R. v. HELEN TRANSPORTATION CO. LTD. and Others

IN THE HIGH COURT

1995, No. 303
Magistracy Appeal

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J U D G M E N T

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Litton, V.-P.:

1. There are three appellants before the court: Helen Transportation Company Limited, Liu Ka Sing and Chan Yuk Kwan. The company is the occupier and the two individuals are the owners of various lots of land in DD52 in the New Territories. In February this year they were convicted by Mr D.I. Thomas at the Fanling Magistracy on charges under section 23(6) of the Town Planning Ordinance for their failure to comply with enforcement notices issued by the Director of Planning under s23(1) of the Ordinance.

2. The land, located near the Man Kam To Road, falls within an area marked "unspecified" in the Interim Fu Tei Au and Sha Ling Development Permission Area Plan. The plan was published on 7 September 1990. The notes to the plan, which have statutory force, severely limited development in areas marked "unspecified". The interim DPA plan was followed by a draft DPA plan published on 12 July 1991. The land in question remained in an area marked "unspecified". The draft DPA plan was effective for three years, subject to an extension by the Governor-in-Council for a further year.

3. This case was heard by the magistrate over a period of six days. Much of the underlying facts was agreed by counsel, but witnesses were also called on both sides. The case turned on the prosecution's allegation of a change in the use of the land. The question of change of use is one of fact and degree. Where the magistrate has reached his conclusion upon a proper evaluation of the evidence, and has not misapplied the law, the scope for this court on appeal to interfere is extremely limited.

4. It is also important to bear in mind that in the Town Planning Ordinance, section 1A, there is a definition of the expression "material change in the use of land or buildings":

"[The expression] includes depositing matter on land, notwithstanding that all or part of the land is already used for depositing matter, if the area height or amount of the deposit is increased".

Use of the land

5. The prosecution relied, as is inevitable in cases of this kind, on aerial photographs of the site taken on different dates. The most material date is 7 September 1990 when the interim DPA plan was first published and the land came under statutory control. However, as Miss Wong Oi Yee (PW2) the expert witness called by the prosecution explained, it is necessary for interpretation purposes to have comparisons: the tone and texture of the images taken at different times help the expert to interpret the features on the ground at the material date. In essence, what her evidence came to was this: as at 20 August 1990 and 7 September 1990 the site was mostly covered with vegetation. Apart from one small "container-like object" on the land, there was no evidence that the land was being used. This evidence was accepted by the magistrate.

6. By August 1993 the situation had radically changed. A series of photographs taken by an officer of the Planning Department (exhibit P32) shows that the site was being used as a container yard with vehicle-repair and tyre-repair facilities. A direct access from the site to Man Kam To Road had been created. Large containers stacked two-storeys high are shown, with storage space at ground level and air-conditioned accommodation on the first floor. Stacks of old tyres, circular drums and other objects are shown on the ground. There is another area with large containers stacked two-storeys high, with iron girders forming a covering, which appears to have been used as a vehicle-repair workshop. There are trailers with containers parked on the land and on the western side of the site there are large numbers of stacked containers and there is a heavy-weight mobile crane in the vicinity of those containers. The site had been surfaced with asphalt.

The enforcement notice

7. By a notice dated 11 August 1993, the Director of Planning gave notice to the appellants to the following effect:

"WHEREAS:

(1) It appears to the Director of Planning ... that there has been an unauthorised development on the land ....

(2) The unauthorised development which appears to have taken place consists of the carrying out of development by the making of a material change in the use of the land described in Schedule 2 below and it appears to the Authority that:

(i) The development did not exist before the Fu Tei Au and Sha Ling Interim Development Permission Area Plan ... gazetted on 7 September 1990;

(ii) the development is not permitted under the draft plan ... gazetted on 12 July 1991; and

(iii) permission to do so has not been granted under s16 of the Ordinance nor by the Authority before the plan of the Development Permission Area was gazetted.

NOTICE IS HEREBY GIVEN that the Authority, pursuant to s23(1) of the Ordinance, requires that by 11 November 1993

(i) The development shall be discontinued ....

