HKSAR v. Tang Koon Yau and Others

[English Translation – 英譯本]
HCMA 404/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 404 OF 2011

(ON APPEAL FROM STS 5624-5627, 5629-5632 OF 2010)

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BETWEEN

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Coram: Deputy High Court Judge Andrew Chan in Court

Date of Hearing: 22 September 2011

Date of Judgment: 1 November 2011

J U D G M E N T

1.Each of the eight appellants was charged with one count of having failed to comply with a notice issued under section 23(1) of the Town Planning Ordinance in that the relevant matters had not been discontinued as required by the notice. The appellants were all convicted after trial. They now appeal their convictions.

Prosecution case

2.The eight appellants are the registered owners or the managers of the registered owners of part of the lots in Demarcation Districts 111 and 114, Leung UK Tsuen, Pat Heung, Yuen Long, New Territories (“the Site”).  The aerial photographs taken by the Planning Department in 1990 show that at that time the major part of the Site was dotted with ponds or covered by vegetation and was not used for any purpose, while a small part was used for agricultural purposes.

3.In the relevant statutory plans, the Site was designated as land for agricultural use and, as such, could not be used for storage purposes or used as a workshop unless planning permission was granted by the Town Planning Board.

4.In February 2008, officers of the Planning Department inspected the Site and saw that the ground was levelled.  From an on-site staff member of one Sunburst Biotechnologies Limited (“Sunburst”) the officers learnt that Sunburst rented the Site and an adjacent site, on which Sunburst mixed food waste with horse manure and turned them into organic fertilizers which were then supplied to farms.  Large containers, plastic drums containing liquid fertilizer, articles contained in bags and piles of horse manure compost were stored on the other site.

5.In April 2008, the Director of Planning issued an enforcement notice, which required that the user of the other site for storage and workshop be discontinued by [a specified date in] July 2008.

6.In July 2008, the Director of Planning issued another enforcement notice, requiring that the user of the Site for storage and workshop be discontinued by [a specified date in] October 2008.

Defence case

7.Sunburst rented the two sites in 2007 and had since then used them to run an earthworm farm. The co-called horse manure compost piles found on the Site were actually feedstuff for feeding the earthworms.  The feed was a mixture of old newspapers and straw, mingled with horse manure of not more than 3%.  In order to become suitable for feeding earthworms, the old newspapers and the straw had to be mixed together, piled up and set aside for about one week.  During this period, Sunburst had to monitor the temperature of the mixture and to turn and stir it with the help of a machine in order to let in oxygen to prevent the feed from emitting foul smell.

8.In the course of raising the earthworms, the earthworms produced castings, which were regarded by Sunburst as harvest.  The castings were also known as earthworm fertilizer, which was divided into solid form and liquid form.  The liquid form was produced by adding water and oxygen to the solid form in a controlled way.  When they became finished products, the earthworm fertilizers were sold to farmers in Hong Kong and Mainland China.  Sunburst purchased its first batch of 4 million earthworms, and one year later they multiplied to about 20 million.  The products sold by Sunburst were mostly earthworm fertilizers, and the rest were the earthworms themselves.

9.Sunburst also cultivated various kinds of plants on the Site.  One of the purposes of doing so was to observe the efficacy of the earthworm fertilizers. The surface of the Site was paved with concrete, for the purpose of preventing the earthworms from escaping from the Site.

10.The expert called by the defence averred that earthworm was an animal and not an insect, and that raising earthworms was much easier than raising chickens or pigs because the food for the earthworms was just agricultural waste such as discarded vegetables, rotten fruits or faeces of other animals.  He also stated that the raising of earthworms for producing earthworm fertilizers was an agricultural operation.

Grounds of appeal

11.The grounds of appeal can be summarized as follows:

(1)  On the interpretation of “agricultural use”, the magistrate erred in concluding that the raising of earthworms for obtaining earthworm fertilizers was non-agricultural use;

(2)  The magistrate did not consider separately the activities carried on at the Site, and he was improperly influenced by the activities carried on at the other site when he was considering whether the activities on the Site were for agricultural use;

(3)  The magistrate’s approach of isolating and segregating the procedures of making earthworm feed and of storing processed earthworm fertilizers is incorrect, and he did not pay sufficient regard to whether these two activities could be covered by the phrase “any structure or premises ancillary to and directly connected with the agricultural activities”.

