HKSAR v. TANG YING YIP

[English Translation – 英譯本]

HCMA 188/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 188 OF 2006

(ON APPEAL FROM STCC NOS. 8334, 8335, 8348 & 8349 OF 2005)

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BETWEEN

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JUDGMENT

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1. On 27 January 2006, the 1^st and 2^nd Appellants were convicted after trial on 4 summonses issued pursuant to section 23(6) (before amendment) of the Town Planning Ordinance, Cap. 131 of the Laws of Hong Kong, for failing to comply with enforcement notices to discontinue unauthorized development or to obtain permission for development.  Each of the Appellants was sentenced to a total fine of HK$33,100.  The Appellants appealed against convictions.  After hearing, I dismissed the appeals.  I now set out the reasons for my judgment.

Prosecution case

2. The prosecution case was by and large undisputed.  The land involved is situated at Lot Nos. 1164, 1200 and 1201 in DD 125, Ha Tsuen, Yuen Long, New Territories (hereinafter “the land”).  The 1^st Appellant is the 2^nd Appellant’s son, and both are the registered owners of the land.  The land was designated as a “recreational zone” in 1994.

3. On 3 March 2004, inspection of a site (which included the land) by the Planning Department revealed that the site had already been levelled and was surrounded by corrugated iron fences.  Apart from the major passages, a lot of construction machinery was stored in the open area of the site, including cranes, earth-digging machines, machinery, steel frames, iron machinery and renovated containers.  Near the entrance to the site were a few containers renovated as the watchman’s room and restroom, and to the side was a covered area built from a renovated container and corrugated iron for storage usage.  Further, at the north east corner of the site was another covered area used as a factory built from a renovated container and corrugated iron.  Inside the factory were a lot of tools, including lathes, drillers, gas cylinders and welders etc.  During inspection there were two workers in the factory, and a few private cars, lorries and derrick lorries were parked in the site.  The site was mainly used for storage and as a factory, which constituted an unauthorized development.  Officers of the Planning Department took some photos which accurately reflected the condition of the site, and the photos were produced as evidence at trial.

4. On 30 June 2004, the Director of Planning served enforcement notices (hereinafter “the notices”) on the 1^st and 2^nd Appellants and other registered owners and occupiers of the site.  The notices against the 1^st and 2^nd Appellants stated that they must between 30 June and 30 September 2004 discontinue the unauthorized development or obtain permission for development.  The notices were sent by registered post to the 1^st and 2^nd Appellants on 30 June 2004.

5. Officers of the Planning Department revisited the site on 30 June for inspection and found that there was no apparent difference in the layout and use from that on 3 March 2004. 

6. Upon expiry of the date set out in the notices, officers of the Planning Department inspected the site on 6 occasions between 4 October 2004 and 28 August 2005 and found that the relevant unauthorized development had not discontinued.  From the date the notices were served to the last inspection on 28 August 2005, no permission for the unauthorized development had been obtained from the Town Planning Board under section 16 of the Town Planning Ordinance.

7. Apart from the above admitted facts, the prosecution, at the request of the defence, called a Senior Town Planner to give evidence.  He mainly testified on how the application in relation to the unauthorized development was rejected.

Defence case

8. The defence relied on section 23(9)(a) of the Ordinance and argued that, in the circumstances at that time, the Appellants had taken all reasonable steps to comply with the relevant notices.

9. Part of the defence case was admitted by the prosecution and became evidence under section 65(c) of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong.

10. The 1^st and 2^nd Appellants are mother and son, and the 2^nd Appellant is 83 years old.

11. The Appellants let the two pieces of land in question, i.e. Lots 1164 and 1200 of DD 125, to Tin Way Development Co Ltd (天匯發展有限公司), whose person in charge is one Tang Kee Sum (hereinafter “Tang”).  Tang was already a tenant of other lands owned by the Appellants.  Between April 2003 and February 2005, Tang made 4 applications to the Town Planning Board to use the site (including the land) for open storage of construction materials and machinery.  Two of the applications were submitted after the issue of the notices and before the issue of the summonses, while the other two were submitted after the summonses were issued.  All the applications were rejected by the Town Planning Board.

