HKSAR V.Luen Bong Property Development Ltd and Others

HCMA 276/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 276 OF 2013

(ON APPEAL FROM STS 569, 571-574, 576-577, 579-581 AND 584 OF 2012)

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J U D G M E N T

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1.There are 11 appellants in this appeal, all represented by the same two counsel now just as they had all been represented by those two counsel at the trial in the Magistrates’ Court. The 1^st appellant is a limited company while each of the other appellants is an individual. Each of the 11 appellants faced a summons charging an offence under s. 23(6) of the Town Planning Ordinance, Cap. 131 (“the TPO”). All of these summonses were in identical terms, saying that the defendant, being a person who had been served with a notice dated 23 March 2010 under s. 23 of the TPO (“the Notice”), had between 22 June 2010 and 31 December 2011 in Hong Kong, failed to comply with the Notice in that the relevant matters had not been discontinued as required by the Notice.

2.Subsection (1) of s. 23 of the TPO provides:

“Where, in the opinion of the Authority, there is or was unauthorized development, the Authority may, in a notice served on one or more of a land owner, an occupier or a person who is responsible for the relevant matters-

(a) specify the relevant matters; and

(b) specify a date by which the Authority requires the relevant matters to be discontinued, if they have not by then been discontinued.

Subsection (6) of this section provides:

“Where, by the date specified in that regard in a notice under this section-

(a) the relevant matters have not been discontinued as required by the notice;

(b) steps have not been taken as required by the notice; or

(c) land has not been reinstated as required by the notice, a person who is served with the notice commits an offence and is liable-

(i) in the case of a first conviction, to a fine of $500000; and in addition, to a fine of $50000 for each day, after the date in the notice, during which the person continues to fail to so comply; and

(ii) in the case of a second or subsequent conviction, to a fine of $1000000; and in addition, to a fine of $100000 for each day, after the date in the notice, during which the person continues to fail to so comply.”

3.The Notice was in respect of approximately 19,179 square metres of land (“the Site”) consisting of various lots in DD 125, Yuen Long in the New Territories. The relevant matters specified in the notice were constituted by unauthorized development in the form of open storage use of the Site. The Notice was served on each appellant as land owner, occupier or person responsible for the relevant matters, the appellants being variously owner or manager of the various lots of which the Site consists or administrator or trustee in relation to such lots. The Notice required discontinuance of the relevant matters by 22 June 2010. The summonses were issued on the basis that no part of the relevant matters had been discontinued by that date.

4.All the appellants were convicted after trial before Ms Kelly Shui in the Magistrates’ Court at Shatin. Each of them was fined. The fines imposed were of: $193,600 on the 1^st appellant; $193,600 on the 2^nd appellant; $173,600 on the 3^rd appellant; $173,600 on the 4^th appellant; $223,600 on the 5^th appellant; $193,600 on the 6^th appellant; $223,600 on the 7^th appellant; $193,600 on the 8^th appellant; $193,600 on the 9^th appellant; $173,600 on the 10^th appellant; and $243,600 on the 11^th appellant. Costs were awarded by the Magistrate against each appellant. All the appellants now appeal against conviction, sentence and costs.

5.At all material times the Site was covered by a statutory plan, namely Approved Ha Tsuen OZP No. S/YL-HT/10, by which the Site was designated for GIC (standing for Government, Institution or Community) use. An aerial photograph taken of the Site on 18 August 1990 shows it to have then consisted of two large ponds with a small number of structures on the pond bunds. But an aerial photograph taken of the Site on 24 November 2009 revealed that the Site had been formed, paved and fenced off and that there were vehicles on it.

6.The prosecution called four witnesses and relied on 86 exhibits. There was a set of Admitted Facts. On 22 March 2010 a Senior Town Planner attached to the Central Enforcement and Protection Unit of the Planning Department (who was PW1 –“PW” standing for Prosecution Witness) carried out an inspection of the Site. The Notice was issued on the basis of what she saw on the Site, namely 100 to 200 vehicles, including tractors and coaches, some of the vehicles lacking registration plates, some of the vehicles lacking vehicle licences and some of the vehicles lacking both, parked very closely together. PW1’s evidence is summarized by the Magistrate in paras 5-8 of her Statement of Findings.

