The running of the government, and more importantly the civil society, depends on the efficient and effective ordinances that are well detailed and documented in the Basic Law. These detailed ordinances were specifically enacted in 1997 in order to maintain the rights of the civilians and the government after the "handover." The following analysis of the Waste Disposal Ordinance, and its accompanying Appeals Board, demonstrates the detailed process that has been put in place to handle any grievances brought from a decision that had been made under the authority of the Environment and Food Bureau. Furthermore, the following analysis has been structured in the "province (makeup of the Board), process (the detailed proceedings of an appeal), and product (the decision and any further appeals)" manner, in order to facilitate a more understanding description of the Appeals Board.
The Waste Disposal Ordinance (Cap. 354), enacted in 1980, along with its subsidiary regulations, is the principal legislation for waste management in Hong Kong. The regulations provide a comprehensive set of guidelines for the management of waste from the point of consumption to the point of final disposal and are under the jurisdiction of the Environment and Food Bureau of the Hong Kong government. Additional provisions for dealing with certain types of waste are also available in other pieces of legislation. For example, oil waste from cargo ships is controlled under the Merchant Shipping legislation. Together, these environmental laws ensure that the many thousands of tons of waste produced each day in Hong Kong are disposed of in an environmentally acceptable manner and will continue to maintain the healthy living standard that the Hong Kong government attempts to promote and the residents of Hong Kong expect.
The Waste Disposal Ordinance provides for the licensing of collection services and disposal facilities for all types of waste, the prohibition of keeping livestock in urban and restricted areas, the control on discharge or deposit of livestock waste in designated control areas, the control scheme on chemical waste, the control on illegal dumping of waste, the control on import and export of waste and for the establishment of a system whereby specified wastes must be notified to the relevant authority who may give directions as to the method of disposal. The Environment and Food Bureau makes all of the primary decisions relating to the above-mentioned items, specifically regarding licensing to businesses or individuals involved in pick-up or disposal of waste.
Any person who is aggrieved by a decision or direction of a public officer, a collection authority, a waste disposal authority, or the Director of the Environment and Food Bureau, under any of the provisions of the ordinance, may appeal to the Waste Disposal Ordinance Appeal Board, established under section 25 of the regulations. Appeals may be made for a variety of reasons against the government. If the government body doesn't make clear appropriate directions as to livestock waste pollution or directions as to the disposal of waste, refuses to issue a permit for the import of waste into or the export of waste from Hong Kong, or fixes the conditions of such a permit, an appeal can be made to the board. If the appellant feel the Bureau wrongly varies, suspends, or revokes a permit, wrongly revokes the suspension of a permit, or refuses to grant a license and wrongly/unfairly fixes the terms and conditions of the license, there is just cause for an appeal. Finally, if the Department imposes new or amended terms or conditions for continuance of license, unfairly cancels a license, or basically, any decision or direction of the Director that is felt to be unfair or unjust, an appeal can be brought forth. The Appeals Board has been formulated through the regulations to give a proper and just procedure to have a complaint heard by an unbiased body.
The Appeals Board is currently made up of twelve individuals. The Chairman of the Appeals Board (who is appointed by the Chief Executive) appoints, under the direction of the Chief Executive, the other members. The candidates for membership come from non-government positions. According to the Secretary of the Appeals Board, Ms. Cora So, the members all have separate businesses and jobs and would not be part of the government bureau that has policy responsibility for the matter (Environment and Food Bureau), nor have any official title, so as to not have a conflict of interest when hearing an appeal. Consultation with these candidates during the selection process is conducted informally.
The Chairman has to be legally qualified and suitable for appointment as a District judge. There is no special provision on the requirements of other members. The Appeals Board, however, shall not, at any time, consist of a majority of persons who are public officers. The members can be appointed for a term of three years and can be re-appointed for another term. The positions are part-time posts, since there seem to be very few appeals expected of the Waste Disposal Ordinance. Thus, the Board does not sit all the time; only as the case load demands. Members take turn to sit on the Board, depending on member availability and case necessity. Furthermore, the Environment and Food Bureau would provide administrative and secretarial support for any appeals cases.
Any person who has a right of appeal may commence an appeal under this Regulation by lodging an official complaint with the Chairman by utilizing Form 1, which is listed in the Appendix. When lodging a notice of appeal, the appellant needs to serve a copy of the official form on the authority. Furthermore, in order to be fair to the Board and the government authority in question, the appellant needs to provide to the authority and the Chairman a statement specifying the grounds of the appeal, including such particulars of the evidence that will be introduced, documents to be produced, names of witnesses to be called. If any party to an appeal requires further specifics from the other party relating to the appeal, either party may, within 7 days after the service on the authority of a copy of the notice of appeal, request those specific documents or facts, in writing, from the other party.
