HKSAR v. KINGS VIEW CO LTD

HCMA315/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.315 OF 2005

(ON APPEAL FROM ESS 17266 AND 17268 OF 2004)

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J U D G M E N T

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Background

1. The appellant Kings View Company Limited was summoned for two offences before a magistrate for failing to comply with a Fire Safety Improvement Direction, contrary to section 5(7)(b) of the Fire Safety (Commercial Premises) Ordinance, Cap.502 (“the Ordinance”).

2. On 6 January 2005, the appellant company was convicted of both offences after trial in the Eastern Magistracy.  The appellant applied to review the magistrate’s decision under section 104 of the Magistrates’ Ordinance.  On 7 March 2005, the magistrate rejected the application and confirmed the convictions.  The appellant now appeals against both convictions.

3. A significant part of the prosecution’s case at the trial was presented by way of agreed evidence pursuant to section 65C of the Criminal Procedure Ordinance.  The prosecution called only one witness at the trial who gave evidence as an expert on safety tests involving the Fire Resistance Period (“FRP”) on doors. 

4. At the material time, the appellant was the registered owner of the commercial premises located respectively on 9^th and 10^th floors of a building at Li Yuen Street West, Hong Kong.  It is common ground that the premises were subject to the provisions of the Ordinance.

The Directions and subsequent communications

5. On 13 October 1999, the Buildings Department (“the Department”) issued and served two Fire Safety Improvement Directions (“the Directions”) on the appellant in respect of the two units of which the appellant was the owner.

6. The material parts of the two Directions read :

“	1.	TAKE NOTICE that under Section 5 (1A) of the Fire Safety (Commercial Premises) Ordinance the Director of Buildings, being in the opinion that the building at Nos. 9, 11 & 13 Li Yuen Street West, Hong Kong (address of the specified commercial building) is a specified commercial building within the meaning of Section 3(1) of the Fire Safety (Commercial Premises) Ordinance does hereby require you, as the owner …. to provide or improve therein the fire safety construction requirements specified as follows :-
	…
		Fire doors each having a fire resistance period of not less than half-hour to the unit entrance. …”

There is also a note appended to the Directions which provides :

“Except in compliance with Tables A to F of the Code of Practice for Fire Resisting Construction 1996, certificates should be produced to demonstrate that the door, material or construction are capable of resisting the action of fire for the specified period.”

7. On 11 and 21 September and also on 11 October 2000, a consultant appointed by the appellant wrote to the Department requesting an extension of time for the appellant to comply with the Directions.  Pursuant to the request, time for compliance was extended to 28 April 2001.

8. On 23 April and 10 July 2001, staff of the Department inspected the premises and found that no works for fire safety improvement had been undertaken.  On 7 May 2002, a warning letter was issued to the appellant.

9. On 12 November 2002, staff of the Department again inspected the premises and again found that no works for fire safety improvement had been undertaken.  A second letter of warning was issued on 5 March 2003.

10. Subsequent inspections by staff of the Department in March, April, October and November 2003 again revealed that no works had been carried out.  On 27 January 2004, a third warning letter was issued to the appellant.

11. On 12 February 2004, the appellant replied by letter :

“We are very much surprised to [sic] your letter of 27 Jan 2004.

Quite sometime ago your representative had attended the above premises.  [I]mprovement work to the wooden doors had been shown to him.  Moreover, it had been pointed out to him that apart from the wooden door, there is a steel door in front of the wooden door.  Therefore, there is no question of meeting the requirement that the doors have [sic] a fire resistance period of not less than half-hour. Your representative was also invited by us to take pictures of the doors and which he did.

We trust the above would end this matter.”  [emphasis added]

For the first time the appellant indicated that they had complied with the requirement to install fire safety doors as stated in the Directions issued in October 1999.  As can been seen in the body of the letter there was an assertion by the appellant that the doors had a FRP of not less than half-hour although there was no test report or any other type of documentation submitted along with the letter in support of the assertion.  In fact it was common ground at the trial that no report or certificate regarding the FRP of any door was ever submitted by the appellant.

12. In response to the appellant’s letter of 12 February 2004, the Department issued a reply on 18 February 2004 reminding the appellant that :

“Certificates and tests reports should be submitted to demonstrate that the doors, material or construction are capable of resisting the action of fire for the specified period upon completion.”

The appellant was also reminded in unequivocal terms that :

“3.	If you did have provided fire doors to your premises according to the above Directions, please submit the corresponding certificates and test reports as soon as possible so that we can discharge the Directions. ….”