7.During the period July 2009 to December 2011 a total of 11 inspections of the Site were carried out by PW2, a Survey Officer. PW2’s evidence is summarized by the Magistrate in paras 9-28 of her Statement of Findings. The broad effect of PW2’s evidence is as follows. Prior to the issuance of the Notice, seemingly new unlicensed vehicles and chassis were to be seen on the Site. There was no banner or signboard indicating that the Site was a public car park. During the inspection on 13 August 2010 it was seen that the site had been divided into three clearly delineated sections: the east section being occupied by unlicensed vehicles; the central section being similarly occupied; and the west section having in it construction materials such as i-beams, water pipes, steel bars and sheet piles. Subsequent inspections between October 2010 and December 2011 revealed more or less the same situation except that the amount of construction materials on the Site had increased.

8.PW3 and PW4, both of them officers of the Planning Department, each gave evidence of an inspection of the Site:  the one by PW3 on 13 August 2010 and the one by PW4 on 22 March that year. PW3’s evidence is dealt with by the Magistrate in paras 29 and 30 of her Statement of Findings while PW4’s evidence is dealt with by her in paras 31-33 thereof.

9.There were five defence witnesses, DW1 to DW5. The Magistrate dealt with their evidence at considerable length in paras 34-50 and 63-72 of her Statement of Findings.

10.As she said in para 62 of her Statement of Findings, the Magistrate found all the prosecution witnesses honest and reliable, their evidence being very objective and well supported by photographs.

11.The Magistrate found the defence witnesses’ evidence “as a whole confusing and short of honesty”, that being what she said about that evidence in para 63 of her Statement of Findings. In para 72 of her Statement of Findings, she said that she found “the defence case not credible at all” and, indeed, that “the defence has proved by their own evidence that the red land had been used at all times as a private compound / depot”. By “the red land” the Magistrate means the Site, “the red land” being the expression used at the trial for the Site.

12.Since the Magistrate’s treatment of the details of the defence evidence is very lengthy indeed – which I say without any criticism – it is useful to set out here the summary of those details to be found in the Skeleton Arguments of Counsel for the respondent, which summary is in my view a fair one. This summary is to be found in paras 8-14 of those Skeleton Arguments, which paragraphs read:

“8. DWl was an indigenous villager and a member of the Tang's Tso. He said the landlord (the Tangs) leased the entire land (including the Site) for use as a car park. The landlord engaged a contractor (DW2) to rectify the soil erosion problem at the northern boundary of the land and the construction materials found in the west site were delivered to the Site for that purpose. DWl was appointed by the landlord to oversee the soil consolidation work in August 2010 but it did not commence until early 2012, pending negotiation with the government on repossession of the land.

9. DWl said he was also responsible for the section 16 applications (application for planning permission). It was through his introduction that Allied Surveyors Limited prepared the application for the Site (P72). It was stated on the application that the current use of the Site was "open storage of vehicles not yet licensed to run on the road" and the application was to develop the Site for this specific use. Planning Department received the application on 24 May 2010 and notification to owners had been sent by registered post on 20 May 2010.

10. DW2 was the engineering contractor responsible for the soil consolidation work at the northern boundary of the Site. He said he was engaged by the landlord in around 2004 or 2005. The work started in September 2010 but he was told to suspend the work in late 2010 until further notice. He had never resumed the work.

11. DW3 was the marketing supervisor of Koon Chung Buses Company Limited (China) ("Koon Chung") and a director of First Great Limited ("First Great"), which operated the business of "Western Corridor Port Carpark"; and Fund Faith Limited ("Fund Faith"), which was the sub-tenant of three pieces of land. He said First Great used the red land and the yellow land (located at the south-western side of the red land) for the car park business since about 2009. First Great shared the yellow land with Links Taxi Investment Limited ("Links"), which provided taxi service to the Western Corridor for people who parked their cars in the yellow land. At about the same time, First Great shared the red land (the Site) with Dah Chong Hong, where they would place their commercial vehicles there for sale. On the other hand, Koon Chung would frequently park their cross-boarder buses overnight in the red land when Shenzhen Bay Port closed at night.

12. DW4 was a professional driver employed by Dah Chong Hong and the manager of the company car park at the Site since 2009. He said both new and old vehicles would be parked there for 3-4 days before they would be driven away. His company staff would drive these vehicles to the Site with trade licence. He said the vehicles in his car park were parked closely in order to make more space. The car park also provided overnight parking for cross-border buses and rental cars belonging to the rental department of his company.

