For discussion
on 5 March 1999


INTRODUCTION

This paper presents a proposal to amend the Noise Control Ordinance (NCO), Cap. 400 to specify explicitly that when a person committing an offence under the NCO is a body corporate, the top management (for example a director, secretary or a manager) of the body corporate could be held liable for the offence.

BACKGROUND

2. Under the existing NCO provisions, the Environmental Protection Department (EPD) may institute proceedings against any person who commits an offence. In many cases, the offence is committed by a body corporate. Currently, the NCO does not have an explicit provision for prosecuting the top management of a body corporate concerned for offences committed by the body corporate under the Ordinance. In other environmental protection legislation in Hong Kong there are provisions for imposing liability on the top management of a body corporate. Examples are Section 29 of the Environmental Impact Assessment Ordinance (Cap. 499) and Section 47A of the Air Pollution Control Ordinance (Cap. 311).

CURRENT SITUATION

3. Despite the fact that maximum fines under the NCO have been doubled since late 1994, this has not deterred the recurrence of offences or repeated violations. One cause appears to be that some corporate management do not have due regard to environmental compliance since they are not held personally liable for the actions of their companies.

4. EPD spend much time in liaison with the management of companies which commit repeated offences under the NCO. However, there are still many instances where these companies have violated the NCO repeatedly. In the past three years, forty-four bodies corporate were convicted five times or more under the NCO. Twelve of these bodies corporate had more than ten convictions, including two construction companies having been convicted thirty-three times and twenty-four times respectively for construction noise offences. These repeated offences indicate that the existing provisions under the NCO do not have sufficient deterrent effect, and some corporate management may simply treat the fines imposed on the body corporate as part of the project cost.

PROPOSED AMENDMENTS

5. It is proposed that the NCO be amended to unambiguously place the onus of compliance of the NCO on the top management of body corporate to deter repeated violations. The proposed amendment will explicitly state that when the offender under the NCO is a body corporate, the top management of that body corporate commits a like offence. For an offence related to the carrying out of construction work without a construction noise permit being in force, there shall be no explicit statutory defence provision for the corporate management in being held liable. This is because the permit requirement for carrying out construction work during restricted hours under the NCO has been in operation for 10 years. There should not be any excuse for the top management of a body corporate not to be aware of this basic requirement. For other offences under the NCO, a statutory defence for the corporate management will be included. The corporate management of a body corporate will have to prove that they have taken steps to prevent a contravention through establishing and operating a proper management system. EPD will also issue a Code of Practice to guide the industry in exercising due diligence to prevent violations under the NCO.

6. The proposed amendment defines clearly the environmental responsibility of the corporate management and will help promote changes in corporate philosophy with regard to environmental compliance. This will help deter a body corporate from repeated violations, make the top management more environmentally accountable and minimise the noise nuisances to the community. Other legislation has already adopted similar provisions to increase the deterrent effect.

PUBLIC REACTION

7. As the proposed amendment will reduce repeated violations under the NCO leading to a quieter environment, it is anticipated that the general public will welcome the amendment.

ADVICE SOUGHT

8. Members are requested to give their advice and comments on the proposal to amend the Noise Control Ordinance, Cap. 400, as described above. Subject to further consultation with the Advisory Council on the Environment and approval from the Executive Council, we intend to introduce the proposed legislation to the Legislative Council at the sitting on 5 May 1999.


Planning, Environment and Lands Bureau
February 1999