HKSAR v. HOP WING TRANSPORTATION CO. LTD.

HCMA490/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 490 OF 1997

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J U D G M E N T

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1. The Appellant in this case, Hop Wing Transportation Company Limited, was summonsed on 9th August 1996 that on 14th February 1996 at the remaining portion of Lot No. 43B 3 in Demarcation District 101 and at the remaining portion of Lot No. 1270 in Demarcation District 105, New Territories ("the Site"), it undertook a development on the land included in the Draft Mai Po and Fairview Park Outline Zoning Plan, namely, making a material change in the use of land for containers depot, open storage of leather and tyre-repairing workshop, contrary to s.s.20(7) and (8) of the Town Planning Ordinance, Cap. 131 ("the Ordinance"). The Appellant pleaded not guilty before a Magistrate and was convicted as charged after trial.

2. For the purpose of the trial, the following facts were admitted :

1） On 12th July 1991, notification was published in the Government Gazette in respect of the Draft Mai Po and Fairview Park Development Permission Area Plan No. DPA/YL-MP/1 pursuant to the Ordinance. The Site fell within the DPA. It was partly designated 'Unspecified Use' and partly zoned 'Village Type Development' on the Draft Plan.

2) On 10th May 1994, the Governor-in-Council approved the Draft DPA Plan pursuant to s.9(1)(a) of the Ordinance. On 20th May 1994, notification was published in the Government Gazette in respect of the approved DPA Plan No. DPA/YL-MP/2. The Site fell within the DPA. It was partly designated 'Unspecified Use' and partly zoned 'Village Type Development' on the Approved Plan.

3) On 3rd June 1994, notification was published in the Government Gazette in respect of OZP No. S/YL/-MP/1 prepared under s.3(1)(a) of the Ordinance. The Site is partly zoned 'Village Type Development' and partly zoned 'Conservation Area'.

4) A number of aerial photos were taken of the Site between 1989 and 1995 inclusive.

5) The Site was occupied by the Appellant company on 14th February, 1996 (that is, the date of the offence).

3. The Prosecution called five witnesses and produced into evidence seven aerial photographs of the Site, one photograph for each year covering the period from 1989 to 1995.

4. The first prosecution witness (PW1), a Senior Town Planner of the Planning Department, gave evidence of a visit he paid to the site on 9th May 1995 and arranged to take some photographs there. He also gave evidence of having spoken to the owner of the Site at the time, Mr Kwok. He also gave evidence to the effect that there was no application received for the change of land use in relation to the Site.

5. The second prosecution witness (PW2) is also a Senior Town Planner and was called as an expert witness to interpret the aerial photographs produced. The essence of her evidence which the Magistrate found to be reliable was as follows :

1) The two aerial photographs taken in 1989 and 1990 revealed that a small part of the Site was used for trailer parking and open storage of timbers.

2) The aerial photograph taken on 16th July 1991 and the aerial photograph taken in 1992 showed that the Site was used for trailer parking with small portions used as workshop, most likely for vehicle repairing.

3) The two aerial photographs taken in 1993 and 1994 showed that half of the Site was used as workshop, and half of it used for trailer parking.

4) The aerial photograph taken in 1995 showed that the Site, which had been repaired, was used for open storage of containers and packs of material.

6. The third witness (PW3) called by the Prosecution, a Survey Officer of the Planning Department, visited the site on 2nd January 1991. He found most part of the Site was vacant. The eastern part of it was used for storage of timber and container vehicles, and some vehicles, including container vehicles, were found in the north-west and southern part. He found no container or truck at the Site.

7. The fourth prosecution witness (PW4), another Survey Officer, gave evidence that he visited the site on 9th May 1995. In the middle of the Site, he found a signboard displaying "Hop Wing Container Depot C, containers to let, container storage and storage of goods". The northern and middle part of the Site was concrete-paved and used for open storage of containers which were stacked up to four to five storeys high. Some photographs were taken and produced.

8. The fifth prosecution witness (PW5), another Survey Officer, was called to testify that on a visit to the Site on the offence date, namely, 14th February 1996, he went there with a team of officers from the Planning Department, including PW4. He was arranged to investigate the number of containers. A set of photographs were taken and produced as Exhibit P30. This witness told the Court that because of the large quantities of containers which were stacked up at the Site, he could only investigate the numbers by 'estimate counting', that is, counting the numbers of stacks of containers and their level so as to come to an estimate. He was cross-examined on the figure he provided. His evidence was supported by the photographs of Exhibit P30 and the two rough sketches he made at the scene and shortly after the visit. One of these sketches, Exhibit P32, showed the position and the stacks of containers. The evidence of PW5, coupled with what were shown in the photographs (Exhibit P30), showed the following :

1. a large signboard, as found by PW4 during his visit on 9th May 1995, was still there;

2. there were at least 200 containers, stacked up to four storeys, occupying about 80% of the area of the Site;

3. there was a large quantity of leather material, stacked up to three levels, occupying about 100 sq.m., or about 10% of the Site; and

4. a tyre-repairing workshop was also found located near the entrance of the Site.

