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URBAN PLANNING and ENVIRONMENTAL LAW QUARTERLYQUARTERLY (Published Since May 1992)

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URBAN PLANNING and ENVIRONMENTAL LAW QUARTERLYQUARTERLY (Published Since May 1992) An Association of Asian Commercial Law Firms FRED KAN & CO. Solicitors & Notaries URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLYQUARTERLY (Published since May 1992) We are confronted increasingly by examples of the government’s reluctance to fairly and resolutely enforce our planning and environment-protection laws: from slow or no reactions to illegal roads in country parks and bending planning laws to accommodate developers’ ambitions, to almost a state of denial of worsening air and water pollution. However, a long-standing record of inadequate penalties for environmental offences also contributes to this sorry state of affairs. The Editors ● WDO CONTENTS WEAK PENALTIES 1st offence - $200,000 and 6 months imprisonment UNDERMINE ENFORCEMENT 2nd (etc) offence - $500,000 and imprisonment for 6 months OF ENVIRONMENTAL LAWS ● WPCO FEATURE: Page We often hear and read criticism of the apparent lack of 1st offence - $200,000 and 6 months imprisonment political will in Hong Kong to monitor and resolutely 2nd (etc.) offence - $400,000 (plus $10,000 per day for WEAK PENALTIES UNDERMINE enforce our environment-protection and planning laws. continuing offence) and 6 months imprisonment Over the years, the UPELQ has from time to time made ENFORCEMENT OF ENVIRONMENTAL the same criticism of Hong Kong’s environmental agencies, ● APCO LAWS ................................................................1 mainly in the context of anti-pollution laws and laws Section 10(7)(a) (failure to comply with abatement designed to protect our natural environment. notice) – fine of $500,000 (plus $100,000 per day for continuing TOWN PLANNING ...........................................3 We make no apology for doing so again. Specifically, in offence) and imprisonment for 12 months. this edition we look at the courts’ long record of – by and Any other emissions offence – large – treating “environmental offences” very leniently, 1st offence – fine of $100,000 WEST KOWLOON CULTURAL DISTRICT especially compared with, for example, their approach 2nd (etc.) offence – fine of $200,000 (plus $20,000 per (WKCD) ............................................................4 to “commercial offences”, such as offences under the day) and imprisonment for 6 months Copyright Ordinance (Cap.118) (CO). Section 12 – fine of $200,000 (plus $20,000 per day) HONG KONG BRIEFING ...............................5 Having summarised in the UPELQ for 17 years penalties and 6 months imprisonment handed down in the magistracies, we have a strong and ADVISORY COUNCIL ON THE direct impression of very low average level of penalties Offences and penalties under the CO are covered imposed for offences under Hong Kong’s anti-pollution mainly by sections 118 and 119 : ENVIRONMENT (ACE) .................................6 laws. Without attempting an in-depth review of penalties statistics over the years, we shall consider examples of the ● Section 118(1) sets out a range of different REGIONAL & INTERNATIONAL ................8 two kinds of offences to illustrate the wide discrepancy offences which all, essentially, involve dealing between copyright and environmental penalties imposed by in some specified way with a copyright work the courts. without the licence of the copyright owner, such PROSECUTION STATISTICS ......................12 as selling or possessing for sale (etc.) copies of Statutory penalties copyright works. The environmental “sample” offences we shall use are ● Section 118(2A) makes it an offence to possess offences under : an infringing copy of a copyright work for the purpose of a trade or business. ● Sections 16, 16A and 17 of the Waste Disposal Ordinance (Cap.354) (WDO) – i.e. unauthorised ● Under section 119(1), the penalty for offences importation or dumping of waste against sections 118(1) or (2A) are a fine of ● Sections 8(1), 8(2), 9(1) and 9(2) of the Water $50,000 and imprisonment for 4 years. Pollution Control Ordinance (Cap.358) – (WPCO) – i.e. unauthorised polluting of public waters Courts’ approach to penalties ● Sections 10, 12 and 13 of the Air Pollution Control Ordinance (Cap.311) (APCO) – i.e. unauthorised EPD’s published penalties statistics for the sample period emissions of air pollutants of July-September 2008, include the following examples of pollution offences penalties : The prescribed penalties are : April 2009 URBAN PLANNING AND ENVIRONMENTAL LAW QUARTERLY Date of Offence Nature of Offence Fines($) / other sentences Date of Offence Nature of Offence Fines($) / other sentences APCO WPCO 11.6.2007 Failed to comply with the requirement 3,500 4.10.2007 Contravened the provisions of a 10,000 of an asbestos abatement notice licence 17.12.2007 Failed to take measures to control air 10,000 18.1.2008 Discharged waste/polluting matter 25,000 pollutant