13. DW4 also said that between 2009 and December 2011, there were banners hung at the entrance and exit of the car park, indicating that it was a public car park. However, he said the car park was intended to be the west site but not the site occupied by Dah Chong Hong.

14.  DW5 was a professional taxi-driver appointed by Links between September 2007 and December 2011 to manage its car park at the yellow land. He would drive the customers who parked their vehicles at the car park to Shenzhen Bay Port for a fee. He admitted that since there were not many cars parking in the car park, the business had to close down.”

13.There are two more things to do before turning to the Amended Perfected Grounds of Appeal (which I will refer to simply as “the Perfected Grounds”). One is to quote what the Magistrate said in her Statement of Findings under the sub-heading “Final Analysis”, and the other is to quote what she said in her Statement of Findings under the sub-heading “Conclusion”.

14.Under the sub-heading “Final Analysis”, the magistrate said this:

“73.  Town Planning Board Guidelines for Application for Open Storage & Port Back-Up Uses (P68) defined “open storage” to mean any activity carried out on a site for which the greater part of the site (ie, generally assumed to be more than 50%) is uncovered and used for storage, repair or breaking other than container-related uses.  This definition includes also “open storage use with on-site commercial activities, eg, display and sale of vehicles.” Activities conforming to this definition included “storage of construction material, storage of vehicles and vehicle parts for sale or disposal and vehicle depot” (see p.2).  A similar definition could be found in Definitions of Terms (P65).

74.  Defence has argued Court should not consider such definitions.  Court disagrees. Court finds these definitions in accordance with the natural meaning of the term and common sense.  Further, Court finds they are in line with the planning intentions behind GIC & Open storage which are recognized as different zoning categories under the Town Planning Board.

75.  P28 clearly shows areas close to the red  land being categorized as open storage.  The planning intention behind it is primarily for the provision of land for appropriate open storage uses and to regularize the already haphazard proliferation of open storage uses.  It provides for the orderly development of land for open storage uses that cannot be accommodated in conventional godown premises (see P67).

76.  Applying the definition to this case, no doubt the red land has been used as an open storage for construction materials, vehicles and vehicle parts (the chasis) for sale and disposal and vehicle depot.  Court rejects defence contention that the new vehicles were already in motion and active use.  These vehicles were without RP and VL and were no way to be used before they reached the buyers’ hands. Defence quoted the Hong Kong Legal Dictionary (2004) on the definition of “public” at 782 to say it has different meanings in different contexts.  “A section of the public, even a small section, may be sufficient to constitute the public, depending on the context in which it is used, provided that the individuals concerned can be relevantly said to be members of the public.”  Defence said since the Koon Chung coaches, Dah Chong Hong’s rental cars and their newly sold vehicles and vehicles that spilled over from the yellow land had been all used by a section of the public, they turned the red land into a public carpark.  Court rejects this argument as well as the context in which we are dealing with here is about a place “available for the parking use of the general public, usually on payment of a fee on a short-term to medium–term basis”; definition of “public vehicle park”.  The red land is intended for the provision of the GIC facilities serving the needs of the local residents and/or a wider district, region or the territory.  It is meant to meet community needs to meet the envisaged demands of the growing population of the area: planning intention behind GIC.

77.  P72 & 73 both stated that “open storage” was the current use of the red land.  One must not lose sight that Allied comprised of professional surveyors and they must have known what they were talking about. Whether defendants have known about these applications is irrelevant because we are talking about absolute liability here. Nonetheless, Court does not believe they were not aware because P72 showed otherwise and Tang Kei Sum obviously had a close relationship with them.

78.  That being the state of evidence, Court fails to understand how defence can pray in aid S. 23(9) (c) to say theirs (ie, open storage) is a permitted use under P28! Court finds the defence wholly unmeritorious.  That being so, Court finds all defendants have failed to prove the statutory defence under s.23 (9)(c) on the balance of probabilities.”

15.Under the sub-heading “Conclusion”, the magistrate said this:

“79. Court has considered submissions from both parties in depth. Court finds prosecution has proved beyond all reasonable doubt that each defendant has been properly served with an enforcement notice and the relevant matter, storage use in this case, has not been discontinued by 22.6.2010. Since defence has failed to prove their case under s.23(9)(c), all defendants are duly convicted of their own respective summons.”

