HKSAR v. POON LOK TO OTTO

HCMA 228/2019

[2021] HKCFI 26

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 228 OF 2019

(ON APPEAL FROM TMS 15101 OF 2018)

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J U D G M E N T

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1.  The Appellant was convicted after trial, pursuant to section 14(1) and 40(1AA) of the Buildings Ordinance, Cap 123, of knowingly commencing or carrying out “building works” at House 3, Villa De Mer, No. 5 Lok Chui Street, Tai Lam, Tuen Mun, New Territories (“House 3”) namely the construction of a Pool Structure, without having first obtained the written approval and consent from the Building Authority. He was fined HK$20,000.

2.  He appealed against his conviction and sentence.

MAGISTRATE’S FINDINGS

3.  The learned Magistrate correctly identified that the only issue to be determined at trial was did the Pool Structure constitute “building works” under the Buildings Ordinance Cap 123 (“the Ordinance”).

4.  The facts were largely undisputed. On 9 January 2018, a Building Surveyor of the Buildings Department, “PW1” visited House 3 for an on-site inspection and found the Pool Structure erected in the exterior garden area. It was adjacent to House 3, the sides were covered by timber-like boards which look similar to the materials of the floor finishes and it was filled with water with the blue-coloured plastic cover on top.  There was a plastic pipe and metal box attached to the Pool Structure but there was no drainage system connected.[1]

5.  The dimensions of the Pool Structure were: 2.5m (W) x 4.65m (L) x 1.24m (H).  It was admitted that the total maximum volume was approximately 14.4m^{3  [2]}. It was also admitted that the Pool Structure did not exist prior to the 2 April 2017 and the Pool was removed on 19 January 2018.

6.  The prosecution called their expert Mr Pang, who was the Chief Building Surveyor of Minor Works and Signboard Control Section of the Buildings Department.  His expert report dated 28 November 2018 was submitted as Exhibit P12 based on the documentary records available to him.  His opinion was that the Pool Structure constituted “building” and “building works” under the Ordinance.

7.  The learned Magistrate in his assessment of Mr Pang’s evidence was highly critical of the fact that Mr Pang had lost his impartiality as an expert witness.

8.  In Mr Pang’s report[3], Mr Pang considered seven factors:

(1)  nature and intended use;

(2)  degree of fixation;

(3)  degree of permanence;

(4)  size;

(5)  presence of associated facilities;

(6)  ease of assembling; and

(7)  ease of removal.

9.  Mr Pang was of the view that nature and intended use, degree of permanence and size are three relevant variables which was rated fairly or very high relevance in arriving at his conclusion. However, he disregarded the remaining four factors in terms of relevance.  As the learned Magistrate noted it was suggested to Mr Pang in cross-examination that the absence of one variable would weaken the prospect of a conclusion that the Pool Structure was a structure which he disagreed.  The learned Magistrate opined that:

“In my view, the absence of one variable must be a pointer supporting the assertion that the Pool Structure was not a structure. Hence a proper evaluation must involve an exercise of weighting (sic) all factors before coming to a conclusion. By simply ignoring factors which are in favour of the defence, his approach is clearly flawed.”[4]

10.  The learned Magistrate, after considering the whole of Mr Pang’s evidence including his expert report, was of the opinion that he had assumed:

“the role of advocate for the prosecution case in which he appears to have failed to detach himself sufficiently to these proceedings. I therefore rejected his opinion to which I attached no weight”.

11.  The defence called Dr Lau, a structural and geotechnical engineer, whose opinion was mainly on the impact of the Pool Structure over the structural integrity of the garden of House 3 [5]. As Dr Lau identified, the Pool Structure was a proprietary product called the “Endless Pool”.  It was built from light weight steel panels in the form of prefabricated modules with a plastic lining placed in between the panels of the modules to form the pool.  Once the pool is filled with water, a small pump would create a circulation of water which enables one person to carry out aquatic exercise inside the pool.  Thus Dr Lau said it was in effect a “treadmill in the water” and the pool rested freely on bare ground without fixation[6].

