RE POPULAR SIGNS LTD

CACV 189/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 189 OF 2008

(ON APPEAL FROM HCAL NO. 53 OF 2008)

----------------------

----------------------

----------------------

----------------------------------------

REASONS FOR JUDGMENT

--------------------------------------

Hon Le Pichon JA:

1.  This was an appeal from a decision of Reyes J of 8 July 2008 refusing the applicant leave to apply for judicial review of the decision of the Radiation Board to maintain its existing licensing and exemption policy with regard to Gaseous Tritium Light Devices (“GTLD”).  At the conclusion of the hearing, the appeal was allowed with written reasons to be handed down which we now do.

Background

2.  The applicant is the exclusive representative and distributor in Hong Kong of GTLD manufactured by Isolite.  Since 1998, it has been licensed by the Radiation Board to import, convey, store, sell and use (demonstration) GTLD subject to certain conditions.  Those conditions allowed sales only to persons holding valid licences or with exemption notification granted by the Board for possession of GTLD.

3.  GTLD “EXIT” signs mark fire escapes routes in buildings.  GTLD devices are self-luminous, using internal light sources called gaseous tritium light sources (“GTLS”).  Each GTLS is a glass tube filled with tritium gas.  Tritium is radioactive.  The beta radiation from the decay of tritium induces the emission of light from the phosphor coating of the inner walls of the GTLS tube.

4.  The Radiation Ordinance Cap. 303 regulates the import, export, possession and use of radioactive substances including tritium.  Section 7 of the Ordinance requires a person to hold a licence for possession or use of “any radioactive substance”.  Section 15 authorises the Board to grant exemptions from the Ordinance in respect of a specified radioactive substance

“where, having regard to the public interest to be served and the degree of risk, if any, to human health involved by the granting of such exemption, the Board is of opinion that it is expedient and safe to do so.”

5.  Therefore, unless exempted by the Board under section 15, the possession or use of GTLD requires a licence under section 7.  The current annual licence fee for a single building (which would cover all GTLD signs located within it) is $3190.

6.  The Board’s policy is not to grant any exemption from the licensing requirements of the Ordinance to end-users of GTLD unless:

(1)  the total activity of tritium in GTLD in any one building does not exceed 1 TBq; and

(2)  it is not possible or feasible to use electricity to illuminate signs in the building.

7.  In November 2005, the applicant requested the Board to relax its exemption policy.  A series of correspondence between the applicant and the Board followed, with extensive submissions including expert reports from the applicant.  This culminated in the decision of the Board of 14 March 2008 to maintain its existing licensing and exemption policy with regard to GTLD which the applicant seeks to challenge.

8.  The GTLD in issue are manufactured to conform to the safety standards prescribed by the British Standard 5499-2 (1986) which require, inter alia, the following:

(1)  No individual GTLS shall contain more than 80 GBq of tritium;

(2)  The total activity of tritium in the sign shall not exceed 1 TBq; and

(3)  The amount of water-soluble tritium measured for each GTLS shall not exceed 2% of the total activity of that source.

9.  In fact, in the GTLD supplied by the applicant, the maximum activity in each GTLS (which is hermetically sealed) is 45 GBq and each GTLD contains a row of GTLS, usually numbering 13 but no more than 17.  Accordingly, the total activity within each GTLD would involve a minimum of 620 GBq but well below the maximum of 1TBq.  However, using two or more GTLD would exceed the limit of 1 TBq for conditional exemption and would require a licence.

The appeal

10.  Underpinning the exemption and licensing policy was the Board’s premise that the radioactivity in a GTLD “EXIT” sign may contain up to 300 to 800 becquerel of tritium which,

“if completely inhaled by a person, will give rise to an internal radiation goes 6000 to 16,000 times the annual radiation dose limit of 1 milisievert for an adult member of the public.”

It considered those radiation dose levels to be “very likely lethal”.

11.  In a subsequent letter of 16 October 2006, the Board explained its calculations.  An essential component was the assumption not only that all vapour tritium in the GTLS is released and inhaled, but also that “the vapour is in tritiated water form”.  Tritiated water is 10,000 more radiotoxic than tritium gas.

12.  The applicant's key challenges to the Board’s decision centre on two matters.  Briefly stated, they are, first, that the known science does not support the Board's assumption; and second, the Board's policy is internally inconsistent or self-contradictory. 

13.  On the first matter, in simple terms, in GTLD manufactured in accordance with BS 5499-2, not more than 2% of the tritium in GTLD is tritiated water.  While levels of tritiated water as high as 12% have been reported in older signs in a small study conducted at the Brookhaven National Laboratory, according to the applicant's experts, there is no scientific data that support a percentage higher than 12%. Yet, in its calculation of the radioactive dose, the Board proceeded on the basis that 100% of the tritium in GTLD would be tritiated water, a position that is not supported by any scientific literature or research. 

14.  While it is open to the Board to adopt a conservative approach, nevertheless it may not do so arbitrarily.  It might have been one thing had the Board’s calculations proceeded on the basis of a 12% level of tritiated water, it is quite another to adopt a 100% level. Prima facie, the Board's assumption appears to lack any scientific basis.  The applicant's experts have made a prima facie case (which the Board has not addressed) that, as a practical matter, under normal accidental circumstances, it is impossible for a person to take in an amount of tritiated water that is 6000 to 16,000 times the annual limit in that an intake at that level cannot happen without appropriate technical knowledge and facilities.  Scientifically speaking, the Board's assumption would appear to be unjustified.  If so, that would necessarily invalidate its calculation of the radioactive risks and so undermine the basis for its exemption and licensing policies.

15.  As regards the second matter, the Board has not stated its basis for adopting the 1 TBq limit. Approaching the matter on the assumption that the Board's risk calculation were correct, when applied to its exemption policy of 1 TBq per building, the radioactive dose to which members of the public would be exposed would be at 20,000 times the annual radiation dose limit. If, according to the Board, a dose level of 6000 to 16,000 times is to be considered 'lethal', there is a certain illogicality in the Board's policy in granting a conditional exemption when the exposure is at 20,000 times. 

16.  If, on the other hand, the justification were the public interest to be served in having emergency signage where the use of electrical power is not possible or feasible, it seems illogical that, where the use of such electrical power is possible, the exposure is nevertheless permissible under the licensing regime.

17.  In my view, leave should be granted for those reasons and, for present purposes, I do not consider it necessary to deal with the many other points raised by the applicant.  Finally, I should add that this is not a case where the Board has had to choose between the competing views of experts and preferred one view to another. 

Hon Hartmann JA:

18.  For the reasons given, I too agree that the applicant does have a reasonably arguable case.