RE POPULAR SIGNS LTD

HCAL 53/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 53 OF 2008

____________

____________

____________

_____________

D E C I S I O N

_____________

I.       INTRODUCTION

1.  Popular is the exclusive representative and distributor here of Gaseous Tritium Light Devices (GTLD) manufactured by Isolite.

2.  GTLD are self-illuminating.  They are typically used for EXIT or other signs showing emergency routes within buildings.

3.  GTLD contain Gaseous Tritium Light Sources (GTLS).  A GTLS is a glass tube filled with tritium gas.  Tritium is radioactive.  A GTLS emits light as a result of radiation from the decay of tritium.  Beta radiation from the decaying tritium induces the emission of light from the phosphor coating of the inner walls of the GTLS tube.

4.  Popular seeks leave for judicial review against a decision of the Government’s Radiation Board evidenced by a letter dated 14 March 2008 (the March 2008 letter).  The letter stated that, despite objection by Popular, the Board would maintain its existing exemption policy in respect of GTLD.

5.  Under that policy no exemption is granted from the licensing requirements of the Radiation Ordinance (Cap.303) (RO) to end-users of GTLDs:-

(1)     unless total radioactivity from GTLDs in a given building is less than 1 TBq; and,

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

II.      BACKGROUND

6.  The possession and use of radioactive substances (including tritium) is regulated by the RO. 

7.  RO s.7 requires a person to hold a licence for possession or use of substances such as tritium.

8.  RO s.15 provides that the Radiation Board may grant exemptions from the provisions of the RO 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 so to do.”

9.  Accordingly, unless exempted by the Board under RO s.15, a licence is required to possess or use GTLD signs.  There is a charge of $3,190 for an annual licence fee covering a single building.  A licence application normally takes 3 to 4 weeks to process.

III.     DISCUSSION

A.      Popular’s case

10.  Under the Board’s exemption policy, a licence is required for the possession of 2 or more GTLD signs.  This is because the radioactivity from 2 signs would exceed that policy’s 1 TBq limit.

11.  But Popular stresses that the tritium gas in a GTLD is sealed within GTLSs.  Consequently, Popular suggests that GTLDs would not normally expose members of the public to any or any significant (as opposed to merely negligible) dose of radiation.

12.  Popular posits the following “cautious assumptions” (the 4 assumptions):-

(1)     The total tritium content within a GTLD (irrespective of chemical form) is released promptly into a small room (volume 60 cu m).

(2)     The room is occupied by an adult engaged in light activity with a breathing rate of 1.5 m³h^-1.

(3)     The room is ventilated with 4 air exchanges per hour.

(4)     2% of the tritium content is tritiated water and 98% is gaseous tritium[1].

13.  Given those assumptions, the effective dose resulting from the intake of all the tritium within a GTLD of 800 GBq would then be 1.8 mSV.  This (according to Popular) is “comparable to the annual effective dose limit of 1 mSV prescribed by the BSS in normal exposure situation and is well below the effective dose limit of 5 mSv prescribed by the BSS in special circumstances”. 

14.  Therefore, according to Popular:-

“the radiation dose from the unlikely release of all the tritium from a GTLD, not even a once in a lifetime event, is in the order of the annual radiation dose limit of 1 mSv.  Such a release does not represent a threat to life.”

15.  Popular says that the Board’s exemption policy is unreasonably restrictive.  It contends that the policy is based on unscientific thinking.  In particular, it alleges that Radiation Board is guilty of a number of fallacies. 

16.  First, Popular alleges what it calls the “Exemption Level Fallacy”.

17.  International Basic Safety Standards for Protection against Ionizing Radiation (BSS) have been issued by the International Atomic Energy Agency (IAEA).  Under the BSS there can be automatic exemption from regulatory control in respect of tritium activity (whether in a sealed or unsealed environments) up to 1 GBq (that is, 1 billion Bq).

18.  The Government (Popular notes) recognises that the BSS has an exemption level of 1 billion Bq for tritium.  But (Popular complains) the Government wrongly suggests that, because the average tritium self-luminous sign in the Hong Kong market may contain 300 to 800 times this upper limit for exemption, such signs do not meet international criteria for exemption.

