HKSAR v. Luckcan Development Ltd
Read the full judgment text of HCMA 492/2012 on BabelCite. This High Court CFI judgment was delivered on 19 March 2019.
1. The appellant was convicted by Deputy Magistrate Hui Chun Sing (“the Magistrate”) on 26 June 2012 of two offences : [1]
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HCMA 492/2012 [2019] HKCA 326 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MAGISTRACY APPEAL NO 492 OF 2012 (ON APPEAL FROM TMS NOS 8794 OF 2011 AND 9352 OF 2011) ____________
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______________________ J U D G M E N T ______________________ Hon Poon JA (giving the Judgment of the Court) : A. INTRODUCTION 1.The appellant was convicted by Deputy Magistrate Hui Chun Sing (“the Magistrate”) on 26 June 2012 of two offences :[1]
2.The Magistrate fined the appellant HK$50,000 for the 1st offence and HK$3,000 for the 2nd offence respectively. 3.The appellant appealed against both convictions. The appeal was originally heard by Barnes J on 15 September and 10 November 2015 and 22 January 2016.[6] One of the questions raised was whether the appellant could raise collateral challenges against the validity of the Building Order and the Notice based on public law grounds in the criminal proceedings before the Magistrate in which it was charged with the two offences arising from its failure to comply with them without reasonable excuse. 4.On the 3rd day of the hearing, Barnes J acceded to the respondent’s application and reserved the appeal to this Court under section 118(1)(d) of the Magistrates Ordinance, Cap 227 (“MO”). Apparently, the learned judge was convinced that the above question of collateral challenge merited a determination by the Court of Appeal. 5.We heard the appeal on 22 and 23 January 2019.[7] We then reserved judgment, which we now hand down. B. BACKGROUND B1. The Lot and the Government Land 6.The proceedings before the Magistrate concerned Lot No.1005 in Demarcation District No.381, Tuen Mun, New Territories (“the Lot”) and a piece of government land surrounding the Lot (“the Government Land”). 7.The Lot is subject to New Grant No.2832 dated 4 December 1987 (“the New Grant”).[8] According to the Particulars of the Lot contained in the First Schedule of the New Grant, read together with the plan attached, the Lot is rectangular in shape and is about 177.8 square metres in size.[9] The Lot is divided into two areas : building area and agricultural area. 8.The building area is also rectangular in shape and is 65.03 square metres in size.[10] Under Special Condition 3(a), the total gross area of the building to be erected on the Lot shall not be more than 195.09 square metres[11] or less than 65.30 square metres. Under Special Condition 4(a), no structure shall be erected on the Lot other than one building, which shall neither contain more than three storeys nor exceed a height of 7.62 metres, and the maximum built-over area of the Lot shall not exceed 65.03 square metres. 9.The agricultural area is about 112.69 square metres in size. Pursuant to Special Condition 4(b), no building or structure other than boundary walls and fences shall be erected on or over the agricultural land except with the prior written approval of the District Lands Office. 10.In short, the division of the Lot into two areas and the Special Conditions pertaining to the building to be erected on the building area ensure that only a 3-storey building with the permissible maximum height and floor area for each storey could be built on the Lot.[12] That is because, as explained by PW1, a senior land executive of District Lands Office (Tuen Mun), under the New Grant permission was only granted to erect a 3 storey-small house of 700 square feet for each storey on the Lot. 11.The Government Land encircling the Lot is irregular in shape and is about 3,680 square metres in size,[13] which is more than 20 times the size of the Lot. B2. Short Term Waiver and Short Term Tenancy 12.Great Yield Investment Limited (“Great Yield”) became the registered owner of the Lot on 16 January 2002 and had since occupied the Government Land also until 23 October 2008 when it sold its interest in the land to the appellant. 13.In about 2002, the Lands Department found out that some building developments had been carried out on the agricultural area of the Lot and the Government Land. In order to “regularize” the situation, the Lands Department on 2 and 4 April 2003 respectively offered to Great Yield (a) a Short Term Waiver No.768[14] in respect of the unauthorized buildings works on the Lot (“Short Term Waiver”); and (b) a Short Term Tenancy No.1269 in respect of the Government Land. The intention was to enable Great Yield to continue occupation of the Lot and the Government Land on conditions as set out in those instruments. However, Great Yield did not accept the offer. As a result, the offer in respect of the Short Term Tenancy No.1269 lapsed. 