12.  Dr Lau noticed that the Pool Structure was located in the “Deep Soil Planting Area” (“DSPA”) of the garden which was designed for planting large trees in deep soil.  He calculated that DSPA could take a total load of 217.28kN while the Pool Structure, if fully filled with water, would exert 132.8kN in terms of pressure on the garden structure.  He concluded that the Pool Structure did not overstress or overload the structure of House 3 and pose no structure implication at all.

13.  In the learned Magistrate’s assessment of Dr Lau’s opinion, having noted the prosecution’s objection to Dr Lau’s observation, that the suggestion by Dr Lau that the Pool Structure comprised only of the steel panels and the plastic lining as unreliable since Dr Lau was unable to identify the components he saw in the Shatin warehouse with what he saw in the garden, and therefore the prosecution submitted that his observation was unreliable and therefore inadmissible.  The learned Magistrate was of the view that the question of admissibility did not arise because Dr Lau’s opinion is consistent with the findings from his site inspection before the pool was dismantled and the documentary evidence such as photographs and catalogues and so the learned Magistrate was happy to accept his opinion in this regard.[7]

14.  The learned Magistrate also accepted Dr Lau’s opinion that the Pool Structure posed no structural implication to the garden at House 3 as:

“the tensions in the material of the plastic liner that resists the water pressure, not the container”.[8]

15.  The prosecution also produced a report by Mr Thomas Poon, Senior Structural Engineer of the Buildings Department, entitled “Structural Assessment on the Pool Structure at DSPA adjacent to House 3” and his conclusion was that the Pool Structure if filled with 1m of water would not overstress the slab CSG 3 on which House 3 was located.  Dr Lau having read the report, accepted that the calculation carried out by Mr Poon was in effect wholly consistent with his own conclusion that there was no structural implication to the garden at House 3.

“BUILDING WORKS”

16.  As the learned Magistrate correctly identified the definition of “building works” under section 2 of the Ordinance is non-exhaustive and that the legislative aim of the Ordinance is the safety of buildings.  The learned Magistrate took into account the relevant factors to be considered in determining the question of whether a structure comes under the “building works definition” because the case was considered and approved by the Court of Appeal in Profit Success Development Limited [9], where the Full Court upheld the Tribunal approach.  The learned Magistrate also took into account that the Pool Structure was not fixed to the ground and was easy to assemble and dismantle and there was a lack of associated facilities and therefore it suggests a high degree of movability.  However, he also pointed out that movability “is not the sole factor in determining whether an object is a structure”[10].

17.  The learned Magistrate considered the case of Cardiff Rating Authority and Cardiff Assessment Committee v Guest Keen Baldwin’s Iron and Steel Company Ltd [11] where Denning L.J. in overturning the recorder’s decision held:

“In this case the learned recorder seems to have thought that these were not structures or in the nature of structures because they were movable.  In my opinion, that was a misdirection.  A structure is something which is constructed, but not everything which is constructed is a structure.  … A structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation; but it is still a structure even though some of its parts may be movable, as, for instance, about a pivot.  Thus, a windmill or a turntable is a structure.  A thing which is not permanently in one place is not a structure, save that it is on occasion moved on or from its site.  Thus, a floating pontoon, which is permanently in position as a landing on piles.  So, also, a transporter gantry is “in the nature of a structure”, even though it is moved along its site. It has the same qualities as a fixed gantry, save that it moves on its site.”

18.  The learned Magistrate noted that the Pool Structure was covered with timber-like boards which were similar to the floor finishes and if the Pool Structure was moved then resurfacing work of DSPA would be inevitable.  The learned Magistrate noted that since the Pool Structure was intended for exercise it is not likely it would be moved occasionally or casually.  And the learned Magistrate agreed with the prosecution submission that the side boards matching the floor finishes was an attempt to create an appearance of consistency with House 3.  And therefore it became an:

“integral part of the garden landscape of House 3. Therefore, in my view, the Pool Structure had a degree of permanence which was not a temporary or portable structure.”[12]

19.  The learned Magistrate also noted that Dr Lau’s evidence was that although the structural integrity of the garden of House 3 was not compromised by the Pool Structure, however, the water weight of 14,000 kg when the pool was filled is in fact a substantial amount.  And the learned Magistrate considered that the structure was of “substantial size which carried substantial weight when filled with water.”[13]

20.  The learned Magistrate also noted that Fung J in Chung Chun Fei v Commissioner of the Building Authority (transliteration)[14] when refusing leave for judicial review, did comment that although a structure does not affect the safety of the building, it does not necessarily mean that it is not an unauthorized structure.[15] Thus the learned Magistrate concluded that the Pool Structure was a structure which constitutes “building works” under the Ordinance and convicted the Appellant on the summons.

