(ACE Paper 16/2001)
This paper seeks Members' advice on proposed amendments to the Noise Control Ordinance (NCO) to make the management of a body corporate explicitly liable for an offence committed by the body corporate under the NCO.
2. At the ACE meeting on 29 November 1999, Members considered and supported proposed amendments to the NCO to make the management of a body corporate explicitly liable for an offence committed by the body corporate (ACE paper 45/99 at Annex A refers). The Noise Control (Amendment) Bill 2000 (at Annex B) was introduced into the Legislative Council in February 2000. The Bill lapsed with the end of the 1999/2000 legislative session and would have to be re-introduced.
3. Our intention is to re-introduce the Bill as it was drafted within the current legislative session but to add a provision to provide the basis for the issue of written warnings to the management of a body corporate. The rationale behind the additional provision is that the proposal to make the management of a body corporate explicitly liable for an offence committed by the body corporate under the NCO is for the purpose of promoting changes in the corporate philosophy with regard to environmental compliance so as to deter recurrent noise offences. Our original intention was for the Director of Environmental Protection (DEP), in his capacity as the Noise Control Authority in the NCO, to issue as an administrative arrangement written warnings to the directors and officers concerned of a body corporate to warn them of their personal liability under the NCO and remind them of their responsibilities when a noise offence has been committed by the body corporate. This is to enable the directors and officers concerned to take all reasonable preventive steps before they are prosecuted for noise offences. DEP would prosecute the directors and officers concerned if the body corporate continued to violate the NCO despite the warning.
4. Following further consultation with the Hong Kong Construction Association in our attempt to address the Association's objections (as set out in paragraph 13 of ACE Paper 45/99) to the original Bill, we now propose that the issue of written warnings be stipulated in the NCO. As administratively, even if the provision is not added to the NCO, DEP would be issuing the written warnings, we see no problem in adding the provision which will provide more certainty to the construction industry. We propose to add a new provision to the Bill to provide that DEP should give a written warning to the directors and officers concerned of a body corporate after the body corporate has been prosecuted for a noise offence committed at a particular premise/site. If the body corporate is prosecuted again for any offence under the NCO at the same premise/site after the issue of the written warning, the directors and officers concerned will be prosecuted without further warning.
5. The Hong Kong Construction Association has indicated to us that the Association would have no objection to the Bill if the additional provision on the issue of written warnings is included.
Legislative Timetable and Commencement
6. We intend to introduce the revised Amendment Bill to the Legislative Council in June 2001. The draft Code of Practice would be subject to further consultation after the enactment of the amendments and before it is issued under the NCO.
7. Members are requested to advise on the proposed amendments.
Environment and Food Bureau