For discussion
on 29 March 1999

INTRODUCTION

Arising from the discussion of the proposed amendments to the Noise Control Ordinance at the meeting of the Panel on Environmental Affairs held on 5 March 1999, this paper provides Members with the following additional information:

1. expected deterrent effect of the proposed amendments;
   
   
2. level of fines imposed by the court in the past three years;
   
   
3. effect of noise offences on the community;
   
   
4. effect of noise on workers;
   
   
5. extent of consultation with relevant bodies; and
   
   
6. responsible persons of bodies corporate.

EXPECTED EFFECTS OF THE PROPOSAL

2. For offences under the Noise Control Ordinance, it is our existing practice to prosecute individual proprietors or owners of non-corporate companies and the corporate company itself if the offender is such a body. A breakdown of conviction records showing categories of person being convicted in the past three years is given in Annex A. Individual owners or business proprietors were involved in some 35, 48 and 40 percent of first convictions in 1996, 1997 and 1998 respectively. However, they were involved in less than 10 percent in 1996 and less than 3 percent in 1997 and 1998 of second or subsequent convictions. It is apparent from the statistics that individual owners or business proprietors are less likely to repeat an offence. This may be due to the fact that they are being held personally responsible for an offence. We therefore fully expect that the proposal to held the top management of a body corporate personally liable for the offence will help to achieve similar deterrent effect and at the same time encourage the top management of these bodies to take appropriate steps to ensure compliance with the law.

LEVEL OF FINES

3. Maximum fine under the Noise Control Ordinance is $100,000 for the first conviction and $200,000 for the second or subsequent conviction. Information on the level of fines imposed by the courts for contravening the Noise Control Ordinance in the past three years is given in Annex B. The highest fine imposed for repeated construction noise offence in 1998 was $160,000 and the average fine was around $14,000 for the first conviction and $32,000 for the subsequent conviction. The highest fine imposed for repeated industrial / commercial noise offence in 1998 was $70,000 and the average fine was around $16,000 for first conviction and $27,000 for second or subsequent conviction. To enable the court to better understand the severity and extent of the noise problem, the Environmental Protection Department has briefed the judicial officers in 1993 and 1996 on the enforcement situation.

EFFECT OF NOISE ON THE COMMUNITY

4. A breakdown of conviction records showing the nature of the offence and the impact to the neighbourhood in 1998 is given in Annex C. Most of the construction noise convictions involve the use of powered mechanical equipment such as cranes, excavation machine, concreting machine, etc. in building development sites. The typical noise level of these activities may reach 80dB(A) at nearby residential blocks, thus depriving many residents of a period of rest after 7 p.m. or before 7 a.m. of weekdays or on public holidays.

5. For industrial noise, most convictions involve the operation of ventilation systems, water pumps, workshops, etc. The typical noise levels perceived at nearby residential flats were in the range of 60 - 75dB(A) affecting people's daily household activities.

EFFECT OF NOISE ON WORKERS

6. Noisy environment will affect the health of workers. The government has specified 25 noisy occupations under the Occupational Deafness (Compensation) Ordinance, Cap. 469. A person who has had at least 10 years of employment in aggregate in the specified noisy occupations (or at least 5 years in the case of four particularly noisy occupations namely rock grinding, chiselling, cutting or percussion; pile driving; abrasive blasting operations and gun-firing operation) can apply for compensation.

7. In 1997-98 the Occupational Deafness Compensation Board has approved compensation to 428 workers. Those workers, on the average, were suffering from noise-induced deafness with 17.6% permanent incapacity as determined under the Occupational Deafness Compensation Scheme. More than 60% of the workers compensated in 1997-98 are related to the four particularly noisy activities. Detailed occupational profiles of the workers affected are shown in Annex D. It should be noted that noise at work in industrial undertakings is now controlled under the Factories and Industrial Undertakings (Noise at Work) Regulation and employers are required to take preventive steps to protect the hearing of employees who are likely to be exposed to hazardous noise levels.

CONSULTATION

8. The proposed legislative changes are formulated taking into account comments and suggestions from various government bodies. Related trade associations and bodies at Annex E have been consulted on the proposal. Their comments and response from the Environmental Protection Department is set out in Annex F.

RESPONSIBLE PERSON

9. Similar to other environmental legislation, the amendment aims to place the onus of complying with the laws on those persons who have the ability and responsibility to improve the management, operation and supervision of the bodies corporate. The top management will be defined as "director, manager, secretary or other similar officer thereof, or who was purporting to act in any such capacity". For example, the director who signs the Annual Return to the Registrar, under the Companies Ordinance may be held liable of the offence committed by the body corporate.

ADVICE SOUGHT

10. Members are requested to give their advice and comments on the proposal to amend the Noise Control Ordinance, Cap. 400, as described in the paper submitted to Members at the meeting on 5 March 1999.