12. On 16 March 2005, Tang also applied to the Town Planning Board to use another site at Lot 1164 and its adjacent site at DD 125 for open storage of containers.  That application was allowed by the Town Planning Board, and the south east corner of the site involved (i.e. a small portion of Lot 1164 in DD 125) was included in the town planning permission.  On 5 November 2005, Tang applied to the Town Planning Board to use a site at Lot 1201 of DD 125, but not including the site at Lot 1164, for open storage of construction materials and machinery.  That application was rejected by the Town Planning Board on 13 January 2006.

13. Apart from the above admitted facts, the 1^st Appellant elected to give evidence for himself and his mother (the 2^nd Appellant).  He stated that he had managed his father’s land since 1967 and his father passed away in 1978.  His 83-year old mother had not received any education and had no experience in managing the land.  In recent years, his mother was in poor health and his father’s estate was managed by him.  He often talked to the 2^nd Appellant about his father’s estate matters.

14. The 1^st Appellant said that, after he received the enforcement notice on 30 June 2004, he informed the 2^nd Appellant, who then asked him to follow up the matter with an on-site inspection and, if the land was found to be used illegally as open storage, he should hire a lawyer to assist in handling the matter.

15. The 1^st Appellant did conduct an on-site inspection after receiving the enforcement notice.  He found that the land had been widened and was very different from the lot he used to know, and hence he could not find the relevant land.  He stated that he did not notice anything being placed on the land.  Thereafter he contacted Tang and asked him about the land problem.  Tang replied that he had hired a professional to apply to the Town Planning Board.  The 1^st Appellant stated that he entirely trusted Tang and had no doubt about what Tang said.  The 1^st Appellant believed that during the application stage, the Town Planning Department would not lay prosecution.

16. The 1^st Appellant claimed that although he knew the best way to prevent an unauthorized development was to engage a surveyor to survey the land and request the relevant person to cease the development, or to engage a lawyer to summon the relevant person in order to repossess the land, he indicated that these courses of action would require a considerable amount of time and money.

17. The 1^st Appellant also stated that between 15 April and 25 August 2005, he and the 2^nd Appellant did not take any action to prosecute the relevant person because they thought it was unreasonable to lay prosecution when the application was being processed.

Verdict of the Magistrate

18. In analyzing the evidence, the Magistrate stated that according to the 1^st Appellant, Lot 1201 was not covered by the tenancy with Tang, and the 1^st Appellant did not know that Lot 1201 was being used until he received the enforcement notice.

19. The Magistrate also referred to the 1^st Appellant’s evidence that, after receiving the enforcement notice, he immediately went to inspect the relevant lot, but as the land had been widened and was very different from the land he knew, he could not find the relevant land.

20. The Magistrate stated that the 1^st Appellant said under cross-examination that he visited the relevant lot once in March 2001 before the tenancy became effective and had not been there since.  The Magistrate therefore cast doubt about his claim that he visited the lot after receiving the enforcement notice.

21. The Magistrate stated that the 1^st Appellant understood that an effective method was to find a lawyer and surveyor to investigate whether there was any contravention of the law and, if there was, he could request the tenant to discontinue the unauthorized act or issue a summons to repossess the relevant land.  The 1^st Appellant also understood that it would take at least 6 months to repossess the land.  The Magistrate stated that the 1^st Appellant had not taken any action and had trusted Tang simply on the basis of their conversation, when nothing more than a landlord and tenant relationship existed between them.  The 1^st Appellant claimed that Tang told him he had engaged a professional firm to apply to the Town Planning Board, but the 1^st Appellant had not read the application documents and had no knowledge of the date of the application and the user being applied for.  The 1^st Appellant did not even know when the Town Planning Board would hold a meeting, let alone which professional firm had made the application on Tang’s behalf.  The Magistrate ruled that the 1^st Appellant had no idea whatsoever of the particulars of the so-called application.

