V. Common types of nuisance: Smoke, fumes and smells
Making or causing to be made smoke, fumes or smells that materially interfere with the ordinary comfort of neighbours is an actionable nuisance, even if the smoke, fumes or smells are not actually noxious or dangerous to health. For a general explanation of liability of nuisance, please refer to Private nuisance > What constitutes an actionable nuisance?
In Hong Kong, some Chinese families living in multi-storey buildings may burn incense in the common area of buildings, such as corridors. In a famous incense burning case, Hu Wei Hsin v Ma Hung Wing , the Court held that the smoke and smell caused by the burning of incense by the defendants constituted a nuisance.
The defendants in that case had been burning three sticks of incense in each of the two censers outside their flat at various times of the day for more than an hour each time, with the burning incense unattended most of the time. Sometimes, one of the defendants swept the dust resulting from the burning of the incense out to the plaintiff’s flat.
The Court made the following observation about the balance between the right to carry out worship and the right to be free from nuisances in Hong Kong:
“ In a multi-cultural society like Hong Kong, we should always respect the Chinese culture and the right of individuals to carry out any kinds of worship or religious ceremony. However, if such activities constitute a nuisance to the neighbours, in particular, if the activities are performed in the common area of a multi-storey building, then such kind of activities should not be allowed. This has nothing to do with the right to worship. ”
B. Criminal liability
According to section 12 (1)(e) of the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong), the emission of dust, fumes or effluvia from any premises in such a manner as to be a nuisance constitutes a statutory nuisance. The general principles of private nuisance apply (Please refer to “What is a statutory nuisance?”). There is no distinction between domestic and non-domestic premises.
Effluvia suggest something given off into the air that is offensive to the senses, including smell from rubbish.
The Food and Environmental Hygiene Department (FEHD) is responsible for handling this statutory nuisance. (Please refer to Statutory nuisance > C. Remedies .)