HKSAR v. THE INCORPORATED OWNERS OF NO.10 BONHAM STRAND AND ANOTHER

HCMA239/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.239 OF 2004

(ON APPEAL FROM WSS 13870 AND 13871 OF 2002)

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J U D G M E N T

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1. These are appeals against conviction and sentence following a retrial.

2. The 1st appellant is the owner of the common areas of a commercial building situated at 10 Bonham Strand in Hong Kong ("the building"). The 2nd appellant is the owner of various floors of the building and its roof area.

3. The appellants were convicted on summons for failing to comply with directions issued by the Director of the Fire Services Department ("the Director") to, inter alia, incorporate a sprinkler system into the building contrary to section 5(7)(b) of the Fire Safety (Commercial Premises) Ordinance, Cap.502 ("the Ordinance"). The fact of non-compliance was not disputed. Each appellant was fined upon its conviction after trial $2,500 together with a continuing daily fine of $250 which amounted to, upon the date of conviction (12 January 2004), some $46,250. Both appellants were then further ordered to comply with the original Fire Services Department's directions by 11 October 2004.

4. Mr Choy Bing Wing represented both appellants at trial. He was apparently authorized to do so by the Board of Directors of each. He is an authorized person under the provision of section 9 of the Buildings Ordinance, Cap.123. I must say I think that Mr Choy's status in this regard is debatable. He is the proprietor of a firm of building consultants and holds no position, as I understand it, on the Board of either appellant. Nevertheless, he has represented them through two trials (the last being a retrial) and a previous and successful appeal in the Court of First Instance. No objection is taken to his continuing representation of the appellants before me and, given the complexity of this appeal and the preparation for it he has undertaken, I think it only fair to allow him to continue to represent the appellants.

5. I will firstly deal with the appeals against conviction.

6. Each appellant advances the same complaints against their convictions. They have filed as grounds of appeal only those general grounds contained in the Notices of Appeal, but with the additional ground that the magistrate was biased. As matters transpired, they both have, at the end of the day, advanced and relied upon before me two substantial complaints against their convictions. The first is that the Director wrongly exercised his discretion to issue the relevant directions. The second is that Mr Choy was wrongly prevented by the magistrate from giving evidence as an expert witness on the meaning of the provisions of the Ordinance and the Code of Practice for Fire Service Installations and Equipment (1994) ("the Code of Practice") promulgated by the Fire Services Department. It was this ground that gave rise to the accusation of bias against the magistrate.

7. Mr Choy's other marginally substantial argument was simply that the first prosecution witness had perjured himself. At the end of the day, he did not press this complaint and was wise not to do so. A reading of the transcript of the two trials certainly establishes the witness gave different evidence in each trial, but that, in my view, was plainly because he was asked different questions about different matters on each occasion. Mr Choy was at no time able to demonstrate to me anything in the nature of a convincing or substantial difference in the evidence of the witness against whom he levelled the allegation. The matter was really, in any event, a question of credibility best dealt with before the magistrate. There was no merit in this complaint of Mr Choy. Accordingly, I will deal only with the two substantive complaints I have referred to.

8. As to the complaint of the appellants that the Director wrongly exercised his discretion to issue the relevant directions, Mr Choy argues that the directions, and particularly the direction to the appellants to install a sprinkler system into their building, was unreasonable. The building, albeit used as commercial premises and conceded to be a specified commercial building by Mr Choy, is very small. It is, said Mr Choy, too small to sensibly require or to even be able to safely structurally install a fire sprinkler system. Accordingly, argues Mr Choy, the exercise by the Director of his discretion to issue the directions was unreasonable and wrong in law and the appellants committed no offence in not complying with those directions.

9. Offences which come into being because of a breach of an administrative order are not always easy to fit into the practice and principles of the criminal law. One course would be to simply regard the breach of the order as the offence and make no inquiry in the criminal court into the merits of the order itself. That is a course which, as a general proposition, has much to commend it. The other course would be to allow an examination of the merits of the order in terms of the principles of public law.

10. In Boddington v. British Transport Police [1998] 2 All ER 203, the appellant had smoked a cigarette in a carriage of a train designated non-smoking. A preliminary matter arose as to whether he was, in his defence, entitled to challenge the transport authorities designation of all carriages in the train as non-smoking as ultra vires. His argument was that under the relevant by-law, the authority was entitled only to regulate smoking on its trains and not ban it altogether.

11. In that case, Lord Irvine LC, after reviewing various authorities, came to the following conclusions :

(1) That a defendant was entitled to challenge, by way of his defence to a criminal charge of breaching an administrative order, the validity of that order.

