To control the pollution of the waters of Hong Kong. [1 April 1981] L.N. 87 of 1981 (Originally 41 of 1980) Cap 358 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Water Pollution Control Ordinance. Cap 358 s 2 Interpretation (1) In this Ordinance, unless the context otherwise requires- "Appeal Board" (上诉委员会) means an Appeal Board constituted under Part VI; "Authority" (监督) means the Director of Environmental Protection; (Replaced 83 of 1993 s. 2) "authorized agent" (获授权代理人) means a person authorized in writing by the Authority to exercise the powers and perform the duties of an authorized agent under this Ordinance; (Added 83 of 1993 s. 2) "communal drain" (公用排水渠) means a drain that is not used exclusively by one discharger; (Added 67 of 1990 s. 2) "communal sewer" (公用污水渠) means a sewer that is not used exclusively by one discharger and includes a public wastewater treatment facility; (Added 67 of 1990 s. 2. Amended 83 of 1993 s. 2) "drainage or sewerage system" (排水或排污系统) includes sewage and wastewater treatment facilities and the processes in them; (Added 67 of 1990 s. 2. Amended 83 of 1993 s. 2) "existing deposit" (现有的沉积), in relation to a water control zone, means a deposit of matter which- (a) was made, whether or not regularly or continuously, in any place and which is, or of which a component is, likely to enter the waters of Hong Kong or into inland waters or a communal sewer or communal drain in that zone; and (Amended 67 of 1990 s. 22) (b) was so made during the period of 12 months ending with the day appointed by the Governor by order under section 7(2) which applies to that zone and that deposit;"existing discharge" (现有的排放), in relation to a water control zone, means a discharge of matter which was made, whether or not regularly or continuously- (a) into the waters of Hong Kong or into inland waters; or (b) into a communal sewer or communal drain, (Amended 67 of 1990 s. 22)in that zone during the period of 12 months ending with the day appointed by the Governor by order under section 7(2) which applies to that zone and that discharge;"inland waters" (内陆水域) means any river, stream, watercourse, lake, pool or pond, whether natural or artificial or above or below ground, and the bed or channel of any such river, stream, watercourse, lake, pool or pond which is for the time being dry, and includes groundwater and the ground in which groundwater is from time to time found, but excludes- (Amended 67 of 1990 s. 2) (a) a lake, pool or pond the waters of which do not enter (whether directly or by way of another lake, pool or pond) any river, stream or watercourse or the territorial waters or tidal waters of Hong Kong unless the lake, pool or pond is brought within this definition by regulations made under section 46(1)(l); (b) (Repealed 67 of 1990 s. 2) (c) any drain or sewer;"licence" (牌照) means a licence granted under this Ordinance; (Amended 67 of 1990 s. 22) "public wastewater treatment facility" (公共废水处理设施) means a wastewater treatment facility that is operated by, for or on behalf of the Government but does not include a wastewater treatment facility the operation of which is taken over under the regulations; (Added 83 of 1993 s. 2) "register" (登记册) means a register required to be kept under section 42; "Secretary" (局长) means the Secretary for the Environment, Transport and Works; (Replaced 78 of 1999 s. 7. Amended L.N. 106 of 2002) "technical memorandum" (技术备忘录) means a technical memorandum issued under section 21; (Added 67 of 1990 s. 2) "wastewater" (废水) means water that is directly or indirectly used in or generated by human activity and then discarded but does not include unpolluted water as defined in section 9(3); (Added 83 of 1993 s. 2) "wastewater treatment facility" (废水处理设施) means- (a) a man made structure, plant, works or device designed and constructed for the purpose of receiving wastewater from a dwelling or from a trade, business, commercial, industrial or agricultural operation; or (b) land onto which wastewater is discarded,which is intended to bring about a change in the physical, chemical or biological characteristics of the wastewater; and includes an Imhoff tank, a septic tank, a cesspit and a soak-away pit; (Added 83 of 1993 s. 2)"water control zone" (水质管制区) means any part of Hong Kong declared to be a water control zone under section 4; "water quality objective" (水质指标) means a water quality objective established by the Secretary under section 5; "waters of Hong Kong" (香港水域) means all inland waters, territorial waters and tidal waters of Hong Kong and in sections 5(1), 6(5)(a), 13(1), 24 and 29(4)(a) includes the flora and fauna thereof. (Amended 67 of 1990 s. 2)(2) References in this Ordinance to discharging or making a discharge of matter into the waters of Hong Kong or into inland waters or into a communal sewer or communal drain are references to causing or permitting that matter to enter those waters or the public sewer or public drain (whether by emitting, throwing, placing or by any other means) at the place where the matter first enters the same. (3) References in this Ordinance to discharging or making a discharge of matter into the waters of Hong Kong or into inland waters or into a communal sewer or communal drain in the water control zone include causing or permitting matter to be deposited in any place (whether in that zone or elsewhere) in circumstances where the matter, or any component of it, is likely to enter the waters of Hong Kong or inland waters in that zone or to enter the communal sewer or communal drain within a reasonably foreseeable time by falling, descending, percolating or being carried by wind or water. (Amended 67 of 1990 s. 22) Cap 358 s 3 Governor may give directions (1) The Governor may give such directions as he thinks fit, either generally or in any particular case, with respect to the exercise or performance by the Secretary or the Authority of any powers, functions or duties under this Ordinance. (2) The Secretary and the Authority shall, in the exercise or performance of their respective powers, functions and duties under this Ordinance, comply with any directions given by the Governor under subsection (1). (Amended 83 of 1993 s. 3) Cap 358 s 4 Water control zones PART II WATER CONTROL ZONES AND WATER QUALITY OBJECTIVES (1) The Governor in Council may by order published in the Gazette- (a) after consultation with the Advisory Council on the Environment, declare any part of Hong Kong to be a water control zone for the purposes of this Ordinance; (Amended L.N. 165 of 1984; L.N. 57 of 1994) (b) (Repealed 83 of 1993 s. 4)(2)-(3) (Repealed 83 of 1993 s. 4) (4) An order under subsection (1) shall, for each water control zone constituted thereby- (a) make reference to a plan or map of that zone deposited in the Land Registry at Victoria; or (Amended 8 of 1993 s. 2) (b) sufficiently describe the zone by other means. Cap 358 s 5 Secretary to establish quality objectives (1) The Secretary shall, after consultation with the Advisory Council on the Environment, establish for the waters of Hong Kong in each water control zone a water quality objective or different objectives for different parts of a zone. (Amended L.N. 165 of 1984; L.N. 57 of 1994) (2) The water quality objective for any particular waters shall be the quality which, in the opinion of the Secretary, should be achieved and maintained in order to promote the conservation and best use of those waters in the public interest. (3) Any water quality objective may be amended from time to time by the Secretary, after consultation with the Advisory Council on the Environment. (Amended L.N. 165 of 1984; L.N. 57 of 1994) (4) A statement of every water quality objective established under subsection (1) and all amendments thereto, signed by the Secretary, shall be published in the Gazette and shall be kept with the register and made available for inspection by the public free of charge at the same times as the register is so available. (5) Where under subsection (1) the Secretary establishes different