19.  Such a suggestion is wrong (Popular argues) because the 1 GBq exemption level applies to all tritium sources whether sealed or unsealed.  The BSS nonetheless provides (Popular observes) that:-

“Conditional exemptions may be granted subject to conditions specified by the Regulatory Authority, such as conditions relating to the physical or chemical form and to the use or disposal of the radioactive materials.  In particular, such an exemption may be granted for an apparatus containing radioactive substances not otherwise exempted ... provided that:-

(a)     it is of type approved by the Regulatory Authority;

(b)     the radioactive substances are in the form of sealed sources that effectively prevent any contact with radioactive substances or their leakage except that this should not prevent exemption of small quantities of unsealed sources such as those used for radioimmunoassay;

(c)     in normal operating conditions it does not cause an ambient dose equivalent rate or a directional dose equivalent rate, as appropriate, exceeding 1 µ Svh^-1 at a distance of 0.1 m from any accessible surface of the apparatus; and

(d)     necessary conditions for disposal have been specified by the Regulatory Authority.”

20.  Thus, Popular contends that, contrary to what Government suggests, it is possible for a sealed tritium source such as a GTLD sign to qualify for conditional exemption under the BSS.

21.  Second, Popular alleges what it calls the “Tritiated Water Percentage Fallacy”.

22.  Government has publicly stated that, “as GTLS ages, the percentage of gaseous tritium decreases and the percentage of tritiated water becomes more predominant (up to 12% as reported by the Brookhaven National Laboratory of USA)”.

23.  This is misleading (Popular says) because according to Dr. Keith Eckerman (an expert whom Popular has engaged and whom it describes as “the world’s leading dosimetrist and the ex-chairman of the dose calculation task group for ICRP [International Commission on Radiological Protection]”) the 12% tritiated water level observed in the Brookhaven study was not observed in “a larger study conducted some time later (Wermer 1995)”.  That later study observed tritiated water levels of less than 2%.

24.  Popular further relies on the expert opinion of Dr. Anthony Wrixon (who “headed the Radiation safety Section in IAEA”).  Dr Wrixon confirms that “[m]easurement of tritiated water, or water-soluble tritium, have, in general, demonstrated that the manufactured GTLSs comply with the 2% limit”.

25.  Popular has provided the Government with a test report by the UK National Radiological Protection Board certifying that the percentage of water-soluble tritium compounds in Isolite’s GTLDs are below 2%.

26.  Popular complains that it is misleading for the Government “to selectively mention a stand-alone report [such as the Brookhaven study] without giving the full picture of other relevant studies”.

27.  Third, Popular alleges what it calls the “X-Ray Fallacy”.

28.  Government accepts that “the beta radiation of tritium has very low penetration power and cannot penetrate through the glass tube [of a GTLS]”.  But Government takes the view that:-

“external radiological hazards of GTLS exist through the emission of more penetrating low energy x-ray, which are produced by the bombardment of beta radiation with the phosphor and the glass walls.  There are also some risks of internal radiological hazards from the very gradual diffusion of tritium gas through the glass wall and the leakage of tritium and tritiated water from imperfectly sealed GTLS.”

29.  Popular observes that Dr. Wrixon is of a contrary view.  According to him, “x-ray energy is very low and the radiation has no significant penetrating power”.  In Dr. Wrixon’s opinion, “[t]he external dose rate of an EXIT sign is virtually zero because of the shielding of the device”.

30.  Dr. Wrixon additionally comments thus on the diffusion of tritium through the glass of a GTLS:-

“[t]his is so very small that it can also be neglected...  Furthermore, GTLSs that might be leaking tritium should be detected at the time of manufacture because of the quality control procedures that are followed.  So, in short, radiation exposure from normal use can be discounted.  To state that there are some risks of internal radiological hazards from diffusion and leakage without appropriate qualification of those risks seems to me unacceptable.  It can only create unnecessary fear; it is tantamount to telling people that there is some risk from say walking in the park.  Any risks that might exist from such an activity are rightly discounted by normal people.”

31.  Thus, Popular believes that the Government is being misleading and alarmist in considering the effects of x-ray penetration.

32.  Fourth, Popular alleges what it calls the “Dosimetry Fallacy”.

33.  According to Popular, Government’s view is reflected in the following passage:-

“The potential health hazards of GTLD are obvious if the total activity of tritium in a single GTLD, which is 300 to 800 billion becquerel, is compared with the Annual Limit on Intake (ALI) of tritium recommended by the ... [ICRP].  The ALI is the amount of intake to the body to result in the occupational radiation dose limit being exceeded in a year.  According to ICRP, the ALI for inhalation of tritium is 1 GBq ...  The intake limit for members of the public is one-twentieth of this activity.  As the amount of tritium in a single GTLD is 300 to 800 times the ALI for workers and 6,000 to 16,000 times the intake limit for the public, the radiation dose incurred to an exposed individual can be very substantial.”