(ii) in the event that this notice is not complied with, the person served commits an offence under s23(6) of the Ordinance, and is liable to a fine of $100,000 and a fine of $10,000 for each day during which the offence is proved to have continued.

SCHEDULE 2

(1) Site formation works

(2) Container trailer/tractor park

(3) Open storage of containers

(4) Car repairing workshop

(5) Tyre repairing workshop".

8. It is common-ground that the requirements in the notice were only complied with to the extent that before the expiration date, 11 November 1993, the "car repairing workshop" was removed.

9. It is also conceded by the prosecution that in so far as the enforcement notice required that "site formation works" be discontinued, this was not a proper requirement.

10. In essence, the question on this appeal is whether the appellants had wrongfully failed to comply with the requirements in paras (2), (3) and (5) of Schedule 2 of the enforcement notice: namely, that they had failed, by the expiration date (11 November 1993) to discontinue use of the land for the purposes of a "container trailer/tractor park", "open storage of containers" and "tyre repairing workshop".

Defence evidence

11. The defence called four witnesses at the trial. The effect of the evidence can be summarised as follows:

(1) In January 1989 the land was leased to a Mr Yuen who filled-in the fish ponds, put sand or soil on the land and erected concrete posts along the river bank to prevent soil erosion.

(2) He placed a small container near the Man Kam To Road and used it as an office and for storage.

(3) He put up a sign indicating that he was in the commercial vehicle parking business: there was no evidence as to where precisely the sign was, but it must have been some way to the north of the land as there was, at that time, no direct access from the land to Man Kam To Road.

(4) The business was on a very small scale. Then came 4 June 1989 when the volume of traffic crossing the border at Man Kam To dropped drastically. After this, the number of vehicles parked on the land was in the order of one or two; it slowly increased but not beyond three or four.

(5) Mr Yuen also provided a very small tyre repair service. The tools were kept in the container.

(6) The business never made any money.

(7) To improve business Mr Yuen thought of putting in a cooked food stall and a sitting-out area for drivers. He put asphalt over the land: but this only took place at the end of 1990, after the interim DPA plan had taken effect.

(8) In January 1991 Mr Yuen gave up the business and the tenancy of the land was terminated. A Mr Chow took over the land on a three-year tenancy, said to be for "agriculture and/or open storage" purposes.

(9) Mr Chow was one of Helen Transportation Co. Ltd.'s directors. Gradually, from early 1991 onwards, the land was progressively converted to use as a container storage depot and container trailer/tractor yard. Repair facilities for vehicles operated by the company were provided and likewise a tyre repair service, available for the vehicles operated by the company as well as outsiders. Direct access to Man Kam To Road was created and gates were installed. All the facilities as shown in the series of photographs, and in particular exhibit P32, were then put on the land.

The magistrate's findings

12. With regard to the material change of use as alleged by the prosecution, and as averred in the enforcement notice of 11 August 1993, this is what the magistrate said:

"Mr YUEN operated a small scale commercial vehicle parking business. Mr CHOW and D1 [Helen Transportation Co. Ltd.] occupied the land for the purposes of a transportation business. Although drivers of non-company vehicles could at first park on the land after Mr CHOW and D1 occupied it, the land was subsequently used exclusively for the parking of the vehicles of D1 and the storage of containers in the course of D1's business. At this point it is entirely clear that there had been a material change of use. The fact that the company parked its own vehicles (or those of outsiders if it came to that) did not mean that it was engaged in the same use as that of Mr YUEN. Parking was clearly an adjunct to the business of running a transportation company and not the purpose of the occupation of the land". (Emphasis added)

13. It is not entirely clear what the magistrate had found in this passage. If he was comparing the scale of activities, and therefore of use of the land, and concluded from that comparison that there had been a change of use, that was a finding he was entitled to make. If however he was looking simply at the nature of the business - a "commercial vehicle parking business" as opposed to a "transportation business" - and focussed simply on who owned the vehicles parked on the land, that would have been an erroneous approach. In considering the use of land, the Ordinance is not concerned with such distinctions. The ownership of the vehicles parked on the land, if there be such parking, is not relevant to the question of the alleged change of use. The Ordinance is concerned with the practicalities on the ground. If Mr Yuen's "commercial vehicle parking business" had involved the number of vehicles, trailers and tractors that we see in the photographs exhibit P32, it matters not whether those vehicles etc. belonged to Mr Yuen or to outsiders. The use of the land, qua land, would have been the same.

