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High fines scare off polluters

Over the past 20 years, the Government has established a variety of regulatory measures to legislate a safe level of pollution.

But enforcement of these laws has proven troublesome and repeat offenders continue to abuse the system.

The licensing approach to regulating the environment is fairly common in the SAR.

It normally involves the Government negotiating with a firm to establish quality controls that will account for scientific safety standards, community interests and the firm's practical ability to meet these goals.

Firms will be expected to hire environmental professionals or purchase appropriate environmental technology in order to meet the designated standards. Understandably, no firm will take such action voluntarily because it is costly.

Negative sanctions, such as fines or imprisonment, are therefore imposed. The economic theory behind such sentencing is that it establishes a penalty whose expected value exceeds the cost of compliance.

In practice, fines must be within the means of the offender to pay. Imprisonment would certainly deprive the personal liberty of the responsible corporate manager.

But imprisonment has only been imposed once in Hong Kong and in that case the sentence was suspended.

One plausible explanation of this condition is that environmental offences are not perceived in Hong Kong to be so morally wrong that imprisonment is deemed the most ap propriate penalty. Another explanation, shameful as it might be, is that the Government simply finds it too troublesome to prove a senior person within a company was responsible for an environmental offence, and therefore deliberately defers taking legal action.

There are a variety of reasons for repeat offences. The main one is that the fines are so low it was not worth paying for the work necessary to ensure compliance with the law.

The way to prevent first time or repeat offenders is to make sure cost of the fine is more than the cost of compliance. Otherwise firms will be simply budgeting for penalties as a cost of doing business.

One sugges tion could be relatively short- term compliance plans backed up with the threat of daily penalties if the plan is not on schedule.

Firms must realise that environmental legislation is not designed simply to harm business. Its purpose is to reduce the costs associated with pollution.

There is a Chinese proverb which applies neatly to this situation: 'Gok ga ji so mun chin suet'.

This means that people tend to only sweep the snow from their front door but will not take care to help their neighbours or clean the public areas. It is meant to criticise selfish behaviour.

Professor Bachner is chairman of the Hong Kong Environmental Law Association and Associate Professor, Department of Law, City University of Hong Kong

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