water quality objectives for different parts of a water control zone he shall ensure that the statement thereof kept with the register pursuant to subsection (4) sufficiently delineates each part of the water control zone. Cap 358 s 6 Authority to seek to achieve quality objectives (1) (Repealed 83 of 1993 s. 5) (2) The Secretary shall notify the Authority of all water quality objectives and of any amendment thereof under section 5(3). (Amended L.N. 76 of 1982; L.N. 74 of 1986; 83 of 1993 s. 5) (3) The Authority shall exercise and perform his powers, functions and duties under this Ordinance with the aim of achieving the relevant water quality objectives as soon as is reasonably practicable and thereafter maintaining the quality so achieved. (Amended 83 of 1993 s. 5) (4) If in the opinion of the Secretary the achievement or maintenance of any water quality objective would be better served by the exercise by the Authority of any of his powers under section 20(4) or 24, the Secretary may, subject to subsection (5), give directions in writing to the Authority as to the manner in which he shall exercise those powers; and, in the case of a direction which relates to section 20(4), any such direction may be of a general nature or relate to a particular case or particular cases. (5) The Secretary shall not give any direction under subsection (4) as to the manner in which the Authority shall exercise the powers in section 24 in relation to a discharge or deposit unless he considers that- (Amended 83 of 1993 s. 5) (a) any part of the waters of Hong Kong are in such a condition as to constitute a danger to the health of the public, or a section of the public, and the exercise of the powers in relation to that discharge or deposit would tend to lessen the danger; or (b) in the case of a licence for the purpose of section 9, the discharge or deposit may be harmful to the operation of any sewage treatment plant.(6) The Authority shall comply with any direction given to him under subsection (4) and the discretion conferred on the Authority by section 20(4) or 24(1) shall not apply to any discharge or deposit in respect of which such a direction is in force. (Amended 67 of 1990 s. 22) Cap 358 s 7 Application and commencement of sections 8 and 9 PART III PROHIBITED DISCHARGES AND DEPOSITS (1) Notwithstanding that this Ordinance has come into operation by virtue of a notice under section 1, neither section 8(1)(a), nor section 8(1)(b) nor section 9(1) shall apply- (a) to any discharge or deposit, not being an existing discharge or existing deposit, which would otherwise be prohibited by those sections until the day appointed by the Governor under subsection (2) which applies to that discharge or deposit; (b) to an existing discharge or existing deposit which would otherwise be prohibited by those sections until the day appointed by the Governor under subsection (3) which applies to that discharge or deposit.(2) The Governor may from time to time by order published in the Gazette which is declared to be applicable to any water control zone appoint a day by reference to which the following shall be classified as an existing discharge or existing deposit for the purposes of this Ordinance- (a) the discharge of any matter into the waters of Hong Kong or inland water in that zone, being a discharge within the prohibitions in section 8(1); (b) the deposit of any matter which, or a component of which, is likely to enter the waters of Hong Kong or inland waters in that zone, being a deposit within the prohibitions in section 8(1); (c) the discharge of any matter into a communal sewer or communal drain in that zone, being a discharge within the prohibition in section 9(1); (d) the deposit of any matter which, or a component of which, is likely to enter a communal sewer or communal drain. (Amended 67 of 1990 ss. 3 & 22)(3) The Governor may from time to time by order published in the Gazette which is declared to be applicable to any water control zone appoint a day on and after which- (a) section 8(1)(a) shall apply to all existing discharges into the waters of Hong Kong in that zone or to all existing deposits which, or a component of which, is likely to enter the waters in that zone; (b) section 8(1)(b) shall apply to all existing discharges into inland waters in that zone or to all existing deposits which, or a component of which, is likely to enter the inland waters in that zone; (c) section 9(1) shall apply to all existing discharges into a communal sewer or communal drain in that zone or to all existing deposits which, or a component of which, is likely to enter a communal sewer or communal drain in that zone. (Amended 67 of 1990 ss. 3 & 22)(4) (Repealed 67 of 1990 s. 3) (5) An order under this section may, in respect of the same water control zone, appoint different days for discharges and for deposits. (Amended 67 of 1990 s. 3) Cap 358 s 8 Prohibited discharges into waters of Hong Kong and inland waters Remarks: Amendments retroactively made - see 29 of 1998 s. 72 (1) Subject to section 12, a person commits an offence who discharges- (a) any waste or polluting matter into the waters of Hong Kong in a water control zone; (Amended 67 of 1990 s. 4) (b) any matter into any inland waters in a water control zone which tends (either directly or in combination with other matter which has entered those waters) to impede the proper flow of the water in a manner leading or likely to lead to a substantial aggravation of pollution.(1A) Subject to section 12(1A), a person commits an offence who discharges any poisonous or noxious matter into the waters of Hong Kong. (Added 67 of 1990 s. 4) (2) Where any matter referred to in subsection (1)(a) or (b) or (1A) is discharged from any premises or vessel, then, subject to section 12, the occupier of the premises or the person having command or charge of the vessel commits an offence, in addition to any other person who may be guilty of an offence under subsection (1) or (1A). (Amended 67 of 1990 s. 22) (3) This section does not apply to any of the following discharges or deposits- (a) a discharge which is made by way of a communal sewer or communal drain; (Amended 67 of 1990 s. 22) (b) (Repealed 42 of 1985 s. 2) (c) a discharge incidental to, or derived from, the normal operation of a vessel (including a dynamically supported craft) or of its equipment; (d) a discharge which requires a permit under the Dumping at Sea Ordinance (Cap 466); (Amended 18 of 1995 s. 34) (e) a discharge or deposit made- (i) by, or with the consent of, the Director of Marine for the purpose of carrying out harbour works or providing moorings or aids to navigation; (ii) in accordance with the grant of a Government lease or as part of the execution of a reclamation or other work of a public nature which has been authorized under section 7 or 8 of the Foreshore and Sea-bed (Reclamations) Ordinance (Cap 127); (Replaced 63 of 1985 s. 21. Amended 29 of 1998 s. 72) (iii) (Repealed 63 of 1985 s. 21);(f) a discharge of unpolluted water, as defined in section 9(3). (Replaced 67 of 1990 s. 4) Cap 358 s 9 Prohibited discharges into communal sewers and communal drains (1) Subject to section 12, a person commits an offence who discharges any matter into a communal sewer or communal drain in a water control zone other than- (a) a discharge of domestic sewage into a communal sewer or communal drain that- (i) is vested in and maintained by the Government as a sewer or drain for the carriage of foul water; (ii) conducts the discharge into a communal sewer or communal drain that is vested in and maintained by the Government as a sewer or drain for the carriage of foul water; or (iii) delivers the sewage to a wastewater treatment facility, the discharge from which is licensed; (Replaced 83 of 1993 s. 6)(aa) a discharge of domestic sewage into- (i) a communal sewer; or (ii) a communal drain, that has been designated by the Authority, by notice in the Gazette, as a communal sewer or communal drain for the carriage of foul water or surface drainage