9. From one of the aerial photographs, Exhibit P10, which was taken on 16th July 1991, it showed that substantial part of the Site was vacant. There were several containers not stacked up but scattered on the ground. In the middle of the Site, there were seven to eight trailers put together in reasonably good order. It appeared that the ground was not paved. A few structures and vehicle-like objects were found at various parts of the Site.

The Defence's Case

10. The Defence's case was that ever since 11th July 1991, i.e. the day immediately preceding the notification in the Government Gazette in respect of the draft DPA Plan, the Site was used for storage of containers and that there was no material change of land use on the offence date at the Site. In this respect, the Defence called three witnesses.

11. The first witness called by the Defence was a Mr Mok (DW1), the owner of the Appellant Company which occupied the Site on the date of the offence. His evidence was that he had purchased the Site from Luen Tai Transportation Company ("Luen Tai") in 1995, and since then, the Site had been used for storage of containers. He also told the Court that he had spent $5 million for paving 80% of the ground, and that at the Site, over 80 staff were employed on daily basis, over 70 trailers and 50 vehicles of various type would operate at the Site. He also gave evidence that on the offence date, namely, 14th February 1996, there were 150 to 200 containers stored at the Site. Two large cranes, costing $60 million, were also installed to lift containers to high level. He further gave evidence that the quantity of leather, as shown on the photograph, Exhibit P30, were leather unloaded for inspection. He said that they would either be repacked into containers or sent away by trucks within two days. Mr Mok admitted that the quantity shown amounted to the capacity of 15 containers.

12. The second defence witness was a Mr Ng (DW2), a retired site supervisor employed by Luen Tai. He gave evidence that he had worked for Luen Tai since 1990 until he retired in 1996. According to him, in 1991, Luen Tai had occupied the whole area which covered not only the area of the Site, but also an area to the north of it as well, and that the whole area was used as a container depot. He said that only two staff were employed by Luen Tai to run the whole area, the size of which was about 120,000 sq.ft. Initially, he said that the area in 1991 was used as a container depot, but upon cross-examination, he agreed that it was used for both container depot and trailer park. He said that at around July 1991, 20 to 30 containers would be placed there. His duties included operating the one crane at the Site for unloading containers.

13. Finally, the third defence witness, Wong Wai Keung (DW3), was called to give evidence that where a crane was installed in a site, it was unlikely that it was a trailer park because containers would remain on the trailers and the crane would not be needed. In this way, Mr Wong gave evidence that the existence of a crane tended to show that it was a container depot because containers would be lifted and put on the ground by the crane.

14. The learned Magistrate accepted all the prosecution witnesses to be truthful and reliable witnesses and accepted their evidence. On the other hand, he found the evidence of DW2 to be confused and unreliable and did not accept his evidence that the Site was used for storage of containers in around July, 1991.

15. The learned Magistrate also found DW3's evidence to be of limited value because although he had been in the container trade for several years, there is no evidence that he had conducted any survey or investigation on the operation of container depots in Hong Kong upon which to base his evidence. Moreover, the learned Magistrate approached the case on the basis that he had to consider and compare the use of land of the Site on the day immediately preceding the notification of the draft DPA Plans in the Gazette on 12th July 1991 with the date of offence, namely, 14th February 1996. On this basis, the learned Magistrate made the following findings :

1. After considering all the evidence, including the aerial photographs, and in particular, the one taken on 16th July 1991, the learned Magistrate came to the conclusion that the only reasonable inference he could draw from those evidence was that the Site was used as a trailer park on 11th July, 1991, and that there was no open storage of leather at the Site on that day.

2. The learned Magistrate further found that on 14th February, 1996, the Site was used for storage of containers and open storage of leather, and that even accepting of the evidence of DW1 that though each lot of leather might be placed there for one or two days, and was for the sole purpose of inspection, it did not affect the nature and character of that portion of land being used for the purpose of depositing leather.

3. On the other hand, the learned Magistrate found as a fact that the evidence showed that a tyre-repairing workshop might have been on the Site ever since 11th July 1991 from the evidence of PW2, and the learned Magistrate found that the existence of a tyre-repairing workshop on 14th February 1996 did not establish any material change. However, the learned Magistrate found that as the Site used for depositing containers and for depositing leather on 14th February 1996 that did constitute a material change as the Site was converted into a container depot and partly into an open storage of leather on that date.

