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Colonial Cases

Municipal Council v. Brown, 1878

[public nuisance]

Municipal Council v. Brown

Civil Summary Court, Hong Kong
19 October 1878
Source: The North China Herald, 24 October 1878


19 Oct


   Mr. RENNIE appeared for the complainants.

   Mr. WAINEWRIGHT appeared for the defendant.

   Defendant was summoned  under the 31st By-law of the Shanghai Land Regulations for an order directing him to discontinue or remedy a nuisance permitted in his premises situated in the Chinese village, and the Hongkew side of the Fohkien Road bridge, and used by him for the purpose of carrying on the process of silver melting, which process had been certified by the Officer of Health as being injurious to the health of the persons living near the premises.

   Mr. RENNIE, in opening, read over the charge to his Honour, and also the by-law under which it was laid.  The proceedings were in proper order, he said, and he presumed it was for the defendant to show cause why the order asked for should not issue.  He should first call Dr. Henderson, the Officer of Health, who would say that he had reported on the defendant's premises to the Municipal Council, and his report would be put in.  He should next call the Inspector of Nuisances, who had also reported to the council on the premises, and he had also been in communication with many of the inhabitants living near the place, and a large number of them were willing to come forward and give evidence that they suffered from the funs emitted in the melting process at defendant's works.

   Dr. HENDERSON, the Municipal Officer of Health, was then called, and deposed that he had visited certain silver refining establishments on the Hongkew side of the Fuhkien Road Bridge, and had reported on them to the Municipal Council.

   Mr. RENNIE produced the report, which the witness identified, and read it to the Court.  It was to the effect that witness visited the silver refineries on the night of the 30th September, and found the men at work in two establishments, but all the fires were not lighted.  The nuisance and danger of such places were (1) the fumes, and (2) the liquid refuse.  The fumes arising  from the boiling process, to which the metal is subjected in open vessels containing sulphuric acid, consists mainly of sulphurous acid, which is a powerful irritant, and, when concentrated, a poisonous gas.  It was difficult to say positively at what distance from the works the irritant effects of the fumes are exercised, but it might safely be affirmed that they exercised an injurious effect on the health of those living thirty yards of them, the prevailing  direction of the wind determining the quarter which would suffer most.  At the back of the refineries, and at about twelve paces distance from pone of them, is an alley-way formed by two parallel lines of one-storied native houses, and in this alley-way the fumes were sufficient on the night of his visit to cause cough and difficult breathing, and the fires were not then all lighted.

   He observed that chimneys of some 20 feet in height were being built by the proprietors of the place, but he questioned whether they would themselves be a sufficient remedy for the nuisance.  It would probably be found that the boiling process must be conducted in vessels which open under water, or which conducted the fumes by some arrangement of pipes directly into the chimney.

   The liquid refuse consisted chiefly of sulphate of copper, in solution with sulphuric acid, and  was undoubtedly poisonous if nixed with drinking water in any considerable quantity; and to permit such obvious contamination of the water supply, even in the smallest degree, would be a very  dangerous precedent. In the case of the establishment under discussion, the refuse is collected in tanks dug in the soil, and none of it, he thought, was likely to reach the creek, either directly or indirectly.  He did not enter into the  question of the injury to health which the workmen in the refineries, as they are at present conducted, probably experienced, because his opinion on the point had not been sought by the council, but it was certainly a question for the careful consideration of their employers.

   Witness said that was his report to the Municipal Council, and it was his opinion that there were a considerable number of inhabitants sufficiently near the refineries for their health to be affected injuriously.

   Cross-examined by Mr. WAINEWRIGHT. - His report referred, of course, to what he saw on the 30th September.  Chimneys of sufficient height together with boiling vessels as described in his report, would, in his opinion, remedy the nuisance. If the refuse was sulphate of iron and not sulphate of copper it would be less injurious to health.  He had not seen any apparatus either in Shanghai or elsewhere to suggest the idea to him of opening under water, and he was not prepared at present to suggest a  way of doing it.  He did not  question or examine any of the inhabitants as to their health.

   JOHN HOWES, Inspector of Nuisances, deposed that he had visited the silver refineries in question, and had reported on them to the Municipal Council.

   His report was read.  It was to the effect that in consequence of complaints made to Inspector Wilson, of the Louza Police Station, by some old  women living in the villages in which the refineries were situated, he visited the place along with an interpreter, and the inhabitants he questioned complained that the fumes from the refineries made them cough at night, and that the refuse killed their  ducks and fowls.  Twenty-eight natives had signed their names to the complaint, and were willing to come forward and give evidence.

   In answer to Mr. RENNIE, witness s aid there has previously been frequent complaints about these refineries, and they had been closed by an order of the Mixed Court, and then Mr. Brown  got them into his hands.  They were just as great a nuisance now as they were before.

   Cross-examined by Mr. WAINEWRIGHT. - He believed all the silver refinining establishments in the Settlement had been closed by the Mixed Court.

   By His HONOUR. - These particular refineries had been in existence for several years.  They were stopped by an order of the Mixed Court last summer, but soon afterwards were re-opened, and Mr. Brown stepped in and  said he was the owner.

   Mr. RENNIE  did not propose to call any more witnesses unless his Honour wished to enquire further into the matter.  He was prepared to call all the persons Mr. Howes had  seen, but he submitted that if the court was satisfied that the fumes from the sulphuric acid were unwholesome, uncomfortable, and injurious to the health of the inhabitants living near the refineries, it was a nuisance that must be remedied; the works need not necessarily be stopped, but he presumed an order would issue for the nuisance to be abated.

