XTRNX WINNING CO. v. THE DIRECTOR OF FIRE SERVICES

HCMP 4459/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4459 OF 1999

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J U D G M E N T

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1. The Appellant is a fire service installations contractor. It was responsible for the alteration work and installation of additional sprinkler heads in Top One Karaoke Box at 2nd to 4th Floors, 6-8A Part Avenue in 1995. It was also responsible for the annual inspection of that sprinkler system in 1996. Upon completion of the alterations and installation of additional sprinklers heads as well as the annual inspection, the Appellant issued a certificate pursuant to the Fire Service (Installations and Equipment) Regulations stating that the system was in satisfactory working order. Subsequently, Top One Karaoke Box was set on fire on 25 January 1997, but the sprinkler system was found to be inoperative. The Director of the Fire Services was of the view that the Appellant committed an impropriety or was negligent in relation to the installation of that sprinkler system and the annual inspection. Therefore, the matter was referred to the Disciplinary Board for inquiry pursuant to Section 10 of Fire Service (Installation Contractors) Regulations. After inquiry, the Board held that the Appellant was guilty of improper conduct or negligence and reprimanded the Appellant. The Appellant now appeals to this Court against that decision.

2. The Board opined that the reason why the system was inoperative was that the gate valves installed in the system were not locked in the open position. The Board held that since prosecution failed to adduce sufficient evidence to prove that the Appellant did not conduct a proper inspection and lock the gate valves in open position when it issued the two certificates in 1995 and 1996, the Appellant was not guilty of impropriety or negligence as far as this aspect was concerned. The Board was of the view that as the Appellant was aware of the absence of monitoring devices in the gate valves installed in the sprinkler system when it issued the certificates, it had the responsibility to inform the person-in-charge of the Karaoke Box about the matter, so that proper inspection could be made and remedial measures be taken. Furthermore, the Appellant should have considered the gate valves as a defect and stated that in Part II of the certificate. In view of the above, the Board held that the Appellant was guilty of improper conduct or negligence.

3. Counsel for the Appellant, Ms To, submitted that the prosecution failed to ascertain what standard was applicable to the premises and what requirement had been violated in respect of the gate valves without monitoring devices. She quoted the judgment of the Board as follows:

"the Board is of the view that the issue in this inquiry is that the defendant should be held liable by reason of its knowledge of the existence of the gate valves when it conducted maintenance work, repair and inspection on the relevant installations in 1995 and 1996. The evidence concerned revealed that the installation of gate valves in the water pipe was not done by the defendant. Nevertheless, the defendant was aware of the existence of such gate valves when it issued the certificates in 1995 and 1996. The Board is satisfied that the installation of such gate valves is not in compliance with the general standard for the sprinkler system, that is the so-called FOC or LPC Rules. The witness called by the defence, Mr Chung Cheung You (transliteration) was responsible for the maintenance, repair and installations in 1995 and 1996. He is also the proprietor and the person-in-charge of the defendant's company. Mr Chung opined that the gate valves concerned complied with the NFPA Codes or specifications required under the composite standard as far as the installation was concerned. According to his own 20 odd years of experience and (199), and the 1978 edition of the specifications of the NFPA National Fire Codes, the gate valves were in conformity with the safety standard as long as they were secured by leather belts and always kept in the open position. The Board noticed that, as far as the specifications of the gate valves were concerned, the NFPA National Fire Codes had been revised at the time, stipulating that a monitoring device signalling the on/off function of the gate valves must be installed, i.e., the signalling service device. Being an experienced and competent fire service installations contractor, Mr Chung, i.e., the defendant, when making alteration work, has a duty to ascertain whether the latest guideline should be observed in order to conform with the safety standard. The Board noticed that Mr Chung, when giving evidence, seemed to have no knowledge of the requirement as revised by the NFPA. The Board opines that when the existence of the gate valves which had no monitoring device came to the contractor's knowledge upon conducting maintenance work, repair and inspection in 1995 and 1996, he, as a responsible contractor, had a duty to inform the proprietor of the premises, i.e., the Karaoke, to make proper investigation and take remedial measures. In addition, as to the fact of the existence of the gate valves, it should have been mentioned in the section concerning outstanding defects in Part II of the two certificates issued in 1995 and 1996. The Board is of the view that even though the NFPA Codes or the composite standard is adopted, a sprinkler system with gate valves without monitoring devices installed in the water pipe cannot be regarded as one in a satisfactory working order."

