Hon Wei Industries Limited v. The Authority

DCMP000001/1984

THE APPEAL BOARD

AIR POLLUTION CONTROL ORDINANCE

BETWEEN

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Coram: Judge Wong

Date of judgment: 22nd September 1984

1. We dismissed this appeal on 22nd September, 1984. As it was the first appeal ever to come before the Board, we indicated that we would, for purpose of future reference, reduce our decision in writing and this we do now.

2. The Air Pollution Control Ordinance came into operation on 1st October, 1983 with the object to make provision for abating, prohibiting and controlling pollution of the atmosphere with particular reference to stationary sources and for matters connected therewith. The Commissioner for Labour is appointed the Authority to exercise part of the statutory powers and there exists under Part IV of the Ordinance a right of appeal to this Board against his decisions in respect of certain provisions.

3. The facts are briefly these. On 21st October, 1980 the appellant, through Y. C. Lau & Co., an engineering consultant firm, applied to the Air Pollution Control Unit of the Labour Department to instal and erect a steam boiler and chimney. The specifications stated in the application were, among other things, that the actual height of the chimney was 60 feet above ground and the fuel to be used was No.1 local grade dissoline with a sulphur content of 0.5%. The application was granted on 4th November, 1980 under those specific terms and conditions.

4. A smoke inspector first visited the appellant's factory at 46, Shek Wu New Village, Sheung Shui, New Territories on 9th December, 1981 and found that the chimney was only about 40 above ground and the fuel used in the boiler was not light dissoline or No.1 local grade oil. A warning letter was issued on 23rd December, 1981. The situation was not remedied during further visits and another warning letter was issued. The chimney was subsequently rectified and extended to about the specified height but fuel samples collected from the boiler still showed the sulphur content far exceeding the 0.5% limit.

5. Another smoke inspector visited the premises on 27th March, 1984 and the fuel sample collected revealed a sulphur content of 2.7% on analysis.

6. On 13th June, 1984, the Commissioner for Labour acting as the Authority issued a notice under section 30 of the Ordinance prohibiting the appellant from using fuel having a sulphur content exceeding 0.5% by weight.

7. These facts were not in dispute and were adduced from documents submitted by the Authority in pursuance to a Hearsay Notice issued under Order 38 of the Rules of the Supreme Court and sections 47 and 49 of the Evidence Ordinance, Cap.8.

8. The appellant filed a notice of appeal on 2nd July, 1984 and the grounds were:-

"This factory has been in operation since November, 1980. The steam boiler and the type of fuel used have always been the same as to-day. Furthermore, it does not appear that a fuel having a lower sulphur content could be used even after some modifications to the steam boiler had been carried out. To comply with your notice given under section 30 of the Air Pollution Control Ordinance would mean the closing down of the whole factory. It would be appreciated if the operation of the existing plant can be tolerated. "

9. At the hearing, the Authority was represented by Mr. Davis Hui, Crown Counsel and the appellant was represented by Mr. LAU Kwan-to, their manager. Mr. Hui opened the case for the Authority and then produced the bundle of the documents in pursuance to the Hearsay Notice. This concluded his case.

10. Mr. Lau addressed us next and called one witness, Mr. Chan Hon-hung. Mr. Chan was a mechanic and the proprietor of a metal works in a stone hut in Sheung Shui. This witness testified that in 1982 he received instructions from the manager of the appellant company to modify the boiler so that it could be used for burning No. 1 grade oil. He modified the pump and then tried it with a few buckets of oil but the result was unsatisfactory. In his opinion, the boiler requires a complete modification which involves the replacement of the pump and a modification of the supply of electricity. He reckoned that the work would take a month. He said he told the manager about this and the reply of the manager was that he would consider the matter and let him know. That was the last thing he heard from the manager. It is quite clear from the evidence of this witness that the boiler had been originally designed for burning No.3 grade oil and all along only No.3 grade oil had been used.

11. At the conclusion of the evidence Mr. Lau was invited to address us but he declined to do so. Mr. Hui addressed us. After-wards we retired to deliberate and returned about half an hour later to announce our decision. We made these observations:-

"We are satisfied that the appellant has been in breach of one of the important conditions under which their application to instal the chimney and steam boiler was approved. It is quite clear that No.1 local grade oil was never used and we strongly suspect that the appellant never had any intention to use it from the very beginning. We also believe that for economic reasons the appellant never wanted to have the matter put right. We were informed by Mr. Hui and we accept it that the current price for No.1 grade oil is $2.20 a litre whereas No.3 grade oil is only$1.70 a litre. This represents a substantial saving of about 30% of oil cost and we can well understand the appellant's reluctance and indeed persistence.

We do not accept that the modification work would take a whole month. The change of the pump is a very easy and simple process and, given the components, it would only take one to two days at most and this can be done during the weekend. The simplest thing for the appellant to do would be to contact the local agent of the manufacturer or a more experienced engineering firm dealing with similar type of machines instead of a back-street mechanic. We strongly recommend that the appellant seeks such re-course without further delay. "

12. We also considered whether we should award costs to the Authority and having regard to the provision in section 33(6) we concluded that we had no power to award costs where an appeal was dismissed. Accordingly we made no order for costs.

13. Just before we rose, Mr. Lau asked us to stay the Order for a month so as to enable his company to carry out the modifications. We refused the application. The appellant had more than two years to do this and yet chose to do nothing. In our view, this is a case that the appellant had been deliberately flouting the law for financial gains and did so without any regard for public safety. It would be totally wrong for us to permit such criminal and selfish conduct to perpetuate.

Representation:

Certified true copy

(Cindy Yeung)

Typist 12.10.84