parliament were that the Chancellor may grant a commission of bankrupt, yet that may was in effect must, and it had been so resolved by all the Judges, and the granting of a commission was not a matter discretionary in him, but that he was bound to do it.’ I have already pointed out that the word ‘may’ does not occur in the statute; but, as I have already said, it is not inaccurate to say that the words conferring a power are equivalent to may.

In one of the County Courts Acts, 13 & 14 Vict. c. 61, s. 13, the words used were that, on its being proved by affidavit by the plaintiff that the cause was one in which there was concurrent jurisdiction, the Court in which the action is brought or a Judge at Chambers ‘may thereupon, by rule or order, direct that the plaintiff shall recover costs, and thereupon the plaintiff shall have the same judgment to recover his costs that he would have had if this Act had not passed.’ The Court of Exchequer had, in Jones v. Harrison, construed this as giving the Court a discretionary power to refuse the rule. That being a decision on which no appeal lay, was not binding on a Court of co-ordinate jurisdiction, and the Court of Common Pleas in Macdougal v. Paterson, and the Court of Queen's Bench afterwards in Crake v. Powell, held a contrary opinion.

In the judgment of the Common Pleas Chief Justice Jervis says that ‘may’ was, ‘as we think, aptly and properly used to confer on the Court an authority,’ and later states the rule to be ‘that when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application.’ And in Crake v. Powell, Lord Campbell says: ‘If the plaintiff be entitled to costs, and the Court or Judge is empowered to make a rule or order for that purpose ex debito justitiæ, he may call upon the Court or Judge to do so.’ Morisse v. The Royal British Bank⁵⁴ was on the same principle.

But there are cases in which the authority or power given is not to do a judicial act, and yet there is a duty on the donee to exercise the power if it appears to be given to the donee for the purpose of making good a right, and he is called upon by those who have that right to exercise the power for their benefit.

The 14 Car. 2, c. 12, s. 18, reciting that constables, &c, may be at charges in enforcing the poor law, and as yet have no power to make rates to reimburse themselves, enacts ‘that all constables, &c., so out of purse as aforesaid, together with the churchwardens and overseers of the poor and other inhabitants of the parish, shall hereby have power and authority to make an indifferent rate, and to tax all the inhabitants, &c.’ The inhabitants of several parishes of Derby seem to have combined to refuse to make any rates for this purpose; an indictment was preferred against them, which was removed into the King's Bench, and on motion to quash it the Court refused to do so. The case is reported under different names in different books. The report in Salkeld, under the name of Rex v. Barlow, is in the following words: ‘Exception was taken that the statute only puts it in their power to do so by the word “may,” &c., but does not require the doing of it as a duty for the omission of which they are punishable: sed non allocatur. For where a statute directs the doing of a thing for the sake of justice or the public good, the word “may” is the same as the word “shall;” thus, 23 Hen. 6 says the sheriff may take bail. This is construed he shall, for he is compellable so to do.’

The word ‘may’ does not occur in the 14 Car. 2, c. 12, nor in the 23 Hen. 6, where in the Norman-French version the words are ‘lesseront hors de prison,’; and in the English version ‘shall let out of prison;’ but both are apt illustrations of the rule that though giving a power is primâ facie merely enabling the donee to act, and so may not inaccurately be said to be equivalent to saying he may act, yet if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the powers to exercise the power when those who have the right call upon him so to do. And this is equally the case where the power is given by the word ‘may,’ if the object be clear. Thus in the Public Health Act, 1848 (11 & 12 Vict. c. 63, s. 89), the words are ‘The Local Board of Health may make rates prospectively, in order to raise money for the payment of future charges and expenses, or retrospectively, in order to raise money for the payment of charges and expenses which may have been incurred at any time within six months before the making of the rate;’ yet on the application of a judgment creditor a mandamus will go to compel the making of a rate for the purpose of satisfying a judgment within six months after the judgment has been obtained: Rex v. Rotherham Local Board; Worthington v. Local Board of Moss Side.

