Bar wins landmark noise case

PUBLISHED : Saturday, 05 June, 2004, 12:00am
UPDATED : Saturday, 05 June, 2004, 12:00am

Court overturns ban on Tsim Sha Tsui venue after judge says method to measure disturbance is too subjective

Hong Kong's late-night venues can breathe a sigh of relief after a court ruling yesterday overturned a controversial noise ban on a popular Tsim Sha Tsui bar.

At the centre of the test case was Chasers, the Knutsford Terrace bar, which was slapped with a noise ban in April 2002 following complaints from residents about noise levels. Subsequent court challenges to overturn the ban failed.

But Madam Justice Maria Yuen ka-ning, sitting in the Court of Appeal, yesterday ruled the noise measurement to be 'unreasonable in character and extent''.

The Noise Control Authority issues Noise Abatement Notices, which can lead to entertainment venues being fined and losing their liquor licences, on the basis of a test of audibility.

Madam Justice Yuen said this was too subjective.

'In my view, an abatement notice which puts a person at risk of strict criminal liability for a sensory perception [audibility] which is personal to a third party and which cannot be objectively verified is unreasonable in character,'' she said.

'Given that human beings have different sensitivities to sound, the requirement that music be 'not audible' after 11pm can only be complied with if no music at all is played after that time.''

The case is the first time the legal criteria to assess noise levels has been tested.

Chasers, which is run by Step In Limited, was dragged into the issue after residents of the Carlton Building, which houses the bar, complained to the Environmental Protection Department.

Between November 2001 and March 2002 the department received three complaints when live music was played from 11pm until 5am.

After investigating, the authority issued a Noise Abatement Notice to the bar.

One of the criteria was that between 11pm to 7am, the noise limit for the indoor noise level should be 'not audible''.

After losing an appeal against the notice, specifically the 'not audible'' requirement, Step In filed a judicial review asking the Court of First Instance to decide on the legality of criteria used to assess noise levels.

But last September, Madam Justice Carlye Chu Fun-ling, presiding over the review, said in upholding the ban she had considered the evidence of several academics in assessing the use of inaudibility as a criterion for measuring noise levels.

She added that since the 1980s, inaudibility had been accepted as a limit for amplified music played on entertainment premises.

Counsel for the entertainment company, Gerard McCoy SC, told the Court of Appeal his client was prepared to abide by a decibel-based limit but not a 'not audible'' limit because it did not know what level from the bar would be audible.

He argued his client would be placed in a precarious position because it simply was not in a position to maintain an inaudible noise level.

Mr McCoy said his client was also exposed to the 'very real possibility'' of losing its liquor licence if there was a proven breach of the Noise Control Ordinance.

Although Mr Justice Peter Cheung Chak-yau refused the company's appeal, Mr Justice Michael Hartmann and Madam Justice Yuen ruled in its favour.

Madam Justice Yuen said the test of 'not audible'' was subjective and uncertain.

Mr Justice Hartmann added the bar was not able to monitor its noise level as the points from which it could be assessed were not readily accessible.