Planning, Environment and Lands Bureau
March 1999

Annex A

			No. of Convictions
Year		Corporation	Sole Proprietor (person/owner)	Individual
	Total
1998
	1st conviction	118(60%)	24	57	199
	Subsequent conviction	205 (97%)	6	0	211
	Total	323	30	57	410
1997
	1st conviction	108 (52%)	15	83	206
	Subsequent conviction	231 (97%)	3	5	239
	Total	339	18	88	445
1996
	1st conviction	88 (65%)	13	35	136
	Subsequent conviction	105 (91%)	5	6	116
	Total	193	18	41	252

Annex B

Fines imposed by court under the Noise Control Ordinance

in 1996-1998

Year/no. of conviction		No. of Cases (Construction #)	Fines (HK$)		No. of Cases (Industrial *)	Fines (HK$)
1998
	1st		Max.	50,000		Max.	50,000
conviction		103	Min.	1,000	67	Min.	0^^
			Avg.	14,194		Avg.	16,022
Subsequent			Max.	160,000		Max.	70,000
conviction		196	Min.	2,000	14	Min.	100
			Avg.	32,253		Avg.	26,793
1997
	1st		Max.	50,000		Max.	30,000
conviction		150	Min.	1,000	40	Min.	3,000
			Avg.	12,577		Avg.	13,225
Subsequent			Max.	180,000		Max.	100,000
conviction		214	Min.	3,000	24	Min.	3,000
			Avg.	33,584		Avg.	25,500
1996
	1st		Max.	50,000		Max.	50,000
conviction		56	Min.	3,000	49	Min.	2,000
			Avg.	16,017		Avg.	17,528
Subsequent			Max.	150,000		Max.	100,000
conviction		61	Min.	5,000	51	Min.	8,000
			Avg.	31,180		Avg.	28,254

Notes:

# convictions on breaches in construction sites

* convictions on breaches in commercial/industrial premises

^^ the magistrate in this case was satisfied that the defendant had promptly responded to the complaint and hired contractor to rectify the noisy ventilation system

　

Annex C

Breakdown of the Conviction Records in 1998 showing nature of the

major noise offences and the impact to neighbourhood

(A) Construction Noise

Major types of noisy equipment used or activities carried out in the offences	No. of conviction cases*	Typical noise level at nearby domestic building #	Estimated number of households affected in each case
Crane for handling steel bars/ dropping of steel bars	130	70~75 dB(A)	100
Concrete lorry mixer and poker vibrator for concreting	34	75~80 dB(A)	200
Bulldozers for excavation	38	70~75 dB(A)	100
Circular saw to cut steel and wood	15	70~75 dB(A)	100
Others (e.g. bar bender, drill, generator, etc.)	70	65~80 dB(A)	100
Manual work not involving equipment (e.g. hammering and formwork)	12 (4%)	65~80 dB(A)	100

Notes :

* Out of the total 299 convictions on construction noise offences

# Typical separation between construction sites being complaint about and the nearby domestic buildings is 20 metres

(B) Commercial/Industrial Noise

Major noise sources found in the offences	No. of conviction cases*	Typical noise level at nearby domestic flats #	Estimated number of households affected in each case
Ventilation systems	38	60~75 dB(A)	20
Pump, motor & lift machines	17	60~75 dB(A)	10
Others (e.g. workshop, factories, karaoke, etc.)	26	60~75 dB(A)	50

Notes :

* Out of the total 81 convictions on commercial/industrial noise offences

# Normally noise from places such as pump rooms, lift machine rooms affect residences in the same building whereas noise from ventilation and air-conditioning systems also affect nearby domestic buildings typically at 20 metres away.

Annex D

Occupation Deafness Compensation in 97-98

Occupation Profile of approved cases for the period 1/4/97 - 31/3/98

[Information provided by Occupational Deafness Compensation Board]

Type of noisy occupation engaged		No. and distribution of claimants (%)
(1)	Metal grinding	28	(6.5)
(2)	Metal percussion	24	(5.6)
(3)	Rock grinding, chiselling, cutting or percussion	267	(62.4)
(4)	Metal forging	0	(0.0)
(5)	Weaving or spinning	25	(5.9)
(6)	Cutting, shaping or cleaning nails or screws	2	(0.5)
(7)	Using plasma spray gun for deposition of metal	0	(0.0)
(8)	Using routing, planing, circular sawing machines or automatic lathes	18	(4.2)
(9)	Using chain saw	0	(0.0)
(10)	Pile driving	4	(0.9)
(11)	Abrasive blasting operations	2	(0.5)
(12)	Grinding of glass	0	(0.0)
(13)	Crushing or screening of rock	1	(0.2)
(14)	Plastic materials granulation	2	(0.5)
(15)	Descaling of ships	40	(9.3)
(16)	Working near internal combustion engines, turbines, pressurized fuel burners or jet engines	13	(3.0)
(17)	Car body repair or making metal articles by hammering	2	(0.5)
(18)*	Plastic materials extrusion	N/A	(0.0)
(19)*	Using paper corrugating machines	N/A	(0.0)
(20)*	Bleaching and dyeing of fabric	N/A	(0.0)
(21)*	Working near glass-bottling lines	N/A	(0.0)
(22)*	Working near metal-can bottling lines	N/A	(0.0)
(23)*	Using paper folding machines	N/A	(0.0)
(24)*	Wed-fed offset printing	N/A	(0.0)
(25)*	Gun-firing operation	N/A	(0.0)
	Total :	428	(100%)

Notes:

* Noisy occupations specified under the Occupational Deafness (Compensation) (Amendment) Ordinance 1998 which became effective on 6 March 1998.