water; or (Added 67 of 1990 s. 5. Amended 83 of 1993 s. 6)(b) a discharge of unpolluted water into- (i) a communal sewer, or (ii) a communal drain, for the carriage of surface drainage water. (Amended 67 of 1990 s. 22)(2) Where any matter is, in contravention of subsection (1), discharged into a communal sewer or communal drain in a water control zone from any premises, then, subject to section 12, the occupier of the premises commits an offence, in addition to any other person who may be guilty of an offence under subsection (1). (Amended 67 of 1990 ss. 5 & 22) (3) In subsection (1)- "domestic sewage" (住宅污水) means waste of a kind and quantity that is generated by the domestic use of a toilet, watercloset, bath, shower, sink, basin or other sanitary fitment by a person residing in a household or while at a place of work but does not include- (a) the solid residue from a wastewater treatment facility; (b) the effluent from a wastewater treatment facility that uses electrical or mechanical equipment in its operation; or (c) waste that is generated by a food business that is subject to the Food Business Regulation (Cap 132 sub. leg.); (Replaced 83 of 1993 s. 6. Amended 78 of 1999 s. 7)"unpolluted water" (没有污染的水) means- (a) rain water from any part of a building, including any area appurtenant to a building; (b) water which does not contain any poisonous, noxious or polluting matter.(4) This section does not apply to- (a) (Replaced 67 of 1990 s. 5) (b) water used- (i) for firefighting purposes; (ii) in connection with an occurrence in which life or property is endangered; (iii) for the cleansing of streets, thoroughfares, and other areas. Cap 358 s 10 Mental ingredient of offences under sections 8 and 9 In any proceedings for an offence under section 8(1), 8(1A), 8(2), 9(1) or 9(2) in which it is alleged that the defendant caused matter to enter the waters of Hong Kong or inland waters or a communal sewer or communal drain or caused matter to be deposited as provided in section 2(3) it shall not be necessary for the prosecution to prove that the acts or omissions in question were accompanied by any intention, knowledge or negligence on the part of the defendant as to any element of the offence. (Amended 67 of 1990 s. 22) Cap 358 s 10A Liability of directors, etc. (1) Where a person convicted of an offence under this Ordinance is a body corporate and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect or omission on the part of, any director, manager, secretary or other person concerned in the management of the body corporate, the director, manager, secretary or other person also commits the offence. (2) Where a person convicted of an offence under this Ordinance is a partner in a partnership and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect or omission on the part of, any other partner or any person concerned in the management of the partnership, the partner or the person concerned in the management also commits the offence. (Added 67 of 1990 s. 6) Cap 358 s 11 Penalties (1) A person who commits an offence under section 8(1), 8(2), 9(1) or 9(2) is liable to imprisonment for 6 months and- (a) for a first offence, a fine of $200000; (b) for a second or subsequent offence, a fine of $400000,and in addition, if the offence is a continuing offence, to a fine of $10000 for each day during which it is proved to the satisfaction of the court that the offence has continued. (Amended 67 of 1990 ss. 7 & 22; 83 of 1993 s. 7) (2) A person who commits an offence under section 8(1A) or who commits an offence under section 9(1) or (2) by discharging any poisonous or noxious matter into a communal sewer or communal drain is liable to- (a) for a first offence, a fine of $400000 and imprisonment for 1 year; (b) for a second or subsequent offence, a fine of $1000000 and imprisonment for 2 years,and in addition, if the offence is a continuing offence, to a fine of $40000 for each day during which it is proved to the satisfaction of the court that the offence has continued. (Added 83 of 1993 s. 7) Cap 358 s 12 Defences (1) A person does not commit an offence under section 8(1), 8(2), 9(1) or 9(2) if he proves that- (a) the discharge or deposit in question is an existing discharge or deposit- (i) in respect of which an application under section 14 has been made and the prescribed application fee paid when required and the applicant has not been notified of a refusal to grant a licence as required by section 15(2); or (ii) which is made under, and in accordance with, a licence granted under section 15, 16 or 23A; or (Replaced 67 of 1990 s. 8. Amended 83 of 1993 s. 8)(b) the discharge or deposit in question is made under, and in accordance with, a licence granted under section 20; or (c) where section 2(3) applies, the matter was deposited pursuant to an approval under subsection (2) and in accordance with the terms and conditions thereof; or (d) (Repealed 67 of 1990 s. 8) (e) the discharge or deposit was made in an emergency in order to avoid danger to life or property and as soon as was reasonably practicable he informed the Authority thereof in writing; or (f) he acted under instructions given to him by his employer and he exercised the care and took the steps that the court, having regard to his position as an employee, considers reasonable in the circumstances to avoid the occurrence of the prohibited discharge or deposit. (Replaced 67 of 1990 s. 8)(1A) A person does not commit an offence under section 8(1A) if he proves that- (a) the discharge or deposit was made in an emergency in order to avoid danger to life or property and as soon as was reasonably practicable he informed the Authority thereof in writing; or (b) he acted under instructions given to him by his employer and he exercised the care and took the steps that the court, having regard to his position as an employee, considers reasonable in the circumstances to avoid the occurrence of the prohibited discharge or deposit. (Added 67 of 1990 s. 8)(1B) A person does not commit an offence under section 8 or 9 in respect of a discharge- (a) that is licensed under the Waste Disposal Ordinance (Cap 354); or (b) that complies with the Waste Disposal (Livestock Waste) Regulations (Cap 354 sub. leg.). (Added 67 of 1990 s. 8)(2) The Authority may by order published in the Gazette approve the making of any particular kind of deposit as a farming practice to which the provisions of subsections (1)(a), (1)(b) and (1A) of section 8, or either of those provisions, do not apply so far as it is made in such areas by such persons and in such manner as may be specified in the order. (Amended L.N. 74 of 1986; 67 of 1990 s. 22; 83 of 1993 s. 8) (3) The power of the Authority under subsection (2) extends to practices employed in all kinds of farming, including agriculture, animal husbandry and fish farming. (Amended L.N. 74 of 1986; 83 of 1993 s. 8) Cap 358 s 13 Restoration of waters by convicted person (1) Where any person has been convicted of an offence under section 8(1), 8(1A), 8(2), 9(1) or 9(2) the Authority may if he is of the opinion that- (Amended 67 of 1990 s. 22) (a) any part of the waters of Hong Kong suffered continuing damage as a direct result of the commission of the offence; and (b) it is reasonably practicable to restore, or partially restore, that part to the condition it was in before the commission of the offence,by notice in writing require the person so convicted to carry out such work as is specified in the notice to effect such restoration or partial restoration. (2) A notice under subsection (1)- (a) may specify the manner in which the work is to be carried out; (b) shall stipulate the time before which the work shall be commenced and the time by which it shall be completed; (c) shall be addressed to and served personally or by registered post on the person who committed the offence.