4. The learned Magistrate also found that there was a material change by way of intensification as defined by s.1A of the Ordinance in that, the condition of the Site as at 11th July 1991 was :

i. only a small portion of the Site, which was unpaved, was used for depositing containers;

ii. only two staff were employed to run the entire Site with very few equipment;

iii. in the absence of heavy duty cranes, containers were not stacked up; and

iv. at most 20-30 containers were deposited in a large area which covered not only the Site, but a further area north of the Site of similar size.

5) Contrasted with that, the learned Magistrate found that the condition of the Site on 14th February 1996 was that :

i. millions of dollars had been invested to pave the ground and acquire large quantity of machines and equipment, including two heavy-duty cranes;

ii. about 80 staff were employed to operate the Site; and

iii. at least 200 containers, stacked up to five levels, were deposited in an area which occupied a substantial part of the Site.

16. By comparing the conditions as at 11th July 1991 and 14th February 1996, the learned Magistrate came to the conclusion that it was obvious that the area, height and amount of matter deposited on the Site had substantially increased, and the learned Magistrate had no doubt in finding that there was material change by way of significant intensification of use as defined by s.1A of the Ordinance. On both these basis, therefore, the learned Magistrate came to the conclusion that the Defendant company was guilty as charged under the summons, and convicted the Defendant.

Grounds One and Two

17. The Appellant now appeals against its conviction. There are five grounds of appeal. Grounds 1 and 2 can effectively be dealt with together. The thrust of these two grounds is that the learned Magistrate was wrong in choosing 11th July 1991 as the relevant date with which to compare the material change of use of the land as at the date of offence, namely, 14th February 1996. In so submitting, Counsel for the Appellant places much reliance on s.20(6) of the Town Planning Ordinance which reads as follows :

"Except as provided in subsection (7)(a) and in the definition of 'unauthorised development' in section 1A where land that is within a plan referred to in subsection (1) is included in a plan prepared under section 3(1)(a), the plan referred to in subsection (1) ceases to be effective in relation to that land."

18. Counsel for the Appellant submits that once a piece of land previously within a draft Development Permission Area Plan ("draft DPA Plan") has been included in a draft Outline Zoning Plan ("draft OZP")(i.e one under s.3(1)(a) of the Ordinance), then the draft DPA Plan ceases to be effective in relation to that land except as provided in subsection (7)(a), and in the definition of 'unauthorised development' in s.1A. In this respect, Counsel further argues that the definition of 'unauthorised development' in s.1A is not relevant for a s.20(7) prosecution. The reason advanced for so saying is that the term 'unauthorised development' does not appear in s.20(7) or, indeed, in any part of s.20.

19. As for the second exception provided for, namely, s.20(7)(a), that affords to a defendant, the statutory defence of existing use. The Appellant contends that that effectively means that 'existing use' shall be construed in the light of the draft DPA Plan so that the Defence, in order to rely on s.20(7)(a), has to prove that the use was existing at the time when the draft DPA Plan was gazetted.

20. The Appellant further argues that what the Defence has to prove to establish existing use and what the Prosecution has to prove to establish material change are two different matters. Looked at in this way, the Appellant contends, it will be quite absurd for the legislature to lay down a statutory defence if what the defendant has to disprove on balance, in reliance upon that statutory defence, is precisely what the prosecution has to prove beyond reasonable doubt as an element of the offence. Therefore, says the Appellant, that once the draft DPA Plan ceases to be effective, as provided for in s.20(6) of the Ordinance, and where the two exceptions do not apply to a prosecution under s.20(7) of that Ordinance, then the draft DPA Plan ceases to be effective. What is left, therefore, would be the draft OZP. In order to prove material change, therefore, the Prosecution has to prove the use of the land as at the date immediately preceding the gazetting of the draft OZP, and if that use is different from the use as at the date of the offence, the offence is, prima facie, made out by the Prosecution. It is therefore upon the Defence to show, on a balance of probability, the statutory defence of existing use as at the date immediately preceding the gazetting of the draft DPA Plan. This, the Appellant says, is the correct and proper interpretation of the Town Planning Ordinance.

21. Based on this argument, the Appellant says that since the learned Magistrate has made no specific finding as to the use of the land on the Site on 2nd June 1994, which is the date immediately preceding the notification in the Gazette of the draft OZP which included the Site in this case, this conviction cannot stand and the appeal should be allowed.

Construing the Ordinance

22. First of all, I approach the task of construing s.20(7) of the Ordinance by looking at the statutory scheme as a whole. From the decision of Litton V.-P. (as he then was) in the case of R. v. Power Straight Limited & Anr. [1995]3 HKC 402, it is eminently clear that the statutory scheme of the Ordinance is to impose a freeze on development from the time when a draft DPA Plan, or even an interim DPA Plan, takes effect. Interim DPA Plans are governed by s.26 of the Ordinance with which we are not concerned in the present case. The effect of a draft DPA Plan prepared under s.3(1)(b) of the Ordinance is such that an area designated in such a draft DPA Plan becomes a Development Permission Area under s.20 of the Ordinance. Even where the land, which is within a draft DPA Plan, becomes included in an OZP prepared under s.3(1)(a) of the Ordinance, that area or that land remains a Development Permission Area under s.20.

