HKSAR v. MILLION WIN TRADING LTD

HCMA 363/2019

[2020] HKCFI 2801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 363 OF 2019

(ON APPEAL FROM STS 9524/2018)

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J U D G M E N T

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1.  The appellant company had pleaded guilty before principal magistrate, Mr Ernest Lin, to a summons for failing to comply with reinstatement notice, contrary to section 23(6) of the Town Planning Ordinance, Cap 131. Sentence was adjourned from 9 January 2019 to 10 April 2019 and then again to 10 July 2019 in order for the appellant company to be given time to reinstate the land in question; however, the appellant company failed to do so and therefore by 10 July 2019, Mr Lin then preceded to sentence and imposed a fine in the total sum of HK$220,800.00 (of being a fine of HK$200,000.00 plus a daily fine of HK$200.00 x 104 days) on the appellant company.

2.  The appellant company appealed against the sentence.

3.  The appellant company was the registered owner of the site in question.  The site being about 1,992.90 square metres.  The planning intention of the site is to retain and safeguard good quality agricultural land/farm/fish ponds for agricultural purposes; however, upon a site inspection conducted on 11 May 2017, the site was found to be used of parking of vehicles and storage use (including deposit of containers). It was thus in the opinion of the Director of Planning that such use consisted of a material change of use of the site and was “unauthorised development” under the ordinance, therefore on 15 June 2017, an enforcement notice was issued, pursuant to section 23(1) of the ordinance, requiring the appellant company to discontinue the aforesaid use by 15 August 2017.

4.  The unauthorised use of the site was discontinued; however, a reinstatement notice issued on 15 December 2017 requiring the appellant company to reinstate the property by removing all fill materials and to grass the specified area by 15 March 2018 but not complied with.

Mitigation

5.  The appellant company had a clear record and it was submitted that because the de facto owner of the appellant company had been away, the company had, therefore, been unable to take steps to reinstate the land.

Reasons for sentence

6.  Mr Lin in considering sentence took into account the fact that for the offence, a maximum fine of HK$500,000.00 and a daily fine of HK$50,000.00 is set out under the ordinance; however, there is no clear sentencing guideline to be imposed.  Mr Lin took into account to the sentencing principle in the case of HKSAR v Leung Kam Chun and others[1] which was a case dealing with a failure to comply with the notice issued under section 23(1) of the same ordinance as this case but dealing with the discontinuance of unauthorised development.  From that case, Mr Lin considered that deterrence is an important consideration and that the primary consideration is to deprive the financial gain from illegal change of land use in order to deter.

7.  Mr Lin also considered the size of the land involved which is 579.50 square metres, the duration that the appellant company had been given to comply with the notice and the two adjournments sought by the appellant company after pleading guilty in order for them to reinstate the land.

8.  As pointed out by Ms Ng, on behalf of the respondent, the learned magistrate took the view that the appellant company’s failure had rendered the land in question “an ugly wasteland liable to erosions caused by the elements”.  The learned magistrate also considered that the appellant company had adopted a “cavalier attitude” to comply and therefore a heavy fine was necessary to send out a clear message to other land owners and therefore considered that the total fine of HK$220,800.00 was reasonable in this case.

Grounds of appeal

9.  Mr Boyton, on behalf of the appellant company, submitted four grounds of appeal under the amended perfected grounds of appeal and they are:

(1)     the learned magistrate made no enquiries of the appellant’s ability to pay the said fine imposed;

(2)     the learned magistrate was unaware of the post‑sentencing mitigation, that the land in question had been reinstated;

(3)     the learned magistrate erred on the facts by sentencing on the basis that the failure to reinstate rendered the site “an ugly wasteland liable to erosions caused by the elements”; and

(4)     the learned magistrate erred in principle by taking into account as an aggravating factor that the appellant company had failed to comply within the reinstatement, after the expiry of the said period specified in the said notice and/or summons, and the imposition of daily fines resulted in the appellant company being punished twice for the same reason.