14.In September 2005, Mr Chan Ying-kai (“Mr Chan”[15]) became the legally authorized person of Great Yield. Mr Chan is also the director of the appellant. It is Mr Chan’s evidence that in 2005, he was interested in buying the land in question from Great Yield. After he became the legally authorized person of Great Yield, he in that capacity negotiated with the District Land Office’s officers on the matters of short term tenancy and short term waiver.[16] 15.Following negotiations, the Lands Department offered a Short Term Tenancy No.1340[17] in respect of the Government Land to Great Yield on 18 October 2007 (“Short Term Tenancy”). Great Yield accepted the Short Term Tenancy on 30 October 2007. On 14 November 2007, Great Yield also accepted the Short Term Waiver. 16.The Short Term Waiver covered the entire agricultural area of the Lot. One of the basic terms stipulated that the built-over area shall not exceed 112.69 square metres (which is the entirety of the agricultural area) and the building shall not exceed 7.62 metres in height.[18] Condition (b) stipulates :[19]
17.Under the Short Term Tenancy, Great Yield was allowed to use the Government Land for the purposes of a private garden including vehicle parking, residential extension, swimming pool and store room on the parts of the land as designated on Plan I attached, which shall only be used in connection with the building on the Lot and subject to the conditions set out. Under the basic terms, the built-over area shall not exceed 517 square metres, including, among other things, the residential extension which shall not exceed 317.8 square metres in build-over area and 7.62 meters in height.[20] Further, under Special Condition (iii) :[21]
18.As said, Great Yield sold and transferred all its proprietary interest in the land concerned to the appellant on 23 October 2008. The appellant took the land in question subject to the Short Term Waiver and the Short Term Tenancy. B3. Termination of the Short Term Waiver and the Short Term Tenancy 19.In around September and October 2008, the District Lands Office received a referral from the Buildings Department claiming that there were unauthorized building works on the land concerned. To follow up, PW3, a Land Executive of the District Lands Office, carried out two site inspections in March and October 2009. After taking measurements and calculations, PW3 found out that the built-over area of the building, which was a house, was 519.6 square metres with a height of 11.48 metres.[22] According to the measurements taken by PW3 on 10 January 2010, the built-over area was 555 square metres.[23] Both the built-over area of the building and the height far exceeded the permitted measurements under the Short Term Waiver and the Short Term Tenancy. 20.By a letter dated 20 March 2009, the appellant’s solicitors asked the District Lands Office to “regularize” the build-over area and height restrictions. This was refused by the Lands Department by a letter dated 25 May 2009 on the ground that the existing structures were “too extensive and have exceeded the height restrictions”. 21.In the event, the District Lands Office took action to terminate the Short Term Waiver and the Short Term Tenancy. 22.By a letter dated 8 December 2009, the District Lands Office notified the appellant that the Short Term Waiver would be terminated in 3 months.[24] The appellant was specifically reminded :
23.By another letter also dated 8 December 2009, the District Lands Office notified the appellant that the Short Term Tenancy would be terminated in 3 months.[25] The appellant was required to quit and deliver up vacant possession of the Government Land upon termination. 24.The appellant’s solicitors requested the District Lands Office to withhold the termination by a letter dated 13 January 2010. 25.The appellant’s solicitor on 22 January 2010 requested the District Lands Office for the findings of the inspection carried out by PW3. By a letter dated 2 March 2010,[26] the District Lands Office advised the appellant that both the built-over area (555.7 square metres) and the height (11.48 metres) of the house was beyond the scope of the Buildings Ordinance (Application to the New Territories) Ordinance, Cap 121 and it was built without its or the Building Authority’s prior approval. In the circumstances, the District Lands Office was unable to issue a short term tenancy or short term waiver to “regularize” the existing building. Importantly, the District Lands Office also advised the appellant that :