34.  But this Popular contends is “conceptually wrong”.  It reasons as follows:-

(1)     The ALI of 1 GBq for inhalation of tritium is only true for tritiated water.  The ALI for inhalation of gaseous tritium is 10,000 GBq.  No more than 2% of the tritium in a GTLD is tritiated water.

(2)     While it is true that the activity in a single GTLD is approximately 6,000 to 16,000 times the annual limit of intake of tritiated water (not gas), it is impossible for a person to take in a quantity of tritium water anywhere near that amount without it being a deliberate act by someone with appropriate technical knowledge and facilities.

35.  Fifth, Popular alleges what it calls the “Incidents Evaluation Fallacy”.

36.  In support of its position, Government cites incidents of tritium exposure from broken GTLDs in other countries. 

37.  There were (according to Government) 83 reportable events in the 8 years between January 1995 and March 2003.  These included 14 incidents in which GTLSs were broken or damaged and individuals were potentially exposed to tritium and 6 incidents of known or likely exposure to the public. 

38.  Government further refers to 1 incident wherein an adolescent received a dose of about 3 millisievert, which is 3 times the annual dose limit for an adult. 

39.  Government also believes that the number of unreported lost, stolen or inadvertently discarded GTLSs far exceeds the number of reported events.

40.  Popular responds by reference to Dr. Wrixon’s opinion.  He states:-

“[T]he dose limit [of 1 mSv] is intended to be applied to normal use situations.  While accidental exposures are not to be welcomed, what is important is to determine whether any doses from incidents or accidents are serious from the point of view of hazard to the exposed individual and ... the reported doses certainly cannot be regarded as serious; the value of 3 mSv is comparable with that received by the average person during one year from natural radiation sources, and doses to particular individuals from natural radiation sources vary by more than a factor of ten about this average.”

41.  Sixth, Popular alleges what it calls the “Statutory Limits Fallacy”.

42.  Government has pointed out that:-

“Cap. 303B prescribes a dose limit of 20 mSv in a year for occupationally exposed workers and a dose limit of 1 mSv in a year for members of the public.  Those dose limits are based on the system of dose limitations recommended by ICRP and are consistent with the statutory dose limits adopted by most countries.”

43.  Popular counters that this is misleading.  Reg. 14 of Cap 303B (Radiation (Control of Irradiating Apparatus) Regulations) does not (Poplar says) apply to GTLD signs.  That is because GTLDs are not “irradiating apparatus” as defined under RO s.2.  GTLD (Popular reasons) are subject instead to the Radiation (Control of Radioactive Substances) Regulations (Cap.303A) which prescribes no limits for members of the public.

44.  Finally, Popular alleges what it calls the “Consumer Product Fallacy”.

45.  Government’s position is that “[i]n principle the use of radioactivity in consumer products ... is unjustified especially when non-radioactive alternatives are available”.  But Government recognises that GTLDs have been used for emergency signage in Hong Kong since the early 1980s in light of their potential life-saving benefits.  Those benefits may outweigh the risks to public health where use and subsequent waste disposal are kept under a proper system of management.  Thus, manufacturers, producers, sellers, dealers, possessors and end-users of the signs are required to hold valid radioactive substance licences.

46.  Popular responds that EXIT signs are not consumer products.  They are used in public buildings.  The only practices considered as unjustified in the BSS involve use of radioactive substances in food, beverages, cosmetics or other products intended for ingestion, inhalation or other form of body intake. Popular argues that the fact that alternative, non-radioactive methods are available should be irrelevant from a protection point-of-view.  There is no reason (Popular thinks) why end-users of EXIT signs need to be licensed.

47.  Popular claims (and for the purposes of this leave application I shall assume) that opinions similar to those which I have attributed above to Government are manifest in the correspondence and dealings between the Government and Popular leading up to the March 2008 letter.  Popular concludes from this that, in refusing to relax its exemption policy, the Radiation Board acted irrationally.