22. The Magistrate stated that the 1^st Appellant agreed that between 15 April and 25 August 2005, no one had taken any practical action, and he had not instructed anyone to do anything.  The unauthorized development continued and had not ceased.

23. The Magistrate stated that the 1^st Appellant solely relied on his belief that Tang had made the relevant application as basis for the claim that the 1^st Appellant had taken all reasonable steps.  The Magistrate considered the 1^st Appellant’s argument unconvincing and ruled that he had not taken any reasonable step.

24. The Magistrate also stated that it was the 2^nd Appellant’s right to elect not to give evidence at trial.  The 2^nd Appellant had relied on the 1^st Appellant’s act: i.e. she had asked him to follow up the matter, but it was unclear whether she did so order him.  The Magistrate stated that, even if she had ordered the 1^st Appellant to follow up the matter, as the Magistrate had already ruled that the 1^st Appellant had not taken any reasonable and prudent step, the 2^nd Appellant was also to be convicted on the two summonses against her.

Grounds of appeal

25. Ms Liu for the two Appellants raised essentially three grounds of appeal:

(1) the Magistrate erred on the burden and standard of proof;

(2) the Magistrate wrongly interpreted and refused to accept the defence evidence and ruled that the Appellants could not rely on the statutory defence;

(3) the Magistrate erred in failing to consider and deal with the 1^st and 2^nd Appellants’ cases separately.

Ground (1)

26. On the first ground of appeal, Ms Liu submitted that, in the Statement of Findings, the Magistrate first set out the undisputed facts.  These facts constituted all that the prosecution case had to prove, and hence the prosecution did not have any other burden of proof.  However, when the Magistrate started to analyze the facts, he stated that he had borne in mind that the burden of proof was on the prosecution and the standard of proof was beyond reasonable doubt.  Ms Liu contended that, given the prosecution had discharged its burden of proof, the Magistrate’s statement was unnecessary and inappropriate in that it caused the Appellants to reasonably suspect whether the statement was made purely to ensure that his verdict would not be overturned on appeal, thereby causing the Appellants to doubt whether he had maintained a neutral stance in analyzing the defence case.

27. Ms Liu contended that, in its written closing submissions, the prosecution had cited cases which indicated that the standard of proving the defence was on a balance of probabilities.  The defence had never disputed the prosecution’s stance on this.  Ms Liu argued that from this it could be seen that the Magistrate had not properly considered the closing submissions of both parties but had pre-judged the Appellants’ guilt and then looked for reasons to support his judgment.

Respondent’s reply

28. Ms Chan, Senior Government Counsel for the Respondent, replied that even if the Appellants were unable to adduce sufficient evidence to support the defence, the prosecution at trial still bore the burden of proving the Appellants’ guilt beyond reasonable doubt.  The Magistrate had correctly and properly stated this legal principle in his Statement of Findings.  Ms Chan referred to the case of Woolmington v. DPP [1935] AC 462 in support of her argument.

Judgment

29. Having considered the submissions of Ms Liu and Ms Chan, I agree with Ms Chan’s argument.  Although the prosecution’s case was by and large not disputed by the defence, there was no impropriety in the Magistrate correctly stating the burden and standard of proof in his Statement of Findings.  It is true that the Magistrate had not clearly stated in the Statement of Findings that the standard of proof for the defence was on balance of probabilities.  However, this is a fundamental legal principle of which the Magistrate, as a professional judge, would certainly be well aware.  Furthermore, Counsel for the prosecution had reiterated this legal principle in her closing submissions.  I do not accept Ms Liu’s ground of appeal that the Magistrate had misapplied the burden of proof and standard of proof for the defence.

30. In my view, it was not necessary for the Magistrate to state such a fundamental legal principle in the Statement of Findings; but if the Magistrate chose to express in the Statement of Findings the basic principle that the burden of proof was on the prosecution, he could also have stated the standard of proof for the defence so as to avoid unnecessary misunderstanding or dispute.