Ground one

10.  Mr Boyton argued that the fines in this case were substantial and therefore it is even more crucial that the learned magistrate make enquiries as to the defendant’s ability to pay. In this case, the learned magistrate considered that this was not a usual case but that the appellant had been given two occasions to reinstate the land and had not done so.  Mr Boyton submitted that while that may be true; however, the learned magistrate should have established the income or profit that the appellant company had made from this offence and therefore he submitted that the initial starting point taken by the learned magistrate that HK$300,000.00 was manifestly excessive.  Ms Ng, on behalf of the respondent, submitted that the learned magistrate did consider the principle for sentence for offences of this nature, as set out in HKSAR v Leung Kam Chun and others and when considering the level of fine to impose, the learned magistrate had taken into account the size of the land, the period that the company had been given to comply with the notice which is three months from the date of the notice and the two adjournments given to the appellant company upon the appellant company’s request prior to sentence to allow for the land’s reinstatement and yet on the date of the sentencing, there was still non‑compliance. The learned magistrate considered that the appellant company had rendered the land into “an ugly wasteland liable to erosions caused by the elements” and that the appellant company had taken a cavalier attitude to reinstatement of the land.  Ms Ng had also correctly pointed out that the learned magistrate had given an opportunity to Mr Boyton on two occasions to submit as to the level of fines to be imposed during Mr Boyton’s mitigation.  The learned magistrate had asked Mr Boyton during his mitigation what he had to say as he was intending to slap a really “heavy fine”; however, Mr Boyton merely submitted to the learned magistrate that the fine should not be heavy in view of the clear record of the appellant company and did not submit on the means or lack of means of the appellant company.

11.  As for the level of fine ultimately imposed by the learned magistrate, I do not consider that it was manifestly excessive or wrong in principle.  As Ms Ng pointed out, the sentence was aggravated also by the fact that sentencing had been adjourned for six months in total, in order to give the appellant company a chance to reinstate the land, but by the time of the sentence, they still had not done so.  So ground one I find is unmeritorious.

Ground two

12.  Mr Boyton in order to support his complaint in ground two submitted that he should be allowed to adduce fresh evidence in relation to the fact that post‑sentencing the land had finally been reinstated.  Mr Boyton submitted that the evidence should be received under section 118(1)(b) of the Magistrates Ordinance, Cap 227 because the evidence is “likely to be credible” and that these reports were not in existence at the time of sentencing.

13.  I agree with Ms Ng that there is reinstatement post‑sentencing is not material to the issue that was before the learned magistrate at the time he sentenced.  The purpose of the fine imposed is, as Ms Ng had pointed out, to add as both a deterrent to the appellant company and to the general public to abide by the regulations under the Town Planning Ordinance and that it would minimize the wastage of manpower to supervise and conduct surveillance and inspection on properties which do not abide by the rule.

14.  I do not consider, therefore, that this fresh evidence as proposed by Mr Boyton, is of any material consequence in this appeal, so I refuse to allow them to be adduced.

15.  I, therefore, consider ground two to be totally absent of merit.

Ground three

16.  Mr Boyton took the weak point, in my view, that the learned magistrate had erroneously taken the alleged erosions of the land into account as an aggravating factor.  Mr Boyton submitted that the land was actually concreted over and according to the planning department, the observed that the site was partly paved “with asphalt, sand and gravel and partly covered with vegetation”.

17.  As Ms Ng pointed out, the land should have been grassed as per the notice.  The learned magistrate was not wrong to say that the site which was partly paved with asphalt, sand and gravel and partly with vegetation is liable to erosion, as we all know, that grass would cause minimal erosion when the rains come.  So, I see no merit in this ground either.

Ground four

18.  Mr Boyton submitted that the learned magistrate erroneously took into account the failure to reinstate as an aggravating factor and that the imposition of the daily fine resulted in the appellant company being punished twice for the same reason.  Mr Boyton submitted that the failure to comply is only relevant as a mitigating factor and that the daily fine of a hundred and four days should have been subsumed into the failure to reinstate for more than a year.

19.  At first blush, the argument sounded attractive; however, upon a closer look, the argument failed while it is true that the summons period is limited to a hundred and four days and that remedial measures may be considered as a mitigating factor after that period, the fact that the appellant company had failed to reinstate despite being given many chances to, must be an aggravating factor that the learned magistrate could take into account when considering the overall fine.  As Ms Ng correctly pointed out, the two hundred thousand dollars fine was not limited to failure to reinstate but rather a failure to reinstate as per the notice for the area of land of 580 square metres and that is aggravated by the appellant disregard of the notice and the consequence of the failure to comply.  Again, I am not with the appellant on this ground and so this ground fails.

20.  For the reasons above, this appeal against sentence is dismissed.