   Mr. WAINEWRIGHT, on behalf of the defendant, said he did not wish to take technical objections, but it seemed to him a stretch of language to call Dr. Henderson's report a certificate that he believed the alleged nuisance was injurious to the health of the inhabitants, because it appeared to him to be little else than a tissue of "ifs," "buts," and "probabilities," and according to Dr. Henderson's own showing, the nuisance was more or less remedial.  His report was altogether speculative, and not a certificate within the meaning of the 31st  By-law.  He complained of the great hurry of the council in taking the proceedings, and explained that the correspondence which had taken place between the Council and the defendant, showed that there had been an unreserved disposition on the part of the defendant to meet the views of the council in every respect.  Defendant had done his utmost to concert with the Council as to what was desirable to be done in the interests of all parties, but instead of his overtures being met in a friendly and graceful spirit, he had received sneering letters and snubs in plenty, which had been followed up by the issue of the summons.

   His HONOUR said it did not appear that the process as now carried on was injurious to the health of the inhabitants; the building of the chimneys, and anything else that might have been done in the meantime might have rendered the nuisance which once existed quite in noxious.  The report of the Health Officer was dated nearly 3 weeks ago.  He (His Honour) should certainly require a fresh certificate from the Health Officer on the subject before he could make any order.

   Mr.  WAINEWRIGHT said that he would like nevertheless to be allowed to call Dr. Jamieson and Mr. Kingsmill who had visited the refineries and made a joint report, which he would prove and then read.

   Dr. JAMIESON was then called and identified the report produced as one he had made in conjunction with Mr. Kingsmill.

   The report was read.  It was to the effect that they visited the refineries on the 11th inst.  At the time of their visit no work was in progress, but a careful examination  of the premises enabled them to form a sufficient judgment as to the effects likely to be produced by the process carried on under present conditions.

   They were at on e with the Health Officer in regard to the irritant effects if the sulphurous acid gas given off in the process of boiling silver in sulphuric acid; but from the fact that within a few yards of the works uninjured vegetation is to be found, they were of opinion that by the time they reached the ground in the neighbourhood, those fumes were not sufficiently concentrated to be injurious to life or health.  Considering the extreme filth of the houses, passages, and unenclosed lots which surround the works, they were even disposed to consider the presence of such a quantity of sulphurous acid in the air as would be faintly appreciable, rather beneficial than the reverse to the inhabitants. But in order to prevent more than a minimal quantity from reaching the ground, they would recommend:-

1st, the replacement of the existing chimneys by erections of brick not less than 45 feet in height.  The wooden structures which at present lead off the fumes from the boiling pans are not lofty enough, and by their construction ensure the delivery of a large amount of vapour in a downward direction.

2nd, the adoption of the plan suggested by the Health Officer, by which the fumes from each pan should be delivered under water.  But should this, considering the number of pans, prove impracticable, they offer as an alternative the conduction of all the smoke and heated air from the furnaces into a suitable flue common to all the furnaces, and which should open into the main chimney about eight feet above the surface of the furnace platform.  This would, they believe, ensure sufficient draught to carry the fumes to the summit of a chimney of the height suggested, after which the portion that would reach the ground could hardly be harmful.

   Much of the otherwise inevitable delivery of gas into the works themselves would be obviated by the construction of a series of light moveable iron screens to be left down to the edge of the platform during the boiling process.  But as, were these provided, they would probably never be used by the native workman, they merely mentioned the point without pressing its necessity.

   It appeared to them that all the refuse containing anything recoverable in the shape of copper or acid, was as far as possible used up.  But the last remainder must in any case be an extremely unsuitable admixture for the creek water, should any of it reach the creek.  They would suggest that the absolute refuse, which must possess disinfectant properties, should be led by pipes into the large stagnant pond which lies a little to the North-west of the works, and which in its present condition is undoubtedly a source of danger to the health of the neighbourhood. 

   Supposing that these suggestions are adopted, they believe that no more inconvenience will arise to persons in the vicinity of the silver refining works than is inevitable wherever chemical processes are carried on upon a large scale.
   In answer to his Honour, Mr. WAINEWRIGHT said the suggestions mentioned in the report had not yet been carried out.  It had been the defendant's wish to concert a line of action with the municipal authorities, bur he had always been snubbed and sneered at.  Defendant was now prepared, as he always had been, to take all reasonable steps to abate the nuisance, if it was found a nuisance existed.

   In answer to Mr. WAINEWRIGHT, Dr. JAMIESON said the neighbourhood in which the refinery was situated was the dirtiest in Shanghai.  The pool referred to in the report was in a very bad state indeed, and the sulphurous acid in the refuse would act as a disinfectant so far as it was concerned.

   Mr. KINGSMILL also confirmed the report.  Hew visited the premises again that morning, and there was nothing in the report he wished to alter.

   Defendant's shroff produced a document in Chinese, signed by 50 of the inhabitants who had no objection to make to the fumes or refuse from the refinery, and Mr. Wainewright said he had the oldest inhabitant present t to give similar testimony if necessary.

   His HONOUR thought that it would be best for all the parties to consult as to the most likely means for remedying the evil.

   Mr. WAINEWRIGHT repeated that defendant was prepared to do anything that was reasonable, and said the council had treated him in a very high-handed manner.  He then read the correspondence which had passed, in support of his assertion.

   After some conversation, His Honour said he should adjourn the summons for a week and in the interval he hoped some concerted measures to remedy the evil complained of would be decided on, so that it would not be necessary for him to hear anything more of the matter.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School