When an appeal is lodged, the Chairman shall determine the date, time, and place of the hearing of appeal so as to enable the hearing to commence as soon as is reasonably possible and shall, not less than 28 days before the date so fixed, serve on the appellant and on the authority notice of the date, time and place utilizing Form 2, with is provided in the Appendix. The hearing of the appeal shall be conducted in public unless the Chairman, through his/her own thoughts or at the request of either party, orders that all or any persons should be excluded from the whole or any part of the hearing. The hearing dates are publicized via the Web, department newsletters, and possibly in the court list of the South China Morning Post.
All appeals need to be made within 21 days after the person aggrieved has received notice of the decision that he or she is appealing. As with any appeal, the Appeals Board may confirm, reverse or vary the decision or direction appealed. Also, every question before an Appeals Board shall be determined by the opinion of the majority of the Chairman and the members hearing the appeal except a question of law which shall be determined by the Chairman; the Chairman also has the authority to break a tie. If the Chairman is on sick leave, away from Hong Kong or unavailable for any other reason from exercising his functions as Chairman, the Chief Executive may appoint any other person qualified in law to act as Chairman and as such, to as the Chairman during the period of his appointment.
The Appeals Board may receive evidence, similar to a court proceeding; however, the Board can admit or take into account any statement, document, information, or matter whether or not it would be admissible as evidence in a court of law. At the hearing of the appeal, the appellant and/or the authority may be represented by a barrister or solicitor. The Board has discretion on how to deal with evidence and proceedings in each individual appeal. However, seeing that legal representatives are allowed, chances are, the proceedings would be conducted very much like court proceedings. Furthermore, by notice in writing, the Board can summon any person to appear before it to produce any document or to give evidence. During an appeal, if a legal question arises, the Chairman may refer any question of law to the Court of Appeals for more detailed legal reference. On the hearing of the case, the Court of Appeal may amend the case or order it to be sent back to the Appeals Board for amendment.
The appellant may abandon any part of the appeal, or the entire appeal, by notice in writing lodged with the Chairman. If on the date and time of the hearing, the appellant fails to attend the hearing, either in person or by a barrister or solicitor, the Board may postpone or adjourn the hearing for such period as it thinks fit, proceed to hear the appeal, or dismiss the appeal completely. Generally in Hong Kong, according to a government lawyer, third parties cannot intervene unless they have a provable and direct interest in the matter. Perhaps this is one thing that should change. Especially when waste disposal is concerned. It can easily be imagined that certain NGO's involved with environmental issues may want to be involved in some instances.
During the appeal, the Chairman shall take, or have someone else take, full minutes of the entire proceedings. Thus, the Board records its decision. Reasons for a decision would normally be given automatically to facilitate further appeal, where appropriate. No specific guidance is given to either party by the Appeals Board within the decision as to the next step once the decision is handed down, but since lawyers can be present, the parties would be best off relying on their legal representation to advise on the next step if the decision is not in that party's favor. Furthermore, there may be bound volumes of all of the decisions given, although there are no such volumes in existence relating to this Appeals Board since no appeal has been brought forward, according to the government lawyer to whom I spoke.
Furthermore, there is no specific regulation stated regarding revision of the Appeals Board's decision. This would be within the operation of the Environment and Food Bureau. According to the Secretary of the Appeals Board, any decision can be appealed, by either party, to the High Court, as was mentioned earlier in this analysis. Of course, the entire process of the Appeals Board is hypothetical, since the Secretary confirmed that there have been no appeals brought before the Waste Disposal Appeals Board to date since its inception.
As the British colony of Hong Kong was transitioned into Hong Kong, the Special Administration Region of the People's Republic of China in 1997, the Basic Law was enacted to assist in the ensurance of the "one country, two systems" policy. The running of the government, and more importantly, the civil society depends on the efficient and effective ordinances that are well detailed and documented in the Basic Law. These detailed ordinances were specifically enacted in order to maintain the rights of the civilians and the government. Within the previous analysis, it was made apparent that no primary decision, which aggrieves the recipient of the decision, is final. There is always a road for appeal.
Specifically relating to the Waste Disposal Ordinance and its accompanying Appeals Board, this analysis demonstrates that, if an appeal was to be lodged, the appropriate procedures are in place to make that appeal a fair and just hearing for all parties involved. The members, who are not elected officials and are not part of the Environment and Food Bureau in order to avoid a conflict of interest, are led by a District judge and participate in the Appeals Board on a part-time basis. There are plenty of procedures in place to make sure that all parties are well-informed and fully supplied with all necessary documents. Furthermore, the proceeding can be run similar to a court proceeding, with witnesses, testimony, etc. The Appeals Board's decision is handed down in a timely fashion and would be documented. Also, any of the Board's decisions can be appealed to a the High Court for further review.
