HKSAR v. Dragages Hong Kong Ltd

[English Translation― 英譯本]

HCMA 238/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 238 OF 2014

(ON APPEAL FROM KTS 19665 OF 2013)

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BETWEEN:

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Before: Hon Barnes J in court

Date of hearing: 24 September 2014

Date of judgment: 24 October 2014

JUDGMENT

1.The present case concerns two summonses at trial. By the first summons, KTS 19665/2013, the appellant Dragages Hong Kong Limited (D1) was charged with contravening sections 6(1)(b) and 6(5) of the Noise Control Ordinance. D1 pleaded not guilty to the charge. By the second summons, KTS 19666/2013, the 2^nd defendant at trial, Houtai Construction Limited (D2) was charged with contravening the same provisions. D2 also pleaded not guilty to the charge.

2.After trial before Deputy Magistrate Kenneth Chan Esq., D1 and D2 were each convicted of the charge against it. D1 was fined $80,000. D1 now appeals both conviction and sentence.

Contents of the information

3.The respective information in the two summonses alleged that on 17 May 2013, which was a public holiday, D1 and D2 caused to be used powered mechanical equipment, namely, more than two excavators, for the purpose of carrying out construction work other than percussive piling, at the construction site of Kai Tak Government Offices (Trade and Industry Tower, near Site 1D4, Zone 3, Kai Tai Development Phase 3, Concord Road, Kai Tak, Kowloon) (Architectural Services Department Contract No: SS W304), otherwise than in accordance with a condition of a construction noise permit (No: GW-RE0366-13) in force in respect thereof, namely Condition 3a. The particulars of the contravention were that powered mechanical equipment other than that permitted was caused to be used.

Prosecution case

4.There is no dispute that D1 was the principal contractor of the relevant construction site (“the Site”) and that D2 was a sub-contractor of D1. According to the construction noise permit issued to D1 by the Environment Protection Department (the “EPD”), on the day of the offence, which was a public holiday, D1 was only permitted to use at the Site two track laying excavators bearing a quality powered mechanical equipment label showing a sound power level equivalent to or lower than 103 dB(A).

5.PW1 was a resident relations officer of a private housing estate across from the Site. On 17 May 2013 he received a complaint from a resident that construction work was being carried out at the Site on a public holiday. Later that day, at 3.08 pm PW1 used a camera to make a video record the situation at the Site. PW1 said he saw six excavators in operation at the Site, although he could not tell for how long they had been in operation. He left after taking video for three minutes. PW1 subsequently lodged a complaint with and submitted the video footage to the EPD. The video footage, which was not in dispute, was produced at trial as Exhibit P11 and P11A.

6.EPD officers subsequently interviewed representatives from D1 and D2. D1’s representative Mr Liu Hoi-yu (transliteration) said under caution that the company had not instructed its sub-contractors not to comply with the provisions of the construction noise permit while working on public holidays. D1 held regular meetings informing its sub-contractors of the updated contents and effective dates of the construction noise permit, and asked its sub-contractors to strictly comply with the permit. One the day of the offence, D1 had carried out a spot check at the Site but did not notice any contravention. The relevant time slot (i.e. around 3 pm) was the rest period often referred to as “tea time” at the work site, and the “quantity of soil excavated” that day was merely 53% of the usual quantity, and therefore My Liu did not believe that the sub-contractor had to use “five” excavators to do the “soil excavation” work that day.

7.Having viewed the relevant video footage, D2’s representative Mr Ling Chi (transliteration) said under caution that only two, not five, excavators performed the “soil excavation” work that day. Following a downpour the night before, the inclined soil slope presented an imminent risk, and hence two excavators were used to perform urgent reinforcement work. The remaining excavators were merely engaged to perform maintenance inspection and adjustment work which was routinely done on holidays.

Defence case

8.Mr Liu Hoi-yu, D1’s site agent, adopted part of his cautioned statement as evidence. He also explained in detail that D1 held meetings at which the contents of the construction noise permit were explained to the sub-contractor. For every holiday, D1 would hold brief meetings to remind its sub-contractors and D1’s own staff members of the machines which could be operated during the holiday. During each holiday, D1’s employees would inspect the Site and go to the housing estate across from the Site to test and measure the noise level, in order to ensure that the noise level was within limit. D2 had not breached the provisions of the construction noise permit at the Site during the past two years or so.

9.D1 was aware that D2 would carry out work at the Site on 17 May 2013, and D1’s construction manager Mr Fred Cho and other staff members such as supervisors would be on duty that day.

10.D1 called a site supervisor Mr Ho Tak-fai (transliteration) to give evidence. Mr Ho said he was on duty on the day of the offence and that he and his colleagues had been reminded by his superior of the need to prevent the making of noise on public holidays.