4. She was of the view that the Board had not expressly held that the FOC Rules (i.e, Fire Officers Committee), or the LPC (i.e, Loss Prevention Committee) Rules, or NFPA (i.e, National Fire Prevention Association) Codes were applicable to that premises. Nevertheless, after it had been pointed out that the sprinkler did not follow the FOC Rules or LPC Rules, the Board immediately explained in great details the 1978 edition of the NFPA Codes and its revised standard in 1995. The Board then went on to hold that the Appellant committed an impropriety or was negligent. Therefore, Counsel submitted that the Board had accepted the evidence of Mr Chung, which means the specifications laid down by NFPA was the applicable standard.

5. The evidence of the prosecution is that the standard applicable then was the FOC Rules, which later were adopted as the LPC Rules.

6. The evidence of Mr Chung, the witness of the Appellant, is that he followed the 1978 edition of the specifications laid down by the NFPA when he dealt with the sprinkler system and issued the certificate. At that time, this standard was applicable in Hong Kong. The following is paragraph 3-13.2.3, the 1978 edition of the NFPA:

"3-13.2.3 Valves controlling sprinkler systems, except underground gate valves with roadway boxes, shall be supervised open by one of the following methods:

(a) Central station, proprietary or remote station alarm service,

(b) Local alarm service which will cause the sounding of an audible signal at a constantly attended point,

(c) Locking valves open,

(d) Sealing of valves and approved weekly recorded inspection when valves are located within fenced enclosures under the control of the owner."

7. Ms To submitted that according to the evidence of Mr Chung, these gate valves were locked in open position by leather belts, and therefore, they conformed with the standard required in paragraph 3-13.2.3 (c).

8. On the contrary, Senior Government Counsel for the Respondent, Mr Wong submitted that the prosecution witness(es) referred to the FOC Rules when giving evidence. Moreover, the fire service project in another building carried out by the Appellant in 1986 also demonstrated that the FOC Rules was applicable to the sprinkler system installation in that building. Therefore, he opined that the Board had accepted the FOC Rules as the applicable standard. When the Board referred to NFPA Code, it was only considering the defence of the Appellant in the alternative.

9. The Court is of the view that the burden of proof lies on the prosecution. Instead of referring to Form 314 filled in by the Appellant in relation to another building as an indirect proof, the prosecution should have referred to the relevant sections of the Ordinance such as the subsidiary legislation of the Fire Services Ordinance, or the notices issued by the Director of the Fire Services, or the Form 314 filed by the fire service contractor of that building to prove that the FOC Rules were the standard applicable. During the inquiry, the prosecution did not produce any information or evidence in this respect.

10. Moreover, the prosecution failed to produce the occupation permit of that building to show its date of occupation which could help to ascertain the standard applicable in that year. As a newly-revised standard generally has no retrospective effect on existing buildings or fire service installations, the date of its occupation is of particular importance. It is because different standards apply at the same time to buildings occupied or fire service installed at different years.

11. The Board avoided the issue of the standard applicable. It relied on the statement of the Appellant when giving its decision. As the prosecution failed to discharge the standard of proof, I can only adopt the view which is most favourable to the Appellant, i.e., the defence, when dealing with this appeal. Whether rightly or wrongly, owing to the constraint in evidence, I am bound to adopt the NFPA Codes as the applicable standard to the fire service installations of that building in this appeal.

12. The Board pointed out in its judgment that the specifications for gate valves had been revised in the 1978 edition of the NFPA Codes. That means the gate valves must be installed with a monitoring device. Mr Wong submitted that the revised NFPA Codes in the 1991 edition stipulated in paragraph 4-5.1.1.3 is as follows:

"4-5.1.1.3 Valves on connections to water supplies, sectional control valves, and other valves in supply pipes to sprinklers shall be supervised open by one of the following methods:

(a) Central station, proprietary, or remote station signalling service.

(b) Local signalling service that will cause the sounding of an audible signal at a constantly attended point.

(c) Valves locked in the open position.

