HO SAU MUN AND ANOTHER v. HKSAR

FAMC000009/2003

FAMC No. 9 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 103 OF 2002)

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Between
	HO SAU MUN	1st Applicant
	HO SAU KING	2nd Applicant
	AND
	HONG KONG SPECIAL ADMINISTRATIVE REGION	Respondent

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Appeal Committee : Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing : 30 May 2003

Date of Determination : 30 May 2003

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1. We thank counsel for his diligence and arguments.

2. The applicants apply to have 6 points certified as questions of law of great and general importance for consideration by the Court of Final Appeal. They also apply for leave to appeal on the substantial and grave injustice ground.

3. The applicants were convicted of failing to comply with a statutory notice requiring them to discontinue the unauthorised development on the site owned by them, contrary to s.23(6) of the Town Planning Ordinance, Cap. 131. Failure to comply with the statutory notice was not disputed. It was accepted that the site was being used as a car repairing and storage centre. The issue at the trial was whether the prosecution had proved beyond reasonable doubt there was unauthorised development on the site which was not discontinued notwithstanding the statutory notice.

4. The prosecution's case was that there was previously no specific or regular use on the site. If that was the case, the use of the site at the time of the statutory notice as a car repairing and storage centre was an unauthorized development. The applicants tried to avail themselves of a statutory defence by alleging that what they were doing on the site was an existing use. The relevant date in determining the previous or existing use was 5 October 1990 which was the date when an Interim Development Permission Area Plan was gazetted.

5. The prosecution produced materials including some aerial photographs showing the different stages of development on the site which were taken on various dates since the relevant date and called a number of witnesses including an expert who was a Senior Town Planner of the Government to explain some of the aerial photographs. The applicants gave evidence and produced a large number of documents to support their allegation. The magistrate, having rejected the applicants' evidence as being incomplete and incapable of showing any existing use, was satisfied that the prosecution had proved its case beyond reasonable doubt.

6. We do not think any arguable questions of law arises. The case was decided entirely on the facts.

7. We are also satisfied that it is not reasonably arguable that there was any substantial and grave injustice in the way the magistrate dealt with this case.

8. The application for a certificate and for leave to appeal is therefore dismissed.

(Andrew Li)	(Kemal Bokhary)	(Patrick Chan)
Chief Justice	Permanent Judge	Permanent Judge

Representation:

Mr Shahmim K Khattak (alias Kelly Lam) (instructed by Messrs Ho and Wong) for the applicants

Mr Cheung Wai-sun and Miss Vinci Lam (of the Department of Justice) for the respondent