R. v. TANG YING HEI

IN THE HIGH COURT

1994, No. 864
Magistracy Appeal

and

1994, No. 1389
Magistracy Appeal

- Headnote -

Prosecutions under s23(6) Town Planning Ordinance - Whether designation of "unspecified use" in Development Permission Area plan is ultra vires the powers of the Town Planning Board - Whether landowners not proved to have been responsible for unauthorized development are liable to be prosecuted under s23(6) - Whether enforcement notice bad in law because of length of notice to comply - Whether notice told the recipient fairly what he had done wrong and what he had to do to remedy it.

Held: appeals against conviction and sentence dismissed.

IN THE HIGH COURT

1994, No. 864
Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. These are consolidated appeals. The appellants are land owners in the New Territories. The charges on which they stood convicted were brought under s23(6) of the Town Planning Ordinance on account of their failure to comply with enforcement notices issued under s23(1).

2. Section 23(6) reads:

"(6) Where, by the date specified in that regard in a notice under this section -

(a) the development has not been discontinued, a person who is served with the notice commits an offence 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".

3. The appellants in Magistracy Appeal No. 864 of 1994 are Tang Ying-yip and Yeung Fook-mui. The charges on which they stood convicted by Mr PC White at the Tuen Mun Magistracy involve four lots of land: Lot No. 1929 in DD125 (of which Tang Ying-yip is a co-owner) and Lot Nos. 1915 RP, 1916 and 1918 in DD125 of which the appellants are the personal representatives of the estate of the deceased registered owner. In Magistracy Appeal No. 1389 of 1994 the appellant Tang Ying-hei was charged and convicted by Mr AR Wright at the Tuen Mun Magistracy in respect of one lot: Lot No. 1929 in DD125 of which he and Tang Ying-yip are registered owners.

4. Tang Ying-yip and Yeung Fook-mui were, upon conviction, fined $25,000 each plus a daily fine of $100 for 147 days. Tang Ying-hei, the appellant in Magistracy Appeal No. 1389 of 1994, was upon conviction fined $20,000.

5. The five lots of land comprised in these two appeals form part of the "planning unit" with which the Planning Department was concerned in its enforcement action under the Town Planning Ordinance. The site was a container storage depot operated by a company called Shun Fat Container Terminal Ltd. The five lots became part of the site occupied by Shun Fat.

6. The site falls within an area designated "unspecified use" in the draft Development Permission Area Plan for Ha Tsuen (Plan No. DPA/YL-HT/1) published on 12 July 1991 under section 5 of the Ordinance. At that time the site was vacant agricultural land, covered with vegetation.

7. In early October 1992 an inspection of the site by officers of the Planning Department revealed that land-filling activity was in progress. This plainly constituted unauthorised development; the persons who undertook those operations were guilty of a criminal offence under s21(1) of the Ordinance. However, no proceedings under s21 were instituted: perhaps because the Planning Department was unable to find out who were the persons responsible for those unlawful operations.

8. In October 1992 the various registered owners, and the personal representatives of the estate of the registered owner, entered into tenancy agreements to lease the various lots for 5 years. This was clearly for the purpose of container storage. A clause in the tenancy agreements provided as follows:

"Upon the expiration of the lease, the possession of the open storage established on the above lot shall be surrendered to the landlord and the tenant shall not lay claims for compensation."

9. The photographs produced at the trial show the condition of the site at various times. Prior to the publication of the draft DPA plan, it was vacant agricultural land; by the end of November 1992 the site was a working storage depot for containers. Containers were stacked to a considerable height and cranes were in operation. On 25 November 1992 (exhibit P24) Shun Fat applied to the Town Planning Board for permission under s16 of the Ordinance to change the use of the site from "agricultural land" to "open storage". This application was rejected.

10. On 30 December 1992 the Director of Planning served on the appellants enforcement notices under s23(1) on the ground that there was unauthorised development on the land and required that, by 30 March 1993, the development should either be discontinued or that permission for the development should have been obtained under s16 of the Ordinance. It was failure to comply with those notices that led to the prosecutions in these two appeals.

