HKSAR v. Fan Chun Keung

[English Translation – 英譯本]

HCMA 1197/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1197 OF 2004

(ON APPEAL FROM STCC NO. 912 OF 2004)

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BETWEEN

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Before: Hon Deputy Judge Barnes in Court

Date of Hearing: 18 March 2005

Date of Judgment: 18 April 2005

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JUDGMENT

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Introduction

1.The Appellant faced the following charge: being the owner of the relevant land and during the period between 6 August and 5 November 2003, failing to discontinue a development as required by a notice of enforcement issued on 6 May 2003 by the Director of Planning pursuant to section 23(1) of the Town Planning Ordinance, Cap. 131, Laws of Hong Kong (hereinafter “TPO”), such failure being contrary to section 23(6) of the TPO.

2.The Appellant was convicted on the charge after trial. He was sentenced to a fine of $30,000 and a daily fine of $30, totalling $2,700. The total amount of fine is therefore $32,700.

3.The Appellant now appeals against conviction.

4.I respectfully adopt the relevant facts of the case as set out by Ms Catherine Ko, Senior Government Counsel acting for the Respondent.

Prosecution case

5.At trial, the prosecution case was by and large agreed to by the defence and was adduced as admitted facts in writing (Exhibit P1) pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong. For this reason, the prosecution only called one expert witness for the purpose of explaining and analyzing the land use as shown in 11 aerial photographs taken during the period from 2 June 1988 to 3 July 2003.

6.The land or sites in question include the Remaining Portion (Part) of Subsection 2A of Lot 3250A (hereinafter “Lot A”), the Remaining Portion (Part) of Subsection 2 of Lot 3250A and the Remaining Portion (Part) of Subsection 32 of Lot 3250B (hereinafter “Lot B”) in Demarcation District 104, Mai Po, Yuen Long (collectively “the Site”). The area involved is approximately 1,708 square metres.

7.The prosecution case is that, on 17 August 1990, when the Mai Po and Fairview Park Interim Development Permission Area Plan (Exhibit P4) was published in the Gazette, the Site was not designated for any use. On the Mai Po and Fairview Park Development Permission Area Draft Plan and Approved Plan (Exhibits P6 and P8), the Site was marked as a “non-specified use” zone. Subsequently, on all Outline Zoning Plans of Mai Po and Fairview Park (Exhibits P10, P12, P14 and P16), the Site was marked as a “village type development” zone. In none of the above statutory plans was carparking or storage of goods included as a permitted use of the Site.

8.On 18 August 1990 (i.e. the day after the Mai Po and Fairview Park Interim Development Permission Area Plan was published in the Gazette), an aerial photograph was taken (Exhibit P18) which shows that Lot B was still covered by plants and had not been put to any use, whereas on Lot A, there were 20 piles of sand on the grassland and part of the Lot was covered by plants and hence could not be used for carparking. There were also white stone pillars on Lot A, positioned in such a way as to prevent vehicles or other people from entering Lot AB.

9.On 29 January and 5 March 2003, officials from the Planning Department visited the Site for an inspection (Exhibits P27 and P28) and found that the Site had been graded and paved with concrete and that an entrance had been set up on the east side of the Site. The Site was being used for carparking and storing goods. More than 10 cars (including tractors, trailers, trucks, private cars and motorcycles) were found on the Site, whereas the goods being stored there were mainly construction materials (such as concrete bricks, rectangular metal objects and sundry items).

10.Using the Site for carparking and storing goods constituted an “unauthorized development” under the TPO because (i) the said development did not exist immediately preceding the date on which the Mai Po and Fairview Park Interim Development Permission Area Plan was published in the Gazette (i.e. 17 August 1990); (ii) the said development had not been included as a permitted use in any of the statutory plans; and (iii) the said development had never received planning approval.

Defence case

11.The Appellant, who elected to give evidence and called two witnesses, relied on the “existing use” provision under section 23(9)(b) of the TPO as his defence. The gist of the defence was that the Appellant started grading work immediately after he purchased Lot AB and used it for carparking, and that subsequently, due to rain and flooding, Lot AB could not be used for carparking during the period between 1 October 1989 (P17) and 5 October 1990 (P19).