26.On 7 March 2010, both the Short Term Waiver and the Short Term Tenancy were terminated. The appellant had not taken any step to purge the excessive built-over area or the height of the house. B4. The Building Order and the Notice 27.Eventually on 13 October 2010, the Building Authority issued an order under section 24(1) of the BO,[27] requiring the appellant to demolish the building works on the Lot and to reinstate the affected area in the Lot within 90 days thereof (that is, by 11 January 2010) (“the Building Order”).[28] On the same date, the Director of Lands, as the Authority designated, served a notice on the appellant under section 6(1) of the LMPO,[29] requiring the appellant to cease occupation of the Government Land on or before 11 January 2011 (“the Notice”).[30] 28.When the appellant failed to comply with both the Building Order and the Notice, criminal proceedings ensued. C. PROCEEDINGS BEFORE THE MAGISTRATE 29.The appellant was charged with two offences :
30.For present purposes, it is not necessary to recite the prosecution’s case at trial in detail. The background facts outlined above, which formed the basis of the prosecution case, were basically not in dispute. 31.For the defence, Mr Chan adduced a chain of correspondence between the Lands Department and his solicitors to show that he had endeavoured to obtain the Lands Department’s regularization of the matters.[33] He said he had not complied with the Building Order and the Notice because the Lands Department refused to give him instructions as to how rectification action could be taken. He did not know how to carry out the demolition works without such instructions. It would appear to be the appellant’s case that part of the building was built with authorization and it needed to know which part was authorized and which was not in order to carry out the demolition works in compliance with the Building Order.[34] 32.The appellant’s principal defence was that it had a reasonable excuse for not complying with the Building Order and the Notice because the appellant had a legitimate expectation that the Lands Department would continue to regularize the building structures.[35] We need not dwell upon this line of defence as it is no longer pursued on appeal. 33.Significantly for present purposes, the Magistrate observed :[36]
34.After citing and applying HKSAR v The Incorporated Owners of No 10 Bonham Strand, HCMA 239/2004, unreported, 28 May 2004, McMahon J, the Magistrate held that the appellant was not entitled to mount any collateral challenge against the Building Order based on grounds that could have been raised in the administrative appeal to the Buildings Appeal Tribunal. Otherwise, it would render the appeal process within the BO meaningless. Nor could it rely on those grounds to establish a reasonable excuse for non-compliance of the Building Order because for the same reason it could not possibly be the legislative intent.[37] The Magistrate went on to find that the appellant could have taken action such as applying for a review of the Notice or the Lands Department’s decision to terminate the Short Term Waiver and the Short Term Tenancy but had failed to do so.[38] 35.In the end, the Magistrate found that the defence of reasonable excuse was not made out in respect of both offences. He therefore convicted the appellant of the two offences and fined it as indicated. D. REFERRAL BY BARNES J 36.The appellant appealed against both convictions.[39] It raised three grounds of appeal :
37.In support of Ground 3, the appellant sought leave under section 118(1)(b) of the MO to adduce as fresh evidence :
In gist, the appellant wished to establish by way of fresh evidence that it would take at least 270 days to completely demolish all the building works. The original 90-day deadline was therefore unreasonable. 38.The respondent objected to the appellant’s application to adduce fresh evidence. In the event that fresh evidence is to be admitted, the respondent also applied for leave to adduce an affirmation of Lo Yan-kit, building surveyor of the Buildings Department, dated 9 September 2015; and two affirmations of To Ka Yi, land surveyor of the Lands Department, dated 5 November and 18 December 2015 respectively. The respondent wished to adduce the further correspondence between the Buildings Department and the appellant between 19 November 2010 and 30 May 2011 to show that upon the appellant’s request, an extension to comply with the Building Order was granted on 14 February 2010. But the appellant failed to comply with the Building Order despite the extension. There were further requests for further extension for compliance but all were refused. The respondent also sought to adduce some aerial photos of the Lot and the Government Land to give a more complete picture of how the building works, including the house, were carried out at the material times. 