11. In view of the submissions put on behalf of the appellants by Mr David PH Wong, solicitor for the appellants, I will need to revert to terms of the enforcement notices in greater detail later on.I now turn to the various arguments put on behalf of the appellants by Mr Wong. "Unspecified Use"

12. To constitute "unauthorised development", the development must be in contravention of the Town Planning Ordinance. This is clear from the definition of "unauthorised development" in s1A.

13. Here, the development was unauthorised, as alleged by the Crown, because the land falls within an area designated as "unspecified use" in the draft DPA plan and, as stipulated in the Notes to the plan, only very limited development is permitted in an "unspecified use" area without application to the Town Planning Board: the filling-in of agricultural land and the change of use to container storage were clearly not permitted without such application.

14. Mr Wong argues thus: The Town Planning Board's powers to prepare draft DPA plans are limited by s4(1) of the Ordinance. That section sets out nine specific "zones" under which limitations of use can be imposed. They range from:

"(a) streets, railways and other main communications; to

(i) zones or districts set apart for use for open storage"

15. The expression "unspecified use" is not referred to in s4(1). It follows, argues Mr Wong, that the designation of "unspecified use" in the draft DPA plan is beyond the lawful powers of the Board.

16. The argument is sound as far as it goes. It ignores the words which immediately come after subpara (i) in s4(1) as follows:

"and any matter whatsoever may be shown or provided for or specified in or in respect of the plans by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate; and any such diagrams, illustrations, notes and descriptive matter shall be part of the plans."

17. Mr Wong argues that those words can only properly be construed as providing for matters ancilliary to the zones described in paras (a) to (i); they hinge on the existence of a valid zoning designation in the first place and merely set out the means by which such zoning can more effectively be implemented. Mr Wong lays emphasis on the words: "by means of such diagrams, illustrations, notes or descriptive matter as the Board thinks appropriate"; thus where there is a specific zone such as "parks, recreation grounds and similar open spaces" - para (d) - the Board can lawfully put a freeze on development by means of notes or other descriptive matters; but without such specific zoning those general words are ineffective to prohibit development.

18. Mr Wesly WC Wong, counsel for the Crown, argues that a purposive approach must be adopted towards the construction of the legislation. He points out that the Town Planning Ordinance was amended after the High Court's decision in Singway Co. Ltd. v. Attorney General [1974] HKLR 275 and the words "... and any matter whatsoever may be shown or provided for or specified in ... the plans ... etc." were added to s4(1) to give wider and more flexible powers to the Town Planning Board, to enable the Board more effectively to fulfill the objectives set out in s3(1): "... the promotion of the health, safety, convenience and general welfare of the community ...". Counsel for the Crown argues thus: If those words are given a wide and liberal construction then, plainly, they empower the Board to show "unspecified use" areas in the draft DPA plan and to restrict use generally in such areas by means of notes. This, he says, is precisely what the Board has done.

19. Mr Wong for the appellants counters the argument by saying: if the legislature, by those general words, had intended to give to the Board virtually unlimited powers of zoning, why have paras (a) to (i) at all? Why bother with specific zones such as "parks, recreation grounds and similar open spaces"?

20. The answer to the last point, in my judgment, is simply this: the powers given by the legislature to the Board have evolved in the course of time, as the scope of responsibility of the Board increased with the growing urbanisation of the territory. The words "... and any matter whatsoever ... etc." were added to s4(1) in 1974, to counteract the decision of the High Court in Singway Co. Ltd. v. Attorney General. Prior to those amendments, the zoning categories ended with para (f). It would have been highly confusing if, in an effort to increase the powers of the Board, the legislature had deleted paras (a) to (f), relying simply upon the generality of the additional words "... and any matter whatsoever may be shown ... etc.".