Grounds of appeal

12.Ms Au, Counsel for the Appellant, has raised the following grounds of appeal:

(1)     Point No. 1

The Statement of Findings shows that the magistrate accorded much weight to PW1’s testimony in convicting the Appellant. However, in assessing the credibility of the witnesses’ evidence, the magistrate failed to consider that PW1 was an expert witness whose evidence was confined to his explanations and analyses of the 11 aerial photographs that comprised Exhibits P41 and P17-P26. On the contrary, the evidence of all the three defence witnesses was direct evidence based on what they saw, heard and remembered. Throughout the trial and in the Statement of Findings, the magistrate had not raised doubts about the credibility of any of the defence witnesses. In other words, in deciding to accept PW1’s evidence, the magistrate simply failed to assess the credibility and reliability of witnesses for both parties.

(2)     Point No. 2

In assessing the credibility and reliability of the witnesses’ evidence, the magistrate erroneously failed to give proper weight to the evidence of the independent witness (i.e. DW3).

(3)     Point No. 3

In accepting PW1’s explanations and analyses of the 11 aerial photographs that comprised Exhibits P41 and P17-P26, the magistrate failed to take into account the long lapse of time between the dates of every two photographs, which did not serve to show that cars were parked on the land in question for most of every year.

(4)     Point No. 4

In accepting PW1’s explanations and analyses of the 11 aerial photographs that comprised Exhibits P41 and P17-P26, the magistrate failed to take into account the fact that the photographs were all taken in daytime and failed to consider the possibility that the cars were not on the carpark during daytime because they were used for work/business purposes.

(5)     Point No. 5

PW1’s explanations of a number of the photographs made mention of the land in question being covered by “plants”. In accepting PW1’s evidence and convicting the Appellant, the magistrate did not properly consider that the “plants” were merely grass and that the presence of grass did not prevent the land in question from being used for carparking.

(6)     Point No. 6

Ms Au referred to the following statement taken from page 4 of the magistrate’s Statement of Findings:

There is also a white object on Section A. It is a stone pillar of 10 feet long and 2 to 3 feet in diameter. It is positioned in such a way as to prevent vehicles or other people from entering Lot AB.

and also the following statement taken from page 16 of the Statement of Findings:

… P17, a photograph taken on 11 October 1989, shows that grading work has been carried out [on the Site], with traces left by a soil compressor being visible; but there is a pipeline for concrete at the entrance, obstructing ingress to and egress from [the Site] …

Ms Au contended that, in accepting PW1’s evidence and convicting the Appellant, the magistrate failed to consider that there was sufficient space between the stone pillar and the pipeline for the passage of vehicles to and from the Site and that the land in question was only available for parking small mobile vehicles. In other words, the magistrate failed to deal with the discrepancy between PW1’s evidence and evidence of the defence witnesses in this respect. The magistrate also failed to take into account that the relevant photographs were not proportioned photographs.

(7)     Point No. 7

Ms Au referred to page 17 of the Statement of Findings, where the magistrate said:

… and the case cited by the defence, namely Fyson v. Buckinghamshire County Council Metal Recovery & Storage Co., Ltd. v. Same [1958] 1 WLR 634 does not apply to the present case.

The magistrate, however, never explained why Fyson did not apply to the present case.

(8)     Point No. 8

The Appellant’s main ground of defence at trial was the defence under section 23(9)(b) of the Town Planning Ordinance, Cap. 131, Laws of Hong Kong. Neither in the verbal judgment nor in the Statement of Findings did the magistrate consider that, where the defendant bore the burden of proof, the standard of proof was merely on a balance of probabilities and not beyond reasonable doubt.

(9)     Point No. 9

In light of all the above reasons, the Appellant’s conviction and the magistrate’s verdict were unsafe and unsatisfactory.