39.As said, Barnes J reserved the appeal to this Court under section 118(1)(d) of the MO on the basis that the question whether the appellant was entitled to raise a collateral challenge against the validity of the Building Order and the Notice merited referral to the Court of Appeal for determination. Her referral also left the parties’ applications for adducing fresh evidence, which evidence we have received on a de bene esse basis at the hearing, for our disposal. E. DISCUSSION 40.As already seen, the main thrust of the defence below was that the appellant had a legitimate expectation that the District Lands Office would “regularize” the contraventions of built-over area and height restrictions by extending the Short Term Waiver and the Short Term Tenancy. Such legitimate expectation formed the factual basis for both the implicit collateral challenge against the validity of the Building Order and the Notice and the statutory defence of reasonable excuse. However, as said, such legitimate expectation is no longer pursued on appeal. 41.Instead, Mr McCoy SC (together with Mr Hui and Ms Cheung), for the appellant, who did not appear below, took two new points. He contended that :
42.Mr McCoy relied on the 1st and 2nd Complaints as the factual basis to mount the collateral challenges against the validity of the Building Order and the Notice (Ground 1); and to establish the statutory defence of reasonable excuse for non-compliance of both the Building Order and the Notice (Grounds 2 and 3). 43.The 1st and 2nd Complaints were never raised before the Magistrate. So it is strictly wrong to assert that the Magistrate had erred in the way as alleged by Grounds 1 to 3 because he was never asked to deal with them. More importantly, the 1st and 2nd Complaints are wholly different from the legitimate expectation relied on at trial both in nature and in substance. In the circumstances, the appellant’s case on appeal has now been substantially reformulated if not overhauled. Furthermore, the appellant now needs to adduce fresh evidence to substantiate his case on unreasonableness in terms of the time for compliance. The appellant’s conduct of the appeal begs the very question if it is entitled to do so. E1. The 1st Complaint 44.We first consider the 1st Complaint, which does not involve any fresh evidence and can be determined on the evidence adduced before the Magistrate. 45.The 1st Complaint is premised on the assumption that prior approval had been given to some of the building works in question. Based on that assumption, the appellant complained that absent clear instructions from the authority, the terms of the Building Order and the Notice were hopelessly vague as it could not be ascertained with reasonable certainty the steps that had to be taken to remedy the alleged breaches in order to comply with them. But that assumption is entirely misconceived. For it was an admitted fact that no prior approval had ever been given to carry out any of the building works on the Lot or the Government Land.[40] Factually, all the buildings works on the Lot and on the Government Land were unauthorized. 46.Construed against the undisputed factual matrix that all building works were unauthorized, the effect of the Building Order and the Notice is crystal clear. The Building Order asked the appellant to demolish the unauthorized building works on the Lot and to reinstate it in accordance with the provisions in the New Grant. The Notice asked the appellant to deliver vacant possession of the Government Land. And to be able to deliver vacant possession, the appellant must first demolish all the unauthorized building works on the Government Land. Properly understood, there is simply no ambiguity or vagueness in the Building Order or the Notice as contended. 47.In fact, upon termination of the Short Term Waiver and the Short Term Tenancy, the appellant was contractually bound to demolish all the unauthorized works on the Lot and on the Government Land, as the case may be, respectively.[41] The appellant had also been reminded to do so when the Lands Department served the notices of termination on 8 December 2009. When the appellant’s contractual failure persisted, the authority had to issue the Building Order and the Notice to compel performance. There is no substance in the appellant’s assertion that it did not know how to comply with the Building Order and the Notice when it was asked to do no more than what it had failed to do contractually in the first place. 