(3) If a person fails to comply with a notice under subsection (1) served on him, the Authority may, without further notice but subject to subsection (4), carry out or cause to be carried out the work, or the remaining work, specified in the notice and recover from that person the cost of so doing as a civil debt due to the Crown. (4) The Authority shall not exercise the power in subsection (3)- (a) until after the expiry of the time allowed under section 29(3) for appeal against a requirement under subsection (1); and (b) where an appeal is brought, until it is determined, withdrawn or abandoned.(5) (Repealed 83 of 1993 s. 9) Cap 358 s 13A Restoration of waters by Authority (1) Where the Authority considers that there has been an offence committed under section 8(1), 8(1A), 8(2), 9(1) or 9(2) and he considers that- (a) any part of the waters of Hong Kong is suffering continuing damage as a direct result of the commission of the alleged offence; (b) it is reasonably practicable to restore, or partially restore, that part to the condition it was in before the commission of the alleged offence; and (c) the damage is so severe that work to restore or partially restore the waters should start before any person has been charged or convicted,the Authority may carry out work to restore or partially restore the waters. (2) Following completion of the work the Authority shall reinstate any land that was entered to carry out the work under subsection (1), as far as it is practicable to do so, to the condition it was in before the entry. (3) All costs incurred by the Authority in carrying out work under this section, including any compensation paid by the Authority under the regulations to a third party, are recoverable from any person who is responsible for the damage to the waters of Hong Kong, regardless of whether or not the person has been convicted of an offence referred to in subsection (1). (Added 83 of 1993 s. 10) Cap 358 s 14 Notices of existing discharges and deposits PART IV LICENSING OF EXISTING DISCHARGES AND DEPOSITS (1) After a day appointed by order under subsection (2) of section 7 and before a day appointed by order under subsection (3) of that section a person may apply to the Authority for a licence under section 15 in respect of an existing discharge or deposit to which those orders apply. (2) An application under subsection (1) shall be in such manner and form and contain such information and estimates as may be prescribed. (2A) The Authority is not required to consider an application under subsection (1) unless it is made by- (a) the person who makes or authorizes the discharge or deposit; or (b) the owner or occupier of the premises from which the discharge or deposit is made. (Added 67 of 1990 s. 10)(2B) The fee prescribed for an application under subsection (1) must be paid by a date specified in a demand note issued by the Authority. (Replaced 83 of 1993 s. 11) (3) (Repealed 83 of 1993 s. 11) (Amended 67 of 1990 s. 10) Cap 358 s 15 Licensing of existing discharges and deposits Remarks: Amendments retroactively made - see 29 of 1998 s. 73 (1) After receipt of an application and the prescribed fee under section 14, the Authority shall grant a licence under this section for the existing discharge or deposit unless- (a) he considers that the discharge or deposit endangers or is likely to endanger public health; (b) he considers that the discharge or deposit is or is likely to be harmful to the health or safety of any person engaged in the operation or maintenance of a drainage or sewerage system; (c) he considers that the discharge or deposit is or is likely to be harmful to a drainage or sewerage system; or (d) it has come to his attention that the discharge or deposit is made from premises that were erected in contravention of section 4 of the Land (Miscellaneous Provisions) Ordinance (Cap 28); or (Amended 29 of 1998 s. 73) (e) it has come to his attention that where the discharge or deposit is made from premises on land held under a Government lease or on land occupied under a licence issued under section 5 of the Land (Miscellaneous Provisions) Ordinance (Cap 28), the discharge or deposit is in breach of that Government lease or licence. (Amended 83 of 1993 s. 12; 29 of 1998 s. 73)(2) If the Authority refuses to grant a licence under this section he shall notify the applicant in writing of his refusal and shall in the notice state the reasons for the refusal. (3) A licence granted under this section expires, as specified by the Authority in the licence, not less than 2 years after the day appointed by order under section 7(3) in respect of the discharges or deposits. (Amended 83 of 1993 s. 12) (3A) Despite subsection (3) but subject to section 24, the Authority may, in respect of a licence granted under this section exclusively for the discharge of domestic sewage, as defined in section 9(3), specify in the licence that it continues in effect indefinitely. (Added 83 of 1993 s. 12) (4) The Authority may grant a licence under this section on such terms and conditions as he thinks fit including terms and conditions relating to the matters set out in the First Schedule but the licence shall not, in the case of a discharge or deposit measurable by a flow rate, authorize a maximum flow rate less than the existing discharge or deposit. (Replaced 67 of 1990 s. 11) Cap 358 s 16 Transitional; licensing of exempted discharges and deposits Remarks: Adaptation amendments retroactively made - see 29 of 1998 s. 74 (1) Where, immediately before the date of commencement* of the Water Pollution Control (Amendment) Ordinance 1990 (67 of 1990), a discharge or deposit was exempt under section 15 as in force before that date, the discharge or deposit shall be deemed to be licensed under a licence granted under this subsection subject to any terms and conditions that were imposed in relation to the exempted discharge or deposit, and the licence shall continue in effect until the earlier of- (a) its replacement by a new licence granted under subsection (3); or (b) 2 years after the date of commencement* of the Water Pollution Control (Amendment) Ordinance 1990 (67 of 1990).(2) The Authority shall cancel a licence deemed to have been granted under subsection (1) where he considers that- (a) the discharge or deposit endangers or is likely to endanger public health; (b) the discharge or deposit is or is likely to be harmful to the health or safety of any person engaged in the operation or maintenance of a drainage or sewerage system; (c) the discharge or deposit is or is likely to be harmful to a drainage or sewerage system; (d) the discharge or deposit is made from premises erected in contravention of section 4 of the Land (Miscellaneous Provisions) Ordinance (Cap 28); (Amended 29 of 1998 s. 74) (e) where the discharge is made from premises on land held under a Government lease or on land occupied under a licence issued under section 5 of the Land (Miscellaneous Provisions) Ordinance (Cap 28), the discharge or deposit is in breach of that Government lease or licence; (Amended 29 of 1998 s. 74) (f) the location of the discharge or deposit or the times or periods of the discharge or deposit differ from that set out in the notice given under section 14 as in force before the date of commencement* of the Water Pollution Control (Amendment) Ordinance 1990 (67 of 1990) or differs from any variation, cancellation or approval granted under section 18 as in force before that date; or (g) there has been a breach of any of the terms or conditions of the licence.