16.I turn now to the Perfected Grounds of Appeal. Grounds 1-7 are against conviction, Ground 3 being for the 1^st appellant only and Grounds 1, 2 and 4-7 being for all the appellants. Ground 8 is against sentence. Ground 9 is against costs.

17.In his Skeleton Arguments, counsel for the respondent deals first with Grounds 4 and 5. In my view, it is appropriate to deal with them first, and I will do so.

18.Ground 4 consists of paras 10-12 of the Perfected Grounds, which paragraphs read:

“10. The learned Magistrate erred in ruling Prosecution Exhibits P65 to P69admissible and relying upon the same in rejecting the Defence case and convicting each of the Appellants.

11. The ruling on admissibility of P65 to P69was also a material irregularity, in that the learned Magistrate failed to give any or any sufficient consideration to most of the central arguments advanced by the Defence, namely that the admission of P65 to P69is contrary to the principle against doubtful penalisation and contravenes a defendant's constitutional right to fair trial and right to equality before the law as protected by Articles 25 and 39 of the Hong Kong Basic Law and Articles 10 and 22 of the Hong Kong Bill of Rights as contained in section 8 of the Hong Kong Bill of Rights Ordinance (Cap.383).

12.  The learned Magistrate also erred in failing to give any or any sufficient regard to the fact that P65was generated after the offence period and the fact that P67was generated only towards the end of the offence period.”

19.Ground 5 consists of one paragraph of the Perfected Grounds, being para 13 which reads:

“13. Having wrongly admitted P65 to P69,the learned Magistrate further erred in giving weight to and relying upon the same for the interpretation of the relevant OZP and Notes [P28]including the meaning of ‘storage’, ‘public car park’, etc, thereby allowing the Court's function of interpretation to be usurped by the Town Planning Board (“TPB”). Paragraphs 11 and 12 hereinabove are repeated.”

20.As can be seen from the decision of the Court of Final Appeal in Wah Yick Enterprises Co. Ltd v Building Authority (1999) 2 HKCFAR 170 and from the decision of the Court of Appeal in Hero Ltd v Director of Planning CACV 231/2011, 17 July 2012, the courts can and do have regard to definitions provided in Town Planning Board guidelines when dealing with statutory plans or matters involving such plans. It is true that those cases happen to be civil cases while the present case is a criminal one. But in my view, the reason why the courts have regard to such definitions hold good for criminal cases as well as civil ones. Indeed, I think that confusion if not chaos in planning matters would otherwise result.

21.Moreover, the way in which “open storage” is defined in the guidelines in question is consistent with the natural and ordinary meaning of that expression in a context of the present kind. That being so, it does not matter that P65 was generated after the offence period or that P67 was generated only towards the end of the offence period. The Magistrate did not proceed on any understanding of the relevant terms other than the understanding which was clear and applicable at all material times. I see no reason to think that there was any failure on the part of the Magistrate to have regard to all the relevant arguments on these points.

22.In my view, there is no substance in either Ground 4 or Ground 5. Both fail.

23.I turn now to Ground 1. It consists of paras 1-3A of the Perfected Grounds. These paragraphs read:

“1. The learned Magistrate erred in her ruling that the Subject Site ("Red Land") was used as a private compound or depot of Dah Chong Hong for the purposes of sale during the offence period (and by Crown Motors from August to end of 2010 as a private compound for new vehicles at the central part thereof) instead of a public car park, which is a permitted use under Column 1 of the Notes of the relevant Outline Zoning Plan (“OZP”) [P28]as relied upon by the Appellants as their statutory defence under section 23(9) of the Town Planning Ordinance (Cap. 131, “TPO”).

1A. The learned Magistrate was plainly wrong in finding that PW2 was honest and reliable without or without sufficiently evaluating and analysing his evidence which was contradicted by contemporaneous photographs and was internally inconsistent. The erroneous finding of credibility and reliability of PW2's evidence seriously and materially affected her finding of the credibility and reliability of DW4. In the premises, the finding that DW4 was a liar was plainly wrong.