In Reg. v. Tithe Commissioners Justice Coleridge, in delivering the considered judgment of the Court, says: ‘The words undoubtedly are only empowering; but it has been so often decided as to have become an axiom that in public statutes words only directory, permissory, or enabling, may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice.’ The only part of this to which exception can be taken is the use of the word ‘public’; if by that it is to be understood either that enabling words are always compulsory where the public are concerned, or are never compulsory except where the public are concerned, I do not think either was meant. The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. It is far more easy to shew that there is a right where private interests are concerned than where the alleged right is in the public only, and in fact, in every case cited, and in every case that I know of (where the words conferring a power are enabling only, and yet it has been held that the power must be exercised), it has been on the application of those whose private rights required the exercise of the power. The personal liberty of the person arrested by the sheriff, the rights of the creditors of the bankrupt to their debts, the rights of the plaintiff who had recovered judgment to his costs, the right of the constable out of pocket to be paid by the parish, the right of the creditor of the bank or of the local board to be paid, were all private rights. I do not, however, question that there may be a right in the public such as to make it the duty of those to whom a power is given to exercise that power. I should say, for instance, that if, by enabling words, a Court is empowered to pass sentence on one convicted of a crime, it would be the duty of the Court to pass that sentence. But I cannot agree with the Court of Queen's Bench, that whenever the statute is for the public good, and of general interest and concern, powers conferred by enabling words are, primâ facie, to be considered powers which must be exercised. And I cannot agree that in the statute now in question there is either a private, or a public right, requiring that this power given to the bishop must be exercised.”

See also Lord Cairns at pp 222 - 225 and the authorities considered therein.

45.  Further, in re Shuter [1960] 1 QB 142, it was held by Donovan J that the word “may” used in section 7 of the Fugitive Offenders Act 1881,[6] when properly construed in its context, should be interpreted to mean that it was mandatory for the “superior court” (being the authority given the power) to order the fugitive to be discharged of custody when the requirements provided in the provision were satisfied and in the absence of contrary sufficient cause being shown.  See also: Sheffield Corporation v Luxford [1929] 2 KB 180 at 183 - 184.

46.  In other words, the word “may” used in a statute can in the right context be intended, and be interpreted, to mean “must” or “shall”, imposing an obligation on the person entrusted with the power to do something when the circumstances prescribed therein occur or exist.

47.  In this respect, as pointed out by Mr Shieh, the contextual use of the word “may” in section 16C(3) is also important.  It is used as part of the sentence “may ... only if”.  The Chinese text of section 16C(3) is “只有以下條件獲符合，署長方可在關於某擺放活動的指明表格上，加上認收標記”。

48.  The focus and context is to define the various things that the Director must be satisfied with before affixing an acknowledgement. In effect it says “you cannot do this unless you are satisfied of the following...”.

49.  In my view, when this is considered together objectively with the legislative purpose and context for introducing the amendments as mentioned above, and the specific use of the word “acknowledgement”, I agree that the word “may” used in section 16C(3) is not intended to confer a discretion to the Director not to affix the acknowledgement even when the Statutory Requirements are met.  Quite to the contrary, it is intended that the Director is obliged to affix the acknowledgement when she is satisfied that those requirements have been complied with.

50.  Mr Wong SC has however made the following powerful submissions to contend that the proper construction should be otherwise.

51.  Leading counsel has reminded this court that as a matter of principle, purposive construction cannot arrive at a meaning that the subject words used in the relevant statute cannot bear in its proper context.[7]  Mr Wong then submits that in light of the following, the word “may” as employed in section 16C(3) cannot bear a meaning to effectively mean, as the Director argues, “must”, “shall” or “obliged to do”.

52.  Mr Wong first reiterates that the ordinary or natural meaning of “may” is to “have ability or power to” do something.  It therefore plainly denotes a discretion to do something.  Generally, it cannot be understood objectively to mean “must” or “shall”, and does not denote an obligation to do that thing.  In other words, when the draftsman decided to use specifically the word “may” in the provision, instead of the words like “shall” or “must”, it strongly suggests objectively that it is intended to give the Director a discretion.

53.  Second, Mr Wong submits that the Consultation Paper shows that, other than facilitating the enforcement of section 16A, the amendments were proposed to be introduced also in the context, and for the purpose, of environmental protection as a whole to prevent illegal depositing of construction waste on private land which would cause environmental problems. Hence, says Mr Wong, paragraph 1(i) of the Consultation Paper has made it clear that the proposed amendments were to “prevent the carrying out of depositing activities on private land which contravened the WDO and cause environmental problems” (emphasis added).  Paragraphs 2 and 4 of the Consultation Paper have similarly made it clear that the proposal was concerned with the various damage caused to the environment by the depositing of construction waste, which should be prevented.