(3) The Authority may, at any time before the expiry of a licence deemed to have been granted under subsection (1), grant a new licence to replace a licence deemed to have been granted under subsection (1) on such terms and conditions as he thinks fit including terms and conditions relating to the matters set out in the First Schedule but the licence shall not impose more stringent terms or conditions in respect of the flow rate or characteristics of the discharge or deposit as exempt under section 15 as it was in force immediately before the date of commencement* of the Water Pollution Control (Amendment) Ordinance 1990 (67 of 1990). (4) A licence granted under subsection (3) expires 2 years after the date of commencement* of the Water Pollution Control (Amendment) Ordinance 1990 (67 of 1990). (5) A licence under subsection (3) shall be granted only to- (a) the person who makes or authorizes the discharge or deposit; or (b) the owner or occupier of the premises from which the discharge or deposit is made. (Replaced 67 of 1990 s. 11)___________________________________________________________________ Note: * Commencement date: 1 December 1990. Cap 358 s 17 Tolo Harbour-transitional (1) In this section- "existing deposits" (现有的沉积) and "existing discharges" (现有的排放) have the same meanings as in section 2(1) but the "day appointed" (指定日期) referred to in the definitions of those expressions shall be construed as the date of commencement* of the Water Pollution Control (Amendment) Ordinance 1990 (67 of 1990); "remaining discharges and deposits" (其余的排放及沉积) means all existing discharges and existing deposits that are not specified in the Schedule to the Water Pollution Control (Tolo Harbour and Channel Water Control Zone) (Appointed Days) Order (Cap 358 sub. leg.). (2) For the purposes of section 16(1), all remaining discharges and deposits that would, as set out in section 7(3)(a) or (b), affect the Tolo Harbour and Channel Water Control Zone shall be deemed to have been exempted under section 15 as in force before the date of commencement* of the Water Pollution Control (Amendment) Ordinance 1990 (67 of 1990) other than those discharges and deposits made form premises referred to in section 15(3(a) and (b) as then in force. (Replaced 67 of 1990 s. 11)___________________________________________________________________ Note: * Commencement date: 1 December 1990. Cap 358 s 18 (Repealed 67 of 1990 s. 11) Cap 358 s 19 Applications for licences PART V LICENSING OF DISCHARGES AND DEPOSITS (1) A person who wishes to obtain a licence under section 20 for the purposes of section 8(1)(a), 8(1)(b) or 9(1) shall apply to the Authority in the prescribed form. (Amended 67 of 1990 s. 22) (1A) The Authority is not required to consider an application under subsection (1) unless it is made by- (a) the person who makes or authorizes the discharge or deposit; or (b) the owner or occupier of the premises from which the discharge or deposit is made. (Added 67 of 1990 s. 12)(2) The fee prescribed for an application under subsection (1) must be paid by a date specified in a demand note issued by the Authority. (Replaced 83 of 1993 s. 13) (3) The Authority shall publicly notify all applications for licences under section 20 for the purposes of section 8(1)(a) or section 8(1)(b)- (Amended 67 of 1990 s. 22) (a) by entering in the register such particulars thereof as may be prescribed; (b) by causing a notice to be published at the expense of the applicant in an English language and a Chinese language newspaper determined by the Authority containing such particulars of the application and other information as may be prescribed and a statement of the place or places where a copy of the application may be inspected.(3A) Subsection (3)(b) does not apply where the application is for a licence to discharge domestic sewage from a separate household unit. (Added 67 of 1990 s. 12) (4) During the period of 30 days after the last notice is published pursuant to subsection (3)- (a) a copy of the application shall be kept at each place notified under subsection (3)(b) and shall be available for inspection by the public during normal office hours; (b) any person may, in such manner as may be prescribed, object to the granting of the application on the ground that it would tend to inhibit the attainment or maintenance of the relevant water quality objective. Cap 358 s 20 Grant of licences (1) The Authority may, not earlier than 40 days after the the last notice is published in a newspaper pursuant to section 19(3), either grant or refuse to grant a licence under this section. (Amended 67 of 1990 s. 22) (2) If he refuses to grant a licence under this section the Authority shall notify the applicant in writing of his refusal and shall in the notice state his reasons therefor. (Amended 67 of 1990 s. 22) (3) The Authority shall not grant a licence under this section where he considers that, even by imposing terms or conditions under subsection (4)- (a) the discharge or deposit will endanger or is likely to endanger public health; (b) the discharge or deposit will be or is likely to be harmful to the health or safety of any person engaged in the operation or maintenance of a drainage or sewerage system; (c) the discharge or deposit will be or is likely to be harmful to a drainage or sewerage system; or (d) the attainment and maintenance of water quality objectives will not be or is not likely to be achieved. (Replaced 67 of 1990 s. 13)(3A) The Authority may refuse to grant a licence under this section if, in relation to the discharge or deposit, there has been a breach of any of the terms or conditions of a licence granted under section 15, 16 or 23A or a person has been convicted of an offence under this Ordinance in relation to the discharge or deposit. (Added 67 of 1990 s. 13) (4) The Authority may grant the licence under this section in such terms and on such conditions as he thinks fit including terms and conditions relating to the matters set out in the First Schedule. (Amended 67 of 1990 s. 22) (5) The Authority may grant a licence under this section for a period of not less than 2 years. (Replaced 67 of 1990 s. 13) (6) Despite subsection (5) but subject to section 24, the Authority may, in respect of a licence granted under this section exclusively for the discharge of domestic sewage, as defined in section 9(3), specify in the licence that it continues in effect indefinitely. (Added 83 of 1993 s. 14) Cap 358 s 21 Technical memorandum (1) The Secretary may issue a technical memorandum setting out permissible limits of the physical characteristics and chemical components of discharges and deposits in a water control zone. (2) The Secretary may issue different technical memorandums in respect of different locations in Hong Kong or in respect of different parts of the environment, or both. (3) The Authority shall be guided by all applicable technical memorandums when issuing or renewing a licence under sections 15, 20, 23 and 23A. (4) A technical memorandum issued under this section shall be published in the Gazette and shall be laid on the table of the Legislative Council at the next sitting after its publication. (5) Where a technical memorandum has been laid on the table of the Legislative Council under subsection (4), the Legislative Council may, by resolution passed at a sitting of the Legislative Council held before the expiration of a period of 28 days after the sitting at which it was so laid, provide that the technical memorandum shall be amended in any manner consistent with this section. (6) If the period referred to in subsection (5) would but for this subsection expire- (a) after the end of a session of the Legislative Council or a dissolution thereof; but (b) on or before the day of the second sitting of the Legislative Council in the next following session thereof,that period shall be deemed to extend to and expire on the day after that second sitting. *(7) Before the expiration of the period referred to in subsection (5) or that period as extended by virtue of subsection (6), the Legislative Council may by resolution in relation to a technical memorandum specified therein- (a) in the case of the period referred to in subsection (5), extend that period to the first sitting of the Legislative Council held not earlier than the twenty-first day after the day of its expiration; (b) in the case where the period referred to in subsection (5) has been extended by virtue of subsection (6), extend that period as so extended to the first sitting of the Legislative Council held not earlier than the twenty-first day after the day of the second sitting in that next following session. (Replaced 8 of 2002 s. 11)(8) A resolution passed by the Legislative Council in accordance with this section shall be published in the Gazette not later than 14 days after the passing thereof or within such further period as the Governor may allow in any particular case. (9) A technical memorandum issued under this section shall come into operation- (a) in the case where before the expiration of the period referred to in subsection (5) or, before the expiration of that period as extended under subsection (6) or (7), the Legislative Council does not pass a resolution amending the technical memorandum, upon the expiration of that period or, upon the expiration of that period as so extended, as the case may be; and (b) in the case where the Legislative Council passes a resolution amending the technical memorandum, upon the expiration of the day next preceding the day of the publication in the Gazette of such resolution under subsection (8).