(2) But that in certain instances there may be qualifications upon his right to do so. Those qualifications may include a construction of the legislation which clearly prohibited a defendant from raising a defence in public law. Such a construction may be supported where there are other avenues available to the defendant to appeal the administrative order prior to any breach of it coming into being.

12. In Boddington's case the court concluded that the appellant was entitled to raise a defence based upon the unlawfulness of the transport authorities' order. One fundamental aspect of the case was that there was no real opportunity for the defendant to challenge the order by way of any appellate process or prior approach to the courts to question the legality of the authorities' prohibition before he had actually committed and been charged with the offence.

13. Accordingly, to disentitle him raising that defence in his criminal trial would be to interpret the relevant statute so as to lead to an injustice, that is, to prevent him ever exercising his right in a meaningful way to challenge the authorities' order.

14. R. v. Wicks [1997] 2 All ER 801 was a decision approved in Boddington. In Wick's case, an enforcement notice was issued by a town planning board which required certain parts of a building to be removed within a period of a month. The appellant failed to do so. At his trial, the appellant tried to raise as a defence that the board's decision was motivated by immaterial considerations and was unlawful. The trial judge refused to allow him to do so. That decision was upheld on appeal.

15. Their Lordships recognized there were conflicting interests involved. The first involved a defendant's right to present a defence which was available to him; the second was the communities' interest in the proper administration of justice and the determination of issues affecting the public well being in the appropriate civil forum.

16. In considering how to balance these two conflicting policies, Hoffmann LJ said :

".... The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such as case, nothing but the formal validity of the act will be relevant to an issue before the justices. It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute."

17. By that he was suggesting in my view that the question was whether the legislative intent was to have questions as to whether the decision in issue was based upon irrelevant or improper grounds dealt with by a criminal court. In the present case, which factually is very similar to the circumstances in Wick's case, it is certainly possible to argue that our legislature cannot have intended that a busy magistrates' court was the proper forum to go behind the Director's issued directions and determine whether his decision to issue those directions to the appellants was Wednesbury reasonable or not.

18. That argument is all the stronger because unlike the position in Boddington's case where the defendant was unaware of the particular order or law until or shortly before he committed and was charged with the offence, the provisions of the Ordinance and the directions issued thereunder allow for a reasonable time for compliance with the issued order : section 5(3) of the Ordinance. Accordingly, there is ample time to challenge the Director's directions in a more appropriate forum.

19. Having said that, I appreciate also that the bringing of proceedings in the High Court is expensive and there is little in the way of any alternative procedure provided for in the Ordinance. But it seems to me, on balance, that given the time available to a defendant under the Ordinance before non-compliance with a direction occurs, any challenge to the reasonableness of the Director's exercise of his discretion could, without difficulty, be commenced in the High Court. In terms of policy, such a course would allow consistency of decisions, the appearance of the Director as a party to the proceedings and the potential complexity of such matters being dealt with in a specialised forum.

20. Further so far as a construction of the legislation's intent is concerned, the offence creating provision is worded as follows :

" (7)	(b)	an owner or occupier of a specified commercial building who, without reasonable excuse, fails to comply with a fire safety improvement direction is guilty of an offence and is liable on conviction to a fine at level 4 and to a further fine of $2,500 for each day or part of a day during which the failure continues after the expiry of the period specified in the direction.
(8) The reference in subsection 7(a) or (b) to reasonable excuse includes, but is not limited to, the excuse that, at the time when the fire safety direction or fire safety improvement direction, as the case may be, was not complied with, it was not reasonable to expect the owner or occupier of the premises or building to comply with the direction-
	(a)	because of the risk of prejudicially affecting the structural integrity of the building where the premises or building are located; and
	(b)	because the technology required to comply with the direction is not reasonably available." (emphasis added)

21. It is obviously contemplated by the legislation that the failure to comply with the directions is the gravamen of the offence and that the offence is one of strict liability subject to a reasonable excuse for non-compliance being available to the defendant, such as that which is contained in subsection (8).

22. That provision suggests a reasonable excuse based on technical and practical grounds will afford a defence to non-compliance with any such fire safety direction. That provision, in my view, would require a somewhat awkward construction to extend it to include a defence based on the Director's breach of the principles of public law, and I do not think such a defence is contemplated by the legislation as an answer to non-compliance with a section 5(1A) direction.

23. In short, for reasons of policy and statutory construction, the reasonableness of the Director's exercise of his direction in issuing fire safety improvement directions under section 5(1A) of the Ordinance is not an available defence to a prosecution brought pursuant to section 5(7)(b)

24. I particularly emphasise that to allow such a defence may mean the magistrate would be required to determine in a criminal trial issues of considerable public importance without the Director having any standing as a party to the proceedings. He could not appeal any such decision. I do not think any sensible difference can be drawn between orders in rem as in Boddington's case and orders in personam as in the present case. Matters of statutory interpretation of building or other regulatory codes of practice may arise in both sorts of case so as to establish an interpretation of law or procedure without the relevant authority having an opportunity to argue its position before the court. That, in my view, is a situation to be avoided.