54.  Mr Wong therefore submits that the relevant proper and wider context for construing section 16C(3) is the furtherance of environmental protection.

55.  This general and wider context is, argued by Mr Wong, further reinforced by the following:

(1)  The fact that it is the Director who is entrusted with the power to decide whether or not to affix the acknowledgement, and the Director’s responsibility is to protect the environment (and not the interest of landowners).  If the entrusted power in section 16C(3) was intended (as now submitted by Mr Shieh) to only permit the authority to consider and look at matters related to the identity of the owners of the private lot and whether the specified form has been properly filled in (ie, the Statutory Requirements), there could be no valid objective reasons for the Director to be made the relevant authority to affix the acknowledgement, as those matters have nothing to do with the Director’s job.

(2)  In the premises, in making the Director as the very authority entrusted with that power, it must be objectively intended that she is entitled to and should indeed take into account environmental considerations in deciding whether to exercise the power to affix the acknowledgement even when Statutory Requirements are complied with.  This is further supported by section 23EA, which confers a power on the Director to enter private land to remove waste when she has reasonable grounds to believe, among others, that the waste deposited there is likely to give rise to an imminent risk of adverse impact, where an offence under section 16A or 16B has been committed.  This shows clearly that the protection of private land from adverse environmental impact is the primary concern of the WDO and of the Director.

(3)  All these provisions are made in the WDO, which is an environmental legislation (see paragraph 10 of the LegCo Brief).

(4)  In rejecting the suggestion to give the Director a general power of authorization for depositing construction waste on private land, paragraph 3 of the Consultation Paper and paragraph 10 of the LegCo Brief have also expressly stated that to require the Director to authorize such depositing on factors “other than environmental grounds (such as land use and slope safety)” will go beyond the Director’s authority under environmental legislation.  What was thus implied in these is that the Director in exercising the power under the proposed provisions should take into account matters related to “environmental grounds”.

56.  Mr Wong has further pointed out that the Director’s construction would result in ineffective prevention of environmental damage caused by the depositing of construction waste.  It would not achieve the purpose of enhancing the regulatory control on environmental protection as stated in the Consultation Paper (see paragraph 1) and the LegCo Brief (see paragraphs 6 and 7) for introducing the amendments.

57.  Mr Wong therefore submits, when the plain ordinary or natural meaning of “may” is considered objectively in the wider and proper context of furthering environmental protection by the Director, on a proper construction of section 16C(3), the word “may” must be intended to mean that the Director has a discretion (by taking into account environmental considerations) to decide whether to affix an acknowledgement or not even when the Statutory Requirements are met.

58.  These are persuasive submissions.  But on reflection and with the greatest respect, I am eventually not convinced.  I will explain why.

59.  Notwithstanding Mr Wong’s above submissions, it is clear to me that the proper context and purpose for introducing sections 16B and 16C is to address the mischief of the enforcement difficulties as identified in those legislative materials.

60.  Read properly and objectively as a whole, the references to “environment protection” in the Consultation Paper and the LegCo Brief are to provide an overall background to the WDO, which, as rightly pointed out by Mr Wong, is an environmental legislation.  But the general tone of these papers in introducing the amendments is clearly that they were proposed to address the specific enforcement problems identified therein.  The enhancement of the very regulatory control stated in these papers was a reference to the control provided by way of section 16A.  These are repeatedly stated and emphasized in the various paragraphs in these materials as quoted and italicized above.

61.  Moreover, it must be noted that, and as fairly accepted by Mr Wong, before the proposed amendments, the state of the law under the WDO was that construction waste depositing on private land was unlawful only if it had not been permitted by the owners.

62.  In other words, as submitted by Mr Shieh, like it or not, when enacting the WDO, the Administration and the legislature had decided to impose the regulatory control (in the context of environmental protection) in only disallowing and outlawing the depositing of construction waste on private land by reference to the owners’ consent.  Requiring prior approval from the Director had not been part of the law under the WDO to regulate construction waste depositing on private land.

63.  Once considered in this context:

(1)  The suggested statutory requirement of obtaining a general prior approval by the Director before construction waste could be lawfully deposited on private land would represent an entirely new and separate regulatory control to address problems relating to construction waste depositing activities.  This would amount to a major change of policy and approach to be introduced by the Administration.  If the Administration had indeed intended to do so, one would have expected it to state it expressly and clearly in the Consultation Paper and the LegCo Brief.  However, it is clear from reading these papers that nothing to that effect can be said to have been expressly mentioned at all.

