SECRETARY FOR JUSTICE V. CHEUNG TAT CO. LTD.

1997, NO. MA 523

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

Magistracy Appeal

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J U D G M E N T

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1. This is an appeal by way of case-stated by the Secretary for Justice against the decision of a magistrate dismissing two summonses alleging that between 1st June 1996 and 17th August 1996 the Respondents failed to comply with two notices issued on 1st April 1996 by the Director of Planning pursuant to section 23(1) of the Town Planning Ordinance, Cap.131. The first summons was against the 1st Respondent who was the registered owner of several lots of agricultural land in Tai Sang Wai, Yuen Long, New Territories. The second summons was against the 2nd Respondent who was the occupier of the same lots or parts of the same lots of land. The notices and summonses served on both Respondents were in all other respects identical. The appeal in relation to the 1st Respondent had been withdrawn before the hearing.

2. Having ruled that each Respondent had a case to answer (neither chose to give evidence nor call witness), the magistrate went on to identify the issue between the parties and made bindings of facts in paragraphs 7, 8 and 9 of the case-stated:-

"7. The only issue between the parties was whether the Prosecution can prove beyond reasonable doubt that the 1st and 2nd Respondents respectively had failed to comply with a Notice of 1st April 1996 requiring both Respondents to discontinue carrying out unauthorized development of, inter alia, "open storage of containers" on the land or premises in question.

8. I made the following material findings of fact and interpretation of the phrase "open storage of containers" after hearing the evidence:

"Having considered evidence as a whole, it does not, in my judgment, show conclusively that during the relevant period, such containers as have been shown to have been on site then were there for any purpose other than their loading/unloading or for how long they remained on site. To determine whether there has been "storage" one must look to both the purpose for which containers were on site and duration of their presence there. The deposit of a container for the sole purpose of it being loaded/unloaded would not per se amount to it being stored there. To show storage I think Crown would have to show presence of container(s) on site for a significant period of time during which the main purpose of its presence there was entirely unconnected with and not incidental to a reasonably imminent loading or unloading, or, something along those lines or, as Mr. Wong has said, that the main purpose of containers being on site was for their preservation and not their loading/unloading."

9. In addition, without derogation from the finding of no "open storage of containers", I would have found that (assuming there was open storage of containers which is not proven) the 2nd Respondent did not take all reasonable steps to fully comply with the enforcement notice in relation to the containers and hence the statutory defence under section 23(9) of Cap.131 had not been made out."

3. The judgment is in paragraphs 14 and 15 and the questions posed for this Court are in paragraphs 16 and 17 and they are as follows:-

"14. Having heard evidence adduced by the Appellant and submissions from the 1st and 2nd Respondents' counsel, I was of the opinion that:-

(1) the photographs taken by the representative of the 1st Respondent and the officers of the Planning Department showed that containers were being loaded or unloaded on site at the time when such photographs were taken;

(2) such evidence strongly supported the submission of the 1st and 2nd Respondents that the containers were on site for the purpose of loading and unloading, other than the photographs taken on 16th August showing on that occasion a very large number of containers were on site, which perhaps gave rise to the suspicion of "storage"; and

(3) the Crown's evidence could not show the site as a living, changing and amorphous entity. There was no evidence to show, other than a half hour inspection on each visit by the staff of the Planning Department, whether a particular container or containers were still on the site at a later stage. It was therefore possible many containers could enter and leave the site and also such containers, during a heavy day, might be stacked up to ensure movement of vehicles in the interests of efficiency.

15. I thus held the containers on site could have been there for the purpose of loading and unloading, and that the purpose of the containers being there must be looked into, as well as the element of duration. In order to prove storage of containers, the Crown would need to prove that such containers were there for a significant period during which the main purpose was unconnected with and not incidental to imminent loading or unloading. On the evidence, the Crown failed to prove the purpose why the containers were there or the duration upon which such containers remained on site. In the premises, I held that there is no unauthorized development on the subject site and it follows that the Respondents had not failed to comply with the said Notice.

16. WHETHER I was correct to interpret the meaning of "open storage of containers" in the context of the two Enforcement Notices of 1st April 1991 sent to the 1st and 2nd Respondents to comply with the said two Enforcement Notices.