11.On the morning of the day in question, he carried out an inspection at the Site and saw two excavators in operation. When he carried out a second inspection at 2.45 pm, it was raining and D2’s workers were no longer working at the Site. He left the Site and went to “have tea” at about 3 pm. When he returned to the Site at about 4 pm, he did not see any excavator in operation. He was not sure if there was any risk of the slope collapsing.

12.D2 called its safety and environmental supervisor Mr Liu Kar (transliteration) to give evidence. He confirmed that D1 had held meetings on site safety and environmental protection, which he had attended. He said he had explained the requirements of the construction noise permit to D2’s supervisors and workers, and he did not notice any contravention when he conducted irregular inspections at the Site. He was not on duty on the day of the offence.

The magistrate’s findings

13.After considering and analyzing the testimony and evidence and carefully watching the relevant video footage, the magistrate found that there were six excavators in operation on the day of the offence, carrying out soil excavation and delivery work, in breach of the relevant condition of the construction noise permit. The smaller than usual “quantity of soil excavated” that day was, in the magistrate’s view, of no evidential value.

14.Referring to decided cases including HKSAR v Paul Y-ITC Construction Ltd [1998] 2 HKLRD 35, the magistrate held that D1 had “caused” to be used the excavators in question.15.         The magistrate did not accept D2’s case that more than two excavators were used at the material time as urgent slope maintenance work had to be carried out.

16.The magistrate held that D1 and D2 had failed to make out the statutory defence under section 33(b) and (c) of the Noise Control Ordinance.

17.The magistrate also considered the common law defence raised by D1 and had this to say:

“75. Turning to D1’s common law defence, I would make the following observations. Although D1 had prominently displayed the construction noise permit at the entrance of the construction site, arranged meetings on safety and environmental issues, and also held special brief meetings before holidays to remind sub-contractors, including D2, to abide by the legislation and the construction noise permit, it does not mean that D1 could complacently believe that it had already complied with the relevant legislation and permit. Had it been sufficient just to hold meetings, D1 would not have had to dispatch its supervisors to inspect the construction site during holidays at all. The fact that D1 required DW2 to be on duty and carry out the inspection on the day of the offence serves to demonstrate that D1 well knew that it was insufficient merely to hold meetings and train its sub-contractors and employees.

76. On the other hand, work on that day was five days ahead of schedule, and D1 has no record of having contravened the rules. However, it does not mean that D1 could neglect to take measures to prevent the sub-contractors from breaching the rules, or that D1 could be complacent and fully confident that the sub-contractors would not contravene the rules. As common sense tells us, theft is not necessarily committed only by the poor; the well-off may also commit theft. By the same simple logic, sub-contractors do not contravene the rules only when work is behind schedule. Hence, the supervision that D1 as the principal contractor was expected to carry out on itssub-contractors should not depend on whether the construction work had been delayed by rain or was behind schedule at that time. It follows that, had D1 performed its own duty by providing sufficient manpowerto supervise its sub-contractors, it might be able to make out the common law defence. However, D1’s evidence in this regard is that even DW2, as a supervisor, was not sure if there were other supervisors on duty. He left the construction site for some time between 3 pm and 4 pm to enjoy the afternoon tea break, thereby allowing D2’s workers to seize that opportunity to contravene the rules in the absence of his supervision. D1 could expect to earn the substantial profit specified on the contract marked Exhibit P6 upon completion of the project at the relevant construction site. To prevent the sub-contractors from contravening the rules, D1 was only required to engage a sufficient number of supervisors on the day of the offence and arrange for supervisors to oversee the relevant construction site at all times. The expenses incurred by D1 in this regard were simply negligible when compared with the profit it could obtain. Given D1 was not even able to properly make such a simple arrangement, it could not possibly have good and sufficient reasons to believe that it had complied with the relevant provisions and the conditions of the permit.

77.       Apart from DW2, Mr Fred Cho, a construction manager of D1, was also on duty that day. I have no idea what he exactly did at the construction site that day, but during the hour when DW2 was absent from the construction site, among D1’s employees who were present there, at least Mr Fred Cho should have taken up the responsibility of overseeing the construction site. An excavator is a sizable piece of equipment which creates considerable noise when in operation, and it was for this reason that the relevant construction noise permit imposed a limit on the number of excavators. If six excavators were made to operate simultaneously in open air at the construction site, the consequences would be obvious. Had Mr Fred Cho or other employees of D1 carried out the supervisory duty that D1 as the principal contractor was expected to perform, that situation would have been detected and stopped. As Pang J pointed out in para 17 of his judgment in HKSAR v Kum Shing (K.F.) Construction Company Limited (unreported) (HCMA 526/2007), the defendant cannot shirk all its supervisory duties by citing ignorance. In the absence of any proper supervisory arrangements, everything else done by D1, such as holding meetings on safety and environmental issues, would reduce to empty talk and serve no real purpose. I find that D1 has failed to prove on a balance of probabilities that it had good and sufficient reasons to believe it had complied with the Ordinance and the conditions of the construction noise permit.”

