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Too lenient on illegal developers?

HONG KONG: To nature lovers, Hong Kong's countryside is priceless. But to the government and the courts, its value seems to be much lower. Depending on the case, penalties for environmental offences can range from no fine at all to just a few hundred dollars.

But with growing public attention on unauthorised development and environmental damage after a string of violations came to light, questions are being raised as to whether courts have been too lenient — and whether government departments should review cases where the penalties have been too light. Critics say higher fines and tougher sentences are needed.

"If the sentences are too lenient, they might send the wrong message to the wrongdoers — that their acts can be tolerated," Alan Leung Sze-lun, conservation manager of WWF Hong Kong, said.

Occupying government land could be a zero-penalty act, while removing the vegetation on it might cost just HK$400 (RM160.18) in fines. Even for serious violations such as dumping waste on the site, the penalty could be as little as HK$800.

Higher penalties are imposed but figures from the Planning Department, Lands Department, Agriculture, Fisheries and Conservation Department and Environmental Protection Department show they fall well below the maximum.

Last year, the average sentence imposed for unauthorised development ranged from HK$9,682 to HK$23,333, depending on the section used, though the Town Planning Ordinance allows fines of up to HK$500,000 on first conviction.

For illegal occupation of government land, fines over the past five years have ranged from zero to HK$10,000. The maximum is HK$50,000 under the Land (Miscellaneous Provisions) Ordinance.

And for dumping illegal construction waste, the highest fine imposed in 2009 was just HK$7,000. The maximum under the Waste Disposal Ordinance is HK$200,000. The average fine was just HK$2,411.

While the judiciary does not comment on whether sentences are too lenient, government figures show that fears light penalties could be fuelling further damage are not totally unfounded.

According to the Lands Department, the number of complaints about illegal excavation of government land rose from 47 in 2005 to 100 in 2009. Complaints about waste being dumped on government land rose from 213 in 2005 to 1,171 in 2009.

Of the five ordinances most frequently used to control illegal development and environmental damage in the New Territories, the Town Planning Ordinance has the heaviest fines — but it is the only one that does not provide for jail terms. It applies mainly to private land owners.

The Country Parks Ordinance, Forest and Countryside Ordinance and Lands (Miscellaneous Provision) Ordinance — all dealing with breaches on government land or protected areas — have much lighter fines but include jail terms. The Waste Disposal Ordinance has jail terms and the second-heaviest fines. But it is extremely rare for a court to hand down a jail sentence in such cases.

Even in the case of construction waste being dumped on farmland in Ho Sheung Heung in 2009, the offender was given an eight-month suspended sentence — not for unauthorised development or illegal dumping, but for criminal damage.

Bill Barron, an environmental economist with the University of Science and Technology, said the fines imposed seemed to be far lower than the profits the violations generated.

"Perhaps the most effective deterrent would be for the government to ask the courts to impose jail terms, particularly if it is a second offence or for cases involving the most serious and long-lasting damage," he said.

Barron said the alternative to jail sentences was to substantially increase the fines, as those involved in illegal use of country parks or sensitive rural land stood to make huge profits if they could get away with it.

But Tam Po-yiu, president of the Institute of Planners, said it was the light sentences imposed rather than the maximum penalties available that compromised the deterrent effect of the law.

He said there was no need to introduce a jail term to the Town Planning Ordinance as the fines were already enough — and it would likely encounter strong opposition. "Amending the ordinance will take huge effort and a long time. The maximum fine of HK$1 million is threatening. But few offenders are given heavy punishments," Tam said.

"Jail terms could sound too harsh to land owners who are innocent. In some cases, it is the occupiers who broke the law, not the owners, who could be too old to control their property or they are overseas," he said.

When the 71-year-old Town Planning Ordinance was amended in 1991, empowering it to regulate development in the New Territories, officials had intended to include jail sentences, but the idea was dropped because of opposition.

Four years later, in 1995, the maximum fine under the ordinance was raised from HK$100,000 to HK$500,000 on first conviction. A HK$1 million fine was also introduced for second conviction, but this maximum has never been handed down by a court. Whether this penalty, set down 15 years ago, is a sufficient deterrent to illegal development is open to debate.

Tam said offenders should be fined heavily for breaches in green belts and country parks as there was a general community consensus that these areas should be completely barred from development.

There are some signs of a more stringent approach to sentencing in the courts. In June, fines totalling HK$980,000 were imposed on 18 offenders convicted of illegally developing a container storage on a one-hectare site in Ha Tsuen, Yuen Long.

That penalty seemed tougher than that imposed in a similar case two years ago in which 56 people were fined a total of HK$680,000 for developing a site six times larger.

One official said harsher punishments were being meted out: "We hope the cost of illegal development will be significantly raised to reduce environmental damage." — South China Morning Post
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