23. By s.20(5) of the Ordinance, a draft DPA Plan, whether or not it becomes an approved plan under s.9 of the Ordinance, is effective for a period of three years after notice of the draft DPA Plan is published in the Gazette. This three-year period may be extended for a further one year. Clearly, the freeze on development in a Development Permission Area is necessary to prevent development by private owners during the three or four years before the formulation of an Outline Zoning Plan.

Legislative Effect

24. The cornerstone of the Appellant's argument is that the draft DPA Plans have ceased to have effect under s.20(6). It is based on this that the Appellant says that the relevant date that should be looked at by the learned Magistrate is the date immediately preceding the gazetting of the OZP. This argument of the Appellant is premised upon the basis that the two exceptions provided for in s.20(6) do not apply in a prosecution under s.20(7). However, one of those two exceptions relates to the definition of 'unauthorised development' in s.1A of the Ordinance which reads :

"Unauthorised development means -

a) in relation to land included in a plan of a development permission area or described in section 20(7), development in contravention of this Ordinance."

From those words, s.20(7) is directly referred to and must, therefore, necessarily come within the exception provided for in s.20(6). Moreover, a development prohibited by s.20(7) must necessarily be a development in contravention of the Town Planning Ordinance.

25. Looked at in that light, a prosecution under s.20(7) must fall squarely within the exception provided for in s.20(6) and therefore, for that purpose, a draft DPA Plan does not cease to be effective in relation to that land when such a prosecution is brought under s.20(7), which is the very case here. For these reasons, the learned Magistrate was not wrong in using 11th July 1991 as the relevant date.

Grounds Three and Four

26. Again, grounds three and four could be dealt with together. The Appellant contends that the Magistrate could not in law infer from the evidence before him what the use of the land was for on 11th July 1991, alternatively that the Magistrate was wrong to have made such an inference as he did from the evidence before him as it was not a compelling inference. Reliance was sought from the words of Lord Diplock in R. v. Kwan Ping Bong [1979]1 HKLR 1, where he said at page 5 :

"But the inference must be compelling one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

In this respect, it was submitted that what was before the Magistrate were :

1) two aerial photographs, one taken in September, 1989 and the other in August, 1990, both of which show that the Site was used for trailer parking and open storage of wooden planks;

2) the evidence from PW3 who produced a land use survey carried out on 2nd January 1991 showing that the land was used for storage of timbers and vehicles;

3) an aerial photograph of the Site, taken on 16th July 1991, showing that it was used for trailer parking with a small part thereof used as a workshop, most likely for vehicle repairing, this aerial photograph was taken five days after 11th July 1991; and

4) the evidence of DW2 and DW3 whom the learned Magistrate described to be 'confused and unreliable' and 'of limited value'.

It was highlighted by the Appellant that there was no direct evidence as to the land use as on 11th July 1991 before the Magistrate.

27. Bearing in mind that what the Prosecution has to prove in this case was a material change in the use of land which is always a matter of degree and fact, and also bearing in mind that what the Prosecution was seeking to prove was a negative, namely, that the site in question at the relevant date was not used for depositing of containers or open storage of leathers, I am unable to say that it was wrong for the Magistrate to take into consideration evidence of the use of the land over a period of time, and then to infer from that evidence the use of the land as at the material date. Whilst it may be true that the closest aerial photograph, showing the use of the site at the relevant date, was one taken five days after the relevant date, that was not the only evidence from which the learned Magistrate came to his conclusion.

28. More importantly, the Magistrate had before him evidence from DW2, Mr Ng, that in July of 1991, there were only two staff employed by Luen Tai to run the whole Site, and that there was only one crane on the Site used for the unloading of containers. This evidence was contrasted with the evidence of DW1 as to the use of the Site at the date of offence, namely, that over 80 staff and two heavy duty cranes were employed, and that 150-200 containers were deposited at the Site, this evidence of DW2 lent heavy and cogent support to the learned Magistrate in drawing the inference that he did.

29. While it is also true that the learned Magistrate did describe the evidence of DW2 and DW3 as 'confused and unreliable' and also as 'of limited value', that was in relation to a very different part of their evidence which was not accepted by the learned Magistrate. It does not, however, preclude the Magistrate from accepting another part of their evidence as being true.

30. Accordingly, I have come to the conclusion that there was evidence before the learned Magistrate from which he could properly have drawn the inference that he did in relation to the use of the land on 11th July 1991, and, as I was informed by Counsel for the Appellant that Ground 5 would not be relied upon, therefore this appeal is dismissed.