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EIA Ordinance

PART VI APPEALS

17. Appeals
    
    
    1. An environmental permit holder or an applicant for---
       
       
       1. an environmental impact assessment study brief;
          
          
       2. permission to apply directly for an environmental permit;
          
          
       3. approval of an environmental impact assessment report; or
          
          
       4. an environmental permit,
          
          
       may appeal to the Appeal Board if he is aggrieved by a decision of the Director---
       
       
       1. as to the content of an environmental impact assessment study brief issued by the Director under section 5(7)(a);
          
          
       2. not to issue an environmental permit;
          
          
       3. not to permit an applicant to apply directly for an environmental permit under section 5(9), (10) or (11);
          
          
       4. as to the conditions imposed under section 5(12) on an applicant's applying directly for an environmental permit;
          
          
       5. not to approve an environmental impact assessment report;
          
          
       6. to impose conditions on the issue or variation of an environmental permit;
          
          
       7. to vary or to cancel an environmental permit;
          
          
       8. to claim costs incidental to remedying environmental damage under this Ordinance.
          
          
    2. A person whose project is specified as a designated project under section 4(4) may appeal to the Appeal Board against the decision to designate the project.
       
       
    3. An applicant shall appeal by lodging notice of appeal in the prescribed manner within 30 days of receipt of the notice of the decision.
       
       

18. Appeal Board panel
    
    
    1. The Appeal Board shall determine an appeal under this Ordinance.
       
       
    2. The Chief Executive shall appoint as Chairman of the Appeal Board panel a person who is qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap. 336).
       
       
    3. The Chief Executive may appoint as Deputy Chairman of the Appeal Board panel a person who is qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap. 336) who may act as Chairman in his absence.
       
       
    4. The Chairman, a Deputy Chairman and a person appointed to the Appeal Board panel are appointed for a term of 3 years but may be reappointed.
       
       
    5. The Chief Executive shall appoint a panel of persons whom he considers suitable for appointment as members of the Appeal Board to hear any appeal under this Ordinance.
       
       
    6. An appointment under subsection (2), (3) or (5) is to be notified in the Gazette.
       
       
    7. The Chairman, a Deputy Chairman and a person appointed to the Appeal Board panel may at any time resign by notice in writing to the Chief Executive.
       
       

       (Amended 34 of 2000 s. 3)

19. Constitution of Appeal Board
    
    
    1. The Chairman and the number of persons from the panel the Chairman appoints to be members to hear an appeal constitutes an Appeal Board.
       
       
    2. The Appeal Board may give directions to the Director as to the exercise of the Director's functions relevant to the appeal. The Director shall comply with the directions.
       
       
    3. The opinion of the majority of the members hearing the appeal determines a question before the Appeal Board except a question of law which the Chairman determines. The Chairman has a casting vote where there is an equality of votes.
       
       
    4. At least 3 members, one of whom must be either the Chairman or Deputy Chairman, shall hear and determine the appeal.
       
       
    5. The Appeal Board must not include public officers.
       
       
    6. The contents of any technical memorandum must not be called into question in an appeal.
       
       
    7. In an appeal the Appeal Board may---
       
       
       1. administer an oath and receive evidence on oath;
          
          
       2. admit or take into account a statement, document, information or matter whether or not it would be admissible in a court of law;
          
          
       3. by notice in writing summon a person to appear before it to produce a document or to give evidence;
          
          
       4. confirm, reverse or vary the decision or requirement appealed against; and
          
          
       5. make an award of the costs of the appeal as is just and equitable in all the circumstances of the case.
          
          
    8. In the exercise of its powers under subsection (7) the Appeal Board has the powers which the Court of First Instance may exercise. (Amended 25 of 1998 s. 2)
       
       
    9. If a person---
       
       
       1. on being summoned as a witness before the Appeal Board fails to attend; or
          
          
       2. being in attendance as a witness refuses to take an oath required by the Appeal Board to be taken, or to produce a document under his power or control required by the Appeal Board to be produced by him, or to answer a question to which the Appeal Board may require an answer; or
          
          
       3. does any other thing which would, if the Appeal Board had been a court of law having power to commit for contempt, have been contempt of that court,
          
          
       the Chairman may certify in writing the contempt of the person to the Court of First Instance. (Amended 25 of 1998 s. 2)
       
       
    10. The Court of First Instance may inquire into the alleged contempt and after hearing--- (Amended 25 of 1998 s. 2)
        
        
        1. the witnesses who may be produced against or for the person charged with the contempt; and
           
           
        2. any statement that may be offered in defence,
           
           
        punish or take steps for the punishment of that person in the same way if he had been guilty of contempt of the court.
        
        
    11. A witness before the Appeal Board has the same immunities and privileges as if he were a witness in civil proceedings before the Court of First Instance. (Amended 25 of 1998 s. 2)
        
        
    12. Costs awarded by the Appeal Board are enforceable as a civil debt and costs payable by the Director under an award are charged on the general revenue.
        
        
    13. The Chairman may determine a form or matter of practice or procedure of the Appeal Board for which a provision is not made in this Ordinance.
        
        
    14. In this section "public officer" (公職人員)does not include a judge who is appointed as the Chairman or a Deputy Chairman.
        
        

20. Supplementary provisions
    
    
    1. If both the Chairman and Deputy Chairman are precluded by illness, absence from Hong Kong or any other cause from exercising his functions, the Chief Executive may appoint a person qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap. 336) to act as Chairman and as such to exercise and perform all the functions of the Chairman during the period of his appointment. (Amended 34 of 2000 s. 3)
       
       
    2. If a person appointed by the Chairman to hear an appeal under this Part is precluded by illness, absence from Hong Kong or any other cause from exercising his functions, the Chairman may appoint another person from the panel to act in his place.
       
       

21. Case may be stated for Court of Appeal
    
    
    1. The Appeal Board may, before an appeal under this Part is determined, refer a question of law arising in the appeal to the Court of Appeal for determination by way of case stated.
       
       
    2. On the hearing of the case the Court of Appeal may amend the case or order it to be sent back to the Appeal Board for amendment having regard to the opinion of the Court of Appeal.