48.  There is a suggestion by Popular that the correspondence with the Government gives inadequate reasons in support of the exemption policy.  But it seems to me that on any reading the 19 November 2007 which Popular heavily criticises gives an adequate summary and rationale for Government’s policy approach.  This is not a situation where Government must set out the entirety of its reasons in detail as if it were performing a quasi-judicial task.

B.      Assessment of Popular’s case

B.1    General observations

49.  I would make 3 general observations.

50.  First, it is not the province of the Judiciary to determine matters of Government policy, including its policy regarding possession and use of radioactive substances.

51.  In my view, Popular is by its application inviting this Court to determine precisely that which this Court cannot do.  I am being asked to prefer the views of Popular’s experts over those of the scientists, doctors and other specialists of the Radiation Board.  I am being asked to adjudicate between the competing assumptions posited by Popular’s experts and those of the Radiation Board and to conclude that the latter are far too conservative to be reasonable.

52.  I do not think that such a matter is a proper one for judicial review.  The Court’s expertise is the law.  It has no special insight into science.  It is not equipped to resolve disputes over what Government policy on radioactive substances should be.

53.  Second, Mr. Philip Dykes SC (appearing for Popular) submits that this is an appropriate matter for judicial review because the Radiation Board purports to apply the BSS and (in the view of Popular’s experts) the Radiation Board’s reading of the BSS is wrong.

54.  When I asked Mr. Dykes why he said that the Radiation Board was bound by the BSS, he drew my attention to a statement by the Board that its views were “based on” the BSS.  Further, Mr. Dykes observed that the Board has never suggested that the BSS is wrong or too liberal or otherwise inapplicable.

55.  I do not see how the Board’s mere statement that its views are “based on” the BSS, binds the Board to apply the letter of the BSS and only the letter of the BSS.  The BSS is not a statute.

56.  Plainly, the Board is entitled (and has a discretion) in determining its exemption policy to consider all relevant materials (not just the BSS).  It can “base” its opinion on the BSS, but also take account of other matters (including, for instance, the Brookhaven study).

57.  Third, much depends on what assumptions one begins with. 

58.  Popular’s experts contend that the 4 assumptions are conservative and are a reasonable (perhaps even conservative) approximation of what might conceivably be encountered in real life.

59.  The Radiation Board, in contrast, has indicated that it is not prepared to accept the 4 assumptions.  It prefers more conservative assumptions.  For example, the Radiation Board advances the following:-

(1)     EXIT signs in use by end-users are at different stages of aging so that the oxidised form of tritium (tritiated water) may increase with time, even though the signs may have met a particular standard when new.

(2)     Indoor premises in Hong Kong may not provide the level of air exchange assumed by the 4 conditions.

(3)     Dispersion and re-circulation of air indoors will result in the sharing of radiation doses by a larger group of individuals.

60.  The Board has also pointed out that Popular’s estimated dose of 1.8 mSv premised on the 4 conditions itself exceeds the annual dose limit for members of the public of 1 mSv. Popular’s experts may think that the 1.8 mSv estimate “compares favourably” with the 1 mSv dose limit and so can be characterised as “negligible”.  But the Radiation Board, which is ultimately charged with the protection of the public interest, feels that it cannot be so complacent about the risk involved.

61.  In my view, however eminent its experts may be, Popular comes nowhere near establishing a reasonably arguable case that the Radiation Board is so ultra-conservative in its counter-assumptions and so overly concerned to minimise potential public exposure to radiation as to be Wednesbury irrational.

62.  Different experts may disagree (even strongly disagree) on what are proper assumptions to make and what is a reasonable risk to run.  But, with all respect to the views of Dr. Eckerman and Dr. Wrixon, such clash of views is not sufficient to render the Board’s views unreasonable or inadequate or arguably so.

63.  The Court should be slow to interfere where in effect what it is being asked to do is to prefer one of two or more competing assessments of risk to human life.  Those are essentially issues of policy for the Executive and the Legislature to determine, not the Courts.  It is the Radiation Board, not the Courts, which is charged with the function of assessing the risk from exposure to radiation and whether a particular risk is outweighed by specific benefits.

B.2    The alleged fallacies

64.  I will briefly comment on the 7 fallacies.  In my view, they establish little more than that different experts may reasonably differ on how certain questions about acceptable risk might be answered.

B.2(a) Exemption Level Fallacy

65.  I do not think that there is anything misleading in the Radiation Board stressing that the automatic level of exemption is set at 1 GBq.