21. In my judgment, the construction contended for by Crown Counsel is plainly correct. I am reinforced in my view by this consideration: if Mr Wong's argument be right, not only must the enforcement notices served in the present cases be unlawful; the statutory control of development in the New Territories introduced by the concept of DPA plans would be rendered largely nugatory. It would have enormous social consequences. The whole object of control through draft DPA plans - authorised by s3(1)(b) - is to enable detailed analysis of land use and examination of development options to take place pending the formulation of outline zoning plans under s3(1)(a). Hence, a draft DPA plan is effective only for three years (subject to a further extension of one year by the Governor-in-Council). It is contrary to the whole concept of DPA plans for detailed land use to be indicated on the plans. This point is illustrated by the Explanatory Statement to the draft DPA plan in this case (exhibit P4): In relation to the sub-area in which the site of the Shun Fat container terminal falls, one sees this statement:

"The planning intention for this area is primarily to promote low-rise and low-density residential development which is compatible with the adjacent village type development. Comprehensive low-density residential development proposals with supporting facilities would be considered upon the submission of applications for planning permission. There are tentative proposals for open space development. However, this development will be guided by layout plans to be prepared by the Planning Department".

22. In these circumstances, it would have been unrealistic to designate the area with anything more precise than "unspecified use" when the draft DPA plan was published in July 1991.

23. In these appeals, both magistrates came to the view that the designation of "unspecified use" by the Board fell within "any matter whatsoever" in s4(1). I agree with them.

Landowner's responsibility for unauthorised development

24. Section 23(1) of the Ordinance states:

"23(1) Where there is or was unauthorized development, the Authority may, in a notice served on one or more of a land owner, an occupier or a person who is responsible for the unauthorized development -

(a) specify the matters that constitute or constituted the unauthorized development; and

(b) specify a date by which if the unauthorized development has not been discontinued, the Authority requires -

(i) it to be discontinued; or

(ii) permission for the development to be obtained under section 16."

25. The appellants' argument, as advanced by Mr Wong, is this: The words "who is responsible for the unauthorized development" qualify both the category of "land owner" and "occupier" in s23(1); accordingly, land owners, such as these appellants, who have not been proved to have been responsible for the unauthorized development are immune from prosecution under s23(6)(a).

26. Is this interpretation of s23(1) correct? Without resorting to any "cannons" of construction of statutes, it seems to me as a matter of plain language that such argument is wrong. If the intention is simply to fix liability upon persons responsible for unauthorised developments and no one else, the section would have simply said so. There would have been no need to add the words "a land owner" and "an occupier".Both magistrates rejected this argument. I agree with them.

27. There is nothing harsh or odd in the result, as Mr Wong contends. Land owners can, generally-speaking, control development upon their own land. It would be a 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 realise 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.

28. Plainly, the policy behind s23(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.

29. The statute with which I am concerned in these appeals deals with issues of social concern. Whilst the means of compliance with the statutory objectives is through the criminal justice system, nevertheless, criminal intent is not an inflexible ingredient: the presumption of the criminal law that mens rea must be present can, in cases such as these, be displaced: see Reg. v. Collett [1994]1 WLR 475 at 484-H.

30. In my judgment there is no requirement that a land owner must be shown to have been responsible for an unauthorized development before he can be prosecuted under s23(6)(a). The wording of s23(6) itself is consistent with this view. It fixes liability on the person "who is served with the notice", not on him or her who is responsible for the unauthorised development.

Period of notice

31. The enforcement notices in these appeals are all dated 30 December 1992. They required that by 30 March 1993 the development be discontinued or permission for the development be obtained under s16.

32. Mr Wong's argument is this: By the date of the notices, 30 December 1992, possession of the various lots had already passed to the tenant; for anything effective to be done to comply with the notices the land owners had first to regain possession; it was wholly unrealistic to expect that the owners could have complied with the notices by 30 March 1993.

33. This argument fails to take into account the provisions of s23(9)(a). It must be remembered that, on a s23(6) prosecution, the defendant can always raise the "all reasonable steps" defence under s23(9)(a). The shortness of the period of notice would clearly be a "circumstance" which a court must take into account if the defence were raised. If, within the constraints of time set out in the notice, the land owner had taken all reasonable steps to comply the notice, then his defence must succeed. It is impossible to lay down any hard-and-fast rules as to what those steps might be. In argument, the question of the issue of a writ of possession by the land owner was raised. This might well be all that a reasonable owner can do, if the period for compliance in the notice were exceedingly short.

