Police v Weng [2021] WSDC 4 (3 March 2021)

IN THE DISTRICT COURT OF SAMOA
Police v Weng [2021] WSDC 4 (3 March 2021)

Case name:	Police v Weng
Citation:	[2021] WSDC 4
Decision date:	3 March 2021
Parties:	POLICE (Informant) v TUITUIOAIGA WEIJI WENG, male of Vaiusu, Apia (Defendant)
Hearing date(s):	04th December 2020
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	I find that the notice Exhibit P2 was invalid. However, even if the notice was valid, the prosecution have failed to prove that the defendant did not comply with the notice for the reasons given. The defendant is therefore acquitted of the charge.
Representation:	D. Fong for the Informant S. Wulf for the Defendant
Catchwords:	Non-compliance – waste management – rubbish on land - acquittal.
Words and phrases:
Legislation cited:	Waste Management Act 2010, ss. 2; 2(1); 6; 8; 17; 17(1); 17(2); 17(2)(a); 18; 18(2).
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TUITUIOAIGA WEIJI WENG male of Vaiusu, Apia

Defendant

Counsels: Mr D Fong for prosecution
Mr S Wulf for defendant

Hearing: 04th December 2020
Decision: 03rd March 2021

RESERVED DECISION

Charges

1. The defendant is charged with one count of non-compliance pursuant to section 17(2)(a) of the Waste Management Act 2010 (hereinafter referred as “WMA”) of which the defendant entered a plea of not guilty.
2. The charge states “... that at Vaigaga between the 31^st day of August 2018 and the 04^th day of September 2018, the abovenamed Defendant of China and Vaiusu, failed to comply with the Ministry’s written notice pursuant to section 17(2) of the Act”.
3. Section 17(2) of the WMA stipulates:
   • 17. Controls over certain wastes – (1) The Chief Executive Officer, and an approved waste management operator, may serve written notice on any person requiring that any wastes owned, possessed or under the control of that person:
   • (a) be stored, transported or disposed of in any required manner;
   • (b) not be stored, transported or disposed of in any particular manner;
   • (c) be removed from a particular place and properly disposed of; or
   • (d) be made available for recycling in any manner stated in the notice.
   • (2) A person who fails to comply with person commits an offence and is liable to imprisonment for a term not exceeding 3 months or a fine of 2 penalty units who uses any threatening, abusive, insulting words or behavior with intent to provoke a breach of the peace OR whereby a breach of the peace may be occasioned.
4. The prosecution so far as their case is concerned seemed to rely on subsection (c) although not specifically particularized on the charge itself.
5. Section 2(1) of the WMA defines “waste” as including:
   • (a) garbage, household refuse, rubbish, scraps and trade and industrial wastes, in solid, liquid or gaseous form; and
   • (b) any other matter or thing determined under section 6 to be waste for the purposes of this Act, –
   • but does not include human wastes except in the form of sludge or any other form intended for final disposal as a waste product.
6. This is a strict liability offence which means there is no requirement to prove intent, recklessness, dishonesty or any other mental element in respect of any part of the actus reus. In order to establish non-compliance, the only thing which needs to be proved is the act or omission which forms part of the offence.
7. Despite this being a strict liability offence, the burden of proof remains with the prosecution to prove the elements of the offence beyond a reasonable doubt. The elements therefore are:
   • (i) That the defendant deposited waste material on his property
   • (ii) That the material was waste as defined by the Act
   • (iii) That there was a valid notice as required by legislation to remove the waste material
   • (iv) That the notice was received by the defendant
   • (v) That the defendant having received the notice failed to comply with the notice