2. The learned Magistrate further erred in failing to interpret the terms ‘car park’ and ‘storage’ in the Notes to the relevant OZP [P28] with reference to their ordinary and natural meanings and the relevant judicial decisions. The learned Magistrate also failed to consider the cumulative effect of all activities as a whole as enunciated in Mexx Consolidated (Far East) Ltd. v Attorney General and Another [1987] HKLRD 1210.

3. The learned Magistrate further failed to give any or any sufficient regard to the following evidence and arguments advanced by the Defence:-

(1) The new vehicles on the eastern part of the Red Land were driven onto the Red Land with trade licences by Dah Chong Hong and were normally parked on the eastern part of the Red Land for 3 to 4 days pending collection by customers. The new vehicles were sold and did not belong to Dah Chong Hong anymore, and they were parked into the Red Land by Dah Chong Hong as agent for the owners, being members of the public.

(2) Apart from new vehicles, other used vehicles were also parked on the Red Land including coaches belonging to Koon Chung Bus Co (for overnight parking), vehicles directed to be parked at the Red Land from the Yellow Land and cars belonging to the Rental Department of Dah Chong Hong which were rented to the Government in bulk.

(3) The average time per visit spent by the Prosecution Witnesses at the site (covering an area of about 19,179 square metres) was 10 to 12 minutes only, and they went there for the sole purpose of spotting matters which allegedly amounted to unauthorised developments. No inspection was carried out at night.

(4) Even if (which is denied, see Grounds 4 and 5 hereinafter) weight should be given to P65 to P69,the new vehicles of Dah Chong Hong satisfied the limited purposes for driving with a trade licence on public roads and the Red Land was accordingly used as a public car park.

3A.  The learned Magistrate ought to have held that the Appellants had established that the Red Land had been used as a public car park during the offence period or, alternatively, that the prosecution had failed to prove the Appellants’ guilt beyond reasonable doubt.”

24.In my view, the Magistrate’s decision is not open to any of the criticism made against it under Ground 1. None of the defence points referred to in Ground 1 have any substance. Ground 1 fails.

25.Ground 2 consists of paras 4-6A of the Perfected Grounds, which paras read:

“4. The learned Magistrate erred in ruling that the western part of the Red Land had been used as storage of construction materials from August 2010 to the end of the offence period, instead of ruling that the construction materials were consumed or to be consumed for soil consolidation works at the site.

4A. By reason of her erroneous finding of credibility and reliability of PW2 the learned Magistrate was plainly wrong in failing to accept the evidence of DW2.

5. In coming to her erroneous conclusion of storage of construction materials, the learned Magistrate erred in:-

(1) ruling that the evidence of DWI and DW2 were irreconcilable and rejecting both evidence;

(2) ruling that Defence Exhibit D3 did not show the soil consolidation works at the site which involved sheet pilings (one of the construction materials 'stored' on the western part of the Red Land); and

(3) ruling that it was necessary to ascertain the ownership of the construction materials and the principal tenant of the Red Land.

6. The learned Magistrate further erred in failing to give any or any sufficient regard to the following evidence:-

(1) the soil consolidation works involved sheet pilings, steel bars, I-beams and pipes which were all those construction materials found on the Red Land. The soil consolidation works was subsequently halted because of the dispute with the Government regarding land resumption.

(2) PW2 testified that he had never seen any construction materials being loaded on lorries and driven out of the Red Land during his site visits. He further admitted that he was unable to take any photograph of water pipes since the visit on 15^th March 2011.

6A.  The learned Magistrate ought to have held that the Appellants had established that construction materials found on the west site of the Red Land had been consumed or  were to be consumed for soil consolidation works at the site or, alternatively, that the prosecution had failed to prove the Appellants' guilt beyond reasonable doubt.”

26.The magistrate gave sound reasons for her conclusion which is attacked under Ground 2.  That can be seen from, in particular para 67 of her Statement of Findings where she says this:

“67. Court needs to decide to whom the construction materials belonged. DW3 said they belonged to the landowners. On DW1’s evidence, they should belong to Sum Kwan or Tang. DW4 said the west land had been repossessed by the landowners for their own use and so the materials should be latter’s. Did the materials belong to the defendants or to Tang/Sum Kwan or to Fund Faith/First Great? When the question of ownership cannot be decided, it casts a shadow over why those materials were there, in particular when the evidence of DW1 & 2 is not credible. They could have been kept there for purpose not related to the red land at all. Besides, most materials seemed to have been kept on the west site for over 16 months and the site had its own separate gate. No PW had seen construction materials being taken away from the land. Defence said it was because of an ensuing dispute with the government. Even if it was true, still those materials didn’t seem to have anything to do with the red land.”