Ground (2)

31. On Ground (2), Ms Liu complained that the Magistrate did not accept that the Appellants had taken all reasonable steps in the circumstances of the case.  She submitted that the Magistrate had erred in ruling that the 1^st Appellant had failed to take any action when in fact the conversation between the 1^st Appellant and Tang did constitute a reasonable step.

32. Ms Liu submitted that the Magistrate had overlooked the contents of the conversation between the 1^st Appellant and Tang, i.e. Tang had engaged a professional firm to make an application to the Town Planning Board, and that the Magistrate had also failed to take into account the relationship between the 1^st Appellant and Tang, i.e. they were not only landlord and tenant but had known each other for more than 20 years.  Ms Liu contended that the 1^st Appellant was justified in believing what Tang said.

33. Ms Liu submitted that, as Tang had invested a lot more in the site than the 1^st Appellant had, there was no reason for the 1^st Appellant to doubt that Tang would not do his best to comply with the relevant enforcement notice by applying to the Town Planning Board and actively taking follow-up action.

34. Ms Liu argued that, although the 1^st Appellant conceded that between 15 April and 25 August 2005 he had not taken any practical action or instructed anyone to do anything and that the unauthorized development had continued, the Magistrate had overlooked the 1^st Appellant’s evidence that he had kept in touch with Tang during the above period and that, in his understanding, Tang was still proceeding with the planning application.

Respondent’s reply

35. Ms Chan submitted that Tang had made a total of 4 applications for planning permission to use the relevant site as open storage for construction materials and machinery, but none of the applications succeeded.  In the end, the Town Planning Board allowed the application for use of Lot 1164 and its adjacent site as open storage of containers, but not as open storage of construction materials and machinery and as a factory, as in the present case.  Therefore, that successful application did not constitute a valid defence.

36. Ms Chan submitted that the 1^st Appellant’s evidence, that upon receiving the enforcement notice, he immediately went to the site for inspection but did not recognize his own land, was hardly convincing.  Furthermore, the 1^st Appellant knew that the enforcement notice only allowed for a 3-month period of compliance, but he merely relied on what Tang himself said.  As far as the 1^st Appellant knew, the result of Tang’s application to the Town Planning Board was still pending, and he clearly knew there were other effective measures that he could take, such as engaging a surveyor or lawyer, requesting the tenant to cease the illegal activity and repossessing the land, but the 1^st Appellant had never taken these measures.

37. Ms Chan further submitted that the tenancy between the 1^st Appellant and Tang clearly prohibited the relevant site from being used for open storage.  The 1^st Appellant had grounds for terminating the tenancy with Tang, but he did not do so and instead renewed the tenancy of that lot with Tang on 28 February 2005.

38. Ms Chan argued that when the 1^st Appellant testified in court, he stated clearly that during the period specified in the charge, he himself and the 2^nd Appellant had not taken any practical action such as repossessing the land from the tenant in compliance with the requirement in the enforcement notice, or instructing any other person to take the appropriate steps.  Ms Chan submitted that the Magistrate’s ruling was not improper.

Judgment

39. This appeal is conducted by way of re-hearing on the basis of the evidence available before the Magistrate and also such evidence as the appellate court may admit: see HKSAR v. Chou Shih Bin [2004] FACC 1.  In my judgment, regarding the facts, the appellate court has to appreciate that the Magistrate had the advantage of hearing and observing the witnesses in the course of giving evidence, whereas the appellate court can only rely on the written transcript.  In the present case, most of the evidence was submitted to the court as admitted facts.

40. According to the admitted facts, between 10 June 1994 and 1 April 2005, the land was designated as a “recreational” zone.  In the aerial photographs taken on 18 August 1990 and 15 July 1991, the farmland on the lot was shown to be covered by plants, with a construction on the northwest border.  The aerial photos taken on 5 March 2004 show that most of the land had been levelled, and apart from the major passageway, the open area was congested with a lot of construction materials and machinery, including large cranes and containers.  At the northwest and southeast corner was each erected a construction, which could be used as a factory.  Of course, officers of the Planning Department inspected the site on 3 March 2004 and found that it was used for storage and as a factory.  Apparently the land involved had an unauthorized development.