emission into the water control zone 4.1.2008 Emitted excessive dark smoke 8,000 11.12.2007 Discharged waste/polluting matter 5,000 3.1.2008 Emitted excessive dark smoke 5,500 into the water control zone 29.6.2007 Failed to comply with the requirement 4,000 5.3.2008 Discharged waste/polluting matter 5,000 of an asbestos abatement notice into the water control zone 18.2.2008 Emitted excessive dark smoke 6,000 28.2.2008 Discharged waste/polluting matter 8,000 into the water control zone 29.5.2008 Emitted excessive dark smoke 15,000 31.1.2008 Discharged waste/polluting matter 5,000 into the water control zone Date of Offence Nature of Offence Fines($) / other sentences 2.4.2008 Discharged waste/polluting matter 3,000 into the water control zone WDO 20.10.2007 Imported controlled waste without a 25,000 It can be seen from these examples that fines for environmental offences are, generally, permit under HK$10,000, and imprisonment is rarely ordered. Terms of imprisonment are mainly, if not only, limited to the offences of importing or exporting hazardous waste. For such 12.12.2007 Imported waste for disposal without 20,000 offences, Kwun Tong Magistracy on 4 June 2008 imposed imprisonment on 6 individual a permit offenders. They could have been members of an organised gang and/or repeat offenders. 18.12.2007 Imported controlled waste without a 25,000 We do not have those details. permit 25.1.2008 Deposited waste unlawfully 2,000 In any event, the sample penalties cited above, and the penalties summarised over the years in each edition of the UPELQ, show fairly clearly that magistrates treat environmental 3.1.2008 Deposited waste unlawfully 3,000 offenders extremely leniently, by imposing low fines, despite the prescribed significant 4.6.2008 Failed to engage services of waste 5,000 maximum penalties and the serious harm to the community (and its environment) caused collector by such offences. 4.6.2008 Failed to engage services of waste 5,000 collector On the other hand, the courts view copyright offences most seriously. 4.6.2008 Failed to engage services of waste 5,000 Prosecutions under the CO are less frequent than under our anti-pollution laws. collector Nevertheless, the examples we have considered illustrate clearly the courts’ far more 14.12.2007 Imported controlled waste without a 100,000 serious treatment of copyright offences, compared to a pervasively lenient judicial view permit of environmental offences. 9.1.2008 Deposited waste unlawfully 2,000 In HKSAR v. Chan Nai Ming (TMCC 1268/2005) the defendant was convicted on three 15.4.2008 Deposited waste unlawfully 8,000 counts of an offence under Section 118(1)(f) of the Ordinance. The defendant had bought 26.1.2008 Imported controlled waste without a 20,000 legitimate versions of three films and then uploaded them to a publicly accessible internet permit site, so that anyone with a computer could download the films for his own use. The 10.2.2008 Imported controlled waste without a 20,000 uploaded versions were illegal copies, the court ruled. permit Section 118(1)(f) prohibits possession of an “infringing copy of the work” for the purpose 10.2.2008 Imported controlled waste without a 20,000 of distributing it, other than in the course of a business. So, as the magistrate pointed out, permit the offence was the use of an illegal copy for a non-commercial purpose. The defendant 10.2.2008 Imported controlled waste without a 20,000 did not charge a fee for the down-loaded copies, and so did not stand to gain financially permit from the offences. However, the court noted that the prescribed penalty was the same as 18.3.2008 Discharged substandard liquid 5,000 for distributing an illegal copy for commercial gain (section 118(1)(d)), and that it was livestock waste the potential harm to the copyright owner which was the relevant sentencing factor to be taken into account. 3.1.2008 Deposited waste unlawfully 1,000 31.1.2008 Deposited waste unlawfully 2,000 The magistrate commented a number of times that courts must act responsibly by imposing 25.4.2008 Deposited waste unlawfully 200 deterrent sentences for copyright offences. The magistrate cited, as support, dicta of the Court of Appeal in Secretary for Justice v. Choi Sai-lok [1999] 4 HKC 334, such as : 25.4.2008 Deposited waste unlawfully 200 “We emphasise that custodial sentences of immediate effect [i.e. not suspended sentence] 21.2.2008 Deposited waste unlawfully 1,600 should be imposed for offences of this kind unless the circumstances can be said to be truly 26.2.2008 Deposited waste unlawfully 10,000 exceptional … The open flouting of the law in this trade requires sentences, even for first 28.2.2008 Deposited waste unlawfully 10,000 offenders, to act as a deterrent to others.” 28.2.2008 Deposited waste unlawfully 10,000 The magistrate noted that sentences of 6 to 12 months are generally imposed for offences 4.6.2008 Exported controlled waste without a 2 months’ imprisonment involving the sale of illegally copied ( i.e., “pirated” ) CDs and DVDs.
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