Land use ruling opens way for stiffer penalties

PUBLISHED : Tuesday, 04 January, 2011, 12:00am
UPDATED : Tuesday, 04 January, 2011, 12:00am

Environmental groups have long argued that penalties imposed for illegal dumping and land use in the New Territories are too lenient to discourage offences which can yield big profits. They have certainly looked derisory at times compared with the maximums allowed by law - and the money to be made by flouting it. The courts take other factors into account, such as the history of offending and consistency of sentencing. But there can be no argument about how light penalties can weaken the deterrent effect of punitive maximums. The question remains whether the deterrent effect, if any, of lower-range penalties reflects trends in community awareness and concerns about town planning and protection of the environment.

There is mounting evidence that they do not. It is good therefore to see that the courts appear to be listening to public sentiment, if a recent case is any guide. Hopefully the message will get through to people who treat light penalties like a licence fee for illegal activities that have turned parts of the New Territories into an eyesore.

Last June, a magistrate imposed fines totalling HK$980,000 on 18 people for illegally developing a container storage on a one-hectare site in Ha Tsuen, Yuen Long. They had defied an order from the Planning Department to desist since 2008 after flattening and fencing land with a pond and vegetation. Two years ago, a similar case - except that the site was six times larger - resulted in 56 people being fined a total of only HK$680,000.

Not surprisingly, 12 owners and managers in the later case appealed against fines ranging from HK$30,000 to HK$100,000 each. The appeal failed, but the real significance lay in remarks by the appeal judge which appear to set a new standard for punishment of people who breach land-use rules. Deputy Judge Andrew Chan Hing-wai said the courts should focus on depriving offenders of illicit gains and pass sentences that act as deterrents.

He rightly pointed out that society's awareness of planning and environmental issues was increasing. The court had a responsibility to hand down punishments that were more of a deterrent to people who broke the law purely for personal gain. Moreover, he left little doubt that the defendants may have been fortunate not to have come before him for sentencing, saying that the magistrate had been lenient. Each of the defendants had been treated as if they had only one previous breach, although some had many. In future, he said, the level of fines should be rational and logical.

We trust Chan is not a lone voice. His views, after all, are not inconsistent with the usual approach of the courts to persistent and repeated offending for personal gain. Prosecutors should also seriously consider his suggestion that they help magistrates determine an appropriate fine by supplying information about the increased market rental value of a plot under illegal use.

A string of violations of development and environmental rules has heightened public awareness and concern. Last year, the average sentence imposed for unauthorised development ranged from HK$9,682 to HK$23,333, although the Town Planning Ordinance allows fines of up to HK$500,000 on first conviction. Understandably there have been calls for the government to introduce jail sentences, as there are for breaches under the Country Parks Ordinance, Forest and Countryside Ordinance and Lands (Miscellaneous Provision) Ordinance, which have lighter fines. The imposition of fines that fit the crime, as suggested by Chan, would be a sensible test whether this is necessary.