34. Here, the owners simply did nothing. In the case of Tang Ying-hei, the appellant in Magistracy Appeal No. 1389/94, he says that he only became aware of the service of the notice after the period for compliance had expired. The question as to what he might have done within the period of three months prescribed by the notice simply never arose in his case. Since mens rea is not relevant to a prosecution brought against a land owner under s23(6) it follows that the absence of knowledge affords no defence in his case.

35. The question then arises: Was the period of three months for compliance, as set out in the notices, so short, having regard to the statutory scheme, that the court must find them intrinsically bad? The notices required the unauthorised development to be discontinued, unless permission under s16 be granted for the development, within 3 months. Under s16(3) the Board must, on receipt of an application, consider it within two months. Here, what happened was this: Shun Fat made a s16 application to the Board and was only told on 17 March 1993 that the Board had rejected the application. This, Mr Wong argues, illustrates the point that the notice was intrinsically bad: it plainly left the owners no time to take steps to comply.

36. I do not accept this argument. Whether it was reasonable for the owners, in terms of s23(9)(a), to have sat back and waited until the Board had disposed of Shun Fat's application under s16 is wholly academic. The fact is, they simply did nothing. This is not a case where the owner has taken a conscious decision to wait until after the Board had considered the s16 application before he acted in compliance. The question whether he had "taken all reasonable steps in the circumstances" might then have been open to debate. It does not arise here.

Service of notice: Magistracy Appeal No. 1389/94

37. In relation to Tang Yin-hei, the appellant in Magistracy Appeal No. 1389/94, a question arose in the court below as to whether the enforcement notice had been lawfully served. The Crown relied upon s23(10) which states:

"(10) A notice under this section may be served on a person ... by posting it in a prominent position -

(a) on or near the land; or

(b) on any premises or structure on the land,

affected by the notice."

38. The appellant's land, Lot No. 1929, is a rectangular lot and lies in the middle of the site occupied by Shun Fat. The enforcement notice was, on the prosecution case, served on 30 December 1992. By that time, the site was an operating container storage depot and the surface of the site was covered with stacked containers. Lot No. 1929 was no longer distinguishable. What happened was that the notice was posted on the gate leading into the terminal. There was only one gate, at the entrance leading to Ping Ha Road.

39. On these facts, the magistrate was satisfied that the notice had been posted in a prominent position near the land, in compliance with s23(10)(a). I agree with him.

Legal effect of the enforcement notices

40. This brings me to the main point of these two appeals. To appreciate the point, it is necessary to consider what it was that the appellants were required to do, since it is failure to comply with the requirement of the notice which constituted the offence under s23(6)(a).

41. The notices were in standard form and they state:

"NOTICE UNDER SECTION 23(1)

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 and other operations described in Schedule 2 below and it appears to the Authority that the development:

(i) did not exist before the Ha Tsuen Interim Development Permission Area Plan (No. IDPA/YL-HT/1) was gazetted on 17 August 1990.

(ii) is not permitted under the plan of the Ha Tsuen Development Permission Area (No. DPA/YL-HT/1) which was gazetted on 12 July 1991.

(iii) 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 30 March 1993,

(i) the development shall be discontinued; or

(ii) permission for the development shall be obtained under section 16 of the Ordinance.

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 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

Illegal land-filling and container storage."

42. In each case, the information laid against the appellant alleged failure to comply with the notice during the period set out in the information. It was that failure, during that period, amounting to 147 days, which led the magistrate in Magistracy Appeal No. 864/94 to impose the daily fine of $100 each for 147 days.

43. The heart of the complaint in each case is "unauthorised development". This expression is defined in s1A to mean:

"(a) In relation to land included in a plan of a development permission area ..., development in contravention of this Ordinance; ..."

"Development" means :

"carrying out building, engineering, mining or other operations in, on, over or under land, or making a material change in the use of land or buildings".

44. As can be seen, the expression "development" in the Ordinance has a two-pronged meaning: it comprises the carrying out of operations or the making of a change in the use of land.

45. "Operations" in this context means that something is done to the land. This is to be contrasted with "use" where the physical character of the land would not normally be substantially changed: for instance, the stacking of containers. It may be helpful, in this regard, to refer to my own judgment in Magistracy Appeal No. 1396 of 1994, delivered today, where this point is explored in greater depth.