13.Apart from the above nine points, Ms Au also relied on the facts in Fyson (cited above) and Guildford Rural District Council v. Fortescue Same v. Penny [1959] 2 QB 112 and submitted that, as the facts of the present case were similar to those in the above two cases, the magistrate should have held that there had not been a material change in the use of the relevant land.

Respondent’s reply

14.Ms Ko set out the interpretation of sections 23(1), (10), (6), (9) and (1A) of the relevant Ordinance (i.e. the TPO) and then made submissions in respect of the various grounds of appeal.

Points Nos. 1 and 2

15.As an expert, the prosecution witness explained and analyzed the 11 photographs. His status as an expert was not in dispute, and his explanations of the aerial photographs were facts which both prosecution and defence had admitted. In respect of the evidence, the magistrate had pointed out in his analysis that “it can be seen from Exhibits P41 and P17 to 26 that Lot AB had clearly undergone significant change from 1998 to 2003”. This shows that the magistrate accepted the evidence of the prosecution witness and that his credibility had not been challenged.

16.The magistrate had thoroughly considered the defence evidence, and his conclusion was stated in paragraph 3 on page 22: “put at its highest, the defence case is that [the use of the Site] was temporary, short-lived and mobile”.

17.As regards DW2’s evidence, pages 16 and 17 of the Appeal Bundle show that the magistrate had made mention of and given appropriate weight to such evidence.

Points Nos.3 to 6

18.Ms Ko submitted that the relevant date to be considered by the magistrate was 17 August 1990, and upon the defence evidence, the Site had not been used for carparking at all before and after the relevant date. For this reason, the possibilities mentioned in Points Nos. 3 to 6 that the Appellant said the magistrate should have considered simply did not exist.

Point No. 7

19.In considering the submissions of the parties, the magistrate only had to take into account such judicial authorities as were relevant to the present case; and even if the magistrate did not apply or consider a particular authority, it was unnecessary for her to explain this in detail in the Statement of Findings.

Point No. 8

20.Ms Ko submitted that Point No. 8 involved a very important legal principle which the magistrate, being a legal professional, must have borne in mind and that it was unnecessary to reiterate the principle in the Statement of Findings.

21.Apart from the above responses, Ms Ko also submitted that, in order to rely on “existing use” as a ground of defence, the Appellant had to prove the following:

(a)      For the purpose of considering “existing use”, the relevant date must be the date immediately following the publication of the relevant Park Interim Development Permission Area Plan in the Gazette. In this connection, Ms Ko referred to the cases of R. v. Power Straight Ltd & Another [1995] 3 HKC 402 and R. v. Wong Hon Yau, Mag. App. 139 of 1994.

(b)     Even if the land use on the two relevant dates was the same, where the land use had materially changed, the Site would still be an “unauthorized development”. According to the decided cases in the UK, whether there had been “a material change in the land use” was a matter of fact and degree to be determined by the judge. This principle was followed by the Hong Kong courts. Ms Ko cited the following cases in support of her submission:

(i)    R. v. Wong Hon Yau, Mag. App. 139 of 1994 (unreported);

(ii)   R. v. Way Luck Industrial Limited [1995] 2 HKC 290;

(iii)  Brooks and Burton Ltd v. Secretary of State for the Environment and Another [1977] 1 WLR 1294;

(iv)  Peake v. Secretary of State for Wales and Another [1971] 22 P & CR 889; and

(v)   HKSAR v. Hup Ying Car Service Co. Ltd. (transliteration) (合盈汽車服務有限公司) Mag. App. 39 of 1999.

22.Ms Ko submitted that the magistrate’s analyses of the evidence and legislation had been set out in pages 15 to 17 of the Statement of Findings. The magistrate took the view that “[t]he defendant’s contention that Lot AB had been used for carparking is a brief, general and sweeping statement which is not supported by material and specific [evidence as to the] number of cars involved and the date and time of the carparking”. Ms Ko submitted that, contrary to what the Appellant said, the photograph marked P17 showed that the Site was in a deserted state, and that, put at its highest, the defence case was that the use of the Site was temporary, short-lived and mobile. Applying the abovementioned cases of Way Luck International Ltd and Brooks and Burton Ltd, the magistrate held that the use of Lot AB had constituted “a material change in land use”, and hence the Appellant’s defence under section 23(9) was not made out.

