The Queen v. Tai Tong Lychee Valley Riding Club Ltd

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY CRIMINAL APPEAL NO. 968 OF 1996

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Coram: The Hon. Mr. Justice Keith in Court

Date of Hearing: 16 April 1997

Date of Handing Down Judgment: 25 April 1997

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JUDGMENT

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INTRODUCTION

1. On 4th July 1996 at Fanling Magistrates' Court, the Appellant, Tai Tong Lychee Valley Riding Club Ltd. ("the Company"), was convicted of contravening section 20(7) of the Town Planning Ordinance (Cap. 131) ("the Ordinance"). Section 20(8) of the Ordinance makes a contravention of section 20(7) an offence. The Company had pleaded not guilty. It was fined $200,000.00. It now appeals against its conviction and sentence.

THE STATUTORY PROVISIONS

2. The land to which the summons related is to the north of Tai Lam Country Park. It was not disputed that it was land to which section 20(7) applied. Section 20(7) prohibits any person from undertaking or continuing "development" on land to which it applies except in certain defined circumstances. Those circumstances are not alleged to have existed in the present case. The definition of "development" in section 1A of the Ordinance includes" making a material change in the use of land". Accordingly, the Company was prohibited by section 20(7) from making, or continuing to make, a material change in the use of the land. It was common ground that the Company had in the past changed the use of the land from agricultural use to use as a horse riding establishment.

THE SUMMONS

3. The summons originally alleged that the Company had, on 2nd March 1996, been continuing to use the land as a horse riding establishment. The evidence was that on that date horses were seen being ridden on the land. However, the prosecution felt that it might not be able to prove that the land was still being used as a horse riding establishment, and the summons was amended to allege that the Company had continued to use the land for "horse riding facilities".

THE FACTS IN SUPPORT OF THE DEFENCE

4. The facts on which the Company relied were these. The Company had been using the land as a horse riding establishment pending the formal grant of permission to use the land for that purpose. However, its formal application under section 16(1) of the Ordinance for the grant of such permission was refused in January 1995. Indeed, an enforcement notice under section 23(1) of the Ordinance was served on the Company in April 1995 requiring the Company to discontinue using the land as a horse riding establishment by 18th May 1995. The Company's case was that it had complied with that notice. It accepted that its horses continued being ridden on the land, but that was not for the purpose of instruction or recreation. It was for the purpose of exercising them to ensure that they did not lose their acquired skills, and remained fit and healthy. That was necessary because the Company was planning to renew its application for planning permission to use the land as a horse riding establishment. By way of postscript, I can add that in due course the Company's application for permission to use the land for that purpose was successful. Planning permission was granted to it on 31st January 1997 for that purpose.

THE MAGISTRATE'S REASONING

5. The basis upon which the magistrate convicted the Company was this. He accepted that the Company had been "training the horses [on the land] so that they would not lose the skills they [had] acquired." However, in doing so, the Company had continued horse riding "activities" on the land. That constituted a material change of use of the land from agricultural use. The magistrate clearly regarded "horse riding activities" as included within the phrase "horse riding facilities".

THE MEANING OF "HORSE RIDING FACILITIES"

6. I do not think that the phrases "horse riding facilities" and "horse riding activities" are synonymous with each other. The phrase "horse riding activities" means activities connected with horse riding. I have no doubt that the magistrate was correct in deciding that the regular riding of horses in order to exercise them is an activity connected with horse riding. However, the phrase "horse riding facilities" means something else. Two meanings could be given to it: (a) facilities to enable horse riding to take place, i.e. riding tackle, stables, a paddock and the like, and (b) the availability of horse riding to members of the public.

7. Having regard to the language of the summons, the prosecution could not rely on things like riding equipment, or stables or the paddock as constituting "horse riding facilities". That is because the presence of riding equipment on the land, and the existence of stables and a paddock on the land could not have constituted a use of the land. Accordingly, the only basis on which the conviction can be sustained in view of the language of the summons is that on 2nd March 1996 the Company was offering horse riding facilities to members of the public. However, the prosecution took the view that the state of the evidence was not such as to prove that. That was why the prosecution had applied for, and obtained, the amendment to the summons.

8. It is ironic that the Company's conviction could have been sustained (subject to the other grounds of appeal) if the amendment had been to "horse riding activities". That, no doubt, was why the magistrate expressed himself as satisfied that the Company had continued to use the land for horse riding activities. But as I have said, where the magistrate and I part company is whether the phrases "horse riding activities" and "horse riding facilities" mean the same thing.

CONCLUSION

9. For these reasons, the Company's appeal against conviction must be allowed, the conviction must be quashed, and the fine of $200,000.00 must be set aside. I propose to make no order as to costs, though since I did not hear any argument on costs, the parties may raise the question of costs, within 14 days of the handing down of this judgment, if they wish to argue against that order. My reasons for making no order as to costs are (a) I would have rejected the Company's other grounds of appeal, and (b) the Company was fortunate that the amendment to the summons was not expressed in language which would have justified the Company's conviction. As for why I would have rejected the Company's other grounds of appeal, all I need say is that (a) the Planning Department's lerter of 19th May 1995 cannot be read as having permitted the Company to exercise horses on the land, and (b) the magistrate did not have to decide what the primary use of the land had been on 2nd March 1996: the only thing which he had to decide was whether what was being done on the land constituted a material change to its use.

Representation:

Mr. Prakash Daryanani and Mr. Simon Tam, Crown Counsel, for the Crown.

Mr. Timothy Cheung and Ms. Terry Chan, instructed by Messrs. K.M. Lai & Li, for the Appellant.