HKSAR v. MAN WHI CHUNG

HCMA 243/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 243 OF 2016

(ON APPEAL FROM FLS NO 13038 OF 2015)

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JUDGMENT

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Background

1.  This is an appeal against the Appellant’s conviction.  The Appellant was summonsed for the charge of occupying unleased land, contrary to section 6(4) of the Land (Miscellaneous provisions) Ordinance, Cap 28 (‘the Ordinance’).  The Appellant was convicted after trial before Deputy Special Magistrate Lam Wai Ping and was fined $50,000.  Mr Chong of Counsel represented the Appellant both at the trial and in this appeal.

2.  The trial was conducted in Chinese, and for some reasons or justifications not entirely known, this appeal was scheduled to be heard in English, with leave granted on 24 October 2016.  Hence, both parties submitted their submissions in English.  That necessarily places onerous burden on this Court to do some translations in relation to certain documents produced at trial, including the transcripts of the proceedings.  In the appellate proceedings, Counsel for the Appellant submitted that since only legal points are involved, there was no need to provide English translation of some documents which are in Chinese.  In my view, that was an unhelpful stance.  To assist this Court, Counsel for the Appellant was ordered to provide English translation of all those documents that they relied on.  A supplementary bundle was submitted at a later stage.

The Prosecution case

3.  Between 9 June 2015 and 8 October 2015, it was alleged that the Appellant unlawfully occupied unleased land near Lot No 389 SB RP in DD 102, Ka Lung Road, San Tin, Yuen Long (“the subject Lot”).  He failed to cease occupying the unleased land as required by the Notice dated 18 May 2015 which was posted under section 6(1) of the Ordinance.

4.  The Appellant was the son of the late Man Ching Ip, who was the registered owner of Lot 389 SB RP and Lot 441 in DD 102.  The Appellant is the administrator of the estate. 

5.  The subject Lot is certified by an Estate surveyor to be unleased government land.  Officer of the Lands Office received a complaint in May 2015, that the subject Lot was being occupied for parallel trading activity.  On 18 May 2015, a site inspection was carried out at the subject Lot, and a notice under section 6(1) of the Ordinance was posted.  It required the occupier to stop occupying the subject Lot before 9 June 2015.  Copies of the Notice were posted at the door entrances to the subject Lot and Lot 441. Photographs of the subject Lot and Lot 441 were taken on 18 May, 10 June, 22 July and 8 October 2015 respectively, which show that the wall and iron grille were located within the subject Lot.  The Lands Office sent two letters dated 19 May 2015, with a copy of the notice attached, to the Appellant informing him of the illegal occupation.

6.  On 2 July 2015, through his solicitors, the Appellant sent a reply letter [Exhibit D8] to the Lands Office denying illegal occupation of Lot 441 only and asked for 2 months to investigate.  On 3 July 2015, the Lands Office sent a letter to the Appellant inviting him to attend a meeting on 22 July 2015 and to assist in investigations.

7.  Officer of the Lands Office confirmed that he had sent two letters of the same content, but with a different subject caption, to the Appellant, and both letters had referred to the illegal wall depicted in P3.

Defence case

8.  The Appellant elected to give evidence, and stated that his late father was granted a license to erect a structure on Lot 441 when the Appellant was 9 years old. He did not know who erected the structure on Lot 441. He stated that his late father had already leased out both Lot 389 SB RP and Lot 441 in 1992.  The Appellant is the administrator of the estate but had never lived on and did not have the keys to Lot 441.  He had previously, in the capacity of administrator, negotiated with Site Management Limited to build a telecommunications receiver on Lot 441.  By way of a verbal agreement, he had rented out Lot 441 to a friend who ran a garage.  It was said the blue structure in D11 was erected by the garage personnel.

9.  The Appellant stated that when the two Notices were brought to his attention, the deadline for removing the structure had passed.  He had instructed his solicitors to reply to the Department in relation to Lot 441.  However, the Appellant did not instruct his lawyer to do the same regarding Lot 389 SB as he claimed that it did not concern him.  The Appellant said he did not occupy Lot 389 SB.  The Appellant claimed that he had never seen the Notice [Exhibit P3(1)].  He agreed that in mid‑June, he had seen the officer of the Lands Office outside the gate of Lot 389 SB, and was told that the blue structure abovementioned had to be removed.  The Appellant did not attend the Lands Office in July 2015 as he had not seen the letter.  He agreed that both gates as shown in Exhibit P1 led to the house in Lot 441 and the pictures in Exhibit P3(1) – (3) showed the gate and wall surrounding the house.