17. WHETHER I was correct to acquit the 1st and 2nd Respondents."

4. Mr. Liu, who appears for the Secretary for Justice, submits that in construing the term "open storage of containers" on the enforcement notice, the court must look at the whole statutory framework in which the Town Planning Ordinance, Cap.131 operates. In the present case, he submits that it is abundantly clear that the phrase "open storage of containers" refers to the placing and depositing of containers within the site which is the very mischief, viz. unauthorized development, from which the Ordinance seeks to protect the rual area. These submissions can only be accepted as a broad general principle, each case must be looked at in relation to the charge that the person faces. The Respondents were summoned for failing to comply with a notice under s23(1) of the Town Planning Ordinance. This is what that notice says:-

Town Planning Ordinance

(Chapter 131 of the Laws of Hong Kong)

NOTICE UNDER SECTION 23(1)

To:

WHEREAS:

(1) It appears to the Director of Planning, being the Authority for the purposes of section 23 of the Town Planning Ordinance ("the Ordinance"), that there has been an unauthorized development on the land or premises ("the land") described in Schedule 1 below.

(2) The unauthorized development which appears to have taken place consists of the carrying out of engineering operations and 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 immediately before the Nam Sang Wai Interim Development Permission Area Plan (No. IDPA/YL-NSW/1) which was gazetted on 17.8.1990.

(ii) the development is not permitted under the draft and the approved Nam Sang Wai Development Permission Area Plans (Nos. DPA/YL-NSW/1 and DPA/YL-NSW/2 which were gazetted on 12.7.1991 and 6.5.1994 respectively.

(iii) the development is not permitted under the draft Nam Sang Wai Outline Zoning Plan (No. S/YL/NSW/1) which was gazetted on 3.6.1994.

(iv) permission to do so has not been granted under section 16 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 section 23(1) of the Ordinance, requires that by 1 June 1996, the development shall be discontinued (if it has not been discontinued).

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:

(i) in the case of a first conviction, to a fine of $500,000; and in addition, to a fine of $50,000 for each day during which the offence is proved to have continued; and

(ii) in the case of a second or subsequent conviction, to a fine of $1,000,000; and in addition, to a fine of $100,000 for each day during which the offence is proved to have continued.

Issued on : 1st April 1996

S C H E D U L E 1

Lot Nos. 3719R1(Part), 3719R4A(Part),

3719R4B(Part), 3719R4C, 3719R4D(Part) and 3719R4E(Part)

in D.D. 104, Tai Sang Wai, Yuen Long

(As shown edged [red] on the attached plan)

S C H E D U L E 2

5. The unauthorized development or material change in the use of the land here is "open storage of containers" as set out in Schedule 2. That is the charge that the Respondents faced. It is the Respondents' case, which has not been disputed by the Appellant, that the 2nd Respondent runs a godown on the land under a short term waiver granted to the 1st Respondent. Under the short term waiver, the 2nd Respondent, as lessee, is entitled to operate a godown business for general storage and open storage. Therefore, it would not be an unauthorized use of the land for goods to be loaded and unloaded there. It was held in Jefferson v Derby Farmers Ltd.[1921] 2 K.B. 281 that to remove a drum of petrol from a shed to a garage and there empty it is not to "store" petrol in the garage. In Thompson v Equity Fire Insurance Co [1910] AC 592, Lord NacNaghten said at p. 596:-

"What is the meaning of the words 'stored or kept' in collocation and in the connection in which they are found? They are common English words with no very precise or exact signification. They have a somewhat kindred meaning and cover very much the same ground. The expression as used in the statutory condition seems to point to the presence of a quantity not inconsiderable, or at any rate not trifling in amount and to import a notion of warehousing or depositing for safe custody or keeping in stock for trading purposes. It is difficult, if not impossible, to give an accurate definition of the meaning, but if one takes a concrete case it is not very difficult to say whether a particular thing is "stored or kept" within the meaning of the condition."

6. The facts found by the magistrate were these. Other than a half hour inspection on each visit by the staff or the Planning Department, there was no evidence whether a particular container or containers were still on the site at a later stage. From photographs taken by the representative of the 1st Respondent and officers of the Planning Department, the containers were being loaded or unloaded on the site at the time when these photographs were taken. On the basis of these facts, the magistrate concluded that the containers on site could have been there for the purpose of loading and unloading and he was not satisfied beyond reasonable doubt that the prosecution had proved storage of the containers which required the presence of the containers for a significant period during which the main purpose was unconnected with and not incidental to imminent loading or unloading. We are bound by the finding of facts in the case-stated.

7. On the facts that the magistrate has found, I would answer both questions in the affirmative and dismiss the appeal.