(2)  Further, as pointed out by Mr Shieh, if the Administration really did intend to require the depositors or the landowners to obtain prior approval from the Director before they could deposit construction waste on private land, it could easily and simply have resorted to the mechanism already provided under section 16 of the WDO.[8]  Section 16 requires persons to obtain a licence from the Director for the disposal of waste on any land or premises.  At the time of the proposed amendments, the licensing requirement under section 16 was (and still is) only imposed on the disposal of clinical and chemical waste but not on construction waste.  However, had the Administration intended to require a prior approval from the Director to be obtained for depositing construction waste on private land, it could have easily achieved it through the Director publishing a notice in the Gazette under section 38 of the WDO[9] to make section 16 also applicable to construction waste.  In not so doing, it points strongly against an objective intention to introduce such a new prior approval requirement by way of sections 16B and 16C.

64.  Moreover, as I mentioned above, the present concern is about depositing construction waste on private land.  In other words, even in the context of environmental protection, it also concerns and relates to the private owners’ right to use their property.  The balance decided to be adopted by the Administration and the legislature in this respect is to impose a regulatory control for environmental protection which (a) requires the obtaining of the owners’ permission to deposit the waste, and (b) relies on the enforcement of section 16A and other relevant legislations.

65.  This is the regulatory control referred to in the Consultation Paper and the LegCo Brief which was said to be enhanced by the proposed amendments.  This regulatory control would be enhanced by sections 16B and 16C (which relate to proving the owners’ permission), and the prior notification with the other Government departments made through the Director (which has been implemented and made practicable by way of the acknowledgment requirement under sections 16B and 16C).  Hence, it is stated expressly at paragraph 10 of the Consultation Paper that in introducing the proposed amendments, the EPD“are committed to striking a balance between respecting private property rights and combating illegal depositing of abandoned C&D materials [ie, construction waste] on private land”.

66.  The fact that it is the Director who is entrusted with the power to affix the acknowledgement, and the existence of the Director’s power under section 23EA in my view do not take Mr Wong’s submissions further.  These matters are equally consistent with the above mentioned regulatory control and the fact that the Director has always been the prosecutorial authority under the WDO, including sections 16A and 16B.  In this respect, it should be noted that the LegCo Brief at paragraph 3 has stated that this regulatory control (in creating an offence of depositing activity without the owners’ permission) is regarded to have a “deterrent effect” against these activities, which in turn would have the effect of protecting the environment.

67.  For all these reasons, I therefore reject Mr Wong’s above submissions.

68.  In the premises, I conclude that, on a proper construction of section 16C(3), the Director does not have a discretion to refuse to affix an acknowledgement on a specified form when the Statutory Requirements have been met.

D.    Other matters and observations

69.  After having disposed of the main question in this application, there are a number of other matters that I need to address.

70.  First, as I mentioned above, the applicant has asked for leave to amend the Originating Summons to include the declaratory relief as sought.  Parties have agreed that I should decide whether or not to allow the amendment by considering whether it is supported by reasonably arguable grounds with a realistic prospect of success as if it were at the leave stage.

71.  The declaratory relief sought is premised on the success of the applicant’s submissions made for the construction issue.  Although I have rejected the applicant’s arguments after looking at the legislative materials and hearing full arguments on both sides, I would not say that they were not even reasonably arguable if it were considered at the leave stage.  On this basis, I would allow the amendment.  Costs of this summons is to be in the cause of this judicial review.

72.  Second, the Director has also by way of a summons dated 8 September 2016 asked for leave to file the 2^nd Affirmation of Fong Wing Yu.  The affirmation is sought to be filed mainly on the basis that it seeks to respond to some of the factual assertions made in the applicant’s 2^nd Affidavit which were not raised in the Form 86 or his 1^st Affidavit.  The assertions relate to what the applicant seeks to identify and point out as the various potentially hazardous materials contained in the construction waste that were deposited on the Subject Lots.

73.  The evidence on whether the construction waste deposited on the Subject Lots contained potentially hazardous materials or not is in my view irrelevant to the question of the proper construction of section 16C(3), which is the only relevant question remained in the present application.  Thus, strictly speaking this evidence is irrelevant.  However, given that the applicant has in his own affidavit raised these matters, and given that the 2^nd Affirmation of Ms Fong is a relatively short one (with only eight paragraphs and four pages), for completeness sake, I would exercise my discretion to give leave for this affirmation to be filed.  Again, the costs of this summons shall be in the cause of this judicial review.