Discussion

12.Having heard all the evidence, the magistrate found that the Site was mainly used for making earthworm feed and was therefore a workshop for processing and storing feedstuff.  Moreover, he did not accept that raising earthworms was a kind of agricultural activity.

13.In paragraphs 31 and 33 of his Statement of Findings, the magistrate had this to say:

“31. … However, no matter whether they were horse manure compost piles or were actually earthworm feed, I think the most important point is that these materials show that the site in question was being used in a way contrary to its original use and that it was used as a storage place and as a workshop. Such uses had to be discontinued.”

“33. …‘Rearing of animals’ is a broad and general term. If all rearing of animals must be agricultural operation, that would certainly lead to irrational and illogical results … In the course of rearing any kind of animal, there will be excretion, for example, in the case of chicken rearing there is chicken excretion, and in the case of pig rearing there is pig excretion. On the evidence, earthworm fertilizer is in fact earthworm excretion. In my view, such excretion may be good for growing things, but something beneficial to agriculture cannot be equated with agriculture itself. To Sunburst, such excretion is profitable merchandise. Its commercial value lies in its use as a fertilizer, but this can never change its nature as animal excretion. Therefore, the fact is that Sunburst’s intention was to acquire and process organic waste in order to turn such waste, i.e. earthworm excretion, into profitable merchandise.”

14.I have to resolve two issues: (i) whether earthworm raising is a kind of agricultural activity; (ii) whether processing feedstuff on the Site constitutes using the Site for storage and as a workshop.

15.According to the definitions, drawn up by the Town Planning Board, of terms/broad use used or stated in statutory plans, agricultural use is:

“Definition: Means any land used for the growing of crops and plants, and rearing of animals and fish including horticulture, aquaculture, fruit growing, seed growing, market gardens, nursery grounds, dairy farming, the breeding and keeping of poultry and livestock, grazing land, meadow land, fish ponds and paddy fields. Remarks: It includes any structure or premises ancillary to and directly connected with the agricultural activities, such as cowshed, green house and structure for the storage of machinery, tools, carts, trolleys, seeds and fertilizers; but excludes any structure or premises for domestic purposes. It also includes fish pond culture and the use of land for growing shrubs or trees where that use is ancillary to the predominant arable, pastoral or fish farming use, but excludes hobby farming and fishing ground which are regarded as some types of ‘Place of Recreation, Sports or Culture’. For cultivation, soil may be deposited or placed on land. The thickness of such deposition or placement of soil shall not exceed 1.2 metres above the original ground level.

[‘Fish Pond Culture’ and ‘Plant Nursery’ subsumed under this term unless otherwise specified]”

16.“Agriculture” is defined in Oxford Dictionaries Online as: the science or practice of farming, including cultivation of the soil for the growing of crops and the rearing of animals to provide food, wool and other products.

17.I agree with the magistrate’s view that rearing of animals is not equivalent to agricultural operation. An obvious example is the rearing of horses by the Hong Kong Jockey Club for horse racing.  Similarly, I also agree that an undertaking beneficial to agriculture cannot be equated with agriculture itself.  A chemical plant which manufactures chemical fertilizers is beneficial to the cultivation of crops and plants, but it does not follow that it is an agricultural undertaking. However, in the present case the evidence shows that the major activity carried out by Sunburst on the Site was animal rearing, and that from the activity of raising earthworms Sunburst obtained two products: first, the earthworms themselves; second, the earthworm castings. The earthworms were sold as fish bait and fish feed, while the earthworm castings were directly collected and turned into organic fertilizers to be used in organic farming.

18.The evidence given by the defence witness at trial in respect of the user of the Site can be attested by a document issued by the Agriculture, Fisheries and Conservation Department (Exhibit D1) when Sunburst applied to use the Site for raising earthworms:

“The subject application is about production of organic fertilizer by using earthworms, which is beneficial to local organic farming operation, we have therefore no objection in principle on the application from an agricultural point of view.