PERFECTED GROUNDS OF APPEAL AGAINST CONVICTION

21.  The perfected grounds of appeal are:-

(1)  The learned Magistrate erred in law in determining that a Pool Structure at the address was beyond reasonable doubt a structure which constitutes “building works” within the meaning and intent of section 2(1) of the Ordinance and, in particular, failed to take into account the definition of “building” in the said section;

(2)  Having correctly found the following facts namely that the Pool Structure:   

(a)  comprised 4 light weight steel panels screwed together and a plastic liner membrance;

(b)  was placed freely on the ground without any form of fixation;

(c)  did not have its own power supply, water supply or drainage system;

(d)  was easily assembled; and

(e)  was easily dismantled.

The learned Magistrate failed to place any or any sufficient weight on these facts. Had he done so, he would have concluded that the Pool Structure did not constitute “building works”, alternatively there was at least a reasonable doubt as to whether the Pool Structure constituted “building works” within the meaning of section 2(1) of the Ordinance;

(3)  Contrary to and/or in consistent with the factual findings set out in paragraph 2 above, the learned Magistrate wrongly and perversely concluded that the Pool Structure “had a degree of permanence which was not a temporary or portable structure”. In so concluding, the learned Magistrate placed undue and unwarranted emphasis on the purely aesthetic decision to provide the Pool Structure with timber-like boards, to match the floor finishes;

(4)  The dimensions of the Pool Structure were 2.5m (W) x 4.65m (L) x 1.24m (H) and covered approximately 15% of the total garden area (11.625m² against 79.27m²).  In the premises, the learned Magistrate was wrong to conclude that the Pool Structure was of “substantial size”;

(5)  While the weight (or load) of the Pool Structure, when filled with water, was substantial (as correctly determined by the learned Magistrate), the learned Magistrate failed to place any or any sufficient weight on the fact that such weight / load posed no threat whatsoever to the structural integrity of the garden or to safety which is the paramount feature of the Ordinance;

(6)  It is a breach of natural justice for the learned Magistrate in paragraph 56 of his Brief Reasons for Verdict to refer to and rely upon the Chinese judgment in HCAL 84/2015 Chung Chun Fei v Commissioner of the Building Authority (unreported) as an important part of his reasoning when neither party had relied upon it.  Further, or in the alternative, the learned Magistrate failed to appreciate and/or consider that whilst the judgment states that a structure which does not affect the structural safety of a building does not necessarily mean that it is not an unauthorized structure, nonetheless the default position is that, absent significant factors to the contrary, a structure which does not affect the structural safety of a building (as the learned Magistrate correctly determined was the case with the Pool Structure) should not be regarded as an unauthorised structure; and

(7)  In the premises of paragraphs 4, 5 and 6 above, the learned Magistrate should have concluded that the size and weight of the Pool Structure were not relevant, alternatively not significant, factors in determining whether the Pool Structure constituted “building works” within the meaning of section 2(1) of the Ordinance, particularly when weighted against the factual findings set out in paragraph 2 above.

GROUND 1

22.  Mr Pennicott SC on behalf of the Appellant argued that in order for the Pool Structure to be considered “building works” under section 2(1) of the Ordinance, it must constitute either a “building construction” and/or a “building operation” and that on a proper reading of section 2(1) the Pool Structure cannot be regarded as a “building”.  Although he accepted that the definitions of building in section 2(1) is non-exhaustive, he pointed to the fact that none of the definitions come even close to the Pool Structure and therefore Mr Pennicott SC submitted that the conviction is unsound.