14. But, be that as it may, the magistrate in fact did not rely simply upon that finding to convict. He went on and said:

"If I was wrong that there was, per se, a material change in the use of the land I had to examine the question of intensification by considering the use which Mr YUEN made of the land."

15. The magistrate, after a review of the defence evidence concerning Mr Yuen's business, summarised its effect as follows:

"Such business was very small-scale. It was at such a level that no vehicle, trailer or container (apart from the office) appeared on any of the aerial photographs taken of the land whilst Mr YUEN was in occupation of it".

16. This is a significant finding. Aerial photographs were taken on five separate days: 29 March 1989 (Exhibit P10), 8 September 1989 (Exhibit P11), 13 November 1989 (Exhibit P12), 20 August 1990 (Exhibit P13) and 7 September 1990 (Exhibit P14): it could not have been a coincidence that on all of these days, this very large piece of land, measuring about 46,000 sq. ft., was shown to have been vacant, largely covered with vegetation. It would have been impossible for Mr Yuen to have carried on any meaningful "commercial vehicle parking business" on the land without leaving evidence of it on the ground. The vegetation would not have lasted long under the wheels of heavy goods vehicles, if Mr Yuen's use of the land had been as extensive as the defence claimed. This is implicit from the magistrate's finding referred to earlier.

17. Mr Chan Chi Hung, counsel for the appellant, has criticised the magistrate's approach in a number of ways. He says, for instance, that the magistrate's approach was too diffused, and not focussed upon the requirements in the enforcement notice which are, ultimately, the only things that matter with regard to criminal liability under s23(6) of the Ordinance.

18. Mr Chan has also criticised this passage in the magistrate's judgment:

"If the person allegedly committing the unauthorised development does not obtain planning permission for a use complained of he is invited to discontinue it. That means to bring it to an end. If such a person maintains that he comes within the exception of existing use he will no doubt invite the Director of Planning to accept his view that he does have the right to claim such an exception. If , however, the Director does not accept this claim, the person making such a claim may well find himself the subject of proceedings. He may then try to persuade the court that he is outwith the scheme of control because of the exception of existing use. It is a matter for the court to decide if the claim is rightfully claimed". (Underlining added).

19. Here the magistrate was dealing with s23(9) of the Ordinance which says:

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

(a) ....

(b) the development was an existing use...."

20. Mr Chan submits that, in the passage underlined, the magistrate was effectively reversing the burden of proof: instead of requiring the prosecution to prove that there was "unauthorized development" as averred in the enforcement notice, the magistrate was, in effect, imposing on the defendants the burden to "try to persuade the court that [they were] outwith the scheme of control because of the exception of existing use".

Conclusion

21. The passage above, taken in isolation can be construed in the way Mr Chan suggests. Further, counsel is perhaps right to say that the magistrate, in his very lengthy judgment, has at times blurred the focal point of the prosecution case which is simply this: that there was "unauthorized development" as alleged in the enforcement notice and that the appellants had wrongfully failed to discontinue such use: it is this failure which constitutes the crime under s23(6). Is the magistrate's approach so fundamentally flawed that, despite his findings on the primary facts, the appeal must be allowed? I bear this point in mind that it is easy to criticise in this court; not having heard the precise arguments which the magistrate entertained at the trial, I would hesitate to adopt counsel's criticisms.

22. In the end, however, the prosecution case must be based upon hard facts. In this regard the case was overwhelming. The use of the land for a container trailer/tractor park, the open storage of containers and a tyre repair workshop unquestionably constituted unauthorised development. The photographs tell the story. Such use plainly never existed at the material date, namely 7 September 1990. Effectively, that is what the magistrate had found. This was a finding of fact wholly supported by the evidence. It is common-ground that such use was never discontinued by the appellants, despite the service of the enforcement notice.

23. The appellants were rightly convicted by the magistrate. Their appeals must be dismissed.