Grounds of appeal against conviction

10.  In his 4‑page long Perfected Grounds of Appeal dated 29 June 2016, Counsel for the Appellant submitted that:

(1) Upon the close of the Prosecution’s case, the Magistrate erred in law in finding a case for the Appellant to answer.

(2) Upon the close of the Prosecution’s case and upon the aforesaid evidence, in particular, in the absence of any evidence of ‘occupation (actual or constructive)’ of the unleased Government Land on the part of the Appellant, the Magistrate ought to hold that there was no case for the Appellant to answer on the Summons.

(3) The Magistrate, whilst correctly identified that the subject matter of the Summons being occupation of the unleased Government Land (ie government land next to Lot 389 SB RP but not government land next to Lot 441), erred in considering evidence or allegation of occupation of another piece of government land, not the subject matter of the Summons.

(4) Despite the admission of PW1 during cross‑examination that, upon receipt of P6, he understood P6 referred to another piece of unleased government land next to Lot 441, the Magistrate erred in construing P6 as an admission by the Appellant, through his former solicitors, of occupation of the subject Government Land by himself and his late father for many years.

(5) The Magistrate erred in law in holding that the Appellant, being the administrator of the estate, constituted actual management of the same.

(6) The Magistrate erred in her failure or refusal at all to give her construction or interpretation of the meaning of ‘occupation’ within the meaning of the Ordinance.

(7) Further and alternative to Ground 6, the Magistrate erred in law in considering or holding (implicitly) the Appellant, being the administrator of the estate, constituted ‘control, management and enjoyment’ of the unleased Government Land within the statute.

(8) The Magistrate erred in her failure to consider the fact that the unleased Government Land does not fall within the Schedule of Properties set out in the Letters of Administration [D4], and the Magistrate erred in law and in fact to hold that the Appellant, as the administrator per se, could (ie had the power to) (a) ‘use, control and enjoy’ and (b) ‘maintain structures (ie the wall and gate)’ over the unleased Government Land.

(9) Upon rejecting the Appellant’s evidence in his defence, the Magistrate has implicitly put the burden of proof of his innocence upon the Appellant.

(10) In all circumstances of the case, … the conviction of the Appellant is unsafe and unsatisfactory.

Considerations

11.  An appeal under s 113 of the Magistrates Ordinance (Cap 227) is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (s 118 (1)(b)).  It allows the judge on appeal to make whatever order the judge thinks just (s 119(1)(d)).

12.  The perfected grounds of appeal in substance were presented as a kind of skeleton submissions without distinct and clear individual grounds.  As such, in my view it is advisable to deal with all the grounds of appeal in one go.

13.  Section 2 of Cap 28 stipulates that,

“occupy (佔用) includes use, inhabit, be in possession of, enjoy, erect or maintain a structure on or over, and place or maintain anything on, land.”

Section 4 further says:

“Unleased land shall not be occupied except under a licence or a deed or memorandum of appropriation.”

14.  To interpret certain terms and wordings, regard has to be given to section 19 of the Interpretation and General Clauses Ordinance, Cap 1, which makes it clear 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.”[1]

15.  The Appellant is the administrator of the estate of his late father, and that included both Lot 389 SB RP and Lot 441.  The fact that the Appellant did not actually live in these 2 pieces of land, in my view, is not material.  I am of the view that at all material time, the Appellant was in substance “possessing and enjoying” the benefits derived from the land.  As the estate administrator, the Appellant was able to lease out part of the structure on Lot 441 to erect a tele‑communication receiver device [the contract in Chinese as exhibited as D5[2]] on 15 November 2013.  It was the Appellant who would receive the monthly fee of $12,500 and the deposit of 2 months totalled $25,000.  The permit could be extended for 2 years, from 1 September 2015 to 31 August 2017[3].

16.  The Magistrate did not accept the Appellant’s evidence who claimed that he did not receive the letter from the authority.  Since he was not concerned with the subject matter relating to Lot 389 SB, the Appellant took the view that it was not his business and would not respond.  The Magistrate found it unreasonable for the Appellant, as the administrator of both Lots of land, not to take action if someone alleged that unleased land was occupied near Lot 389 SB RP.

17.  The Magistrate found that the Appellant did occupy Lot 389 SB RP and had failed, without reasonable excuse, to terminate the occupation of the unleased land on Lot 389.