N/A Not applicable

Annex E

Developers & Construction Industries

Hong Kong Construction Association
The Real Estate Developers' Association
The Hong Kong E&M Contractors' Association

Industrial sector

The Federation of Hong Kong Industries
The Chinese Manufacturers' Association

Estate management association

The Hong Kong Association of Properties Management Companies

Catering / Restaurants associations



Public utilities

HK Telephone Co. Ltd.	China Light & Power Co. Ltd.
The Hong Kong & China Gas Co. Ltd.	The Hong Kong Electric Co. Ltd.
HK Tramways Ltd.	Kowloon Canton Railway Corporation
Mass Transit Railway Corporation	Hutchison Communications Ltd.
New T&T Hong Kong Ltd.	New World Telephone Co. Ltd.
Wharf Cable Ltd.	Rediffusion (HK) Ltd.

Annex F

(A) Developers & Construction Industries

a) Comments from The Hong Kong Construction Association	EPD's views
1) HKCA is concerned on the industry's performance and is co-organizing seminars since 1998 to educate the industry on the statutory requirements. HKCA believes in the concerted effort and the proposed amendment should be deferred to further observe the industry's performance in 1999.	The number of construction noise offences had been increasing over recent years despite EPD's effort to bring the personal attention of the senior management of the concerned bodies corporate on the repeated offences. The proposed amendment to the NCO and HKCA's education programme would complement each other by enhancing the deterrent effect and trade awareness.
2) The proposed amendment to hold the top management liable of the offence may not be effective to deter violation because most contractors have no alternatives but to complete the contracts within very tight schedule imposed by the clients. Failure to cope with the clients' timeframe might lead to loss in competitiveness.	The new provisions will help to ensure a level playing field. Law abiding contractors would no longer be unfairly treated because some other contractor is ready to break the law to meet unrealistic construction programme.
3) The top management of the Project Manager (including developer) should also be held liable for the offences	The EPD have specifically brought to the attention of the senior management of both the contractors and developers of offences committed in their sites. If there is sufficient evidence that the developer causes or permits the violation of the NCO, the EPD can also issue summons to person causing or permitting the offence.
4) There is no need for the NCO to be amended so as to be in line with the relevant provisions in other environmental ordinances.	Environmental offences are considered similar in nature (i.e. doing harm to the environment with pollutants like dust, dirty water and noise) from construction sites. We believe most people will expect a consistent approach. The amendment will encourage good corporate management.
b) Comments from Hong Kong E&M Contractors' Association	EPD's views
A definition for the top management is suggested, such as "Technical Director".	A more general term is preferred to cater for different organizational structure in the trades. In essence, those persons who are decision makers in the corporate management will be held responsible for the offences.
c) Comments from Real Estate Developers' Association	EPD's views
1)The idea of prosecuting the top management of the companies breaching the law is supported but the client such as the developer should not be held responsible for the act of the contractors.	This proposal does not amend any existing legislative control requirement. The company having the overall responsibility in charge of the activities concerned is to be held responsible.
2) Explicit defence should also be made available for working without permit.	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.
3) The Code of Practice should set out in detail the requirements, which the companies can follow so as to be given immunity from being prosecuted.	The Code of Practice will suggest good management practice for observation of the industry. The Code may comprise some basic management principles for reference but it is not intended to be exclusive. The industry is encouraged to adopt any proper management systems. That is in line with the underlying principle of taking due diligence to prevent violation.

(B) Industrial Sector

Comments	EPD's views
Concern on whether the director will be prosecuted even for the first offence of the company.	The new provision will allow that. It will encourage prevention of noise pollution from the outset.

(C)Estates Management Association

Comments	EPD's views
1) The legislative intention is supported. However, it should only be applicable to repeated offences.	The legislation is to encourage good management of the company to prevent violations whether the offence is a repeated one or not.
2) There will be grey areas where the responsible parties for the management of the premises are not clear.	There will be no grey area. The persons who have overall control over the premises should take reasonable steps to prevent the commitment of offence. Company having the overall responsibility in charge of the activities concerned will be held liable.

(D) Restaurants Associations

Comments	EPD's views
The proposal is supported for the protection of the environment. However, guidance on practical ways of abating the noise must also be made available.	It is already EPD's current practice to closely liaise with the catering industry on good practices to prevent pollution of the air, noise and water environment. Guidebooks are also available.

(E) Public Utilities

Comments	EPD's views
1) The provision should only be applicable to repeated offence.	The legislation is to encourage good management to prevent violation by any person whether the offence is a repeated one or not.
2) There appeared to be worries on whether the middle managers will also be held liable for the offences.	This new provision is to held responsible those persons with actual power that could cause the change in management.