46. The point which Mr Wong, solicitor for the appellants, makes on these appeals is this: The "operations" complained of occurred in early October 1992; the operations could have been "discontinued" if the enforcement notices had been served promptly. However, by the time the notices came to be served, on 30 December 1992, the land-filling operations had been long since been completed and there was simply nothing which the owners could have done to comply with those notices.

47. Mr Wong draws attention to recital (2) in the enforcement notice which specifies the "unauthorised development" as "the carrying out of engineering and other operations described in Schedule 2". He argues thus: for a notice to be valid under s23(1)(a) it must "specify the matters that constitute or constituted the unauthorized development"; the only "operations" described in Schedule 2 were "land-filling"; container storage was admittedly a material change in the use of the land, but, Mr Wong argues, the complaint "specified" in the enforcement notice was not "change in the use of the land" but "engineering and other operations". Hence, he argues, the enforcement notices were bad in law.

48. Crown counsel argues that isolated words in the enforcement notice must not be construed too literally. So long as the notice tells the recipient fairly what he has done wrong and what he must do to remedy it, the notice is good. He relies in this regard on the dictum of Lord Denning MR to this effect in Munnich v. Godstone Rural District Council (1966) 1 WLR 427 at 435-H.

49. Looking at the enforcement notice broadly, what does it say? It tells the land owner, in the first place, that there has been unauthorised development on his land. In substance, two complaints are made: unauthorised land-filling and unauthorised container storage. Whilst, by the time the notice was served, the land-filling could not have been "discontinued", since the operations were completed, the storage of containers plainly could be discontinued. Can it be said that, to that extent, the notice was a valid notice under s23(1)?

50. In considering this question, I bear the following fact in mind. Accompanying the enforcement notice was a letter (in both languages) which said:

"It appears that the land-filling and container storage activities have been undertaken or continued after 17 August 1990 [date of the Interim DPA plan] on the captioned site and that such development is neither permitted in terms of the said Plan nor permitted in terms of a permission granted under s16 ..."

51. Any fair-minded person reading the enforcement notice and, perhaps, advising the recipient thereon, would have been under no illusion that container storage was regarded as "unauthorized development" and that this must be discontinued by 30 March 1993 unless permission under s16 had, by then, been obtained. The words in recital (2) of the notice: "consists of the carrying out of engineering and other operations ..." cannot, in my judgment, be construed as restricting the complaint to land-filling only, when the enforcement notice is read as a whole: particularly alongside the letter of the same date. Those words were wholly unnecessary. The notice would have been equally effective if it had simply said: "The unauthorized development is described in Schedule 2 below ...". To put a label "operations" or 'use" on the unauthorized development adds nothing to the substance of the complaint. It simply gives rise to the kind of argument which I have entertained in this case. Mr Wong was right to raise the point but, in the end, I agree with the magistrates in the two appeals that the point must fail The notice was clear enough as to what had to be done, as far as container storage was concerned.

Conclusion

52. For the reasons I have given, these appeals are dismissed.

Appeals against sentence

53. The magistrates have far greater experience in dealing with prosecutions brought under s23(6) than the High Court. Unless the sentences are shown to be wrong in principle or manifestly excessive, this court would not interfere.

54. Deterrence is an important consideration if the legislation is to be effective. Heavy fines could encourage land owners to be more vigilant to prevent unauthorized development. On the facts before the magistrates, it is clear that the appellants envisaged at the outset that container storage operations would take place on their land. They must have known that, for this to be lawful, there had to be an authorised change of use. It would have been a simple matter to apply to the Board first, if they had really thought that there was a real prospect of the Board allowing use for container storage. But these owners made no application.

55. Mr A.R. Wright in Magistracy Appeal No. 1389/94 was more lenient in sentencing than MR. P.C. White in Appeal No. 864/94: he considered the appellant Tang Ying-hei's record of public service and the fact that the offence was one of strict liability. Both magistrates referred to sentences imposed in similar cases and pitched the punishments accordingly. They have not erred in principle. Nor are the sentences manifestly excessive. This court cannot interfere.

56. The appeals against sentence are dismissed.