Lucien Masset v Secretary for Justice

Lucien Masset v Secretary for Justice
(for Director of Environmental Protection)
[2018] 5 HKLRD 55
Court of First Instance
Constitutional and Administrative Law List No 41 of 2015
Thomas Au J
13 September 2018

Phrases:

Administrative law - Director of Environmental Protection - decision affixing acknowledgment to form containing owner's permission to deposit construction waste on his lot - once statutory requirements complied with, Director had no discretion to refuse to affix acknowledgement on specified form - meaning and effect of "may" in s.16C - Waste Disposal Ordinance (Cap.354) s.16C

Environmental law - waste disposal - depositing construction waste on private lot - affixing of Director of Environmental Protection's acknowledgement to form containing owner's permission - proper construction of s.16C(3) - Waste Disposal Ordinance (Cap.354) s.16C(3)

Words and phrases - "may" - Waste Disposal Ordinance (Cap.354) s.16C(3)

By virtue of s.16B(4) of the Waste Disposal Ordinance (Cap.354), in order for an owner's permission to deposit construction waste on his lot to be valid, such permission must be given in a form specified by the Director of Environmental Protection (the Director) and the form giving such permission must be affixed with an acknowledgment by the Director. Section 16C(3) provides that the Director "may" affix her acknowledgment on such a form "only if" the requirements of s.16C(3)(a) and (b) (the Statutory Requirements) were complied with. The Statutory Requirements being complied with in respect of the lots concerned, the Director affixed her acknowledgment to a number of such forms. An environmental protection activist applied for judicial review of the Director's decisions to affix her acknowledgment to those forms. He sought a declaration that s.16C(3) confers on the Director a discretion, to be exercised with due regard to relevant environmental considerations, not to affix her acknowledgment to such a form even though the Statutory Requirements were complied with.

Held, dismissing the application for judicial review, that:

  • Notwithstanding the use of the word "may" in s.16C(3) of the Ordinance, the Director had no such discretion, and was obliged to affix her acknowledgment to such a form if the Statutory Requirements were complied with (Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, Sheffield Corporation v Luxford [1929] 2 KB 180, Re Shuter [1960] 1 QB 142 applied). (See paras.49, 68.)
     
  • The relevant public consultation paper and Legislative Council brief are sufficiently clear to enable the Court to ascertain the context and the purpose of the introduction of the relevant legislation and the mischief it was enacted to address. It was unnecessary to determine whether it was permissible to look at the Bills Committee Report. The said context and purpose showed that s.16C(3) was only concerned with having more easily ascertainable and prior proof of the owner's permission to deposit waste on his lot. (See paras.34, 40, 77, 80-81.)

Application

This was an application for judicial review by Christian Jose Lucien Masset of the decisions of the Director of Environmental Protection to affix her acknowledgment on specified forms concerning the deposit of construction waste on private lots. The facts are set out in the judgment.

Editor's note: This case involved, among other things, looking at precedents on the meaning and effect of the word "may" in various contexts.

Jurisdictions: 

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