R. v. CHEUNG KAM TONG and Another

IN THE COURT OF APPEAL

1996, No. 266   
(Magistracy Appeal)

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REASONS FOR JUDGMENT

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Mortimer JA (giving the reasons of the Court):

On 5 December 1996 we dismissed the appeals of the two appellants. We now give reasons.

2. The two appellants are owners of land in the New Territories. On 20 January 1995 they were each convicted by Mr Lim in the Tuen Mun Magistrates Court of an offence of failing to comply with an enforcement notice issued on 14 July 1993 under s.23(1) of the Town Planning Ordinance, Cap. 131. The failure to comply was in breach of s.23(6) of the Ordinance. The two summonses (and others) were heard together.

3. Each appealed to the High Court but on 20 September 1996 the appeals were referred to this Court by Gall J under s.118(1)(d) of the Magistrates Ordinance, Cap. 227.

The facts

4. Both the appellants were owners of land to which the notices applied. Cheung Kam-tong let his land under an unregistered tenancy agreement for 7 years in 1990. Keen Lloyd Ltd was the occupier of its land.

5. On 12 July 1991 notification was published of the Draft Pat Heung Development Permission Area Plan following an interim plan on 5 October 1990. Both plans included the land belonging to the appellants. The plans designated the land for (a) unspecified use and (b) village-type development.

6. It was agreed that the Development Permission Area Plan did not permit the appellants to use their land for either "site formation" or the "open storage of vehicles". Also, that neither appellant had made any application before or since the enforcement notices to use the land for those purposes.

7. It was also agreed that by 27 January 1993 the relevant land as well as land belonging to others had been fenced off and site formation works had already been completed.

8. The prosecution case was that neither appellant had complied with the enforcement notices between 15 October 1993 and 27 January 1994 because in breach of the plan there had been unauthorised development consisting of (a) site formation, and (b) open storage of vehicles.

The trial

9. The magistrate heard evidence on the use of the land from Peter Smith for the prosecution - an expert in town planning but not in aerial photography - and Dr Lai for the defence. The magistrate accepted that Dr Lai was able to give expert evidence to the limited extent of interpreting the aerial photographs of the land which were in evidence. The magistrate saw the aerial photographs himself but - because of Dr Lai's evidence - he approached them with great care.

10. These photographs demonstrated generally that before 5 October 1990 the land was not used for agriculture. It was covered with vegetation, but there was some evidence of soil movement. On 16 July 1991 and 28 April 1992, the photographs showed no significant changes save on the latter day there was some building debris on Lot 42 which belonged to Keen Lloyd.

11. By 28 May 1993 however, both witnesses agreed - and it was to be seen on the photograph - that consideration changes had taken place. Much of the land had been cleared of vegetation and paved with concrete. Numerous vehicles were parked there. Also, buildings had been constructed. Finally, there was a photograph of 28 December 1993 - in the middle of the period charged - which showed that there had been little change since May 1993.

12. Keen Lloyd called a driver Tse Wai-leung to say that he had worked as a driver for the company and had been parking vehicles on the land since 1990. This was intended to show that there had been no change of use since the publication of the plans. However, for the reasons he gave, the magistrate was unable to accept this evidence.

13. In summary, the magistrate was sure:

(i) That the enforcement notices had been properly served;

(ii) That the "existing use" of the land immediately before the publication of the Draft Development Permission Area Plan on 12 July 1991 was that the site was mainly covered by vegetation.

(iii) That by 28 May 1993 the use of the land had changed in that considerable construction work had been done and it was being used for the parking of numerous vehicles.

In these circumstances neither appellant had complied with the enforcement notices by discontinuing the development or seeking planning approval under s.16 of the Ordinance. On this basis the magistrate convicted.

The appeal

14. Mr Oderberg who appeared for the appellants took one point. He submitted that the magistrate wrongly assessed the evidence in finding that the open air storage of vehicles was not an "existing use" at the time the interim development plan was published and therefore to this extent the enforcement notice was not valid.

15. If reduced to its essentials the submission is that where the aerial photographs showed vegetation, it was not open to the magistrate to find that the land was not used for parking and storing vehicles. It is said that vehicles could have been parked beneath the vegetation and that Peter Smith's evidence to the contrary ought not to be accepted. The magistrate's ruling on Dr Lai as an expert witness is relied upon. He said:

"however since Dr Lai's expertise on aerial photograph is challenged by the prosecution, I must add that there is no evidence at all how Smith acquired any of his knowledge in aerial photography. That being the case, then surely Smith's expertise on aerial photography must be highly suspicious".

16. Further, Dr Lai's evidence - accepted by the magistrate - was that in the absence of actual inspection of the land aerial photographs do not show what is beneath the vegetation. Mr Oderberg finally contends that the judge ought to have accepted the evidence of the driver Tse that vehicles had been parked on the land since 1990.

17. We found these submissions unrealistic. The magistrate heard and saw the witnesses. He was unable to accept the driver's evidence and for this he gave reasons. He approached the aerial photographs with great care and he was able to examine the photographs and consider the evidence given both by Peter Smith and Dr Lai with the reservations he had in mind. It was not demonstrated in any way that the magistrate's consideration of the evidence or the witnesses was in any way flawed.

18. It is suggested that the magistrate was inconsistent when he said:

"I accept that one cannot see what it is underneath the vegetation from aerial photographs but to consider that there could be numerous vehicles parked thereunder will be unrealistic."

And later when he said:

"I also accept that one cannot determine accurately the exact situation unless a visit to the site is made."

But this does not invalidate his reasoning. He is stating the obvious. His conclusions however were based upon an assessment of all the evidence.

19. Mr Oderberg did not pursue ground 2 of his amended grounds of appeal.

20. For these reasons we dismissed both appeals.