18.  A Notice to cease occupation of unleased land near Lot 389 SB RP[4] was posted on the wall and two gates on 18 May 2015 as shown in the photo with a map[5].  It was admitted that the land next to Lot 389 SB RP as shown in the plan [Exhibit P‑1] is, at all material times, unleased land[6].  The Notice [Exhibit P‑2] has both English and Chinese version, with the title “Unleased land near Lot No 389 SB RP in DD 102, Ka Lung Road, San Tin, Yuen Long (as shown hatch red on the plan attached).”

19.  The photos [Exhibit P‑3] shows clearly the location where the said Notice was posted.  It is clear from the photos and the sketch which were taken on various dates [viz. 18 May, 10 June, 22 July, 8 October 2015] that the whole area including Lot 389 SB RP and Lot 441, with the erection of cemented fence and metal gates, can be used in one integrated part of land by the occupants.  The plan [Exhibit P‑1[7]] tendered as Evidence by Certificate also shows clearly that 4 pieces of land lot, viz Lot 389 SB RP, Lot 441, Lot 442 and Lot 390 SB RP were identified, and the unleased land partly surrounded Lot 441 and Lot 389 SB RP. There were also external fence surrounding the area.

20.  On 19 May 2015, the District Land Office of the Lands Department issued 2 letters with the same address and similar wording in Chinese[8] to the Appellant, being the administrator of his late father.

21.  These 2 letters have similar heading, except the description of the land lot.  The heading of Exhibit D6 reads:

“Unleased land in the vicinity of Lot Number 389 SB RP in DD 102, Ka Lung Road, San Tin, Yuen Long, New Territories.”

while that of Exhibit D7 mentioned Lot No 441.  In these 2 letters, it is stated that:

“The Notice issued pursuant to section 6(1) of the Land (Miscellaneous Provisions) Ordinance has been affixed at the captioned land on 18^th May 2015, ordering you to stop occupying unlawfully the land before 9^th June 2014. This Notice is hereby attached for your perusal.”[9]

22.  Instead of responding to both letters, the Appellant through his solicitors, Messrs KM Tang & Co specifically responded to the letter relating to Lot 441, and stated:

“We are instructed by Mr Man Chi Chung and are advised that the said illegal structure was demolished accordingly. However, regarding the allegation of unlawful occupation, our client cannot agree with you as the said land was occupied by him or his father over many years. And our client need time to clarify with the surveyor appointed by him to see whether your allegation is established or not.”[10]

23.  I would not speculate as to why the Appellant chose to respond to the letter relating to Lot 441, but not Lot 389 SB RP.  In my view, even if Lot 389 SB RP did not concern the Appellant as claimed, the Appellant could still respond.  Given the fact that notices were posted on the sites and the letters were sent to the same address, the only irresistible inference is that the Appellant did receive both letters from the Lands Department, and that he knew the content of the letters and the concerns of the Lands Department.

24.  At trial, the Appellant gave evidence and said that he chose not to respond to the letter relating to Lot 389 because it was ‘not his business’ and he did not ‘occupied the unleased land’ as depicted in the plan, Exhibit P‑1, between 9 June 2015 and 8 October 2015.[11] The Appellant did admit that he is the administrator of his late father’s estate which includes Lot 389 SB RP and Lot 441.  In my view, that does not mean the Appellant cannot challenge the so‑called warning letter relating to Lot 389 SB RP issued by the Lands Department.  There must be a reason why the letter was sent to the Appellant.  It was not done at random.  And yet, the Appellant chose not to make a reply or to stage a challenge, and did not seek the advice of his lawyer or even a surveyor (like what he did to the letter relating to Lot 441).

25.  Counsel for the Appellant submitted that the Appellant:

“was the administrator of the estate of the Deceased provided no evidence to support the Prosecution’s case on ‘occupation’ on one or more of the following grounds:

(a) the subject Government Land did not form part of the estate of the Deceased for the purpose of administration under the Letters of Administration; and

(b) the office of an administrator confers him with the statutory power to deal with the estate of the Deceased but the Letters of Administration does not make him an occupier of the estate of the Deceased.”

26.  I do not agree.  With the aid of s 19 of Cap 1 and in order to achieve the aims and intents of the Land (Miscellaneous Provisions) Ordinance (Cap 28) which is to regulate matters relating to Government Land, a purposive approach to statutory interpretation is called for.

27.  It was submitted that:

“as a matter of law, an administrator derives his power from the grant of Letters of Administration. The estate of the Deceased, for the purpose of administration, was set out in the Schedule to the Letters of Administration which did not include the subject Government Land.”[12]

Hence, it was said, being in the office of an administrator, it only confers the Appellant to “deal with” the estate of his late father.  As such, the Appellant could not be taken as an “occupier” of the subject Government Land. 

