U STORAGE GROUP LTD v. DIRECTOR OF FIRE SERVICES

HCAL 490/2019

[2020] HKCFI 711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 490 OF 2019

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BETWEEN

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REASONS FOR DECISION

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I. Introduction

1.  By Summons dated 20 April 2020, the Putative Respondent sought leave to adduce and rely on the evidence contained in the 3^rd Affidavit of Wong Yuk Ping (“Wong 3^rd”) and the 2^nd Affirmation of Hoi Wai Ming (“Hoi 2^nd”) insofar as they contain materials going beyond the scope of this Court’s leave granted on 6 April 2020 (the “Further Evidence”).

2.  The Applicant objected to the entirety of Wong 3^rd and Hoi 2^nd, except for Hoi 2^nd §§26 and 27.

3.  On 4 May 2020, this court directed, inter alia, as follows:

(1) Leave be granted to the Putative Respondent to adduce the Further Evidence and rely on the same in these proceedings, namely, Wong 3^rd §§13 and 14 and Hoi 2^nd §§22 to 25 and 28 to 30.

(2) For the avoidance of doubt, no leave is required for the Putative Respondent to rely on Wong 3^rd §§6 to 12 and Hoi 2^nd §§5 to 21 as the same are covered by paragraph 2 of the Consent Order dated 6 April 2020.

(3) Order nisi that the costs of the Summons be in the cause.

4.  Reasons for Decision were reserved, which are given below. 

II. Putative Respondent’s Position

5.  In summary, the Putative Respondent’s position is that:

(1) No leave is required for Wong 3^rd §§6 to 12 and Hoi 2^nd §§5 to 21 which respond to the amendments introduced in the Amended Form 86 and fall squarely within the leave granted by this Court on 6 April 2020.

(2) The Further Evidence (ie Wong 3^rd §§13 and 14 and Hoi 2^nd §§22 to 25, 28 to 30) are factual and deals primarily with 2 new factual issues raised by the Applicant in its reply evidence, namely (i) the reduction in the lettable volume of storage cubicles and area in the subject premises upon compliance with the FHANs and (ii) the feasibility of fulfilling the window requirements without structural alterations.

III. No leave is required for Wong 3^rd §§6-12 and Hoi 2^nd §§5-21

6.  As submitted by the Putative Respondent, the Amended Form 86 introduces the following amendments:

(1) The Fire Safety Code was prepared and issued by the Buildings Department on the basis of a consultancy study on fire engineering approach and fire safety in buildings.  The consultancy study is conducted by an external consultancy commissioned by the Buildings Department, and supervised by a Steering Committee: §36(4) (the “Fire Safety Code Amendment”);

(2) The “Mini-Storage Compliance Policy” and the FHAN requirements were formulated solely on the basis of the fire-fighting experience in the Amoycan Fire without any reference to the fire engineering approach behind the Fire Safety Code: §§10, 67(4), 78(2)(c) (the “Fire Engineering Approach Amendment”);

(3) In relation to the Layout Requirement, the Fire Services Department (“FSD”) refused to consider the Applicant’s proposal of a box concept design: §78(2)(b)(iii);

(4) FSD’s reliance on the Codes and Guidelines in Wong 1^st are ex post facto justifications of the FHANs: §§73(2)(a) to (c) & 78(2)(b)(ii);

(5) An additional new Ground 5C that sections 2(f) and (9) of the Fire Services Ordinance is unconstitutional in that it is not “prescribed by law”: §§80-86. 

7.  As can be seen, the Fire Safety Code Amendment and the Fire Engineering Approach Amendment are inextricably interlinked.  One of the Applicant’s main complaints is that the Layout and Window Requirements were formulated solely on the basis of the fire-fighting experience from the Amoycan Fire, and failed to take into account of and may well conflict with the fire-engineering approach behind the Fire Safety Code: Amended Form 86 §§67(4) & 78(2)(c).