48.Upon the above analysis, there is no basis whatsoever, whether factual or legal, for the appellant to mount the 1st Complaint. The 1st Complaint is incapable of lending any support to any of Grounds 1 to 3 or indeed any credible defence. As we have concluded that there is no merit in this Complaint, it is not necessary for us to decide whether, because it attacks the jurisdiction of the court, the appellant should be permitted to raise it for the first time on appeal. E2. Unreasonableness 49.We next turn to the 2nd Complaint. As seen, fresh conflicting evidence is sought to be adduced by the parties regarding this Complaint. 50.Entertaining the 2nd Complaint would materially impact on the conduct of this appeal. The question whether it was reasonable to ask the appellant to demolish the unauthorized building works within 90 days is a fact-sensitive question. As it was not alluded to by any of the witnesses or in any of the documentary evidence before the Magistrate, neither the transcript nor any of the documentary evidence would be able to shed a single light on it. The Court of Appeal would have to admit the fresh conflicting evidence, and then perform all the duties of a trial court in hearing the evidence, determining the credibility of witnesses if necessary, making findings of fact on the reasonable time required to comply with the Building Order and the Notice, and if it is found that the original 90-day deadline was unreasonable, resolving the issues of law pertaining to the purported collateral challenge against the validity of the Building Order and the Notice, and determining if the statutory defence of reasonable excuse is made out. In short, the 2nd Complaint, if allowed to be raised now, would effectively turn the appeal into a retrial de novo of the entire defence case by reference to 2nd Complaint itself and the fresh conflicting evidence relating to it. That is a most exceptional course to take indeed. 51.Mr McCoy attempted to justify the appellant’s extraordinary way of conducting the appeal by submitting that as a magistracy appeal, the appeal was by way of rehearing. With respect, we disagree. 52.First, it is well established that an appeal under section 113 of the MO is by way of rehearing. The rehearing is however primarily based on the evidence before the magistrate. The appellate court would examine that evidence and form its own view if it proves the essential elements of the offence beyond reasonable doubt. It is not a rehearing de novo which is effectively a retrial conducted by the appellate court as if it were the trial court.[42] To permit a magistracy appeal to be run as if it were a retrial de novo, as the appellant asks us to do, would significantly adulterate the appellate court’s functions and duties in rehearing it. 53.Second, the appellant’s application to adduce fresh evidence does not assist. It is true that in a magistracy appeal, the appellate court may admit fresh evidence if it is in the interest of justice to do so. However, admission of fresh evidence does not change the nature of the magistracy appeal. It remains a rehearing and not a retrial de novo. Admission of fresh evidence should not be used as a backdoor means of turning the magistracy appeal into a retrial de novo. This is, however, exactly what the appellant seeks to do. On this ground alone, we dismiss the appellant’s application to adduce the fresh evidence. It follows that we also dismiss the respondent’s countering application. 54.Third, on any view, the 2nd Complaint is so obvious that it must be the first point to take at trial. One rhetorically asks : why did the appellant not raise it at trial? As a matter of fact, Mr Chan did not even mention in his evidence that the time for compliance was unreasonable. The appellant must provide a credible explanation why such an obvious point was not taken before the Magistrate. Such an explanation is conspicuous by its absence. 55.Finally, the appellant was legally represented below. Since the 2nd Complaint was a most obvious point to take, it must have been a deliberate, tactical decision by the appellant’s lawyers not to take it. A deliberate, tactical decision taken by one’s trial lawyer would ordinarily bind a party in the absence of an allegation of flagrant incompetence against the lawyer. So before the appellant could raise the 2nd Complaint now, it must satisfy us with cogent reasons why it should be reprieved from its lawyers’ tactical decision not to do so at trial. But none has been advanced by the appellant. 56.For the above reasons, we hold that the appellant is not entitled to raise the 2nd Complaint for the first time on appeal. F. DISPOSITION 57.Stripped of the 1st and 2nd Complaints as the stratum, none of Grounds 1 to 3 is maintainable. They must all fail in limine. Nor is there any basis to enable the appellant to mount the purported collateral challenge against the validity of the Building Order and the Notice. The question if the appellant is entitled to do so is academic and does not arise for our determination. 58.We accordingly dismiss the appeal.