Facts

8. Prosecution called three (3) witnesses. Mataua Maua Lui was a 34 years old male and works for the Ministry of Natural Resources and Environment (hereinafter referred to as “MNRE”) as a Senior Investigating Compliance Officer. He testified that on the 29 August 2018 a complaint was received by the MNRE that there was excessive dust and coming from a property at Vaigaga affecting neighbouring properties. Mr Lui went to inspect the complaint the same day and confirmed the citing of trash bags, plastic bags and bottles along with demolished building materials. Mr Lui did a legal title search the same day and found out the property was owned by Tuituioaiga Weijie Weng (produced as Exhibit P1).
9. Mr Lui visited the title owner located on the 2^nd floor of the NPF Plaza to inform the owner of the complaint and the results of his investigation. Mr Lui told Mr Weng to remove the “waste” and transfer to Tafaigata rubbish dump. Mr Lui testified that Mr Weng asked for two (2) days to remove the “waste” material. On the 31^st August 2018, MNRE formally wrote to Mr Weng to remove “all waste” (letter produced a Exhibit P2) from his property. There is no evidence as to when the defendant received the letter delivered by Mr Lui except that the defendant accepted under cross examination that he did receive it but gave it to his lawyer as he could not read English.
10. Mr Lui tendered an inspection report dated 29 August 2018 (Exhibit P3). Photographs 1 and 2 show what appear to be a mixture of demolished building materials and plastic material. Photographs 3 – 6 show what seems to look like building material including roofing iron. Mr Lui testified that he revisited the land sometime in November 2018 and noticed that the area where the rubbish was located was covered with soil.
11. Mr Lui testified that the site was revisited by Ms Kathleen Taituave on 4^th September 2018 (Exhibit P4) to inspect whether the defendant complied with the notice. Mr Wulf did not object to this report being tendered eventhough prosecution did not call Ms Taituave. Exhibit 4 showed that Silva Transport were doing reclamation works on the land. There was little explanation to describe what was shown in the four (4) photos inserted in the report. However, it is one thing tendering the report. It would be hearsay if Mr Lui were to speak as to the contents of the report. The question is as of 4 September 2018, were these materials as seen in the photos “waste” materials?
12. Under cross examination, Mr Lui confirmed that the defendant filed an application prior to the complaint for filling his land but has not been finalized. He testified that he told the defendant that the matter would not have been that serious if it were just the building materials found on the land but the plastics and rubbish was not acceptable. He confirmed that the defendant was told to remove all waste.
13. Prosecution called Seumanufagai Malaemanu Tuuga who is the complainant and a driver for MNRE. He testified that on 29 August 2018 after work, a strong wind blew plastic papers and dust towards his property. When he investigated, he noticed illegal dumping of rubbish on the neighbouring land of a Chinese man. He reported the matter the next day to Mr Lui. Under cross examination, Mr Tuuga testified that he inspected the land on the 30 or 31 September 2018 and observed that the “rubbish” had been buried. He further testified that on 1 September 2018 he saw trucks filled with soil come unto the land and filled the land. He suggested that they buried the building materials on the land as he never saw rubbish being removed.
14. The last witness for the prosecution was Mema Vavega, a 59 years old female who works as a nanny. She is a neighbor to the defendants land. She testified that she observed the Chinese man’s land next door has a lot of plastic bags, chicken boxes and “other” rubbish. She is annoyed with the dust and rubbish burning that comes from the defendants land. She agreed under cross examination that there was rubbish removed but not all. She confirmed that there was no more rubbish on the land suggesting it was all buried.
15. The defendant elected to testify. He is a 59 years old man of Vaiusu and the owner of DMC restaurant. He confirmed that he owned the property at Vaigaga. The defendant testified that when his restaurant at Savalalo burnt, he transported the building material to fill the land in question. He denied that he never dumped or burnt plastic bags or rubbish on the land. He testified plastic bags were already on the and when he bought the land perhaps because it was vacant and unoccupied. He confirmed meeting with Mr Lui and cleaned up the land immediately except for building demolition materials and concrete blocks. Under cross examination as to the meaning of “remove all waste”, Mr Weng responded that he asked Mr Lui to leave the concrete blocks and Mr Lui said yes.