41. Section 23(9) of the Town Planning Ordinance provides for the following defences:

(a) he took all reasonable steps in the circumstances to comply with the notice; or

(b) permission for development had been granted under section 16.

42. In this case, it is apparent that permission for development had not been granted (the subsequent permission granted by the Town Planning Board was different from the original applications).  What the Magistrate had to consider was whether the Appellants had in the circumstances taken all reasonable steps to comply with the relevant notice.

43. On 10 March 2001, the two Appellants leased part of the land in the site (i.e. Lots 1164 and 1200 of DD 125) to Tin Way Development Co Ltd, and the tenancy was from 1 April 2001 to 31 March 2004.  Towards the end of the tenancy, officers of the Planning Department found out there were unauthorized developments which involved not only Lots 1164 and 1120 which were covered by the tenancy, but also Lot 1201 which was being occupied.

44. On 30 June 2004, the Planning Department sent the notice to the 1^st and 2^nd Appellants.  The 1^st Appellant claimed that upon receiving the notice he went to the site, but as it had changed dramatically and looked very different from what he knew before, he could not find the land.  As the owner of the land, he knew that the land was to be used for “recreation”.  The photos taken in 1990 and 1991 indicate that the land was farmland and covered by vegetation.  According to the observation by the officers of the Planning Department on 3.3.2004, the site had been levelled, there were corrugated iron fences, a lot of machinery components, containers reconstructed for storage use, containers reconstructed as officers, factories, there were workers in the factories doing welding, loading and unloading, and lorries were parked there.  These were things that could not have happened overnight.

45. From this situation at the site including the land, the following inferences could reasonably be made: (1) that the two Appellants did not care whether the tenant had used the subject lot for “recreational” purposes in accordance with the law; (2) that the Appellants were aware that the occupant has not used the land in compliance with the law, but chose to turn a blind eye to it.

46. As Litton J (as he then was) said in R v. Tang Ying Yip and another [1995] 1 HKCLR 339:

Land owners can, generally speaking, control development upon their own land.  It would be most unusual case if the land owner does not know that unlawful land-filling is taking place.  It would be even more unusual for an owner not to realize that an unauthorised container storage operation has opened for business upon his own land; in most cases, the land owner would have contributed to its occurrence by some kind of arrangement with the operator.

47. Leaving aside the question of when the Appellants came to realize that the land was used for unauthorized development, it was the 1^st Appellant’s evidence that when he received the notice, he discovered  to his surprise that the land had changed so much that he and the 2^nd Appellant did not know where it was located.  The two Appellants received the notice which stated that there was unauthorized development on their land and they had to take enforcement action as stated in the notice.  If the 1^st Appellant did not even know where the land was situated, he could not have known what kind of unauthorized development was taking place on the land such that he and the 2^nd Appellant could take action.  Under such circumstances, he should have taken practical steps to ensure that he and the 2^nd Appellant knew clearly what unauthorized development there was.  If they did not even know the kind of unauthorized development existing there, how could they have discontinued with the unauthorized development in compliance with the enforcement notice or sought permission for development?

48. What had the [1^st] Appellant done?  He had not taken any practical action such as engaging a surveyor to locate the land and check what kind of unauthorized development there was, or engaging a lawyer to request the tenant to discontinue with the unauthorized development, or repossessing the land in compliance with the notice etc.  He had not taken any practical action simply because he relied on his conversation with Tang and believed that Tang had already made an application to the Town Planning Board.

49. In the abovementioned case of Tang Ying Yip, Litton J had this to say on the legal liability of the land owner: 

Plainly, the policy behind section 23(1) is to encourage vigilance on the part of land owners.  Section 23(9)(a) provides a land owner, facing a prosecution under subsection (6), with a defence if he proves that he took all reasonable steps in the circumstances to comply with the enforcement notice.  Thus, the ‘blameless’ land owner would generally have a defence; but it would be for him to come forward to explain how the unauthorized development came about.  There is nothing oppressive about this since the facts would be within his means of knowledge rather than that of the Planning Department. 

