HKSAR v. YUEN MING SING

HCMA1157/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1157 OF 1998

(On appeal from STS 3829 OF 1998)

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J U D G M E N T

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1. The appellant Yuen Ming Sing was summoned before a magistrate sitting in Shatin Magistracy for failure to comply with an Enforcement Notice issued under section 23(1) of the Town Planning Ordinance, Cap.131 ("the Ordinance"). After a trial which lasted for seven days, the learned magistrate found the appellant guilty and imposed a fine of $30,000. He also awarded costs against the appellant.

2. The appellant is the registered owner of Lot No.1423A in Demarcation District 117 in Tai Tong, Yuen Long, New Territories. On 5 October 1990, notification was published in the Government Gazette designating the Tai Tong area as an Interim Development Permission Area pursuant to the Town Planning (Amendment) Bill 1990. The site was, however, not designated for any specified use.

3. Aerial photographs taken in October 1990 and July 1991 revealed the existence of roofed structures on the site. In June 1997, the site was designated as agriculture land on the Outline Zoning Plan. Site inspections conducted by the Town Planning Department in 1997 and 1998 confirmed that the site was used for warehousing purposes, the user of which was not permitted under any of the then existing zoning plans. It is not in dispute that no planning permission has been granted in respect of the user.

4. On 12 August 1997, the Director of Planning issued an Enforcement Notice pursuant to section 23(1) of the Ordinance to the appellant under which he was required to discontinue the unauthorized development or alternatively, to obtain permission for the development under section 16 of the Ordinance latest by 12 November 1997. Subsequent site inspections conducted on 18 November 1997, 24 February 1998 and 24 March 1998 revealed that the site was still being used for warehouse purposes. No planning permission has ever been granted.

5. On 6 May 1998, the appellant was summoned to go before a magistrate for failure to comply with the Enforcement Notice.

6. At the trial, the appellant contested the summons on the basis that he had been using the site as warehouse prior to October 1990, thereby he was entitled to rely upon the defence of existing user under section 23(9) of the Ordinance. He also contended the Enforcement Notice was invalid for want of certainty as the term "warehouse" used in the Notice was too wide as it encompassed all types of storage activities. It was also suggested that the three month period for compliance was unreasonably short.

7. The learned magistrate rejected the defence of existing user. He found that prior to 1990, although there had been sporadic use of the site for storage of materials, the primary user was that of a poultry farm that had since been fallen into disuse. Since then there had in fact been a material change of user and the site was being used as warehouse which was a large scale commercial activity. He further found that such development and usage was not authorized by the Town Planning Board.

8. There was undisputed evidence before the learned magistrate that after receiving the Notice, the defendant made an application to the Town Planning Board for permission to develop the site as warehouse under section 16 of the Ordinance. The application was refused on 13 November 1997. The review application under section 17 of the Ordinance was made on 10 November 1997, and was refused on 6 March 1998.

9. Counsel for the appellant, Mr Chan, who did not appear in the court below, advanced five grounds of appeal. Grounds one and two challenge the learned magistrate's finding that the Enforcement Notice was not null and void where it should have been held otherwise. Grounds three and four are directed at the learned magistrate's construction of the word "warehouse" and it was contended that what the magistrate found as sporadic storage of goods could, under the circumstances, amount to using the site as warehouse. The fifth ground followed from grounds three and four : since the site had, prior to 1990, been used as a warehouse, there was nothing in the user that could be discontinued.

10. In his first ground of appeal, Mr Chan submitted that the three-month stipulated period for compliance was manifestly inadequate as the application for Town Planning permission and subsequent review procedures would have taken much longer than three months. If a person charged under the present section wishes to avail himself of the statutory defence under section 23(9)(a) of the Ordinance by showing that all reasonable steps has been taken to comply with the Enforcement Notice, then the three month period would have been much too short and hence unreasonable. Mr Chan was, however, unable to suggest to this court as to what would have been a reasonable time frame.

11. It has never been the practice of the authorities that the recipient of the Notice would be prosecuted for non-compliance upon the immediate expiration of the stipulated period. In the present case, the charge was brought against the appellant in May 1998, which was some six months after the expiration of the Notice. In the period in between, no doubt the authorities would have closely monitored the progress of any attempts by the recipient of the Notice to comply with its terms. If, in the meantime, the recipient is being prosecuted for non-compliance, it would still be open to him to rely on the statutory defence of having taken all reasonable steps to comply in accordance with section 23(9)(a) even though the results of his application for planning permission or review may still be outstanding.

