C. Serious illegal waste disposal

C. Serious illegal waste disposal

While minor littering is handled under the Summary Offences Ordinance (Cap. 228) or the Public Cleansing and Prevention of Nuisances Regulation (Cap. 132BK), the Waste Disposal Ordinance (Cap. 354) provides a much stricter regime for more serious acts of illegal dumping, such as larger scale dumping and “fly-tipping”.  

The offence of unlawful depositing of waste 

Under section 16A of the Waste Disposal Ordinance, it is a criminal offence for any person to deposit, or cause or permit to be deposited, waste in any place unless he has lawful authority or excuse, or the permission of the owner or lawful occupier of that place. 

Meaning of “waste” 

The definition of “waste” is very broad, covering any substance or article that is abandoned, including animal waste, chemical waste, clinical waste, construction waste, e-waste, household waste, livestock waste, street waste, and trade waste.  

Critically, the law presumes any abandoned item to be “waste” until the contrary is proven. For example, a person leaves a large, old television on a street corner, claiming it was for “donation”. The person may be charged with unlawful depositing unless he can prove it was not abandoned. 

Strict liability nature of the offence 

To secure a conviction, the prosecution generally only needs to prove that waste was deposited without the necessary permission or authority. This is a strict liability offence, meaning the prosecution does not have to prove that the defendant intended to break the law or was negligent; the mere act of unauthorised depositing is sufficient. 

Liability involving vehicles and body corporates 

If waste is deposited from a non-public transport vehicle, both the driver and the employer of that driver are legally regarded as having caused the waste to be deposited. 

If a body corporate commits the offence, any director, manager, secretary, or other person concerned in management can be held personally liable if the offence was committed with their consent or connivance, or was attributable to their neglect or omission. 

Due diligence defence 

A person charged under section 16A may rely on a “due diligence” defence. Under section 16A(3), a person charged with the unlawful depositing of waste has a defence if he can prove that he took all reasonable precautions and exercised all due diligence to avoid committing the offence on a balance of probabilities. 

The Ordinance provides two specific ways to establish this defence. A person satisfies the requirement of having taken all reasonable precautions and exercised all due diligence if he proves:  

• Employer instructions: That he acted under the instructions of their employer; or 
• Reliance on information: That he relied on information supplied by another person and had no reason to believe that information was false or misleading. 

In either case, the defendant must also prove that he had no reason to believe that an offence would be committed. It should be noted that simply disposing of waste in the course of employment is not an automatic defence; the specific elements of the “due diligence” test must still be met. 

Emergency defence 

Under section 18(2), there is also an emergency defence, under which the defendant must prove, on a balance of probabilities, that (1) the waste was disposed of in an emergency, (2) the action was taken to avoid danger to the public, and (3) the Director of Environmental Protection was informed in writing as soon as was reasonably practicable. 

Penalties and fixed penalty notice 

Because illegal dumping can cause significant environmental damage and create a public nuisance, the penalties imposed are severe. A person convicted of a first offence may face a fine of $200,000 and imprisonment for 6 months, while subsequent offences may result in a fine of $500,000 and imprisonment for 6 months. If the offence continues, an additional daily fine of $10,000 may be imposed for each day the unlawful activity persists.  

In less complex cases, authorities may instead issue a fixed penalty notice of $6,000 for the unlawful depositing of waste. For more information about the fixed penalty notice, please refer to “Fixed penalty for public cleanliness and obstruction offences”.