Statement of Findings

23.In the Statement of Findings, the magistrate pointed out that the Appellant’s defence stemmed from the provision in section 23(9) of the TPO that “the use of [the Site] was in existence immediately before publication in the Gazette of [the relevant plan]”. The magistrate said:

That is to say, the Appellant had been using the AB site for storage and carparking before 17 August 90. The Appellant himself and his employee Yip Wah Sing said the same. Mr Liu Koon Keung, the previous owner of Lot AB, also said that the site had also been used for carparking. However, in his testimony, the Appellant agreed that the photographs P.41 (6/1998), P.17, P.18, P.19 and P.20 (7/1991) do not show any car being parked at the site, the reason being that the seasonal rainfall caused flooding at Lot AB and rendered the soil spongy and unsuitable for carparking. The site could be re-graded only when the soil solidified and the weather condition stabilized, and hence photographs P.18, P.19 and P.20 show a large number of piles of soil, which were at the site for nothing other than grading purpose. The Appellant agreed that it was not desirable to park vehicles at sites A and B. DW2 also agreed that the site had not been used during the few months preceding 18 August 1990.

Grading work did not commence long after the dates of photographs P.18, P.19 and P.20 because the Appellant had to pay for the work in the course of each grading work, and the seasonal rainfall after each work would render what the Appellant had paid a sheer waste of money. Lot AB could not be used again. In the long term, the existing ‘drainage’ problem would still have to be resolved. When this happened repeatedly, the payments for the grading work would serve no meaningful purpose. Impractical.

Furthermore, a solution open to the Appellant was to block up or fill up the drain so as to prevent flooding, but this solution met with strong objection from the residents nearby. Facing these voices of opposition, the Appellant had no choice but to suspend the grading work until the best solution to the flooding problem was found.

In fact, Lot B comprised a narrow piece of land in the shape of a trapezium, and large vehicles parked there would find it difficult to reverse. Lot B was therefore used for storing accessories only. As P.23 indicates, by 1997 the drain had been filled up and the lot to the north had been joined with Lot AB, and it was only then that Lot B could be used for carparking.

The defendant’s contention that Lot AB had been used for carparking is a brief, general and sweeping statement which is not supported by material and specific [evidence as to the] number of cars involved and the date and time of the carparking. P.17, a photograph taken on 11 October 1989, shows that grading work had been carried out on the site, with traces left by a soil compressor being visible; but there was a pipeline for concrete at the entrance, obstructing ingress to and egress from the site. The site was still in a deserted state. Put at its highest, the defence case was [that the use of the site was] temporary, short-lived and mobile.

The term ‘development’ is defined in section 1A of the Town Planning Ordinance, Cap. 131. And in R v Way Luck Industrial Ltd [1995] 2 HKC 290, the Court of Appeal, approving the magistrate’s verdict, held that the evolution from a temporary, intermittent and small-scale land use to a long-term, regular and large-scale land use did amount to a change of the land’s character and was sufficient to constitute ‘a material change in land use’. This type of irregular, unobvious and insignificant land use is not an ‘existing use’. And there is obviously a wide discrepancy between, on the one hand, the defendant’s contention that Lot AB had been used for carparking and such use was stopped during the rainy season, and, on the other hand, the present condition of Lot AB as shown by the photographs. The site is now developed for permanent commercial use and a large number of vehicles are parked there in accordance with plans. This cannot be mentioned in the same breath with the condition of the site as at 17 August 1990.

And on the authority of Brooks and Burton Ltd v Secretary of State for the Environmental and Another [1977] 1 WLR 1294, the use that the Appellant put to Lot AB constituted ‘a material change in land use’. The case cited by the defence, namely Fyson v Buckinghamshire County Council Metal Recovery and Storage Co., Ltd v SAME [1958] 1 WLR 634, does not apply to the present case.

