HKSAR v. SUNLEY ENGINEERING & CONSTRUCTION CO. LTD.

HKSAR v. SUNLEY ENGINEERING & CONSTRUCTION CO. LTD.

The appeal is dismissed because Regulation 17B together with the licensing provisions of the Water Pollution Control Ordinance create strict liability for breaches of licence conditions: the prosecution need not prove who caused the discharge and a licensee must take all reasonable steps to prevent breaches or prove on the balance of probabilities that such steps were taken; absence of such proof supports conviction.

Citation
HKSAR v. SUNLEY ENGINEERING & CONSTRUCTION CO. LTD.
Parties
Respondent: HKSAR; Appellant: Sunley Engineering & Construction Co. Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 April 2001
Case Number
HCMA1026/2000
Procedural Posture
Magistracy Appeal / Judgment on Appeal
Outcome
Appeal dismissed; conviction and sentence upheld
Legal Topics
Strict Liability, Licence Conditions, Vicarious Liability, Burden of Proof, Statutory Defences, Pollution Control
Source Language
EN
Environmental Law Criminal Law Administrative Law Regulatory Licensing Construction Law Strict Liability Licence Conditions Vicarious Liability +3 more

Case Brief

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Parties

HKSAR

Respondent

Sunley Engineering & Construction Co. Ltd

Appellant

Procedural Posture

Magistracy Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether Regulation 17B(1) and the licence conditions impose a positive duty on the licensee to take all reasonable steps to prevent discharge of sub-standard effluent
  2. 2 Whether a licensee can be criminally liable merely by virtue of position or under a vicarious liability theory
  3. 3 Whether the offence under Reg 17B is one of strict liability with displacement of mens rea

Ratio Decidendi

The appeal is dismissed because Regulation 17B together with the licensing provisions of the Water Pollution Control Ordinance create strict liability for breaches of licence conditions: the prosecution need not prove who caused the discharge and a licensee must take all reasonable steps to prevent breaches or prove on the balance of probabilities that such steps were taken; absence of such proof supports conviction.

Court Disposition

Appeal dismissed; conviction and sentence upheld

Orders

  • Appeal against conviction dismissed
  • Conviction and fine of HK$40,000 affirmed