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Statement by Director of Public Prosecutions

     The following is a statement issued by the Director of Public Prosecutions, Mr David Leung, SC, today (December 21) on the case of Houses 3 and 4, Villa de Mer, Tuen Mun (the houses owned by the Secretary for Justice, Ms Teresa Cheng, SC, and her husband Mr Otto Poon Lok-to):
 
Introduction
 
     On December 27, 2017, the Buildings Department (BD) received a media enquiry about suspected unauthorised building works (UBWs) at certain units at Villa de Mer, 5 Lok Chui Street, Tuen Mun, including Houses 3 and 4 (House 3 and House 4 respectively).  At the material times, House 4 was owned by a company with the Secretary for Justice, Ms Teresa Cheng, SC (Ms Cheng), as the sole director, while House 3 was owned by Mr Otto Poon Lok-to (Mr Poon), the husband of Ms Cheng, and Ms Karen Poon Wing-yun (Ms Poon).
 
     In early January 2018, in order to avoid any possible perception of bias, partiality or improper influence, the Secretary for Justice delegated to the Director of Public Prosecutions (DPP), Mr David Leung, SC, the authority to handle all prosecutorial matters relating to any reports, allegations and complaints in the matter, including (should it become necessary to do so) the decision as to whether any prosecution action should be commenced against any persons involved in the present case. 

     On January 9, 2018, BD officers conducted an on-site inspection of both Houses 3 and 4 and identified various UBWs. After conducting investigation and preparing the necessary investigation report and seeking experts’ opinion, on November 23, 2018, BD submitted the investigation file to the Prosecutions Division of the DoJ for legal advice. BD recommended prosecuting Mr and Ms Poon in respect of the UBW at House 3 but not prosecuting Ms Cheng in respect of the UBWs at House 4.  

     To avoid possible perception of bias, the DPP decided to instruct a Senior Counsel at the Bar of Hong Kong. On November 29, 2018, the DPP instructed Mr Edwin Choy, SC, who has no conflict of interest in this case, to provide an independent opinion on the sufficiency of evidence to institute a criminal prosecution in relation to the UBWs at House 3 and House 4.  

     On December 19, 2018, the DPP received a finalised advice from Mr Choy who advised that while there is a reasonable prospect of conviction against Mr Poon for the UBW, namely a pool structure (approximate size 2.5metres x 4.65m x 1.24m(H)), at House 3, there was insufficient evidence to establish a reasonable prospect of conviction against (1) Ms Cheng in relation to the UBWs at House 4 and (2) Ms Poon in relation to the UBWs at House 3.  

     Having considered the advice of the Senior Counsel, the evidence submitted by BD, the applicable law and the principles in the Prosecution Code, the DPP agreed that there was insufficient evidence and hence no reasonable prospect of conviction against (1) Ms Cheng with regard to the UBWs at House 4 and (2) Ms Poon in relation to the UBWs at House 3, but there is a reasonable prospect of conviction against Mr Poon for the UBW at House 3.   

     Since the UBWs in respect of House 3 came to the notice of BD on December 27, 2017, pursuant to section 40(8) of the Buildings Ordinance, Cap 123, the time limit for prosecution falls on December 27, 2018. In this regard, information has been laid to apply for summons against Mr Poon for the offence of “Knowingly commenced or carried out building works, without having first obtained from the Building Authority his approval and consent in writing” contrary to sections 14(1) and 40(1AA) of the Buildings Ordinance, Cap 123. 

Prosecution Criteria

     According to the Prosecution Code, a prosecutor must consider two issues in deciding whether to prosecute.  First, whether there is sufficient evidence to justify instituting or continuing proceedings. Second, if there is sufficient evidence, whether the public interest requires a prosecution to be pursued.  A prosecution should not be instituted or continued unless the prosecutor is satisfied that there is legally sufficient evidence to support a prosecution: that is, evidence that is admissible and reliable and, together with any reasonable inference able to be drawn from it, likely to prove the offence. The test is whether the evidence demonstrates a reasonable prospect of conviction.  In the present case, the decision not to prosecute is solely based upon insufficiency of evidence. 

     For an offence contrary to sections 14(1) and 40(1AA), the prosecution must prove that the subject person has knowingly commenced or carried out any building works without having first obtained from the Building Authority his approval and consent in writing. In the present case, the main issues are (a) whether the UBWs identified at the respective houses were built after Mr and Ms Poon and Ms Cheng had assumed ownership of their respective properties; and (b) if so, whether they knew (i) those structures were built on their respective property at the material time; and (ii) they were built without the requisite consent or approval. 

House 3
 
     As the proceedings against Mr Poon in respect of the UBW at House 3 have been instituted, it is not appropriate to comment further on the matter or the detailed reasons of insufficiency of evidence against Ms Poon. 

House 4
 
     The BD has identified the following UBWs at House 4: 

(a) a rooftop structure, a horizontal extension at the Ground Floor, an L-shape glass canopy outside G/F carpark, a garden deck, a small canopy and cover screens;

(b) a basement; and

(c) other relatively small UBWs, including:

i. supporting frames for air-conditioners;
ii. a reinforced concrete cabinet;
iii. additional partitions;
iv. glass protective barriers; and
v. a supporting antenna frame.
 