66.  It is true that the BSS refers to “conditional exemptions” but even the granting of such depends on an assessment by the Government of the following conditions:-

(1)     whether the apparatus should be approved;

(2)     the degree to which the sealed source prevents leakage or contact with the radioactive source within;

(3)     the ambient dose equivalent rate in normal operation conditions; and,

(4)     the necessary conditions for disposal.

67.  In light of that, I do not see how as a matter of logic the possibility of “conditional” exemptions can somehow render an exemption policy based on the automatic exemption level fallacious or unreasonable.

B.2(b) Tritiated Water Percentage Fallacy

68.  Given the results of the Brookhaven study, I do not see why it would be unreasonable, inadequate or misleading for Government to take the possibility of 12% tritiated water into account in formulating its exemption policy.  Other studies may have come up with no more than 2% tritiated water.  But that can hardly mean that the Government is wrong to take a more prudent approach based on 12% tritiated water.

B.2(c)  X-ray Fallacy

69.  What is or is not an acceptable risk is for the Radiation Board to decide.  Popular may believe that the Board is making a mountain out of a molehill of a risk.  But that does not mean that the Government has acted irrationally in its assessment of the risk.

B.2(d) Dosimetry Fallacy

70.  Again the risk may be minimal or negligible in the assessment of Popular’s experts.  In Popular’s view, the Government’s position may even be extreme.  But that does not mean that the Government has acted irrationally in taking the relevant risk (even if very small or highly unlikely) seriously.

B.2(e)  Incidents Evaluation Fallacy

71.  This seems to me again to be a matter of starting assumptions and risk assessment.  Popular’s experts may differ strongly with the opinions of the Radiation Board’s experts.  But that does not render the Board’s assumptions and assessments unreasonable.

B.2(f)  Statutory Limits Fallacy

72.  In my view, the Government is entitled to take account of the dose limits in Cap.303B in determining its policies concerning public exposure to radioactive substances.  This would be the case whether or not as a matter of strict law Cap.303B applies to GTLDs.

B.2(g) Consumer Product Fallacy

73.  Again, in my view, it is reasonable for Government to have regard to its policy on the incorporation of radioactive substances in consumer products in determining its policies relative to GTLDs.  This would be the case even if GTLDs are not consumer products. 

74.  Thus, in principle the public should not be exposed to radioactive substances in consumer products.  One could infer from this that, as a matter of policy, public exposure to radiation from an end product (which is not a consumer good) should be minimised.  The potential benefits from the use of radioactive substances in such end products should at least outweigh the potential risks.  This is precisely the approach which the Government has taken.

75.  Popular suggests that the limitation of the use of GTLDs to situations where electricity is not feasible results from the alleged Consumer Product Fallacy.  The existence of a non-radioactive alternative is irrelevant (Popular says).  But I cannot agree.  Government must be entitled to consider the existence of alternatives such as (say) electricity in evaluating whether a risk of public exposure to radiation is warranted.

C.      Summary

76.  In my judgment, Popular has no reasonable prospect of succeeding in this review.  I do not think that the evidence establishes more than a disagreement among experts as to the parameters of an appropriate policy.  The evidence does not give rise to a reasonably arguable case that the Radiation Board has behaved irrationally or without proper reason.

77.  Further, in my view, Government’s reasons for its policy are adequately stated.  Indeed, in citing numerous alleged fallacies, Popular seems to have had little difficulty in discerning Government’s reasons and criticising the same.

IV.     CONCLUSION

78.  Leave to apply for judicial review is refused.

79.  At the oral hearing of the leave application, I raised the question of Popular’s locus.  Popular claims to have standing because, in the absence of an automatic exemption for GTLD signs, potential customers would have to apply for licences.  The process of so applying (it is asserted) would deter customers from buying Popular’s products and thereby lead to reduced revenue for Popular.

80.  There is no evidence showing that customers have actually been deterred from buying Isolite GTLD signs because of the licensing requirement under the RO.  Thus, the basis upon which Popular claims standing appears to me to be speculative and tenuous.  I have doubts whether the basis asserted is sufficient to confer locus.

81.  Nonetheless, in light of my decision on the substantive application, it is unnecessary for me further to consider the question of standing.

[1]   The coefficient for the committed effective dose from inhalation of gaseous tritium is 1.8 x 10^-15 SvBq, while that for tritiated water is 10⁴ times higher at 1.8 x 10^-11 SvBq^-1.