Kwok Ching-man v. The Queen
|
CACC001107/1976
----------------- Coram: Pickering, J.A. Date of Judgment: 15th November, 1976. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of failing to vacate Crown land which he had been occupying without a licence or deed or memorandum of appropriation, after being given notice so to vacate. 2. The land in question is open land opposite Nos.63-73 Wo Yi Hop Road in Tsuen Wan and upon it the appellant had erected a domestic shack and some pig sties as well as formerly having operated a coffee stall thereon. The appellant has been in occupation of the land for some ten years and claims that the site was passed down to him by his grandmother. In January, 1970 he applied to the Tsuen Wan District Office to be allowed to retain the illegal temporary structure then on the land for the purpose of rearing pigs and chickens; permission was refused, the land at that time being closed to agricultural user. In February, 1972 the appellant applied for permission to pay rent for the land and such permission was refused since the site was within a development area; a similar request made in July, 1972 was likewise rejected. In February, 1974 the appellant applied to the District Office for permission to rebuild his structures which had been destroyed by fire; permission was refused and he was informed that the land would be required as the site of a school in the very near future despite which notification the appellant went ahead and rebuilt the structures. He was later given notice to clear the land before the end of the year 1974. This notice was ignored but as a result of the very real and apparent distress caused to the appellant by the proposed clearance action the District Officer, offered in writing in October, 1975, a Crown land permit in Cheung Hang covering 4,000 sq. ft. with permission to build one 400 sq. ft. structure for accommodation and one other of similar size for use as a teahouse. That offer was not taken up by the appellant; it was renewed in November, 1975 with the exception of permission to build a teahouse but this amended offer was likewise not accepted. 3. In the meantime, on the 16th May, 1975, the appellant had been served with notice by an authorised officer to vacate the land which he was occupying, before the 26th of that month. He having failed to comply with that notice, a summons was taken out and, on the 24th June, 1976 the appellant was convicted on the charge to which I have referred and sentenced to six months' imprisonment suspended for 18 months on the special condition that he vacate the land within 28 days. The appellant having failed so to vacate, a warrant was issued and, on the 23rd September, 1976, the suspended sentence of imprisonment was activated. An application to review the decision to activate the sentence was refused and the appellant now appeals, by leave, against the original sentence of six months' imprisonment suspended conditionally for 18 months, his counsel having abandoned the appellant's appeal against conviction. 4. Mr. Bleach, for the appellant, whilst frankly admitting the history of the land which I have outlined above emphasises that even today it is a matter of the utmost difficulty to persuade the appellant that he has not a strong moral right to remain upon the land and even some shadow of legal right, a claim which he bases upon a letter which he received from the District Office in 1969 but which his counsel concedes gave no right to remain on the land. It is undoubtedly the case that the appellant mistakenly believes the land to be his and it is certainly true that his home and his business have for ten years been situated upon that land. 5. Mr. Bleach submits that a custodial sentence, even suspended, is wrong in principle because the learned magistrate should not have concluded that imprisonment was the only possible punishment. I am unable to accept that submission but accede more readily to the second submission which was to the effect that a sentence of six months' imprisonment, suspended, was excessive. In the result the sentence has become activated and it must be borne in mind that the maximum penalty for this offence under section 6(4) of the Crown Land Ordinance Cap. 28 is a fine of $10,000 and imprisonment for six months; it follows that the appellant had been sentenced to the maximum period of confinement available under the law. Mr. Bleach submits that the shock of imprisonment has been such to ensure that there will be no repetition of the appellant's previous conduct. Whilst it is fair to say that the appellant's family are no longer occupying the land, that may well be merely because the driving force of the appellant is no longer behind them and I am less confident than his counsel that if the appellant were to be released today, which is what his counsel sought, there would be no recurrence of his blatant and repetitive disregard of the law in regard to this land. 6. I am informed by Mr. Bellanto, for the Crown, that the aim of the District Officer is not to punish the appellant but to obtain the use of the land and that work is to begin upon the construction of a school on the site in some three weeks. Having regard to the idiosyncrasies of the appellant and to his apparently genuine belief that he has some sort of title to the land and his inability to understand otherwise, the sentence of six months' imprisonment appears to me to be greater than is necessary to punish the appellant and to secure the land to its proper purpose. I am informed by his counsel that the appellant has already been in prison for 5 weeks and it seems to me that if I halve the sentence imposed upon him that will be adequate both to ensure his respect for Crown Land in the future and to ensure that work on the school has commenced before he is in a position yet again to interfere with the site. 7. The appeal against sentence is allowed, the sentence of six months' imprisonment suspended conditionally for 18 months set aside and substituted by a sentence of three months' imprisonment to run from 22nd September, 1976, the date upon which his suspended sentence was activated. Representation: J. Bleach (D.L.A.) for appellant A.J. Bellanto, counsel for Crown/respondent. |