13. The appellant responded on 4 March 2004 by way of a letter which read :

“It is so obvious that the existence of the steel door alone will provide a fire resistance period of not less than half-hour, apart from the improved wooden door. Furthermore, kindly enlighten us since when our legal system has changed so that we have to prove our ‘innocence’. Please give us a copy of the law that grants you the authority to require us to submit certificates and test reports without reason.” [emphasis added]

The tone of this letter was clearly confrontational.

14. Perhaps with the best of intentions, the Department mailed a pamphlet giving an introduction to the Fire Safety (Commercial Premises) Ordinance, Cap.502 to the appellant on 10 March 2004.

15. It appeared that the appellant was of oblivious to the Department’s accommodating attitude.  The appellant’s letter to the Department dated 22 March 2004 read :

“As stated in our last letter to you, it is so obvious and plain common knowledge that the existence of the steel door alone will provide a fire resistance period of not less than half-hour, apart from the improved wooden door.  Furthermore, Note (1) of the Notes in the appendix has also provided exceptions.  We reiterate our comment that since when our legal system has changed so that we have to prove our ‘innocence’. Please give us a copy of the law that grants you the authority to require us to submit certificates and test reports without reason.” [emphasis added]

The contents of the letter was a repetition of the previous communication on 4 March.

16. Nothing in the evidence suggested that the appellant possessed the requisite knowledge and expertise to pass an opinion on the minimum FRP of the steel or improved wooden doors or to their combined effect as such.  If it was “plain common knowledge”, then the appellant certainly failed to indicate the sources based upon which it came to its conclusions.  The gratuitous remark at the end regarding burden of proof and the request to supply a copy of the law was clearly uncalled for.  I would have thought the appellant would have its own team of legal advisors.  The contents of the letter was however clearly the work of an amateur.  If there was a fire at the premises during that 4-year period, and contrary to the ‘obvious and plain common knowledge’ of the appellant, the doors did not have the required minimum FRP, the consequences could have been very serious indeed, if not outright disastrous.  The insolent stance of the appellant contributed very little to the safety of the unsuspecting occupants of the building.

17. A final reminder was issued by the Department to the appellant on 12 May 2004.  There was no further response from the appellant on this issue.

18. On 24 June 2004, the appellant was summoned to appear before the Eastern Magistracy on 27 July 2004 for failing to comply with the two Directions issued in October 1999, some four and a half years ago.

19. The appellant was legally represented at the trial and contested the summons.  At the conclusion of the prosecution’s case, the magistrate found that the appellant had a case to answer on both summonses.  The appellant elected not to give evidence and no defence witness was called.  The magistrate found the charges proved and convicted the appellant thereon.

The grounds of appeal

20. Mr Leo, who did not appear at the trial below, advanced three grounds of appeal plus a general ground that the conviction was unsafe and unsatisfactory. 

Ground 1 : Was there compliance?

21. The first ground contended that the magistrate misapplied the case of HKSAR v. The Incorporated Owners of No.10 Bonham Strand, HCMA239/2004 when he held that the absence of reference in the Directions to other appropriate measures of compliance precluded any consideration of alternative measures of compliance.  The appellant’s case was that if there were alternative methods of compliance which were not stated in the Directions, then carrying out the alternative measures would have been a defence to the charges as either the requirements stated in the Directions had in fact been complied with, or alternatively the appellant could rely on the statutory defence of reasonable excuse in believing that by undertaking works as he did would have amounted to compliance.

22. Counsel for the appellant submitted that installation of steel doors was an alternative method of compliance of the requirements in the Directions, the magistrate should have accepted this alternative method of compliance as having satisfied the requirement stated in the Directions. 

23. The particulars of the summons alleged that the appellant failed to provide or improve the fire safety measures as specified in the Directions.

24. The appellant was required under the Directions to do two things : the first was to provide fire doors with each having a FRP of not less than half-hour to the unit entrance and, secondly as stated towards the end under the Directions, certificates or reports should be produced by the appellant to demonstrate that the door, material or construction were capable of resisting fire for the specified minimum period. 

25. The Directions referred to compliance with Tables A to F of the Code of Practice for Fire Resisting Construction 1996 (“the Code”).  The specified tables, however, do not apply to entrance doors to the unit within the building as was in the appellant’s case.  The tables provide guidance only for walls, floors and landings, steel columns and beams, reinforced concrete columns and beams, and stairs.  It was therefore not only that the appellant was required to install or to improve on the existing doors to the entrance pursuant to the Directions, it was also required to produce certificates or reports to demonstrate that the doors or materials of construction had the minimum FRP. 