(10) In this section, "sitting" (立法局会议), when used to calculate time, means the day on which the sitting commences and only includes a sitting at which subsidiary legislation is included on the order paper. (Added 89 of 1993 s. 35) (Replaced 67 of 1990 s. 11)___________________________________________________________________ Note: * For the transitional provision relating to this subsection as amended by section 11 of the Extension of Vetting Period (Legislative Council) Ordinance 2002 (8 of 2002), see section 12 of that Ordinance. Cap 358 s 22 Effect of a licence (1) A licence for the purposes of section 8(1)(a) shall, subject to the terms and conditions of the licence and during the period specified therein, authorize- (a) the discharge of matter or any specified class or description of matter into the waters of Hong Kong; (b) the deposit of matter or any specified class or description of matter (as provided in section 2(3)),which, but for such authorization, would be a contravention of section 8(1)(a). (2) A licence for the purposes of section 8(1)(b) shall, subject to the terms and conditions of the licence and during the period specified therein, authorize- (a) the discharge of matter or any specified class or description of matter into inland waters; (b) the deposit of matter or any specified class or description of matter (as provided in section 2(3)),which, but for such authorization, would be a contravention of section 8(1)(b). (3) A licence for the purposes of section 9(1) shall, subject to the terms and conditions of the licence and during the period specified therein, authorize- (a) the discharge of matter, or any specified class or description of matter, into a communal sewer or communal drain; (Amended 67 of 1990 s. 22) (b) the deposit of matter, or any specified class or description of matter (as provided in section 2(3)),which, but for such authorization, would be a contravention of section 9(1). (4) A licence shall not be limited to a discharge or deposit by a particular person but shall extend to the discharge or deposit in question when made by any person. Cap 358 s 23 Renewal of licences (1) During such period before the expiry of a licence granted under section 20 as may be prescribed, the person who is making the discharge or deposit may apply in the prescribed form for a renewal of the licence. (2) The fee prescribed for an application under subsection (1) must be paid by a date specified in a demand note issued by the Authority. (Replaced 83 of 1993 s. 15) (3) Section 19(3), (3A) and (4) shall apply for the purpose of publicly notifying an application for the renewal of a licence for the purposes of section 8(1)(a) or 8(1)(b) as if it were an application for a licence. (3A) Despite subsection (3), section 19(3), (3A) and (4) shall not apply for the purpose of publicly notifying an application where the application is in respect of a discharge from an applicant's establishment that consumes 10 m3 or less of water a day and the rate of flow of the discharge applied for is not greater than that. (Added 83 of 1993 s. 15) (4) The Authority may renew or refuse to renew the licence but, except where section 19(3A) applies, in the case of an application for renewal of a licence for the purposes of section 8(1)(a) or 8(1)(b) shall not do so earlier than 30 days after the last notice is published in a newspaper pursuant to subsection (3). (5) Subsections (2), (3), (4) and (5) of section 20 shall apply to the renewal of a licence as they apply to the grant or refusal of a licence under that section. (Amended 67 of 1990 s. 22) Cap 358 s 23A Renewal of section 16 licences (1) During such period before the expiry of a licence originally granted or deemed to have been granted under section 16 as may be prescribed, the person making the discharge or deposit may apply to the Authority in the prescribed form for renewal of the licence. (2) The fee prescribed for an application under subsection (1) must be paid by a date specified in a demand note issued by the Authority. (Replaced 83 of 1993 s. 16) (3) Section 19(3), (3A) and (4) apply for the purpose of publicly notifying an application under subsection (1) as if it were an application for a licence under that section. (3A) Despite subsection (3), section 19(3), (3A) and (4) shall not apply for the purpose of publicly notifying an application where the application is in respect of a discharge from an applicant's establishment that consumes 10 m3 or less of water a day and the rate of flow of the discharge applied for is not greater than that. (Added 83 of 1993 s. 16) (4) In a case where section 19(3) applies, the Authority shall not renew or refuse to renew a licence under this section earlier than 30 days after the last notice is published in a newspaper pursuant to section 19(3). (5) After receipt of an application under subsection (1) and the prescribed fee under subsection (2) the Authority shall renew the licence in respect of the discharge or deposit unless- (a) he considers that any of the conditions set out in section 16(2)(a), (b), (c), (f) or (g) exists; (aa) it has come to his attention that any of the conditions set out in section 16(2)(d) or (e) exists; (Added 83 of 1993 s. 16) (b) he considers that the composition of the discharge or deposit does not comply with a technical memorandum that is applicable to the discharge or deposit; (c) he considers that there has been a breach of any of the terms or conditions of the licence; or (d) he considers that a person has been convicted of an offence under this Ordinance in relation to the discharge or deposit. (Amended 83 of 1993 s. 16)(6) If the Authority refuses to renew a licence under this section he shall notify the applicant in writing of his refusal and shall in the notice state the reasons for the refusal. (7) The Authority may renew a licence under this section on such terms and conditions as he thinks fit including terms and conditions relating to the matters set out in the First Schedule but the licence shall not, in the case of a discharge or deposit measurable by a flow rate, authorize a maximum flow rate less than the discharge or deposit as exempt under section 15 as it was in force immediately before the date of commencement* of the Water Pollution Control (Amendment) Ordinance 1990 (67 of 1990). (Amended L.N. 210 of 1994) (8) The Authority may renew a licence under this section for a period of not less than 2 years. (Added 67 of 1990 s. 15)___________________________________________________________________ Note: * Commencement date: 1 December 1990. Cap 358 s 24 Cancellation or variation of a licence (1) Subject to section 6(6), the Authority may, by notice in writing to a person who is making a discharge or deposit for which a licence is in force, exercise any of the powers set out in subsection (3) if he considers that- (a) any part of the waters of Hong Kong are in such a condition as to constitute a danger to the health of the public, or a section of the public and the exercise of the power in relation to the discharge or deposit would tend to lessen that danger; (Amended 67 