Ground 2 fails.

27.Ground 3, which is for the 1^st appellant only, consists of paras 7-9 of the Perfected Grounds. These paragraphs read:

“7. The learned Magistrate erred in failing to consider the following fallback position advanced by the Appellants:-

“If the Court were to reject the Defence case that the keeping of vehicles (new or used) at the Red Land constitute use as a ‘public car park’, the 1^st Appellant, being the registered owner of Lot 521 in D.D. 125, ought to be acquitted because its land lot was changed to be used solely for placing construction materials for the soil consolidation works at the site since no later than l3^th August 2010.”

8. The learned Magistrate failed to give any or any sufficient regard to the fact that each of the Appellants were separately summoned and there was no evidence suggesting that one Appellant had the power to compel another Appellant to purge any allegedly unauthorised development from the latter's own land lot.

9.   By reason of this Ground 3, the conviction of the 1^st Appellant was, in all circumstances, unsafe and unsatisfactory which ought to be quashed and the summons ought to be dismissed.”

28.The answer to this point is this. The Magistrate rejected, and was entitled to reject, what the defence said as to the purpose for which the construction materials were present on the Site.  On that basis, failure to discontinue open storage of construction materials is as much non-compliance with the Notice as failure to discontinue open storage of vehicles is non-compliance with the Notice. Ground 3 fails.

29.I have already dealt with Grounds 4 and 5, and I now turn to Grounds 6 and 7 which are closely related. Ground 6 consists of paras 14-16 of the Perfected Grounds which read:

“14. The learned Magistrate erred in ruling Prosecution Exhibits P70 to P73 admissible and relying upon the same in rejecting the Defence case and convicting each of the Appellants after trial.

15. The ruling on admissibility of P70 to P73 was also a material irregularity, in that the learned Magistrate failed to give any or any sufficient consideration to most of the central arguments advanced by the Defence as set out below:-

(1) None of 2 applications made under section 16 of TPO (ie P72 and P73) was made by any of the Appellants. Neither was there evidence that the Appellants knew or consented that the applicant therein to till in ‘open storage’ as the then current use of the Red Land.

(2) The issue whether the use on Red Land constituted a public car park or open storage is a question of mixed law and fact to be determined by the Court, but not by anyone else.

16.  The learned Magistrate further erred in ruling P70 and P71 admissible notwithstanding the same were issued outside the offence period.”

Ground 7 consists of paras 17 and 18 of the Perfected Grounds which read:

“17. Having wrongly admitted P70 to P73, the learned Magistrate further erred in giving weight to and relying upon the same in convicting each of the Appellants. Paragraphs 15(1)&(2) and 16 hereinabove are repeated.

17A. The learned Magistrate erred in treating and giving weight to the alleged “acknowledgement” of the then current land use of the Red Land during the offence period by the land surveyors of the registered owners (P72 and P73) as out-of-court admissions in convicting the Appellants.

18.  By reason of Grounds 1, 2, 4, 5, 6 and 7 hereinabove or any one or more of them, the conviction against each of the Appellants is, in all circumstances, unsafe and unsatisfactory. The convictions ought to be quashed and the summonses ought to be dismissed.”

30.It is clear from a fair reading of the Magistrate’s Statement of Findings as a whole that she did not use against the appellants anything said in the section 16 applications as evidence of the truth of what was said. The facts which she found against the appellants were found on other matters which other matters were admissible and reliable evidence which the Magistrate approached in a proper manner. Grounds 6 and 7 fail.

31.In my view, the Magistrate was correct in her view of the relevant law. As to the facts, I see no basis on which it can properly be said that she had failed to have due regard to all the exhibits or that she failed to make proper use of her advantage of having seen and heard all the witnesses, both for the prosecution and for the defence. All the grounds of appeal against conviction having failed, each appellant’s appeal against conviction fails. All the appeals against conviction are dismissed.

32.I turn now to the appeals against sentence. Ground 8, which is the sole ground of appeal against sentence, consists of paras 19-22 of the Perfected Grounds, which paragraphs read:

“19. The learned Magistrate erred in law in sentencing the Appellants to their respective fines.