25. Finally, the only matter advanced by the appellants before me as to a defence of reasonable excuse pursuant to section 5(8) above was that the roof of the subject building would not support the amount of water necessary to service the sprinkler system. Mr Choy's arguments in that regard were less than convincing. He provided me with nothing of substance to support that allegation. The only document he provided me with was an extract of the Code of Practice dealing with the specifications of supply tanks and the quantity of water to be carried in them for the purposes of fire hydrant hose installations. I do not think that is of any assistance in this case. This, in any event, was not argued before the magistrate and was raised before me for the first time.

26. In my judgment then no defence available in law was raised before the magistrate and the offence under section 5(7)(b) was made out. It was common ground before me the appellants were owners and occupiers of the particular building and that it was a "specified commercial building" for the purposes of Schedule 4 of the Ordinance, although this was the first time that concession had been made by the appellants in the history of this case. It was also accepted the relevant directions had not been complied with at the time of trial.

27. I might add, however, that even if the appellants were entitled to challenge the lawfulness of the Director's decision, they would have failed. Mr Choy's argument was that the Director had simply failed to take into account the small size of the premises. The appellants case was almost wholly based on the proposition that the requirements in the current Code of Practice (March 1994), para. 4.14, "Requirements" (xii) and "Extent" (xii) state that sprinkler systems may be required for buildings "with total floor areas exceeding 230 square metres".

28. Mr Choy argued that the reference to floor area in that paragraph related to the area of any one individual floor. In my view, that is plainly not so. In para. 4.15 of the Code of Practice which relates to high rise buildings, fire warning systems are stated as being "required .... where the area occupied by any one single occupancy on any one floor exceeds 2,000 square metres". Obviously, the Code expresses itself quite clearly when referring to measurements based on a single floor area.

29. So does the Ordinance. In section 3(2), (3) and (4), the same term "total floor area" is addressed. In subsection (4), the Ordinance defines "total floor area" of a building as being :

"(a)	the area contained within the external walls of the building or part measured at each floor level (including any floor below ground)."

30. In my judgment, in both the Code and in the Ordinance, the same meaning is given to the phrase "total floor area". That meaning gives literal effect to the words used and plainly means the aggregate floor area of all floors in the building. I am satisfied that in para. 4.14 "Requirement" (xii) and "Extent" (xii) of the Code of Practice, the sprinkler systems may be required for buildings with total floor areas exceeding 230 square metres.

31. It should be noted the Code of Practice has effect under the Ordinance. By Schedule 5 of the Ordinance :

"The owners of a specified commercial building may be required to ..

(a) provide or improve the following fire service installations and equipment -

....

(vi)	fire service installations and equipment in accordance with the requirements specified in the Code of Practice for Minimum Fire Service Installations and Equipment 1994 as published by the Director of Fire Services and printed by the Government Printer."

32. As the floor area of all five floors of the subject building is some 3,733 or more square feet, it exceeds the 230 square metres stated in the Code of Practice. Accordingly, the building, though small, falls within the provisions of the Ordinance and the Director's exercise of his discretion cannot be faulted on the basis of Mr Choy's main complaint that he had not properly taken into account the small size of the building.

33. Mr Choy also complained that the Director should have taken into account the fact that the building is divided by its concrete construction into separate fire compartments so that no sprinkler system was required. Virtually all buildings in Hong Kong are so divided in some way or another, and if Mr Choy was right in this argument very few commercial buildings would require a sprinkler system. In any event, considerations relating to fire compartments relate to other parts of the Code of Practice and, in my view, do not relate to the separate and additional requirement of the installation of sprinkler systems. They have no bearing on the calculation of a building's total floor area for that purpose.

34. Mr Choy's second complaint concerning the convictions of the appellants was that he was not allowed to give expert evidence. The evidence he wished to give plainly related to the interpretation of the Code of Practice and the Ordinance. That is a matter for the court and not for an expert witness. The magistrate was perfectly right to not allow Mr Choy to give expert evidence in that regard. To suggest the magistrate was biased in those circumstances is a suggestion devoid of merit.

35. For these reasons, the appellants' appeals against conviction are dismissed.

36. Each appellant appeals against sentence on the simple basis that as there were two of them convicted jointly of the offence, their penalty should be halved. The magistrate, however, was plainly aware of that circumstance. The penalty he imposed on each appellant was, both in terms of the head fine and daily fine thereafter, approximately one-tenth of the maximum fine provided for by the Ordinance. That cannot be described as excessive. The appeal against sentence is also dismissed.