     For the rooftop structure, the horizontal extension at the Ground Floor, the L-shape glass canopy outside G/F carpark, the garden deck, the small canopy and cover screens, aerial photographs taken in November 2007 and July 2008 show that these UBWs had been constructed before Ms Cheng’s company became the registered owner of House 4 on October 23, 2008. 

     For the basement, according to expert opinion, there is no reliable testing method capable of assessing the age of concrete structure to a precise period of time.  Judging solely on the existing condition of the concrete structure, it is not possible to evaluate or estimate the date of construction of the basement.  There is also other evidence which suggests that the basement had been constructed before Ms Cheng purchased House 4.  For the reasons set out in paragraph 23.4(d) and (e) of the Prosecution Code (Note 1), it would be inappropriate to divulge details of such other evidence.
 
     For the other relatively small UBWs, it is not possible to ascertain from the aerial photographs or other available evidence when they were constructed. 

     Other alterations and modifications found at House 4, for example, the door opening at the fence wall between House 3 and House 4, are exempted works under section 41 of the Buildings Ordinance, Cap 123. 

     Mr Choy, having carefully considered all the available evidence and materials, advised that there was no evidence to suggest that the UBWs were constructed after Ms Cheng had purchased House 4 or that she had knowingly commenced or carried out UBWs after she became the owner. Hence, Mr Choy concluded there was insufficient evidence to warrant a charge of “Knowingly commenced or carried out building works, without having first obtained from the Building Authority his approval and consent in writing” contrary to sections 14(1) and 40(1AA) of the Buildings Ordinance, Cap 123, against Ms Cheng. 

     The decision not to institute prosecution against Ms Cheng in respect of the above UBWs has been made in accordance with the Prosecution Code and the applicable law.

Disclosure of Reasons for Decision 

     The decision taken has been explained, in accordance with the principles in paragraph 23 of the Prosecution Code, so that the public are fully and properly informed about this case which has been the subject of public concern. 
 
David Leung, SC
Director of Public Prosecutions
Department of Justice
December 21, 2018
 
Note: Whilst references are made to legal advice in this Press Statement, neither the BD nor the DoJ waives any legal professional privilege.

Note 1: 
Paragraph 23.4(d): “may expose information given confidentially or sensitive information, the exposure of which may give rise to legitimate concern to individuals”; and
Paragraph 23.4(e): “may be contrary to protections given by the Personal Data (Privacy) Ordinance, Cap 486”. read more

Draft Kam Tin South Outline Zoning Plan approved

     The Chief Executive in Council has approved the draft Kam Tin South Outline Zoning Plan (OZP).
      
     “The approved OZP provides a statutory land use planning framework to guide the development and redevelopment in the Kam Tin South area”, a spokesman for the Town Planning Board said today (December 21).
      
     The planning scheme area covers about 785 hectares of land. It is bounded by Shek Kong Barracks and Ma Pau Ling in the east, Kam Tin Road in the north, Ho Hok Shan in the west and Tai Lam Country Park in the south.
      
     An area of about 2.51 hectares to the east of West Rail Kam Sheung Road Station is zoned “Comprehensive Development Area” (CDA), which is intended primarily for comprehensive development/redevelopment of the area for residential use with supporting facilities. The northern part of the CDA site will be designated as a landscaped area for public use.
      
     About 16.03 hectares of land are zoned “Residential (Group A)” for medium-density public housing developments. Other residential sites in the area include “Village Type Development” zone (about 119.14 hectares) for the existing villages and areas suitable for village expansion, “Residential (Group C)” zone (about 11.74 hectares) for low-rise, low-density residential developments and “Residential (Group D)” zone (about 31.96 hectares) to encourage residential upgrading of the existing temporary domestic structures to permanent buildings.
      
     To serve the needs of the local population, about 8.80 hectares and 3.20 hectares of land are zoned “Government, Institution or Community” and “Open Space” respectively.
      
     A site of about 0.17 hectares near the junction of Kam Sheung Road and Pat Heung Road is zoned “Commercial” for commercial developments functioning mainly as local shopping centre serving the neighbourhood.
      
     Five areas with a total area of about 59.93 hectares are zoned “Other Specified Uses” (OU). These include an area zoned “OU (Railway Station and Public Transport Interchange with Commercial/Residential Development)”, an area zoned “OU (Railway Depot with Commercial/Residential Development)”, an area zoned “OU(Rural Use)” and two other OU sites earmarked for petrol filling stations.
      
     About 221.96 hectares of land are zoned “Agriculture” to safeguard good quality agricultural land/farm/fish ponds and to retain fallow arable land with good potential for rehabilitation for cultivation and other agricultural purposes. Some 258.81 hectares of land are zoned “Conservation Area” to protect and retain the existing natural features of the area. About 1.67 hectares of land are also zoned “Green Belt”.
      