23.  Mr Choy SC argued on behalf of the respondent, the definition of “building works” under section 2(1) of the Ordinance, apart from being non-exhaustive, are also inclusive definitions and according to Bennion on Statutory Interpretation (7^th ed.):

“[an] inclusive definition is used to enlarge the meaning of the defined term to cover things that are not or might not otherwise be caught. It ‘does not normally affect the width of the term being enlarged’. The term as used in the Act has its natural meaning which has left undefined, and in addition has a special meaning given to it by the inclusive definition.”[16]

Mr Choy SC therefore argued that the categories listed in section 2(1) merely expanded the natural meaning of the term “building works” to include works which may not be considered “building works”, for example, “demolition”. Mr Choy SC submitted that erecting the Pool Structure involved naturally building up the structure which therefore falls into the natural meaning of the term building works and that section 2(1) of the Ordinance also provide that building works include inter alia alteration and addition and therefore the erection of the Pool Structure on land which was designated to be the garden of the Property involved alteration of the original plan and an addition of a structure, and therefore the Pool Structure, as a matter of statutory interpretation, is constituted as “building works”.

24.  Having read the Ordinance, I must agree with Mr Choy SC that the definition in section 2(1) of the Ordinance is apart from being non-exhaustive, merely an attempt by the draughtsman to expand the meaning of “building works”. Under the Ordinance, I do not agree with Mr Pennicott SC that intuitively the Pool Structure cannot be regarded as a “building” under the Ordinance.  As it can be seen, for example, in the section 2(1) of the Ordinance, the definition of building works “(vi) includes drainage work.” As Mr Choy SC pointed out, the Pool Structure necessarily involved the building up of the structure of the pool, and here I would touch on the 2^nd ground of appeal in that the argument was that the learned Magistrate should not look at the boards which were erected to surround the Pool to make it aesthetically pleasant to the eye. Whatever the reason, it still necessarily involved erecting the structure of the boards around the Pool to cover the steel panels and therefore, it constitutes building works as well.  And to take it a step further, the fact that the garden was originally intended and designated to be the garden of the property, the Pool Structure must therefore fall within the definition under building works of alteration and addition. 

25.  Therefore, in relation to Ground 1, I find no merit in this ground.

GROUNDS 2 and 3

26.  It was submitted by Mr Pennicott SC that the learned Magistrate had failed to take into sufficient account the fact that the Pool Structure had been placed freely on the ground and was not fixed to the ground, did not have its own power supply, water supply or drainage system, was easily assembled and was easily dismantled, and only comprised of 4 light-weighted steel panels screwed together in a plastic liner membrane.  All that suggesting a high degree of movability and that the learned Magistrate placed unwarranted emphasis on the “purely aesthetic decision to provide the Pool Structure with timber-like boards, to match the floor finishes”. Mr Pennicott SC complained that the learned Magistrate perversely concluded that the Pool Structure “had a degree of permanence which was not a temporary or portable structure”.  And Mr Pennicott SC therefore argued that had he correctly assessed the facts he could have concluded that the Pool Structure was not “building works” or at least the learned Magistrate would have had a reasonable doubt in the circumstances. 

27.  Mr Choy SC challenged the learned Magistrate’s findings of fact at paragraph 50 of the Statement of Findings, on the ground that Dr Lau had not seen the inside of the Pool nor determine at the time prior to dismantling if the pool was fixed to the ground, and that his observations were based on what he saw at the warehouse subsequently. Mr Choy SC, therefore, submitted that Dr Lau’s evidence was not admissible evidence. However, when Mr Choy SC made a similar submission before the learned Magistrate, the learned Magistrate, after considering his argument, ruled that Dr Lau’s opinion was not based on hearsay, and therefore admissible as evidence. 

28.  I am satisfied that taking Dr Lau’s report at a whole, it is clear that Dr Lau, not only relied on his view of the external structure of the Pool, he had also considered the proprietary brochure of this product called the Endless Pool, and he studied the documents, submissions, and made his findings in the report, which the learned Magistrate accepted.  It was impossible for Dr Lau to be able to determine, for example, whether the Pool was affixed to the ground with screw, when the pool was filled, what Dr Lau was saying, was that the Pool need not be fixated to the ground as far as he was concerned, it was assembled and dismantled easily.  Given the fact that the Pool Structure was surrounded by the wooden boards, it would have been difficult for him to actually examine the structure of the Pool in situ.  I, therefore, do not find any error in the learned Magistrate’s findings that Dr Lau’s evidence can be accepted as reliable. Furthermore, as the learned Magistrate noted, Mr Poon, the senior structural engineer of the Buildings Department, whose report was submitted by the prosecution during the trial, was not inconsistent with Dr Lau’s report, as to the fact that the Pool Structure posed no structural implication on the garden at House 3, so I do not find any merit in the complaint of Mr Choy SC as to the admissibility or reliability of Dr Lau’s report.         

29.  To be entirely frank, I do not see the learned Magistrate had, in any way, placed unwarranted emphasis on the timber-like board which the surrounded Pool Structure, or had ignored the factors, namely lack of fixation, ease of assembling and dismantling and lack of associated facilities. At paragraph 51 of the Statement of Findings, the learned Magistrate noted that these factors did suggest a “high degree of movability”.  However, he noted that movability is not the sole factor in determining whether the object is a structure, and the learned Magistrate at paragraph 53 in his Statement of Findings made it very clear that it also had to be considered that the sides of the Pool Structure were covered with timber-like boards, and he noted that although the dismantling of the Pool itself was not difficult, however, to remove the wooden boards would require resurfacing work of the DSPA.  Given that the Pool Structure was intended to be used for aquatic exercise, he considered as a matter of common sense that the Pool Structure itself would not be moved casually in light of the resurfacing work needed.  Also as a matter of common sense, he opined the matching of the timber-like side boards of the Pool Structure with the floor finishes became an “integral part of the garden landscape of House 3”.  And therefore, logically he concluded that the Pool Structure had a “degree of permanence which was not a temporary or portable structure”.

30.  Although Mr Pennicott SC was keen to stress that the wooden boards were purely for aesthetic purpose, however, he cannot shy away from the fact that those rendered the Pool Structure, as a whole, more permanent and fixed.  I therefore find no merit in Ground 2 and 3.   

GROUNDS 4, 5 and 7

31.  Mr Pennicott SC argued that since the Pool Structure was considered to have posed no threat to the structural integrity of the garden, thus it posed no threat to the legislative intent of the Ordinance being “the safety of buildings”.  According to section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, provided that:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit”.

Mr Pennicott SC argued that, since there was a positive finding that there was no threat to the structural safety of the garden, then the learned Magistrate ought to have “determined that this was a very strong indicator which militated against the Pool Structure constituting ‘building works’ ”. Therefore Mr Pennicott SC argued the conviction should be set aside.

32.  Mr Choy SC however argued that had the Pool Structure having been accepted by the learned Magistrate of being “substantial size” and which carried “substantial weight” when filled with water.  In order to ensure the safety of the Pool Structure in the garden of House 3, it would be logical that the Appellant should have asked for approval prior to erecting this Pool Structure.  This is evidenced, Mr Choy SC argued, by the fact that Dr Lau in order to determine whether the structural integrity of the DSPA was in any way compromised had to do calculations by consulting not only the DSPA area but also the structural plan and after making the necessary calculation and assessment, finally determined that the Pool Structure did not affect the structural integrity of the DSPA.  Therefore Mr Choy SC said it highlighted the fact that the Appellant should have sought permission from the Building Authority who can then do the necessary calculation as Dr Lau did, in order to determine the safety of the structure. 

33.  I find it difficult to logically conclude as submitted by Mr Pennicott SC that since the learned Magistrate had found that there was no threat to the structural integrity of the garden, that the learned Magistrate ought to have, therefore, determine that this was a strong indicator which “militated against the Pool Structure comprising‘Building Works’ ”.  It is rather like an argument that is thought with hindsight and it does not in my view advance the argument for the Appellant at all. 

34.  Whether a structure can be considered building work, one must take into account not only the factor which have been laid down in the paragraph 16 of the learned Magistrate’s Statement of Findings, but also other matters which may help to determine the Pool Structure being building works, for example, as the learned Magistrate properly considered the weight of the Pool when filled, the size of the Pool, and also the boards which have been erected around the Pool Structure, which made the structure a little less movable and it did not matter, as Mr Pennicott SC argued that it was purely for aesthetic reason.  What is a fact is that these wooden boards were affixed to the ground around the Pool Structure and thus affecting the garden area should the Pool Structure be moved. As the learned Magistrate had observed, that if the Pool Structure is moved as it was, then the land upon which it was built had to be resurfaced, and so the learned Magistrate observed, it is a factor which would militate against it being simply moved from one place to another, particularly if the pool was used for the purpose of aquatic exercise.  I do not accept that the learned Magistrate had failed in any way to place sufficient weight on the fact that the weight posed no threat to the structural integrity of the garden or safety generally because throughout the Statement of Findings, the learned Magistrate had mentioned the fact that he had particularly in mind the report of Dr. Lau, as to the structural safety and the fact that the government engineer Mr. Poon, whose report was also submitted largely agreed with the conclusion of Dr. Lau.  Therefore, I do not agree that the learned Magistrate had in any way made any error in this regard.

GROUND 6     

35.  It was submitted by Mr Pennicott SC that the learned Magistrate had taken into consideration the case of HCAL 84/2015 Chung Chun Fei v. Commissioner of the Building Authority at paragraph 56 of the Statement of Findings. Mr Pennicott SC argued that this was a clear breach of natural justice because neither party was invited to comment upon it prior to the Appellant’s conviction, and that had the Appellant been asked to make submissions, the Appellant would have said, as was stated in the appeal, that although a structure which does not affect the structural safety of a building does not necessarily mean it is not an unauthorised structure.  However, the default position is that, absent very strong indicators to the contrary, a structure that does not affect structural safety should not be regarded as an unauthorized structure or building works.  Mr Pennicott SC noted that Fung J. did not discuss in that paragraph the meaning of “building works”. 

36.  Mr Choy SC argued that it was in fact a statement made by Fung J. stating a very obvious point concerning the Buildings Ordinance, and therefore no harm was done to either party that they were not given a chance to submit on this point.  Mr Choy SC also pointed out that this being a magistracy appeal which is a rehearing, the Appellant may of course make submissions on the case of Chung Chun Fei now. 

37.  While it would have been desirable had the learned Magistrate drawn the attention of both parties to the case of Chung Chun Fei, particularly the observations of Fung J. which was cited by the learned Magistrate.  However, it was not an error that was fatal to his conviction.  I agree with Mr. Choy SC that it was an obvious point that a structure which does not affect the safety of a building, does not necessarily mean it is not an unauthorized structure.  Each case has to be looked at on its own fact.  Mr. Pennicott SC complained that the learned Magistrate had not noted the fact that Fung J. in the judgment had not discussed the meaning of “building works” in the Ordinance.  As the learned Magistrate noted at paragraph 56 of his Statement of Findings, whether a structure poses any structural implication on the building, surely is one of the factors that the Buildings Department should consider in determining “if approval and consent should be granted to the owner of the building”.  And thus, as is the case here, the fact that the Pool Structure posed no structural implication to the DSPA or the building at House 3, is one of the factors to take into account when determining whether the Pool Structure was an unauthorized building work.  Of course had it been determined that the Pool Structure affected the structural integrity of the DSPA, then without a doubt, the Appellant would have had to seek permission to erect the Pool Structure. There is no evidence that the Appellant, when he was intending to erect the Pool Structure, had any structural tests and calculations done.  He was lucky to find subsequently that the Pool Structure did not affect the structural integrity of the surroundings.  Therefore, with the circumstances being such, can one then say that the Appellant’s Pool Structure, did not come under the ambit of “building works” when the Ordinance was, as all parties agreed, enacted to protect the safety and integrity of buildings, and by implication, land and structure. 

38.  I, therefore, having considered the arguments advanced, have come to the certain conclusion, that the learned Magistrate, was not in error in any way, and that the conviction was sound and therefore the appeal against conviction is dismissed. 

APPEAL AGAINST SENTENCE  

39.  The perfected grounds of appeal is that the sentence was too severe, taking into account the technical nature of the offence, the lack of any intent on the part of the Appellant, and the Appellant’s clear record, and also the Appellant prayed in aid section 2of the Rehabilitation of Offenders Ordinance, Cap. 297. 

40.  Mr Pennicott SC did not advance or expand the grounds which have been set out in the perfected grounds of appeal against sentence.  However, as Mr Choy SC pointed out, the maximum fine for this offence is HK$400,000.  The Appellant was only fined HK$20,000, so it cannot be said to be manifestly excessive or wrong in principle in the circumstances.  So I accordingly also dismiss the appeal against sentence.