18.The magistrate held that the prosecution had established its case and convicted the two defendants as charged.

Grounds of appeal (conviction)

19.The grounds of appeal against conviction put forward by Mr Fong, Counsel for the appellant, essentially touch on two aspects:

(1) there is no sufficient evidence showing that on the day of the offence six excavators were in operation simultaneously carrying out soil excavation and delivery work, and the magistrate erroneously held that the appellant could not rely on the statutory defence under section 33(b) and (c) of the Noise Control Ordinance;

(2) the magistrate took a wrong approach to the appellant’s common law defence.

20.On the first aspect, at the hearing I had the opportunity of repeatedly watching the relevant video footage, which did show six excavators carrying out soil excavation and delivery work. I did not see any excavators carrying out any urgent slope maintenance work. The magistrate’s findings of fact are correct. The two defendants had been in breach of the relevant condition of the construction noise permit by using more than two excavators at the time of the offence, and they could not rely on the statutory defence under section 33(b) and (c) of the Noise Control Ordinance.

21.Nor has the appellant insisted on pursuing the aforesaid ground of appeal. The main ground of appeal is on the second aspect which concerns the common law defence.

22.The appellant criticizes the magistrate’s approach to the common law defence as arbitrary and erroneous. His analysis has, it is argued, gone beyond what is required of a defendant who puts forward the common law defence, namely that he had good and sufficient reasons to believe that he had complied with the relevant legislation—even if the belief was mistaken. The appellant says that the magistrate has set too high a threshold, which was tantamount to requiring the appellant to supervise its sub-contractors at all times so as to deny them any opportunity to contravene the rules. The appellant submits that this requirement is unreasonable, unrealistic and excessively harsh. The magistrate has, it is submitted, adopted a wrong approach in evaluating the appellant’s case by applying his own objective standard instead of taking into account the appellant’s subjective belief.  It is submitted that, even if all the employees of the appellant were absent from duty without authorization so that D2 had an opportunity to contravene the rules, the appellant should still be able to rely on the common law defence, as it was not aware that its employees would act contrary to its instructions.

23.The appellant’s submission is essentially that the magistrate should have accepted that the appellant had good and sufficient reasons to believe that it had complied with the legislation—even if its belief was mistaken.

My considerations

24.Having considered the testimony and evidence in the present case, as well as the very detailed analysis and reasons for findings given by the magistrate, I do not accept the appellant’s criticisms and submissions.

25.The magistrate’s findings are proper and correct. The appellant submits that the evidence showed that D1 had good and sufficient reasons to “subjectively” believe that it had complied with the relevant legislation. However, as a matter of fact, if D1 had in place a sound system of work and provided sufficient manpower to supervise the Site during public holidays, it is hard to see how D2 could have had the opportunity to operate as many as six excavators which produced construction noise. D1’s supervision at the Site on the day in question was plainly inadequate. Furthermore, Mr Ho Tak-fai, being a construction site supervisor, was not even sure if other supervisors were on duty. It seems that Mr Ho Tak-fai had not arranged for other supervisors or workers to take over his supervisory duty before he left the Site to “have tea”.

26.It is irrational to suggest that D1 subjectively believed that its employees would comply with its instructions, but that all the employees on duty that day (from the construction manager Mr Fred Cho down to the supervisors) were derelict in their duties and acting contrary to D1’s instructions. On the undisputed facts, D1 had given D2 an opportunity to contravene the rules, and D1 had plainly not performed its supervisory duty. I disagree with the appellant’s submission that the magistrate set too high a threshold. This ground of appeal must fail.

27.I dismiss the appeal against conviction.

Reasons for sentence

28.The magistrate’s reasons for sentence are as follows:

“Reasons for sentence

79. The present case involves six excavators, exceeding the number stipulated in the relevant construction noise permit by as many as four. On the evidence, the contravention lasted only about three minutes but occurred in broad daylight and in open air. By failing to dispatch enough supervisors to supervise the sub-contractor, D1 gave the sub-contractor an opportunity to perform the contravening act during the afternoon tea break by arranging six workers to work at the same time during the supervisory vacuum. Although I accept defence counsel’s submission that D1 merely failed to provide adequate supervision and that D1 did provide some training to its staff, this is D1’s 26^th similar conviction, and the heftiest fine it has been ordered to pay for previous similar convictions is HK$50,000.