     The approved Kam Tin South OZP No. S/YL-KTS/15 is now available for public inspection during office hours at the Secretariat of the Board; the Planning Enquiry Counters of the Planning Department in North Point and Sha Tin; the Fanling, Sheung Shui and Yuen Long East District Planning Office; the Yuen Long District Office; the Kam Tin Rural Committee and the Pat Heung Rural Committee.
      
     Copies of the approved OZP are available for sale at the Map Publications Centres in North Point and Yau Ma Tei. The electronic version of the plan can be viewed at the Board’s website (www.info.gov.hk/tpb). read more

Draft Tuen Mun Outline Zoning Plan approved

     The Chief Executive in Council has approved the draft Tuen Mun Outline Zoning Plan (OZP).
      
     “The approved OZP provides a statutory land use planning framework to guide the development and redevelopment within the Tuen Mun area,” a spokesman for the Town Planning Board said today (December 21).
      
     The planning scheme area, covering an area of about 2 260 hectares, is bounded by the ridges of Castle Peak to the west, Lam Tei Interchange of Castle Peak Road to the north, and Tai Lam Country Park to the east. To the southeast the area extends to Siu Lam Interchange of Tuen Mun Road, while to the southwest it extends to Tap Shek Kok.
      
     About 275.8 hectares of land are zoned “Residential (Group A)” for high-density residential developments. Some 140.8 hectares of land mainly located at the periphery of the New Town is zoned “Residential (Group B)” for medium-density residential developments. Some 1.4 hectares of land is zoned “Residential (Group C)” for low-rise, low-density residential developments. About 2.4 hectares of land is zoned “Residential (Group E)” for government quarters development.
      
     A total of about 89.7 hectares of land are zoned “Village Type Development” consists of existing villages, and land for their expansion.
      
     Some 25.4 hectares of land are zoned “Comprehensive Development Area” (CDA). Six CDA sites in Areas 9, 55, 56 and 59 have been designated for comprehensive developments mainly for residential use in view of environmental and infrastructure considerations.
      
     Some 42.1 hectares of land are zoned “Industrial”, which is intended for general industrial uses, information technology and telecommunications industries, and offices related to industrial use. 
      
     About 1.1 hectares of land are zoned “Commercial” for commercial developments, mainly for local shopping centre development serving the immediate neighbourhood.
      
     Some 319 hectares of land are zoned “Other Specified Uses” mainly to provide or reserve land for specific uses such as a Light Rail Transit terminus and associated comprehensive development, River Trade Terminal, pier, resource recovery park, business, public recreation and sports centre facilities, container and cargo handling and storage area, special industries etc. 
      
     Some 28.1 hectares of land, comprising the existing breakwater and an adjoining proposed reclamation area at Sam Shing Wan, and an area in Tuen Mun Area 46 to the north and west of the proposed Tuen Mun Chek Lap Kok Link toll plaza area, are zoned “Undetermined”, which requires detailed planning studies to identify future land uses.
      
     To provide government, institution or community facilities to serve local, district and/or territorial needs, about 234.2 hectares of land are zoned “Government, Institution or Community”. Some 112.6 hectares of land are designated as “Open Space” for both active and/or passive recreational uses. In addition, about 0.4 hectares of land is zoned “Recreation” for recreational developments for the use of the general public.
      
     The “Green Belt” zone, with an area of about 731.8 hectares, serves to define the limits of urban and sub-urban development areas with natural features and to contain urban sprawl as well as to provide passive recreational outlets. Moreover, about 42.7 hectares of land are zoned “Site of Special Scientific Interest” to conserve and protect the features of special scientific interest.
      
     The approved Tuen Mun OZP No. S/TM/35 is now available for public inspection during office hours at the Secretariat of the Board, the Planning Enquiry Counters of the Planning Department in North Point and Sha Tin, the Tuen Mun and Yuen Long West District Planning Office, the Tuen Mun District Office and the Tuen Mun Rural Committee.
      
     Copies of the approved OZP are available for sale at the Map Publications Centres in North Point and Yau Ma Tei. The electronic version of the plan can be viewed at the Board’s website (www.info.gov.hk/tpb). read more

Communications Authority press release

The following is issued on behalf of the Communications Authority:

     This press release summarises the decisions of the Communications Authority (CA) following its 81st meeting, held in December 2018:

Broadcast complaints
————————

     The CA considered two complaint cases in respect of broadcasters’ non-compliance with the Generic Code of Practice on Television Advertising Standards (TV Advertising Code) and the Radio Code of Practice on Programme Standards (Radio Programme Code):
 
(a) complaints against the television advertisement for “Chewy – Kumai Premium American Pearl Rice” broadcast on August 6 and 7, 2017 on the Chinese Channel of Fantastic Television Limited, and on August 17, 2017 on now TV News Channel of PCCW Media Limited respectively. The CA decided that the two licensees should be advised to observe more closely the relevant provision in the TV Advertising Code; and

(b) complaints against the radio programme “Crazy & Happy” broadcast on July 11, 2018 on Radio 2 Channel of Radio Television Hong Kong (RTHK). The CA decided that RTHK should be advised to observe more closely the relevant provision in the Radio Programme Code.

     Details of the above cases are at Appendix. read more