For these reasons, I hold that the defence under section 23(9) that the Appellant relied on is not made out.

The prosecution has established beyond reasonable doubt the charge as set out in the summons against the Appellant. The Appellant is convicted accordingly.

Judgment

24.Having considered the submissions of Ms Au and Ms Ko, I am of the view that what Ms Ko said is correct. I totally agree with Ms Ko’s views. The present case turns on whether the Appellant successfully relied on “existing use” as a ground of defence, and the date to be considered by the magistrate must be the date immediately following the publication of the relevant Interim Development Permission Area Plan in the Gazette, namely 18 August 1990. The aerial photograph taken on the same day (Exhibit P.18) had been adduced as evidence, and PW1, as an expert, had explained and analyzed that photograph (as well as other photographs taken during the period from 1988 to 2003). His evidence in respect of the explanations formed part of the admitted facts. His evidence in respect of the analysis had apparently been accepted by the magistrate.

25.It is true that the magistrate did not expressly state whether she accepted the evidence of the defence witnesses, but the relevant context indicates that she did not completely reject such evidence. Her finding was that the defendant’s contention that Lot AB had been used for carparking “is a brief, general and sweeping statement which is not supported by material and specific [evidence as to the] number of cars involved and the date and time of the carparking”. The magistrate pointed out that “P.17, a photograph taken on 11 October 1989, shows that grading work had been carried out on the site, with traces left by a soil compressor being visible; but there was a pipeline for concrete at the entrance, obstructing ingress to and egress from the site. The site was still in a deserted state. Put at its highest, the defence case was [that the use of the site was] temporary, short-lived and mobile”.

26.On the issue of whether the space between the stone pillar and the concrete pipeline was wide enough for vehicles to pass through, there was indeed a discrepancy between the prosecution evidence and the defence evidence. PW1 had not been to “Lot AB” in person for an inspection. He made his calculations using certain instruments and with the help of the aerial photographs. This method of calculation had not been disputed by the defence. Nor had the defence challenged PW1’s evidence that the stone pillar was approximately 10 feet long and 2 to 3 feet in diameter. There was a discrepancy between the evidence of the defence witnesses and that of PW1, and in this respect the magistrate accepted the latter. Although the magistrate did not expressly state that she did not accept the defence evidence in this respect, I do not think it had a significant bearing on the case. As a matter of fact, the photograph P.18 did not show any vehicle being parked at the Site, and both the Appellant and DW2 had explained why vehicles could not be parked there. The magistrate held that, put at its highest, the defence case was that the use of the site was “temporary, short-lived and mobile”. This was a finding of fact which the magistrate was entitled to make upon consideration of the evidence.

27.I notice from the relevant transcript that Counsel for both parties made extensive submissions on the relevant legislation and case law. The magistrate had a clear grasp of the salient issues of the case and correctly applied the relevant case law. In fact, in her judgment, the facts of Fyson were not applicable to the present case. The issue in Fyson was whether there had been a material change in the use of land on the relevant dates. The facts of that case revealed that the land in question had been used for storing goods on and before the relevant date. Although there was a substantial period in between during which the land had not been so used, the reuse of the land for storing goods did not cause “a material change in the use of land”. The facts of and legal principles involved in that case did not apply to the present case.

28.Ms Au has also referred to the case of Guildford. The facts in Guildford show that the land in question had all along been used as a caravan site. The court held that the increase in the number of caravans at the site from 8 to 27 did not constitute “a material change in the use of land”. The facts of that case were also different from those of the present case.

29.Being a professional judge, the magistrate was clearly aware of the important legal principle referred to in the abovementioned Point No. 8. It was unnecessary for her to make mention of this in the Statement of Findings.

30.For the above reasons, I am satisfied that the Appellant’s conviction is neither unsafe nor unsatisfactory. Accordingly, the appeal is dismissed and the conviction affirmed.

Ms Catherine Ko, Senior Government Counsel, for the HKSAR.

Ms Helen Au, instructed by KY Woo & Co, for the Defendant.

Translated by Mr. Edmund Cham, Solicitor