20. The learned Magistrate erred in imposing fines in the total sum of $2,179,600 (both assumed rental income and daily fine during the offence period inclusive) on all the Appellants which was much higher than their assumed rental income of $1,383,765 during the offence period. The total fine imposed exceeded what is required for the underlying objectives of deterrence and deprivation of income derived from the ‘unauthorised development’.

21. The learned Magistrate also failed to give any or any sufficient regard to the following relevant mitigating factors, namely the relatively humble financial status and earning capacity of the Appellants, no adverse or hazardous impact on the environment, no similar conviction of the same land lots that comprised the Red Land, and the fact that the rental income was below market value.

22.  The fine imposed on each of the Appellants is, in any event, manifestly excessive. The sentence ought to be quashed.”

33.The Magistrate gave very detailed reasons for the fines which she imposed. Those reasons appear in paras 80-93 of her Statement of Findings, which paragraphs constitute her Reasons for Sentence. They show that she had due regard both to the need to take away the financial gain derived from these offences and the need to deter others from similarly offending. She took duly into account the circumstances of the offences and the circumstances of the offenders. She made due allowance for such mitigation as was available.

34.Even if the fines can be said to be on the high side, I am unable to say that any of them were wrong in principle, manifestly excessive or otherwise liable to be interfered with on appeal. Each appeal against sentence fails. All the appeals against sentence are dismissed.

35.This brings me finally to the appeals against costs. The sole ground of appeal against costs is Ground 9. This ground consists of paras 23-25 of the Perfected Grounds. These paragraphs read:

“23. The learned Magistrate erroneously exercised her discretion to make the Costs Order against the Appellants. The learned Magistrate erred in ruling that the following matters were exceptional circumstances giving rise to the Costs Order:-

(1) the lack of merits and credibility of a defence;

(2) the applications and approval made by TPB under section 16 of TPO before the commencement of the trial de novo;

(3) local binding authorities of the Court of Appeal and the Court of Final Appeal regarding the admissibility of certain publications and guidelines by TPB (while in fact none was binding); and

(4) the Respondent had borne its own costs incurred in the aborted trial (while in fact the Respondent's application for costs in the aborted trial was dismissed by reason of the Respondent's own fault).

24. The learned Magistrate erred in failing to give any or any sufficient regard to the salient features of the trial de novo, namely the comprehensive and detailed written submissions, well-drafted Admitted Facts [P1],admission of more than 60 prosecution exhibits (and only 10 prosecution exhibits being disputed) and the relatively short cross- examination of prosecution witnesses.

25.  The Costs Order ought to be set aside.”

36.In ordering costs against the appellants, the Magistrate’s reasons for doing so are set out in paras 15-20 at pp 2703-2705 of  Bundle A. I do not propose to set out all those paragraphs. I will just set out the concluding paragraph, namely para 20, which reads:

“20. Court respects the right of every accused to call upon prosecution to prove their case against him and Court agrees costs should not normally be awarded against him unless there are special circumstances that warranted it. In this case, Court takes the view that it’s time has been willfully wasted by defendants who are fully aware they don't have an arguable case. One must not forget defence borne a legal burden in this trial. Numbers of lie were told and their purpose was to mislead and confuse this Court. Days have been spent listening to them. Prosecution was obliged to incur huge costs to prepare this case for trial when 2 months before it the owners each defendant represented obtained approval to develop the land for open storage use which was accepted by them to be the then current use. How can this Court express its strongest disapproval for the conduct of the defence other than by ordering costs against them'? Cost is awarded to the prosecution, which sum will be taxed if not agreed.”

37.Whatever can be argued for or against the way in which the Magistrate dealt with costs, there was a proper basis for her to deal with costs as she did. I feel unable to say that the Magistrate exceeded her discretion or otherwise erred in ordering costs against the appellants. Each appeal against costs fails. All the appeals against costs are dismissed.

38.In the result. All the appeals against conviction, all the appeals against sentence and all the appeals against costs are dismissed.

Mr K M Chong and Mr Aidan Tam, instructed by Kenneth C. C. Man & Co, for the 1^st to 11^th appellants

Mr Andrew Li, of the Department of Justice, for the respondent