74.  Third, in this judicial review, much evidence has also been filed by both the applicant (including an expert report) and the Director to address the court on whether construction waste could potentially contain environmentally harmful substances.  The applicant says it does.  The Director does not say it will never do, although she says generally speaking, construction waste predominantly contains inert materials and is not harmful to the environment.

75.  Further, Mr Wong for the applicant has made substantial and forceful submissions in his skeleton and at the hearing on why the mere owners’ permission requirement as provided under the statutory provisions would not give a sufficiently effective protection to the environment against construction waste depositing.  In particular, Mr Wong has emphasized that, more often than not, once the land’s environment has been adversely affected by the depositing of construction waste which contains hazardous matters, such as lithium-ion batteries and asbestos materials, the contamination cannot be reversed and corrected by any successful subsequent enforcement actions against the offenders.  The environment will be damaged and contaminated permanently.  Moreover, leading counsel has pointed out that the affected land’s natural habitat, ecosystem and beauty could also easily be destroyed by the dumping of construction waste, even if it contains only inert materials, such as rock, rubble and concrete, as the land’s natural landscape and habitat would be destroyed.  Hence, it is only with a preventive regulatory control, such as a pre-approval system, that could provide an effective measure to properly protect the environment.

76.  The observations in these submissions are very pertinent and may well be correct for the purpose of discussing and advocating what form of environment protection legislation there should be.  However, in my view, they are irrelevant to the very construction question I am faced with in the present case.  This is particularly so when there is no evidence to show that any of these considerations had been taken into account by the Administration and the legislature in considering the enactment of sections 16B and 16C.  As reminded by Mr Shieh, the court’s function in a construction exercise is to ascertain the objective intention of the legislature in enacting those provisions by applying the proper statutory interpretative process in accordance with the legal principles, but not to decide whether or not something is a good thing to have in a piece of legislation.

77.  Finally, Mr Shieh has sought to also rely on the Report of the Legislative Council Bills Committee (“the Bills Committee Report”) that deliberated on the Waste Disposal (Amendment) Bill 2013 (in particular paragraphs 5, 6, 10 and 11).[10]  He submits that this is part of the legislative materials would aid the construction of section 16C(3) in ascertaining the context of the enactment of sections 16B and 16C and the mischief these amendments sought to deal with.

78.  Mr Wong however opposes the reliance on this paper as this does not fall within the Pepper v Hart[11]principle nor does it amount to an explanation given by “Ministers” when introducing a bill in the legislature, or any report implemented by the legislation, to identify the purpose of the statutory provisions (see HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 perLi CJ at paragraph 14).

79.  On the other hand, Mr Shieh says the court can look at the Bills Committee Report under the well-established rule which permits recourse to legislative materials to ascertain the “mischief” which a statute is intended to address (in terms of the “mischief rule”) or its “purpose” (in terms of “purposive construction”).  This is a separate rule from Pepper v Hart, which concerns the use of statements in Hansard for the different purpose of explaining the meaning of ambiguous phrases.  See: Craies on Legislation (10^th ed) at paragraphs 27.1.9-27.1.11; HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at paragraph 17, and Town Planning Board v Town Planning Appeal Board [2014] 1 HKLRD 1056 at paragraphs 49 - 51.

80.  As can be seen at paragraphs 34 ‑ 39 above, I have only looked at the Consultation Paper and the LegCo Brief, which I find to be sufficiently clear to enable the court to ascertain the context and purpose of introducing sections 16B and 16C, and the mischief that these provisions were enacted to address.

81.  In the premises, it is unnecessary for me to determine whether it is permissible to look at the Bills Committee Report in the present case.  Given the way the arguments are advanced, which are to certain extent contextually-sensitive as to how a particular report’s content is based and drafted, I think it is more desirable to defer the debate to another more appropriate occasion.

E.   Conclusion

82.  For all the above reasons, the applicant fails in this judicial review.  I would dismiss it.

83.  I further order on a nisi basis that costs of this application be to the Director, to be taxed if not agreed, with certificate for two counsel.  The applicant’s own costs be taxed in accordance with legal aid regulations.

84.  Lastly, I thank counsel for their assistance in this matter.