To conclude, it is clear that the Waste Disposal Ordinance has the proper procedures in place, if and when, an appeal is lodged, to handle to hearing of the appeal. The only recommendation I have that would be in the interest of the public good would be to allow third parties to participate in the proceedings. Specifically, environmental NGO's would be able to maintain a separate check of all the players in the interest of the continued defense of the environment. Of course, the only way to truly discover if the Appeals Board can function is to have an actual appeals case brought before it, which up until this point, has not happened.
(Chapter 354)
(Section 3 of the Waste Disposal (Appeal Board) Regulation)
NOTICE OF APPEAL
To: The Chairman, Waste Disposal Appeal Board
1. Full name of Appellant: ..................................................................................................
2. Address of Appellant: ....................................................................................................
Telephone No.: .............................................................................................................
3. Address of Appellant or name and address of duly authorized representative for service if different from the above: ...............................................................................................
4. Details of notice appealed against:
(Attach a copy of the decision and indicate the particular aspect being the subject of the appeal)
.....................................................................................................................................
.....................................................................................................................................
.....................................................................................................................................
Dated this ................. day of ............................ 19 ........
.............................................
Appellant.
(L.N 471 of 1995)
(Chapter 354)
(Sections 7 and 12 of the Waste Disposal (Appeal Board) Regulation)
NOTICE OF DATE, TIME AND PLACE FIXED
FOR HEARING OF AN APPEAL
Appeal No.: ...................... of 19 ......
In the matter of the Appeal lodged by .............................................................................
(Appellant) against the decision or direction contained in a notification issued under the Waste Disposal Ordinance on the ................... day of ............................. 19 ........
To ........................................... (Appellant)
TAKE NOTICE that the above appeal will be heard at ...................................................
.............................................................................................................................................
on the ............. day of ........................... 19 ........ at ........... a.m./p.m.
AND TAKE NOTICE that if you do not attend at the time and place mentioned, either in person or by a barrister or solicitor duly authorized to appear on your behalf, the appeal may be postponed or adjourned for reasonable cause or be dismissed or be heard in your absence.
Dated this .................... day of ......................... 19 .........
........................................................
Chairman of the Appeal Board.
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This notice was served by me on ....................................................................................
at .................................................................... on the ............ day of ....................... 19 .......
Recipient of notice
Process server.
(L.N 471 of 1995)
(Chapter 354)
(Section 8 of the Waste Disposal (Appeal Board) Regulation)
APPLICATION FOR SUMMONS TO A WITNESS
Appeal No.: ...................... of 19 .....
To: Chairman of the Appeal Board
Whereas .............................................................. of ....................................................
.............................................................................................................................................
is likely to give material evidence in respect of the above appeal, I ............................................
hereby apply for a summons to be issued to the said ................................................... requiring him to attend the hearing of the appeal for that purpose./*and to bring with him and produce the several documents hereunder specified:
Documents required to be produced: .......................................................................................
.............................................................................................................................................
.............................................................................................................................................
Dated this ................... day of ......................... 19 .....
.................................................
*Appellant/Authority
(L.N 471 of 1995)
*Delete as necessary.
(Chapter 354)
(Section 8 of the Waste Disposal (Appeal Board) Regulation)
SUMMONS TO WITNESS
Appeal No.: ........................ of 19 .......
In the matter of the Appeal lodged by ............................................................................. (Appellant) against the decision or direction contained in a notice issued under the Waste Disposal Ordinance on the ............... day of ....................... 19 ...........
To (a) .............................
YOU ARE HEREBY SUMMONED to attend at ........................................................... on the ................. day of .......................... 19 ....... at .......... *a.m./p.m., and so from day to day, until the proceedings are heard, to give evidence in the above appeal and also to bring with you and produce the several documents hereunder specified:
Documents required to be produced: .......................................................................................
.............................................................................................................................................
.............................................................................................................................................
Dated this ............... day of ...................... 19 .......
.................................................
Chairman of the Appeal Board.
Note: (a) Insert name of person to be served.
* Delete as necessary.
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This summons was served by me on ...............................................................................
at .........................................................................................................................................
on the ............. day of ................... 19 .........
Recipient of summons
Process server.
(L.N 471 of 1995)
Environment and Food Bureau....http://info.gov.hk/efb/efb/index.html
Environmental Protection Department....http://www.info.gov.hk/epd/ehk99/home/english
http://www.justice.gov.hk
Ms. Agnes Cheung, MIPA candidate and Hong Kong government lawyer
Ms. Cora So, Secretary of the Appeals Board