8.  Amongst others, the Applicant has included the following evidence in the 1^st Affirmation of Huang Hechao (“Huang 1^st”) and the 1^st Affirmation of Lau Chi Wang James (“Lau 1^st”) to support the Fire Safety Code Amendment and the Fire Engineering Approach Amendment:

(1) Lau 1^st §§10 to 54, 135(1) and (2): In gist, Lau’s evidence is that if the Applicant’s premises is compliant with the Fire Safety Code issued by the Buildings Department, it necessarily means that the premises does not have any fire hazards.  The FSD is not entitled to introduce any new fire safety requirements beyond those in the Fire Safety Code.  These paragraphs support both Fire Safety Code Amendment and the Fire Engineering Approach Amendment.

(2) Huang 1^st and the Computational Fluid Dynamics (“CFD”) Simulation Study at “HHC-2” support the Fire Engineering Approach Amendment.

(3) Lau 1^st §§102, 113 to 129, 135(4) contain detailed references to the CFD Simulation Study and relate to the Fire Engineering Approach Amendment. 

9.  I accept that pursuant to paragraph 2 of the Consent Order dated 6 April 2020, the Putative Respondent responded to the Amended Form 86 and the Applicant’s above evidence in Hoi 2^nd and Wong 3^rd:

(1) Hoi 2^nd §§5 to 13 and Wong 3^rd §§6 to 12 address the Fire Safety Code Amendment and the Fire Engineering Approach Amendment;

(2) Hoi 2^nd §§14 to 21 address the Fire Engineering Approach Amendment. 

10.  In the premises, I directed that no leave is required for the Putative Respondent to rely on such evidence.

IV. Wong 3^rd §§13-14 and Hoi 2^nd §§22-25, 28-30: Putative Respondent entitled to respond to Applicant’s new factual evidence

11.  Insofar as leave is required to adduce the Further Evidence (ie Wong 3^rd §§13 and 14 and Hoi 2^nd §§22 to 25 and 28 to 30), I agree the Putative Respondent should be permitted to rely on these paragraphs on the basis that:

(1) The Further Evidence addresses factual matters raised by the Applicant for the first time in its reply affirmations and will clearly facilitate the full and fair resolution of the issues before the Court. 

(2) The Further Evidence is factual and deals primarily with new factual issues raised by the Applicant in its reply evidence relating to (i) the reduction in the lettable volume of storage cubicles and area in the subject premises upon compliance with the FHANs (Wong 3^rd §§13 and 14 and Hoi 2^nd §§28 to 30); and (ii) the feasibility of fulfilling the window requirements without structural alterations (Hoi 2^nd §§22 to 25). 

(3) Evidence on these issues is clearly relevant to the questions of justification and proportionality in the constitutional challenge under Ground 5A: Amended Form 86 §§75 to 78 (in particular, §78(2)).  The Putative Respondent is simply seeking to discharge its burden to justify the alleged encroachment with the Applicant’s rights under BL Arts 6 and 105: Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, §16.

(4) No prejudice will be caused to the Applicant as it has no automatic right to file any reply evidence.  These are matters of factual, not expert evidence.  In any event, the Putative Respondent’s evidence is the end of the evidence under the Order 53 regime: Shun Fat Container Service Co Ltd & Others v Commissioner for Transport [1989] 2 HKC 301, 310 per Godfrey J.  There needs to be justification for the Applicant to file further evidence in reply, beyond the mere fact that the Applicant still disagrees with the Putative Respondent and its evidence: Sunevision Holdings Ltd v Hong Kong Science and Technology Parks Corporation (unreported, HCAL 1890/2018, 12 July 2019), per G Lam J at §57.

12.  The Applicant, in its Written Submissions, does not appear to dispute that its 2 new factual allegations and the Further Evidence are relevant to its challenge of justification and proportionality under Ground 5A of the Amended Form 86. However, the Applicant proceeded to engage in lengthy arguments as to whether the Further Evidence is believable and what weight should be given to the evidence in deciding the Applicant’s challenge under Ground 5A.  As correctly submitted by the Putative Respondent, these arguments should be resolved by this Court at the rolled-up hearing.

V. Conclusion

13.  For the reasons stated above, this Court gave the directions set out in paragraph 3 above.