Keywords: air pollution, control ordinance, asbestos, Hong Kong
In the recent case of HKSAR v. Wing Lok Construction & Engineering Co., Ltd.  2 HKLRD 669, the Court of First Instance allowed an appeal against the conviction of an owner1 of premises under s.77(2)2 of the Air Pollution Control Ordinance, Cap. 311 (APCO) for, when carrying out or causing the carrying out of work involving the use or handling of asbestos containing material3 in the premises, failing to appoint a registered asbestos contractor to carry out work.
The Facts, and the Decision of the Magistrate
The Defendant (i.e., owner of premises) appointed a specialist contractor to remove asbestos from a demolition site and also sub-contractors to clear rubbish from the site. Although the Defendant had also secured the site and engaged security guards, two items containing asbestos went missing. The Magistrate convicted the Defendant under s.77(2) of APCO and held that the Defendant had caused the items' removal by its "general inaction, particularly its failure to warn the workers" since, as a matter of common sense, the Defendant should have known that some employees might make mistakes or steal in the course of their work. Any person who is convicted of an offence under s.77(2) is liable to a fine of HK$200,000 and six months of imprisonment pursuant to s.77(5) of APCO. The Defendant appealed against the conviction.
The Court's Construction and Application of s.77(2) of the APCO
The appeal turned on the true meaning of "cause" (or causing) in s.77(2) of the APCO.
The Court was of the view that:
- A statutory offence of causing another person to do a prohibited act required the positive application of either the Defendant's authority, or its exertion of some capacity to control or influence the act of the workers. Accordingly, although the Defendant might have taken inadequate steps to secure the site and a workman might have stolen the two items, it cannot be said that the Defendant "caused" the theft.
- The Defendant did not want the items to be (i) removed by anyone (except the specialist contractor who was employed for that purpose), and (ii) stolen. There was no indication that the Defendant's less than adequate anti-theft measures were intended to benefit prospective thieves and if it was a possibility that the items had been stolen, which on the facts appeared to be the case, the Defendant could not be held to have "caused" their removal.
- There was no evidence to suggest that the theft had occurred with the Defendant's connivance or that the Defendant had desired that such an act would ensue. Since it was possible that the items had been stolen by outsiders or removed by workers, the Defendant could not be held to have caused their removal.
- That the Defendant should have been alive to the risk of theft is far from saying that the Defendant caused the theft by its own positive act.
In the premises, the Court allowed the appeal.
1 Owner is defined in s.2 of APCO to include in relation
to a building or premises, a lessee or occupier of the building or
premises and a contractor who has possession of a site for the
purpose of construction work.
2 S.77(2) provides that "A person who implements or causes the implementation of an asbestos abatement plan or carries out or causes the carrying out of work involving the use or handling of asbestos containing material contrary to section 75 commits and offence". S.75(1) of APCO sets out the obligation of the owner of premises to appoint a registered asbestos contractor when implementing an asbestos abatement plan or carrying out work which involves the use or handling of any asbestos containing material in the premises.
3 Defined in s.2 as any material, substance or product which is made with or contains more than 1% asbestos by weight as determined by a method approved by the Secretary for the Environment.
Originally published 10 July 2014
Visit us at www.mayerbrownjsm.com
Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2014. The Mayer Brown Practices. All rights reserved.
This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.