28.  The Admitted Facts include the fact that, the Appellant is, at all material times, the administrator of the estate of his late father who was at all material times, the registered owner of Lots 389 SB RP and Lot 441 in DD 102.[13] Obviously, the Prosecution was not aware of this “legal and technical” arguments to be run by the Defence before the close of the Prosecution’s case.  In my view, if the Appellant is the administrator of the estate at all material times, it should be the case that the Appellant, in substance, is the one who can enjoy the benefits, in whatever form, of the estate.  It is admitted that the land next to Lot 389 SB RP as shown in red on the Plan (Exhibit P‑1), is an unleased land.[14]  The letter issued by the Lands Department (Exhibit P‑2) specifically entitled “Unleased land near Lot No 389 SB RP in DD 102”.   I cannot see why the Appellant, who probably got the legal advice from his lawyers, said the letter did not concern him and hence he could ignore it.

29.  On the other hand, the Appellant chose to respond to the letter relating to the unleased land “in the vicinity” of Lot 441[15] and the reply letter was dated 30 June 2015 with the title “Re: Lot No 441 in DD 102 in Yuen Long”.[16]  In the reply letter, the phrase “in the vicinity of” was not used.  The Appellant did not agree that the said Lot 441 was occupied by the Appellant or his father over many years.  Nevertheless, the Appellant did take action to demolish the illegal structure.  Counsel for the Appellant submitted that the content of the letter did not constitute any admission by the Appellant that he occupied the land, not to mention that the reply letter abovementioned relates only to Lot 441.  The Appellant disputed “the said land was occupied by him or his father”. 

30.  This reply shows that the Appellant knew the nature of the warning letter issued by the Lands Department on 19 May.  The Appellant later testified that he received the letter in his evidence at trial but chose to ignore it.  The demand from the Lands Department in these letters referred to those unleased land in the vicinity of the land.  The Appellant did take action to demolish the unleased land in the vicinity of Lot 441 as demanded, even though the Appellant reserved his position in certain aspects.  I do not accept that by considering matters relating to Lot 441, the Magistrate “was taking irrelevant and prejudicial matters into consideration”.  It is part and parcel of the whole case against the Appellant in relation to his status as an administrator of the estate for both pieces of land.  The demolition work concerned the unleased land in the vicinity of Lot 441 (certainly not being mentioned in the estate as it was unleased land), and the proximity of these 2 pieces of land can be seen as one bigger lot as shown in the Plan.

31.  I do not agree that the word “occupy” used in the Ordinance “denotes the requirement of actual physical control over the land”.[17] A purposive approach should be adopted.  The Magistrate was entitled to take all the circumstances into account and could draw the inference that the Appellant was “occupying” the subject Government Land, namely, Lot 389 SB RP and also the unleased land in the vicinity thereof during the offence period.

32.  In this regard, I am of the view that for the present purpose, it is absurd to suggest that the administrator has the power to administer Lot 389 SB RP which, it was submitted, was not part of the estate as identified in the Schedule of Property, and yet, for the same reason, the administrator had no power to remove the structures standing on the unleased land near Lot 389.  If this line of argument is adopted, by the same token, the Schedule of Property set out in the estate also does not include any unleased land, whether it is in the vicinity of Lot 441 or not.  If that is case, the Appellant could argue that even though he is the administrator of Lot 441, and as the unleased land is not set out in the Schedule, it would not be his business to demolish any structure standing thereon.  That will be absurd and would defeat the aims and purposes of the Ordinance.

33.  In order to achieve the purposes of the Ordinance, I do not accept what was submitted by Counsel for the Appellant that an administrator has the power to administer the estate but has no power to “remove the said wall and the said iron grill standing on the subject Government Land which formed no part of the estate of the Deceased as identified in the Schedule of Property”[18]  Counsel also submitted that the power of an administrator derives from the grant of Letters of Administration, and that power was confined to those set out in the Schedule of Property.  As such, it would be wrong in law for the Magistrate to find “a power of management of the estate of the Deceased” means a power of management of something outside the said Schedule.  In my view, all unleased land would not be listed in any kind of schedule of Property of the estate as it would not be lawful.

34.  Taking all the factors into consideration, I do not find the conviction unsafe and unsatisfactory.

Conclusion

35.  The appeal against conviction is dismissed.