of 1990 s. 16) (b) in the case of a licence for the purposes of section 9(1), the discharge or deposit may be harmful to the drainage or sewerage system or to the health or safety of any person engaged in the operation thereof; (Amended 67 of 1990 ss. 16 & 22) (c) it is necessary in order to achieve a new water quality objective; or (Added 67 of 1990 s. 16) (d) in the case of a licence originally granted or deemed to have been granted under section 15 or 16, there has been a breach of any of terms or conditions of the licence or a person has been convicted of an offence under this Ordinance in relation to the discharge or deposit. (Added 67 of 1990 s. 16)(2) Where paragraphs (a) to (d) of subsection (1) do not apply to a discharge or deposit, the Authority may (by notice in writing as provided in that subsection) exercise any power set out in subsection (3), in relation to that discharge or deposit only with the prior approval of the Governor in Council, as to both the exercise and the manner of the exercise of the power, or with the agreement of the person who is making the discharge or deposit. (Amended 67 of 1990 s. 16) (3) The powers referred to in subsections (1) and (2) are- (a) (i) to impose new or amended terms and conditions subject to the observance of which, as from a specified date, the licence shall continue in force; (ii) to declare the licence liable to cancellation at any time the person fails to observe any such term or condition; (iii) to cancel the licence as from a specified date if the person fails to observe any such term or condition;(b) to cancel the licence as from a specified date; (c) to amend or add to any notice previously given under this section, or any part of such notice, or to substitute a new notice for it.(4) The Authority may revoke a notice previously given under this section, subject to the further approval of the Governor in Council in the case of a revocation which affects anything previously done under this section with the approval of the Governor in Council. (5) The date specified in a notice for the amendment or addition of any term or condition under paragraph (a)(i) or (c) of subsection (3) or the cancellation of a licence under paragraph (a)(iii) or (b) thereof shall be not less than 90 days after the day on which the notice is given to the person who is making the discharge or deposit. (6) Subject to subsection (2), the Authority may impose such terms and conditions under subsection (3) as he thinks fit including any term or condition- (a) requiring the person to restrict or from time to time to suspend the discharge or deposit; (b) relating to the matters set out in the First Schedule.(7) Where, before the first discharge of wastewater into a communal sewer or communal drain that- (a) is vested in and maintained by the Government as a sewer or drain for the carriage of foul water; (b) conducts the discharge into a communal sewer or communal drain that is vested in and maintained by the Government as a sewer or drain for the carriage of foul water; or (c) delivers the sewage to a wastewater treatment facility, the discharge from which is licensed,the discharge was previously licensed, the licence in respect of that discharge shall be deemed to be cancelled when the discharge is first made into the sewer or drain. (Added 83 of 1993 s. 17) Cap 358 s 25 Compensation for cancellation or variation of certain licences (1) Where a licence is, pursuant to section 24(1)- (a) cancelled as provided in section 24(3)(b); or (b) varied as provided in section 24(3)(a)(i) or (c) so as to impose additional obligations on the person making the discharge or deposit,within 2 years after it came into effect, the Authority shall be liable to pay compensation to the person whose licence is cancelled or varied if the circumstances set out in subsection (2) are present. (Amended 42 of 1985 s. 3) (2) The circumstances mentioned in subsection (1) are- (a) that the possibility of danger to health or harm to the drainage or sewerage system or to the health or safety of any person engaged in the operation thereof or the establishment of a new water quality objective (as provided in section 24(1)(a), (b) and (c) was known or could with reasonable foresight have been known, to the Authority at the time the licence was granted or renewed; or (b) that the danger, harm or new water quality objective mentioned in paragraph (a) is a consequence of licences granted or renewed after the grant, or, where a licence has been renewed, the last renewal of the licence which is cancelled or varied. (Amended 67 of 1990 s. 22) Cap 358 s 26 Compensation for cancellation of licences and exemptions with the approval of the Governor in Council (1) (Repealed 67 of 1990 s. 22) (2) Where a licence is, pursuant to section 24(2)- (a) cancelled as provided in section 24(3)(b); or (b) varied as provided in section 24(3)(a)(i) or (c) so as to impose additional obligations on the person making the discharge or deposit,within 2 years after it came into effect the Authority shall be liable to pay compensation to the person whose licence is cancelled or varied. (Amended 42 of 1985 s. 4; 67 of 1990 s. 22) Cap 358 s 27 Assessment of compensation (1) Subject to subsection (2), the manner of determining the amount of compensation payable under sections 25 and 26, the factors to be taken into account or disregarded and the principle to be applied in determining that amount shall be such as may be prescribed in regulations made under section 46. (2) The provisions of the Second Schedule shall have effect for the purposes of determining the amount of compensation payable under sections 25 and 26 and for the purposes of the incidental matters for which they provide. Cap 358 s 28 Applications for variation of licences (1) A person who is making a discharge or deposit for which a licence is in force may apply to the Authority in the prescribed form for a variation of the licence. (2) The fee prescribed for an application under subsection (1) must be paid by a date specified in a demand note issued by the Authority. (Replaced 83 of 1993 s. 18) (3) Section 19(3), (3A) and (4) shall apply for the purpose of publicly notifying an application under this section for the variation of a licence for the purposes of section 8(1)(a) or (b) as if it were an application for a licence. (Amended 67 of 1990 s. 22) (4) The Authority may either grant the application, with or without modification, or refuse to grant it but, except where section 19(3A) applies, in the case of a variation of a licence for the purposes of section 8(1)(a) or (b) shall not do so earlier than 30 days after the last notice is published in a newspaper pursuant to subsection (3). (Amended 67 of 1990 s. 22) (5) If the Authority refuses to grant an application or any part thereof he shall notify the applicant and shall inform him of the reasons for his refusal. (6) Section 20(3) shall apply to the exercise by the Authority of his discretion under this section as it applies to the exercise of his discretion to grant or refuse a licence. (7) The Authority may grant an application on such terms and conditions as he thinks fit (including terms and conditions relating to the matters set out in the First Schedule) except that, without prejudice to section 24, he shall not impose any new obligation on the applicant in relation to that part of the discharge or deposit which is already licensed unless- (a) the place at which the discharge or deposit may be made is being varied; or (b) in his opinion such part would have a significantly different effect on the relevant waters as a result of the granting of the application. Cap 358 s 29 When appeal may be brought PART VI APPEALS (1) Subject to subsection (2), a person who is aggrieved by a requirement or decision of the Authority or the Secretary under any of the following provisions may appeal to an Appeal Board constituted under this Part- (a) section 13(1) (requiring a convicted person to restore waters); (aa) section 13A(3) respecting the