12. Section 23 of the Ordinance does not provide for any specific period for the recipient to comply with an Enforcement Notice. The three-month compliance period in the present case is an administrative decision of the Director of Planning. In my view, this period gives sufficient time for the recipient to apply for Town Planning permission, or to take appropriate steps to discontinue the unauthorized user eventhough the final result of the application could fall outside the three-month period. Whether a case of having taken all reasonable steps is made out must always be a question of fact for the trial magistrate and must necessarily vary according to the circumstances of each case. It cannot be said that in the present case, the three-month time frame had in any way curtailed the appellant's right to take appropriate steps to comply with the Enforcement Notice. The suggestion that the Notice is null and void is ill-founded. I cannot find any substance in this first ground of appeal.

13. Ground two of the appeal is directed at the learned magistrate's construction of the term "warehouse" as it appears in the Notice. It was submitted that the term should have been construed to cover all types of storage activities, including what the learned magistrate found to be sporadic storage activities before 1990. Had the magistrate so found, it was argued, the term used in the Notice would have been too wide or ambiguous so that compliance would be difficult if not impossible. The Notice would be rendered void for uncertainly.

14. The term "warehouse" must, in my view, be given its natural and ordinary meaning. This is in line with the English case of LTSS Print v. Hckney LBC and Another [1976] 2 WLR 253. The dictionary meaning of the term "warehouse" is :

"a building or part of a building used for storage of retail goods or furniture etc." (The New Shorter Oxford Dictionary 1993 edition)

15. There was evidence before the magistrate that the temporary structures as seen in the 1990 and 1991 aerial photographs had since been demolished. In their place were four newly rebuilt structures which were used as warehouses for storing electrical cables, dry and frozen food and construction materials. It was clearly a large scale commercial activity and it was this particular activity and not the former sporadic storage that the Enforcement Notice was directed. Sporadic storage activity and large scale commercial storage are very different in nature. There can be no ambiguity, as the learned magistrate correctly found, about what was required to be discontinued under the Notice and there is no merit in the second ground of appeal.

16. The learned magistrate gave a detailed analysis of the defence evidence and rejected any suggestion that the site had been used as a warehouse prior to 1990. Based on the above findings, he rejected the defence's contention of existing user and concluded that there has been a material change in the user. There being neither permission obtained from the Town Planning Board nor discontinuance of the warehouse activities as at the date of the trial, the magistrate had, in my view quite correctly, found the charged proved. This would effectively dispose of the remaining grounds of appeal.

17. For the reasons given, I can see no merits in the grounds of appeal against conviction and the appeal is therefore dismissed.

18. There is no appeal against the fine of $30,000 imposed.

19. Pursuant to section 11 of the Cost in Criminal Cases Ordinance, the learned magistrate ordered the appellant to pay for the cost incurred by the prosecution in these proceedings less the one and a half days during which the defence had challenged the admissibility of the record of interview. In making the cost order against the appellant, the learned magistrate made the following observations :

"After the enactment of the Costs in the (sic) Criminal Cases Ordinance, the principles relating to the award of costs in criminal cases have been changed. It seems that, subject to certain exceptions, the costs should follow the event in a criminal prosecution. In the present case, I cannot find any justification why the defendant should not pay the costs of the prosecution."

Under section 11 a magistrate has a discretionary power to award cost against a defendant who has been convicted. The section is not worded in such a manner that cost should automatically follow the event. The learned magistrate, in the passage quoted above, seemed to have approached the question of costs on the basis that a convicted defendant should always be ordered to bear the prosecution's costs unless he could persuade the magistrate to do otherwise. In the proceedings in the court below, the appellant relied on the statutory defences of existing user and that he had taken all reasonable steps to comply with the Enforcement Notice. In order to avail himself of his statutory rights, he must be allowed to present his case before the magistrate. In my view, the defendant should not be subjected to the threat of having to bear the prosecution's cost should he be unsuccessful. It remains the prosecution's duty to prove the elements of the charge against the defendant at all times. My view in this respect is consistent with those expressed by Chan, CJHC in R v. Chan Kwok Wah, HCMA 668 of 1998.

20. One must, however, recognize those instances in which a defendant, whether in person or through his legal representative, has unnecessarily prolonged the trial by requiring the prosecution to prove matters which could not otherwise be justifiably challenged. It is in those type of cases that a cost order against an unsuccessful defendant would have been appropriate.

21. No such circumstances exist in the present case. I would therefore allow the appeal against the order for cost and order the same to be set aside.