(d) Valves located within fenced enclosures under the control of the owner, sealed in the open position, and inspected weekly as part of an approved procedure.

Floor control valves in high-rise buildings and valves controlling flow to sprinklers in circulating closed loop systems shall comply with (a) or (b) above."

13. He was of the view that as that building is a high-rise building, the gate valves must be installed with a monitoring device in accordance with the stipulations in sections (a) and (b).

14. Ms To, when citing the evidence of Mr Chung, pointed out that the 1991 revised NFPA Codes has no retrospective effect. She also produced the 1994 edition of the NFPA Codes concerning improvised sprinkler systems. Paragraph 1-3 of the specifications stated that this revised version is not applicable to existing buildings or installations or building plans submitted before 11 February 1994. Although she could not refer to any non-retrospective clause in the 1991 revised edition of the NFPA Codes, in general, there is a presumption that a piece of new legislation has no retrospective effect. Therefore, if the prosecution intends to challenge this presumption, it must provide evidence in rebuttal or reasons in support of its argument.

15. Mr Wong submitted that as the Appellant made some alterations and installed additional sprinkler heads in 1995, such installation is therefore not an existing installation but a new installation. Therefore, the specifications as revised in the 1991 edition of NFPA Codes is applicable to that installation.

16. I do not agree that any alteration or additional installation work renders an existing installation a new installation, thus making it necessary for the new standard to be observed. It depends on the extent of the alteration and additional installation works. From the certificate (Exhibit 1), the Appellant altered the positions of 5 sprinkler heads and installed 247 additional sprinkler heads in 1995. A great number of sprinkler heads were additionally installed. Nevertheless, I have no way to know what the percentage this number was out of the original number of sprinkler heads, let alone its proportion in the whole fire service system or sprinkler system. According to the evidence of Mr Tse, the station officer, if the alteration exceeds 50%, the contractor must apply for an alteration via Form 314A. The Board had never assessed the proportion of this alteration and the additional installation works in the whole system during the inquiry. I am unable to make any assessment either. As the prosecution bears the burden of proof, I can only hold that the prosecution has failed to prove that these alteration and additional installation works had rendered the existing installation a new installation. Hence, the specifications in the revised 1991 edition of NFPA Codes are not applicable to that installation.

17. Since the specifications in the revised 1991 edition of NFPA Codes are not applicable to that installation, the Appellant is only required to lock the gate valves in open position in order to conform with the specifications as stipulated in the 1978 edition of the NFPA Codes. Therefore, although the gate valves did not have any monitoring device, this did not amount to a defect, and it was unnecessary to have it stated in Part II of the certificate. For the above reasons, I reverse the decision of the Board and set aside the reprimand given to the Appellant. I enter judgment for the Appellant. Upon the request of the Counsel for the Respondent, I make no order for a retrial. I make an order nisi that each party shall pay its own costs.

18. Mr Wong submitted that the strict rules of evidence are not applicable to disciplinary hearings. According to Rule 7 (7), Order 55 of the Rules of High Court, the Court shall not be bound to allow an appeal on the ground merely of the improper admission of evidence. I make this decision not because I have applied the rules of evidence strictly but because the prosecution has failed to adduce the evidence in various aspects to discharge its burden of proof. For the same reason, this decision is not made because the Board has admitted evidence improperly but because the prosecution has failed to adduce the evidence. Therefore, I cannot rely on Rule 7 (7) of Order 55 to uphold the decision of the Board.

19. As to the allegation made by Ms To against the prosecution that they have dealt with the evidence of the 4th witness improperly, I am of the view that this allegation is not substantiated. However, in view of my decision, it is unnecessary to comment on it further.

20. I am surprised by the way the Fire Services Department handled the certificate(s) of the Appellant. From the certificate, the Fire Services Department was aware of the fact that the Appellant made alteration work to the sprinkler system, and installed 247 additional sprinkler heads for the premises in May 1995. In terms of number, it amounts to a major alteration. Nevertheless, the Fire Services Department had not required the Appellant to submit a detailed plan and Form 314A. If the Fire Services Department had taken proper follow-up measures upon receiving the certificate, it could have obtained a Form 314A which would have easily shown the standard applicable, and it could have further given proper instruction right at the time as to whether the gate valves should be installed with a monitoring device.