Mr Gerard McCoy, SC, Mr Daniel Hui and Ms Charmine Cheung, instructed by Wong & Co, for the appellant Mr Martin Hui, SC, DDPP, Mr Lenny Cheng, SPP and Ms Iva Lo, PP, of Department of Justice, for the respondent [1] The Statement of Findings prepared by the Magistrate is dated 19 July 2012. [2] Defined at [27] below. [3] Summons TMS 9352/2011 laid on 22 July 2011. [4] Defined at [27] below. [5] Summons TMS 8794/2011 laid on 7 July 2011. [6] The reason why it took more than 4 years for the appeal to reach Barnes J for hearing is unclear on the court’s record. [7] There was significant delay in the process of the appeal after the referral ordered by Barnes J. The main reason is the repeated failures on the part of the appellant’s solicitors in preparing English translation of the appeal documents. (The trial before the Magistrate was conducted in Chinese.) In fact, the delay had prompted a Directions hearing on 7 March 2017. [8] Exhibit P1(a) : Appeal Bundle, at pp.175 - 188 [9] On the plan, the Lot is delineated and coloured pink and pink hatched black. The four corners of the Lot are marked A, B, C and D with the stated bearings. The lengths of AB, BC, CD, and DA are 10.16 metres, 17.50 metres, 10.16 metres and 17.50 metres respectively. The total area is (10.16 x 17.50 =) 177.8 square metres. [10] On the plan, the building area is marked out by E, F, G and H with the stated bearings. The lengths of EF, FG, GH and HE are 7.66 metres, 8.49 metres, 7.66 metres and 8.49 metres respectively. The total size of the building area is (7.66 x 8.49 =) 65.03 square metres. [11] That is, 3 times 65.03 square metres. It should be read together with Special Condition 4(a), which only allows a 3-storey building (with maximum floor areas of 195.09 square metres in total) to be erected. [12] Statement of Findings, at [17]. [13] According to the Proposed Short Term Tenancy No.1340, Exhibit P3 : Appeal Bundle, at pp.195 – 201. The tenancy area is stated to be 3,680 square meters (about) as shown coloured pink, pink hatched black, pink stippled black and pink cross-hatched black on the attached Plan I (Plan No.TMM2808-PO). Plan I is at Appeal Bundle, p.200. [14] Appeal Bundle, at pp.189-194. [15] Mr Chan was DW1 at the trial below. [16] Statement of Findings, at [41]. [17] Exhibit P3 : Appeal Bundle, at pp.195-201. [18] Appeal Bundle, at p.189. [19] Appeal Bundle, at p.190. [20] Appeal Bundle, at pp.195-196. [21] Appeal Bundle, at p.196. [22] Statement of Findings, at [36] – [37]. [23] Under cross-examination, PW3 said that when she used the measurement taken in January 2010, the calculated built-over area of the building was 555 metres. She explained that the difference in measurements was possibly due to the manual measurements undertaken by tapes : Statement of Findings, at [39]. Nothing turns on the difference in this appeal. [24] Exhibit P10 : Appeal Bundle, at pp.232 – 233. [25] Exhibit P9 : Appeal Bundle, at pp.230–231. [26] Exhibit D11 : Appeal Bundle, at pp.315–316. [27] Section 24(1) of the BO provides :
[28] Exhibit P13 : Appeal Bundle, at pp.237 – 245. [29] Section 6(1) of the LMPO provides :
[30] Exhibit P11 : Appeal Bundle, at pp.234 – 236. [31] Section 40(1BA) of the BO stipulates :
[32] Section 6(4) of the LMPO provides :
[33] Exhibits D1 – D20. [34] As will be seen shortly, this part of the appellant’s case is factually erroneous. [35] See Defence Closing Submissions, Appeal Bundle, at pp.107-108. [36] Statement of Findings, at [73]. [37] Statement of Findings, at [74] – [78]. [38] Statement of Findings, at [79] – [80]. [39] By a notice of appeal dated 5 July 2012 in Form 101 pursuant to section 114 of the MO, with some homemade grounds of appeal. The perfected grounds of appeal against conviction was filed almost four years later on 16 May 2016. [40] See Admitted Facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, Exhibit P19, paras.6 – 7; set out in the Statement of Findings, at [14]. [41] See [16] and [17] above. [42] For the distinctions between an appeal by rehearing and an appeal by way of rehearing de novo, see HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, per McWalters J (as he then was) at [21] – [24]. | ||||||||||||||||||||||||