Judges role

16. Before I begin my consideration of the evidence and the law, it is important that I set out my role in a Judge Alone Trial. I am required to decide whether the essential elements constituting the alleged offences have been proved beyond reasonable doubt.
17. This is a criminal prosecution. The onus is on the prosecution to prove the elements of each charge beyond reasonable doubt. There is no onus on the defendant to prove or disprove anything. All facts need not be proved beyond reasonable doubt, only the elements of the charge.
18. In this case the defendant has given evidence. The fact the defendant gave evidence does not change the onus or standard of proof.
19. I have considered all of the evidence that has been placed before me in this case. This includes the evidence given under oath and exhibits.
20. The evidence that I heard in this case featured various conflicts, and therefore it cannot all be correct. The divergence in the evidence simply does not allow for that to occur. I have looked at all the evidence with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence.
21. It has been necessary for me to consider the honesty, reliability and credibility of each witness. I do not have to accept everything that a witness says or reject anything that a witness says. I am entitled to accept and reject parts of what a witness said in their evidence.
22. I also emphasize that in reaching a decision in a Judge alone trial, it is neither necessary - nor am I required - to articulate findings about every item of the evidence. My role is to determine whether the prosecution has proven the elements of the alleged offences beyond reasonable doubt. In doing that, however, it is necessary for me to resolve some primary disputes over the facts.
23. The prosecution submits that the defendant did not comply with the notice for the removal of all waste material on or before 3 September 2018. Even if the defendant removed the waste material after the 3 September 2018 deadline, it need not matter as the defendant was still “not in compliance for failure to remove the waste material on the date required in the notice” and/or concealed the waste material by burying under soil.
24. Mr Wulf submits firstly that the notice was defective on two grounds. The first is that the notice was not validated by an “approved waste management operator” pursuant to section 2, 8 and 17(1) of the WMA. However, even if it was validated by an approved waste management operator, the second ground is that the notice was ambiguous as to the meaning of “all waste” that the defendant was required to remove from his property. In any event, Mr Wulf’s second submission is that even if the notice was not defective, the defendant did comply and removed the “waste” materials except for demolished building materials that was agreed to by Mr Lui and/or were not considered to be “waste” defined under section 2 and 6 of the WMA.
25. It is necessary therefore to deal with Mr Wulf’s objections before we move on to the question of whether the defendant complied or not.
26. Section 17(1) is discretionary given the use of the word “may”. Mr Wulf submits that section 17(1), once exercised, must then comply with statutory requirement for the Chief Executive Officer and an approved waste management operator to serve written notice on the defendant requiring the removal and disposing of waste from his property. Mr Wulf further relies on section 8 which stipulates:
    • Designation of approved waste management operators – (1) At the commencement of this Act and subject to subsection (2), the Ministry shall be the approved waste management operator for all areas of Samoa. (2) The Minister acting on the advice of Cabinet, may determine any appropriate entity to be a waste management operator for any designated waste management service area, and may replace a waste management operator with another appropriate entity.
27. Mr Wulf submits that it follows from the wording of section 18(2) that there must be an approved waste management operator for the designated waste management service area of Vaigaga. Therefore, the CEO having exercised the discretion to invoke section 17(1), it was necessary to include the designated waste management operator for Vaigaga area in the notice in order for the notice to be validated.
28. Mr Fong on the other hand submits that section 8(2) is the operative part of the legislation. He argues that unless the Minister invokes exercising ministerial discretion under section 18(2) replacing the Ministry of MNRE with a different Ministry or another appropriate entity, section 17(1) only requires the signature of the Ministry of MNRE represented by the CEO and the approved waste management operator which is one and the same.
29. I have found the wording of the relevant provisions in the WMA relating to this charge not so obvious and not easy to follow. It required a very careful reading and detailed consideration in order to determine the process and purpose of section 17. Having done so, respectfully, I am not in agreement with Mr Fong’s interpretation of section 18. Section 18 in my opinion provides for the discretion of the Minister to determine an entity to be a waste management operator for a designated waste management service area inclusive of the Ministry. This discretionary authority means, where it is necessary, the Minister may determine a waste management operator for a designated area but it does not in any way neutralize the effect of the legislation if no waste management operator has been determined for a designated area. Respectfully, section 18(2) does not empower replacement of the Ministry with another approved waste management operator.
30. This discretionary authority in section 18(2) has a bearing on Mr Wulf’s argument as well. The wording of section 17(1) must be considered in light of that discretion. The wording of section 17(1) is anticipatory of section 18(2). That is, where there has been a determination of a waste management operator for a designated waste management service area, that entity must in conjunction with the CEO serve a written notice where an offence under section 17 is alleged to have been committed. However, if no waste management operator has been designated for a particular area, it does not hinder the CEO from issuing notices being the waste management operator for all of Samoa.
31. The question, however, that follows is whether a waste management operator for Vaigaga waste management service area been determined by the Minister. There was no evidence from the prosecution as to that point for it is the prosecution that must prove the validity of the written notice. It follows that if there was no determination done pursuant to section 18(2), then the CEO alone may exercise this authority.