responsibility for damage and the reasonableness of the costs incurred, but no appeal is available to a person convicted of one of the offences referred to in section 13A(1); (Added 83 of 1993 s. 19) (b) section 14(2A) (refusing to consider an application); (Replaced 67 of 1990 s. 22) (c) section 15(1) (refusing to grant a licence); (Replaced 67 of 1990 s. 22) (d) section 15(4) (fixing terms and conditions of a licence); (Replaced 67 of 1990 s. 22) (e) section 16(2) (cancelling a temporary licence); (Replaced 67 of 1990 s. 22) (f) section 16(3) (granting or fixing terms and conditions of a new licence); (Replaced 67 of 1990 s. 22) (fa) section 19(1A) (refusing to consider an application); (Added 67 of 1990 s. 22) (g) section 20(1) (refusing to grant a licence); (h) section 20(4) (fixing terms and conditions of a licence); (i) section 20(5) (the period of the licence); (Replaced 67 of 1990 s. 22) (j) section 23(4) (refusing to renew a licence); (ja) section 23A(5) (refusing to renew a licence); (Added 67 of 1990 s. 22) (jb) section 23A(7) (fixing terms and conditions of a licence); (Added 67 of 1990 s. 22) (jc) section 23A(8) (the period of the renewed licence); (Added 67 of 1990 s. 22) (k) section 24(3)(a)(i) (imposing new or amended terms or conditions for continuance of a licence); (l) sections 24(3)(a)(iii) and 24(3)(b) (cancelling a licence); (m) section 24(3)(c) (amending or adding to a notice or substituting a new notice); (n) section 28(4) (refusing to vary a licence); (o) section 35 (requiring information to be furnished); (p) section 43 (refusing to withhold information from the register).(2) No appeal shall lie under this section where the requirement of the Authority is made with the prior approval of the Governor in Council under section 24(2). (Amended 67 of 1990 s. 22) (3) An appeal under subsection (1) shall be made by lodging a notice of appeal in the prescribed manner and form within 21 days after the person aggrieved has received notice of the decision or requirement. (4) Where the decision or requirement appealed from was made under a provision mentioned in paragraphs (a), (b) to (e), (i) to (m) or (o) of subsection (1) the notice thereof shall be suspended and cease to have effect as from the day on which notice of appeal is duly given to the Authority and until the appeal is disposed of, withdrawn or abandoned, unless- (Amended 83 of 1993 s. 19) (a) the decision or requirement is considered by the Authority to be necessary because- (i) in any case, the quality of the part of the waters of Hong Kong to which the decision or requirement relates may constitute a danger to the health of the public or a section of the public; or (ii) in the case of a licence for the purposes of section 9, the discharge or deposit to which the decision or requirement relates may be harmful to the drainage or sewerage system or to the health or safety of any person engaged in the operation thereof; and(b) the notice contains a statement to that effect. (Amended 67 of 1990 s. 22)(4A) Subsection (4) does not apply where the decision that is appealed under this section arises under section 20(3A) or 24(1)(d). (Added 67 of 1990 s. 22) (4B) Where the decision appealed from was made under section 13A(3), no enforcement or further enforcement for the recovery of costs shall be taken under section 40B until the appeal is disposed of, withdrawn or abandoned. (Added 83 of 1993 s. 19) (5) Where the appeal is from a decision of the Secretary under section 43, he shall not enter in the register the information to which the appeal relates until the appeal is disposed of, withdrawn or abandoned. Cap 358 s 30 Constitution of Appeal Board (1) Every appeal under section 29 shall be determined by an Appeal Board constituted under this Part. (2) The Governor shall appoint as Chairman of Appeal Boards a person who is qualified in law. (3) Subject to section 32(3), the Chairman and any person appointed under subsection (4) shall be appointed for a term of not exceeding 3 years but may be reappointed. (Amended 83 of 1993 s. 20) (4) The Governor shall also appoint a panel of persons whom he considers to be suitable for appointment as members of an Appeal Board pursuant to section 31(1). (5) An appointment under subsection (2) and every appointment to the panel under subsection (4) shall be notified in the Gazette. (6) In subsection (2) and in section 32(1) "qualified in law" means qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap 336). Cap 358 s 31 Exercise of Appeal Board's jurisdiction (1) The jurisdiction of an Appeal Board on any appeal or group of appeals shall be exercised by the Chairman and such number of persons from the panel referred to in section 30(4) as the Chairman may appoint for that appeal or group of appeals. (2) On any appeal an Appeal Board may confirm, reverse or vary the decision or requirement of the Authority or the Secretary. (3) Every question before an Appeal 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; in the event of an equality of votes the Chairman shall have a casting vote. (4) An Appeal Board shall not at any time consist of a majority of persons who are public officers. (5) An Appeal Board may- (a) receive evidence on oath; (b) 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; and (c) by notice in writing summon any person to appear before it to produce any document or to give evidence.(6) The Chairman may determine any form or matter of practice or procedure in so far as no provision is made therefor in this Ordinance. Cap 358 s 32 Supplementary provisions as to Appeal Board (1) If the Chairman of Appeal Boards is precluded by illness, absence from Hong Kong or any other cause from exercising his functions the Governor may appoint any other person qualified in law to act as Chairman and as such to exercise and perform all of the powers, functions and duties of the Chairman during the period of his appointment. (2) If a person appointed by the Chairman under section 31(1) to hear an appeal or group of appeals is precluded by illness, absence from Hong Kong, or any other cause from exercising his functions, the Chairman may appoint any other person from the panel provided for in section 30(4) to act in his place. (3) The Chairman of Appeal Boards and any person appointed under section 30(4) may at any time resign his office by notice in writing to the Governor. (Amended 83 of 1993 s. 21) (4) If the parties to an appeal consent, the hearing of the appeal may be continued notwithstanding any change in the membership of an Appeal Board as if the change had not occurred. Cap 358 s 33 Review of Appeal Board's decision by Governor in Council (1) This section applies where- (a) an Appeal Board has reversed or varied a decision or requirement of the Authority or the Secretary; and (b) the Authority or Secretary considers that exceptional circumstances require the review of the Board's decision in the public interest.(2) The Authority or Secretary may, where this section applies, within 14 days of being notified of a decision of an Appeal Board refer the case for review by the Governor in Council. (3) Where the Authority or the Secretary has referred a case for review under subsection (2), he shall forthwith notify the other party in writing of the reference, giving his reasons for seeking the review and inviting him to submit written representations concerning the review, within 14 days of receiving the notice, for consideration by the Governor in Council. (4) Upon a reference under subsection (2) and upon the expiry of the period of 14 days referred to in subsection (3) the Governor in Council may review the case, considering any representations submitted under subsection (3), and may confirm, reverse or vary the decision of the Appeal Board. Cap 358 s 34 Case may be stated for Court of Appeal (1) The Chairman of Appeal Boards may of his own motion, before an appeal is determined, refer any question of law to the Court of Appeal by way of case
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