The applicant should ensure that the earthworms are kept in a secure system to avoid their chance of access to the surrounding environment …”

19.In other words, on the Site Sunburst was neither blending and making feedstuff for the purpose of selling it, nor collecting organic wastes and then converting them into merchandise through chemical, electronic or mechanical processes, i.e. pure industrial activities as is generally understood.

20.I am convinced that the raising and selling of earthworms per se is agricultural use.  As regards raising earthworms for the purpose of obtaining their castings, I consider that it is consistent with the meaning of “other products” referred to in the Oxford Dictionaries Online.  In fact, there is no fundamental difference between raising earthworms for the purpose of obtaining their castings and raising silkworms for the purpose of obtaining their silk.  In both cases, substances discharged from the animals are collected and products are made therefrom, the objective of which is to satisfy some of the basic needs of human life.  The only difference is that sericulture has a history spanning thousands of years, whereas large-scale vermicultureis new to Hong Kong.

21.I notice that the Town Planning Board stated in a letter (Exhibit P52) that earthworm raising did not constitute agricultural use, although no explanation therefor was given in the letter.  I also notice that the Town Planning Board hoped that the land in question could ultimately be restored for agricultural use (Exhibit P30).  However, agricultural use is not confined to tilling and sowing activities carried out on the soil.

22.The definition of land uses provided by the Town Planning Board is not exhaustive.  As human knowledge of rearing of animals widens, and with the discovery of more new uses, I do not see why earthworm raising cannot be a kind of agricultural activity.

23.At the trial, the prosecution applied to call an expert witness to give evidence on organic farming technology, but the application was refused by the magistrate.  In the absence of evidence to rebut the evidence of the defence expert, I do not understand why the magistrate rejected the argument that earthworm raising was a form of agriculture.

24.Turning to the second issue, I have seen the photographs adduced and also gone through the evidence given by the defence witnesses.  In order to provide sufficient food to the earthworms, Sunburst had to process quite a large quantity of feedstuff on the adjacent site.  First, the newspapers collected were mixed with straw.  The mixture was then piled up and left as such for a period of time so that it would generate enough heat to kill the eggs of harmful parasites and micro-organisms in the mixture.  When the mixture became suitable to be consumed by the earthworms, Sunburst moved it to the soil where the earthworms were kept.  This shows that the feedstuff, which was mixed on the Site, was for self-use by Sunburst and not used for any other commercial purpose.  On that basis, I am satisfied that this can be regarded as an activity ancillary to or directly connected with the earthworm raising.

25.I must emphasize that this finding is made only in relation to the Site owned by the eight appellants.  As to whether the activities on the other site were against the law, since the owners of that site have not lodged any appeal and I have not heard further evidence on that point, I shall refrain from expressing any view.

26.The second ground of appeal in fact also concerns the adjoining site.  Counsel for the appellants has submitted that the Statement of Findings indicates that the magistrate did not consider each site separately and that, when he was considering the user of the Site in question, he took into account the fact that the other site was mainly used for storage and processing feedstuff.

27.It is true that it was open to the magistrate to consider the activities on the two sites together in order to determine the overall user of the land.  However, in considering whether the charges against the eight appellants were established, the magistrate must bear in mind that those charges were only directed at the land they owned, and that they neither owned the other site nor had any relationship with Sunburst.  Judging from the tenor of the Statements of Findings, the magistrate had indeed failed to specifically consider whether the Site was mainly used for raising earthworms.

28.For the above reasons, I am satisfied that earthworm raising is an agricultural activity and that the eight appellants had not violated the provision of the Town Planning Ordinance by changing the user of the land. Furthermore, I cannot exclude the possibility that in finding the eight appellants guilty the magistrate had taken into consideration the user of the other site, and that would also render the conviction unsafe.  The appeals are allowed. The convictions are quashed and the sentences set aside.

Ms. Noelle Chit, Public Prosecutor of the Department of Justice, for the HKSAR

Mr. Geoffrey Chang, instructed by Messrs. Patrick Mak & Tse, for the Appellants

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.