80. In Paul Y-ITC (ibid), the appellant was fined $10,000 by the magistrate in respect of each offence under section 6 of the Noise Control Ordinance. The Court of Appeal said in its judgment of that 1998 case as follows (at p.45 F-H):

“Finally, we observe with some dismay that this was the fifteenth time in four years that the [a]ppellant company had breached the Noise Control Ordinance [Cap.400]. The reason for this observation is that if there had been an appeal against the sentence, we would have considered the fines imposed as being manifestly too low. In a society which is crying out for sensible control over pollution of whatever kind, the penalties should properly reflect society’s concern. Bearing in mind that Mr. Watson-Brown has informed us that this was a multi-million dollar contract, no main contractor will ever be deterred by fines being consistently imposed at such low levels. Fines at these levels amount to almost to [sic] an incentive to commit future breaches of this kind.”

81. It is clear that D1 has not been sufficiently deterred by the 26 fines in the past. The construction project in the present case will generate substantial profit for D1, and the penalty imposed should not be as low as the fine of $10,000 imposed in Paul Y-ITC (ibid), otherwise it will, as the Court of Appeal pointed out, amount to an incentive to contravene the legislation.

82. Defence counsel submits that D1 has never committed the same offence at the construction site involved in the present case, its past convictions being concerned with offences committed at other construction sites. Let me give an example: a defendant who commits theft for the first time in supermarket A will not receive a lenient sentence just because he has committed theft 26 times in supermarket B. Hence, the fact that this is D1’s first conviction in respect of the construction site in question is not a mitigating factor.

83.       D1’s plea of not guilty indicates a lack of remorse. The relevantlegislation provides that the maximum fine for a second conviction of the same offence is HK$200,000. I have considered the above factors, including: the fact that the contract price of the project carried out by the principal contractor is as high as HK$2 billion, the Court of Appeal judgment in Paul Y-ITC (ibid), the fact that D1 had merely failed to provide adequate supervision, D1’s past conviction records, and the fact the number of excavators involved in the present case doubled that allowed by the permit. I adopt as a starting point a fine of HK$80,000. As I can see no mitigating factors, I impose a fine of HK$80,000 on D1 in respect of the conviction for the information in KTS 19665/2013.”

Grounds of appeal (sentence)

29.The appellant submits that the magistrate failed to adequately consider the fact that D1 had taken measures during the past one or two years to prevent its sub-contractors and employees from contravening the Noise Control Ordinance, and that D2 is more culpable than D1 as the present offence was committed by D2 in the absence of D1’s supervisor. It is submitted that the starting point of $80,000 adopted by the magistrate is manifestly excessive.

30.The appellant has also referred to a number of cases in an attempt to show that the fine of $80,000 in the present case is heavier than the sentence normally imposed in similar cases[1].

My considerations

31.Section 6(5) of the Noise Control Ordinance provides that any person who commits an offence under section 6 shall be liable on second or subsequent conviction to a fine of $200,000.

32.D1 has 26 conviction records for the offence under the relevant section. The magistrate took into account the insufficient deterrent effect of previous penalties imposed on D1, and also the relevant project’s contract price which, at a staggering HK$2 billion, would bring substantial profit to D1. The magistrate took the view that the level of fine should not be as low as that adopted in the case of Paul Y-ITC, otherwise it would amount to an incentive to contravene the legislation.

33.The cases referred to by the appellant are all appeals against conviction. In Teamfield Building Contractors Limited, the appellant was fined $60,000 for contravening the Noise Control Ordinance by “handling wooden boards and hammering”. In Kum Shing (K.F.) Construction Company Limited, the appellant was fined $40,000 for contravening the Noise Control Ordinance by “carrying out construction work other than percussive filing with a break barrow installed on an excavator”. In Unistress Building Construction Limited,the appellant was fined $6,000 and $4,000 for contravening the Noise Control Ordinance by “carrying out construction work other than percussive filing with an electric saw” and “handling wooden boards and hammering” respectively.

34.As the above cases are all appeals against conviction and not sentence, they provide no information whatsoever as to whether those appellants had any previous convictions or whether the fines were manifestly excessive.

35.Furthermore, the present case, involving as it does six excavators, is obviously far more serious than the aforesaid three cases.

36.The magistrate imposed a fine of $80,000 after taking into account all the circumstances. There is nothing improper with his decision, nor is the fine of $80,000 manifestly excessive in any way.

37.For the above reasons, I also dismiss the appeal against sentence.

Miss Audrey Marie Parwani, Acting Senior Public Prosecutor of the Department of Justice, for the respondent HKSAR

Mr Raymond Fong, instructed by W.K. To & Co, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor