SECRETARY FOR JUSTICE v. LAIN FUNG TRANSPORTATION CO. LTD. AND OTHERS

HCMA756/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 756 OF 1998

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J U D G M E N T

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1. This is an appeal by the Secretary of Justice by way of case stated.

Background

2. The Respondents operated the business of providing facilities for parking container trailers, lorries and also that of a motor vehicle workshop on a parcel of land located at Tong Hang, Lung Yeuk Tau near Fanling in the New Territories. The site has an area of about 7,900 square metres. The 1st Respondent was the occupier of the site and the 2nd to the 5th Respondents were landowners and the persons responsible for the development on the site.

3. On 12 July 1991 notification was published in the Government Gazette in respect of a plan designating the Lung Yeuk Tau area as a Development Permission Area. The Respondents' site was included within the designated area.

4. On 4 December 1992 the Respondents, through a firm of planning consultants, applied for permission to use the site as a temporary private lorry and container vehicle depot for a period of three years. On review, the Respondents' application was approved by the Town Planning Board on a temporary basis for a period of three years up to 11 June 1996.

5. On 1 July 1994 notification was published in the Government Gazette and the site was within the zone designated as 'Recreation' in the Outline Zoning Plan for Lung Yeuk Tau.

6. The 3-year temporary permission expired on 11 June 1996. On 23 July the site was inspected by officers from the Planning Department and it was noted that the Respondents had continued to used the site as container vehicle depot. Warning was given by the officers to the person-in-charge of the site that as the permission had expired in June, continuation of their current use of the site without a valid planing permission would constitute an unauthorised development and would be subjected to enforcement action under the Town Planning Ordinance.

7. Three subsequent visits by the officers revealed that there had been no change of user of the site.

The Enforcement Notice

8. On 19 February 1997 the Director of Planning issued and served on each of the Respondents an Enforcement Notice dated the same day pursuant to s.23(1) of the Town Planning Ordinance. The material part of the Notice reads :

" Notice is hereby given that the Authority, pursuant to section 23(1) of the Ordinance, requires that by 19 of May 1997

(1) the development shall be discontinued; or

(2) permission for the development shall be obtained under section 16 of the Ordinance.

In the event that this Notice is not complied with, the person served commits an offence under section 23(6) of the Ordinance, and is liable ..."

9. On 4 April 1997 the Respondents, through R & U Planning and Development Consultants Ltd., lodged an application for planning permission pursuant to s.16 of the Ordinance to use the site as a temporary lorry and container vehicle depot for a period of 12 months. Meanwhile the deadline to comply with the Notice fell on 19 May 1997. On the next day upon inspection by staff from the Planing Department it was noted that the site was still being used by the Respondents as a vehicle depot.

10. The Respondents were informed by the Town Planning Committee of the Town Planning Board by letter dated 27 June 1997 that their application under s.16 was rejected. On 9 July 1997 the Respondents applied for a review of the Town Planning Board's decision to reject the application pursuant to s.17 of the Ordinance and the review was scheduled to take place on 26 September 1997.

The Summonses

11. On 2 September 1997, some three weeks before the scheduled date for the review, the Director of Planning preferred the information against the Respondents for non-compliance of the Enforcement Notices. Each Respondent was charged with the offence under s.23(6) and the particulars reads :

"... being a person who had been served with a notice dated 19/02/1997 under Section 23(1) of the Town Planning Ordinance, Cap. 131 between 19 May 1997 and 5 July 1997 in Hong Kong failed to comply with the said notice in that the development had not been discontinued as required by the said notice."

12. The result of the s.17 review on 26 September was that the Respondents' application to use the site as a lorry and container vehicle depot on a temporary basis was approved by the Town Planning Board for a period of one year up to 26 September 1998. The Respondents were informed of the Board's decision on 24 October 1997.

13. The summonses were heard in the Fanling Magistracy on 9 and 10 December 1997 at the end of which the learned Magistrate found as a fact that the Respondents had taken all reasonable steps in the circumstances to obtain planning permission. The learned Magistrate held that the statutory defence under s.23(9)(a) had been made out and dismissed all five summonses. The relevant section reads :

" It is a defence to a prosecution under subsection (6) ... if the defendant proves that -

(a) he took reasonable steps to comply with the notice

(b) ...

(c) ...

(d) ..."

The Question of Law Stated

14. There were originally three questions of law posed by the learned Magistrate to be determined by this Court in the amended case stated. At the hearing, however, Mr Tam for the Government elected to proceed only on the first question which is as follows :

" Whether I was correct in holding that each of the Respondents could avail themselves of the statutory defence contained in section 23(9)(a) of the Town Planning Ordinance notwithstanding that there had been no attempt on their part to discontinue the unauthorised development?"

15. Mr Tam submitted in his somewhat convoluted argument that there are only two ways for a recipient of a s.23(1) to comply with the notice. The first is for the recipient to discontinue the unauthorised development on the land in question latest by the specified date or to obtain planning permission by the deadline. As there had neither been discontinuance nor permission obtained under s.16 by the date specified in the notice, it follows that the Respondents in the present case must have committed the offence under s.23(6). He further submitted that the s.23(9)(a) defence of the recipient having taken all reasonable steps to comply with the notice is not available to the Respondents because the offence was committed as soon as the deadline specified in the notice had past. If I understand Mr Tam's submission correctly, a recipient can only avail himself of the statutory defence if and only if he had taken all reasonable steps to discontinue the development complained of. Any efforts to apply for planning permission according to Mr Tam will never be considered relevant. I find this to be a startling proposition.

16. The body of the Notice required that by 19 May 1997 the unauthorised development shall be discontinued or that permission shall be obtained under s.16.

17. Section 23(9)(a) of the Ordinance provides a defendant a defence to a prosecution under subsection (6) if :

"he took all reasonable steps in the circumstance to comply with the notice;"

I note the above section is not worded in such a way that the steps taken must only be confined to discontinuation of the unauthorised user. It follows that any such steps taken in compliance with the Notice, including application for Town Planning permission, must also be relied upon by a defendant as his defence. It is clear on the face of the Notice that the word 'or' must be taken to mean that obtaining permission is an equally effective way of complying with the notice because once planning permission is obtained, the development is no longer unauthorised. If the provisions in s.23(9) is given the meaning as that which is suggested by Mr Tam, the recipient's right to apply for planning permission would have been rendered completely worthless.

18. If a defendant decides to comply with the Notice by obtaining permission from the authorities then it must be open to him to prove, by way of defence to a prosecution under s.23(6), that he had taken all reasonable steps to comply with the requirements specified in the notice. It would be absurd to construe that the defence is available only to the discontinuation limb of the Notice but not to the other.

19. Mr Tam further submitted that his case is further supported by the manner in which s.23(6) is drafted because the legislature was deliberately silent about the obtaining of planning permission but refers only to the discontinuance of the development. This section provides the basis for prosecuting those who has not complied with the notice within the time specified. I think reason for the absence of reference to obtaining planning permission must be this : if a recipient elects not to discontinue the development but instead to apply for planning permission and if by that time planning permission had been obtained, then the recipient must have complied with the notice and the need to prosecute does not arise. This is self-evident from the wording in the body of the notice.

20. Where a defendant has made an application under s.16 but there has been no determination by the Town Planning Board by the date specified, it must be open to a defendant to invoke the defence in s.23(9). Whether the defence has been made out by the defendant on a balance of probabilities would then be a matter for the trial court. It would be inconceivable that a defendant could be guilty of the offence if, despite he had done everything on his part to apply for permission, the delay was caused by the Town Planning Board in their determination of the application.

21. For the reason given I am of the view that the learned Magistrate was correct in his approach to the provisions of s.23(9) and my answer to the question in the case stated is in the affirmative.