50. I agree with Litton J’s views.  When the 1^st Appellant received the notice, he did not even care to take the first step to locate his land and see what unauthorized development had come about, but chose to believe a third party (Tang)’s statement that some measures would be taken, such third party being the originator – i.e. being involved in the unauthorized development itself.

51. As land owners, the Appellants had a duty to ensure that their land was not used for unauthorized development.  The 1^st Appellant could not explain how the unauthorized development in the land came about.  The act of the 1^st Appellant on receiving the notice was like “placing a bet” in the hope that Tang’s application would succeed, in which case the Appellants would not have to comply with the notice.

52. On the evidence before the Magistrate, the 1^st Appellant had failed to prove on a balance of probabilities that he had in the circumstances taken reasonable steps, let alone all reasonable steps.

Ground (3)

53. Ms Liu submitted that the Magistrate had not considered the 1^st and 2^nd Appellants’ cases separately and had wrongly mixed the two cases together.  She argued that the Magistrate should have considered the fact that the 2^nd Appellant was 83 years old and illiterate and had no work experience.  Besides being the 1^st Appellant’s mother, she was the joint administrator of the estate for more than 20 years.  She was not in good health and had symptoms of high blood pressure, dizziness and Ménière’s disease.  Ms Liu contended that the Magistrate should have considered whether the 2^nd Appellant, in passing the responsibility to comply with the enforcement notice on to the 1^st Appellant, had taken all reasonable steps, and not whether the follow-up actions taken by the 1^st Appellant himself were reasonable and prudent steps.

Respondent’s reply

54. Ms Chan submitted that the 1^st Appellant was the only witness for the defence.  Regarding the 2^nd Appellant’s case, he mainly stated how she had ordered him to do the follow-up work.  Ms Chan submitted that those were hearsay evidence and could not be admitted as evidence for the 2^nd Appellant herself.

55. Ms Chan stated that in fact, apart from the admitted facts, there was no evidence from the 2^nd Appellant for the Magistrate to consider.  There was nothing in the Statement of Findings to indicate that he had mixed up the evidence of the two Appellants.

Judgment

56. The 2^nd Appellant did not appeared in person at trial, but she was represented by counsel.  She did not testify in court.  As to what steps she took after receiving the notice, there was only the testimony from the 1^st Appellant.

57. Regarding how the 2^nd Appellant ordered the 1^st Appellant, if the defence was relying on the truth of what she said, then it was indeed hearsay evidence.  Disregarding whether this was hearsay, according to the 1^st Appellant, the 2^nd Appellant had not done anything but only relied on the 1^st Appellant to take action; and the 1^st Appellant had not taken any reasonable step, let alone all reasonable steps.

58. Ms Liu submitted that, by reason of the 2^nd Appellant’s old age and illiteracy, all she could have done was to rely on her son to deal with the matter, and this met the requirement of taking all reasonable steps.  I do not accept this argument.  As a landlord, she was responsible for ensuring that the land was not used illegally.  A land owner cannot avoid this responsibility by claiming old age or illiteracy.

59. If an senile, illiterate landlord who receives an enforcement notice passes the matter on to a professional, this may on a balance of probabilities prove that the landlord has in the circumstances taken all reasonable steps to comply with the relevant notice.  The 2^nd Appellant in the present case had not done so and had only relied on her son, who was not a professional; and the facts show that she had entrusted a wrong person with the matter.

60. On the evidence before the Magistrate, there was nothing to prove on a balance of probabilities that the 2^nd Appellant had taken all reasonable steps in the circumstances of the case to comply with the relevant notice.

61. For the above reasons, the Magistrate’s ruling that the two Appellants be convicted is not unsafe.  The appeal is dismissed accordingly.