26. Insofar as the doors installed can be made of a material which may have the requisite minimum FRP, I agree with Mr Leo.  However, the requirements stated in the Directions did not end there.  The recipient of the Directions was required to submit a certificate or report regarding the fire resistance properties of the materials used in the construction.  None was ever produced by the appellant in this case. 

27. Mr Leo complained that since the Code recognized the existence of alternative methods of compliance, the absence of certification or reports should not have been fatal to the appellant’s case.  The appellant further contended that the director’s approach was unreasonable in that he never addressed the issue of possible alternative compliance.

28. In pursuing this ground, counsel must be relying on paragraph 3 under the general provisions of the Code.  Paragraph 3(1) provides :

“Prescriptive Provisions : Compliance with the prescriptive provision in this Code may be regarded as a reliable way to satisfy the Building Authority’s requirements. Departure from these provisions will necessitate an alternative approach to be adopted and proved, in individual cases, to the satisfaction of the Building Authority as to compliance with requirements.”

If the appellant had not used steel doors but resorted to using other fire-proof material instead, it would still have to convince the Department that the material used would have the minimum required FRP.  The issue before the magistrate was simple and straightforward.  The question being : “Was there compliance on the appellant’s part with the directions?”  The answer would be equally straightforward : Even if the steel and wooden doors did have the minimum FRP, without the requisite certificate or reports, there could not have been compliance.

29. Paragraph 6.5 of the Code further illustrates the point :

“The construction and materials specified in Tables A to F in this Code are deemed to satisfied the FRP as listed therein. ….”

The appellant’s case, contrary to its contentions in its letter dated 22 March 2004, was not covered by the provisions of the tables.  The paragraph continues :

“…. If other materials, products or construction are used, they should be tested in accordance with or assessed against BS 476 : Parts 20 to 24 : 1987 and certified as being capable of resisting the action of fire for the specified periods. Such certification should be established by :
(a)	a test report indicating that the material, product or construction is capable of resisting the action of fire for the specified period. ….”

30. Adoption of alternative methods of compliance in no way relieved the appellant of its duty to provide a certificate or report without which there was nothing to show that there had been compliance, alternative or otherwise.  Administrative law issues simply do not arise in the present case as there had been no compliance by the appellant.  There is no merit in the first ground of appeal.

Ground 2

31. Ground 2 of the appeal contended that the magistrate erred in failing to consider that compliance with the Directions could be achieved other than by production of a BS 476 certificate.  For the reasons which I have stated earlier, any purported compliance must be supported by the production of a BS 476 certificate.  Failure to produce this certificate must be treated as non-compliance.  Ground 2 therefore has no merit.

Ground 3 : Reasonable excuse

32. Ground 3 complained that the magistrate was wrong in finding that the appellant had failed to comply with the Directions.  The issue of alternative compliance had been addressed earlier in this judgment.  Alternatively, counsel submitted that the magistrate should have found that the appellant did have a reasonable excuse and he had a reasonable and honest albeit mistaken belief that by installing the steel door it had complied with the Directions.

33. The appellant did not give evidence nor did it call any defence witness.  Any such reasonable belief, honest or otherwise, would have to be deduced from the appellant’s conduct since the receipt of the Directions and from the subsequent communications between the appellant and the Department.  The contention of reasonableness appeared to have been based on the appellant’s subjective view that it was ‘obvious and plain common knowledge’ that steel door has a minimum FRP of half an hour.  

34. How the appellant came to believe as it did and was convinced of the FRP of the doors to the extent as stated in its communications does not stand up to scrutiny.  The court is faced with the appellant’s bare assertion that the doors installed were made of steel.  If they were indeed made of steel as claimed, then there must be, by necessity, many different kinds of steel or metal with as many different fire resistant properties.  The question remains : What is the fire resistant properties of the steel and/or wooden door claimed to have been installed by the appellant?  There is simply no answer from the appellant by way of a report or certificate as required by the Directions.

CONCLUSION

35. Any suggestion that the appellant had an honest and reasonable belief albeit mistaken must be discounted.  On the totality of the evidence before the magistrate, it must have been open to him to find that a case of reasonable excuse had not been made out. 

36. The evidence against the appellant at the trial was no less than overwhelming.  The conviction of the appellant on both summonses was neither unsafe nor unsatisfactory.  The appeal against conviction is dismissed.