32. However, in the event a ministerial determination was made, would the absence of the determined approved waste management operator for Vaigaga waste management service area invalidate the written notice to the defendant? I would answer in the affirmative. Part 4 of the WMA deals specifically with waste management operators outlining 17 provisions of statutory duties and responsibilities as well as to undertake prosecutions of breaches (section 24). It is therefore a significant entity in the structure and operation of the legislation especially when bringing charges under section 17.
33. On this ground, I find that the prosecution has not proven beyond a reasonable doubt that the notice was valid. But if I am wrong on this, we must move to Mr Wulf’s second objection that the notice was ambiguous.
34. Mr Wulf’s argument is straightforward. The notice only referenced “all waste” but failed to identify which waste was prohibited under section 2 and 6 of the WMA given that Mr Lui inspected the land on the 29 August 2018. Exhibit P3 does not provide a description of the “waste” that was considered prohibited under the WMA except for the notation on page 2 “Deposit of waste” and the photographs. This is unfortunate given the form itself requires a high level of specificity in order to assess whether a breach has occurred or not and to secure convictions against offenders. However, in the notice Exhibit P2 paragraph 3 goes on to describe “electrical fittings, electrical goods, and other household appliances” but these “waste” materials were not noted in Exhibit P3 and Exhibit P4 nor obvious in the photographs. Mr Lui also accepted under cross examination that the matter would not have been serious if it were only building materials found.
35. Mr Wulf argues having removed plastic materials and rubbish, his client was of the view that building materials left behind are not included in the definition of “waste” under section 2 of the WMA. He emphasizes Mr Lui’s concession in his testimony and several meetings with MNRE that building materials can be left to fill his land.
36. However, if building materials were to be defined as “waste” relying on section 6, the prosecution must provide proof beyond reasonable doubt that a designation has been made that demolished building materials are “waste” prohibited by the WMA. Mr Fong for the prosecution did not deal with this objection in detail suffice to say that he may have been content with Mr Lui’s evidence that “all” materials observed on the defendants land was “waste” prohibited by legislation. That may be so but it must be in line with what is defined by section 2 as “waste”.
37. I am in agreement with Mr Wulf that the notice was ambiguous and inaccurate as to the reference to “electrical fittings, etc” inconsistent with the Exhibits P3 and P4. However, I do not find this fatal for the prosecutions case. In saying that, there being no reference to demolished building materials in the notice or a designation under section 6 that extends the meaning to demolished building materials, I find that the prosecution have failed to prove that demolished building materials is “waste” prohibited by the WMA.
38. Yet again, if I am wrong in this, we must then consider Mr Fong’s submission that the defendant did not comply with the notice. Mr Fong argues absolute compliance with the notice and it need not matter whether the defendant complied with the notice after the deadline. The prosecution submit that the defendant failed to remove the “all waste” material on or before 3 September 2018 and transport it to the Tafaigata designated rubbish site. They further contend even if the defendant removed some of the waste, that the defendant buried all or the remainder of the waste material on his property with topsoil transported from elsewhere.
39. The prosecution rely on Exhibit P4 and testimonies of Mr Tu’uga and Mrs Vavega. If the defendant did bury the “waste” against his own sworn testimony, there was no evidence from the prosecution to confirm or negate the suggestion that the waste was buried by the defendant despite the fact that Mr Lui revisited the site sometime in November 2018. There was no evidence that they dug up portions of the defendants property to confirm this to be case. It therefore remains speculation and this is not sufficient to prove non-compliance.
40. There is evidence from both the defendant and prosecution witnesses that work was carried out to remove waste material. They only differ on the quantity of what was removed. I am required as trier of fact to decide which evidence to accept based on the demeanor and manner of the witnesses. If I am uncertain as to which witnesses to be believed, then I am required by law to rule in favour of the defendant. I am inclined based on the oral and documentary evidence to find that the defendant removed the waste material (plastic bags, rubbish, etc). The defendant may have buried the prohibited waste material on his property as the prosecution witnesses testified. However, there was no evidence to confirm this beyond a reasonable doubt.
41. I am of the view that it matters not whether the defendant removed the material on or before 3 September 2018 or sometime after prior to the bringing of these charges. The charge is sworn before a Registrar on the 2 March 2020 which is more than 18 months after the event. There was no other inspection conducted prior to the laying of the charges to determine whether the defendant at least complied with the purpose of the legislation not to dump waste material from his property or remove it to a designated site.
42. Together with the absence of evidence that the defendant buried the waste material, I am of the view that the prosecution have failed to prove that the defendant did not comply with the notice before the deadline on the 3 September 2021 nor that the defendant did not comply at all after the deadline. The WMA’s main purpose is to prohibit waste dumping in areas not designated for such. However, should offenders do offend against the WMA, the legislation provides for remedies, inter alia, such as the removal of such waste material within a specific time frame for toxic material or within a reasonable time for less toxic waste material.

Conclusion

43. I find that the notice Exhibit P2 was invalid. However, even if the notice was valid, the prosecution have failed to prove that the defendant did not comply with the notice for the reasons given.
44. The defendant is therefore acquitted of the charge.
    

MATAUTIA RAYMOND SCHUSTER
DISTRICT COURT JUDGE