RE THE SEA DRAGON BILLIARD AND SNOOKER ASSOCIATION

[There is a duty on those responsible for the arrangement of the Court's business to make available early dates for the hearing of a judicial review leave to apply for which has been granted]

M.P. No. 3645 of 1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application for leave to apply for a judicial review.

2. The applicant is the Sea Dragon Billiard and Snooker Association ("the Association"), a private members association engaged in the business of promotion of billiards and snooker in Hong Kong. The respondent is the Director of Fire Services ("the Director") appointed pursuant to the provisions of the Fire Services Ordinance, Cap. 95 ("the Ordinance"). The Director, subject to the orders and control of the Governor, is charged with the supreme direction and administration of the Fire Services Department : see s.5 of the Ordinance.

3. The matter arises in this way.

4. The Association operates a billiard and snooker saloon at 1/F and 2/F, Amoy Industrial Building, 7 Ngau Tau Kok Road, Kowloon. It needs a licence for that purpose and it has applied for one accordingly. Because of representations made to the licensing authority by the Fire Services Department, its application has been refused. The Fire Services Department took the view that the Association had set up its business in the wrong place. The premises in which the Association operates are premises in a building in other parts of which industrial processes are carried on using highly flammable material. The Fire Services Department believes that there is an unacceptable risk to users of the saloon and other members of the public in the use of these premises for the purposes for which the Association uses them.

5. Aggrieved by the decision to refuse its application for a licence, the Association has applied for and on 30th August 1990 was granted leave to apply for a judicial review of the decision. That application for judicial review is due to be heard, I was told, in February of next year. Why there should be such a long delay was not explained to me. Applications for judicial review, if they have any merit at all, need to be dealt with as a matter of urgency. There is a duty on an applicant for a judicial review to bring his case before the Court at the earliest opportunity and, it seems to me, there is a corresponding duty on those responsible for the arrangement of the Court's business to make available early dates for the hearing of any such application. That is, however, not a matter for me.

6. What has now happened is that the Director has, in affect, jumped the gun. He has issued a "fire hazard abatement notice", pursuant to the provisions of s.9(1)(a) of the Ordinance, dated 22nd October 1990, and addressed to the Association, directing it to abate an alleged "fire hazard" within 30 days.

7. It will be convenient at this stage to outline the statutory regime which is applicable.

8. It is the duty of the Director to protect life and property in case of fire or other calamity and to carry out such other duties as may be imposed on him by law : see s.7 of the Ordinance.

9. If the Director is satisfied of the existence, in or on any premises, of any fire hazard, he may serve upon the person by reason of whose acts, default or sufferance the fire hazard arose or continues, a notice in the statutory form ("a fire hazard abatement notice") requiring him to abate the fire hazard within a period specified in the notice, and to do all such things as may be necessary for that purpose; and the notice may, if the Director thinks fit, specify any works to be executed for the purpose aforesaid : see. s.9(1)(a) of the Ordinance.

10. A "fire hazard", so far as is material for present purposes, is any matter or circumstance which materially increases the likelihood of fire or other calamity or the danger to life or property that would result in the outbreak of fire or the occurence of any other calamity or which would materially hamper the Fire Services Department in the discharge of its duties in the event of fire or other calamity : see section 2 of the Ordinance.

11. If you fail to comply with a fire hazard abatement notice, you convict a criminal offence and are liable to prosecution. If you are convicted, the magistrate who convicts you may of his own motion or upon the application of the Director make an order against you ("a fire hazard order") for abatement of the fire hazard : see s.9(3A) of the Ordinance.

12. Furthermore, if it is proved (among other things), first, that the fire hazard continues, and the cause of the fire hazard is the structural character of the premises concerned or the location of the premises having regard to the nature of the area in which the premises are situate, and secondly, that the premises are being used for a purpose which may materially increase the likelihood of fire or other calamity or danger to life or property resulting from the outbreak of fire or the occurence of any other calamity in or on the premises, the magistrate may make a "closing order" prohibiting the use of the premises for the purposes specified therein : see section 7A of the Ordinance.

13. This code contains sensible, and, one hopes, effective provisions which enable the Fire Services Department to keep to a minimum the risk of calamity from fire in the use of premises throughout Hong Kong.

14. In the present case, the Director has (as I have said) issued the Association with a fire hazard abatement notice in relation to the premises which it uses as a billiard and snooker saloon. The notice says that the director is satisfied of the existence at those premises of a fire hazard. The fire hazard to which he refers is "the use of the premises, situated in a building used principally for industrial purposes, for billiard saloon purposes, thereby materially increasing the danger to life and property that would result from the outbreak of fire or the occurrence of any other calamity". (I have corrected one or two grammatical or typing errors in the notice.)

15. The "fire hazard" which the Director alleges is, then, the use of the premises (situated as they are in a building used principally for industrial purposes) for billiard saloon purposes. It follows, as Mr Marshall, Q.C., for the Director accepted, that on the Director's view of the matter it is impossible for these premises to be made fit for use as a billiard saloon having regard to the situation in which they are to be found. No matter what precautions the Association were to take by way of fire protection measures, they would not be good enough. The problem, says Mr Marshall, is that the billiard saloon is set up in the wrong place. It is that which creates the fire hazard.

16. The Association says that the Director has misconceived his powers. It contends that the notice is given in excess of the powers conferred upon the Director by the Ordinance. The complaint that the Association makes is that the power conferred on the Director by the Ordinance is a power which is limited to the abatement of risks which are capable of abatement by the taking of the appropriate fire precaution methods. It seeks to argue that the Director's reliance on a fire risk created, not on the premises themselves, but because of the propinquity of the premises to other premises in which industrial uses are carried on involving highly flammable material, is not justified on the true construction of the powers conferred on the director by the Ordinance.

17. It is, of course, not for me to decide this point. I have simply to decide whether the point sought to be taken by the Association is an arguable point. It is accordingly better that I express no view of my own as to whether the point is a good one if I form the view that it is an arguable point; and I have come to the conclusion that indeed it is. It may well be that, upon the judicial review, the Director will be able to persuade the judge that there is nothing in the Association's objection, and that the Director is right. But that is for another judge and at another time. For present purposes, it is sufficient for me to indicate, as I do, that, in my view, the Association's point is an arguable one.

18. The Association seeks to raise other points. It seeks to say that the Director based his decision to issue the fire hazard abatement notice taking into account irrelevant or erroneous matters. That point may or may not be arguable but I need say no more about it since in any case I propose to give leave to apply for a judicial review on the first point. The Association also suggest that there is, in this case, some element of bad faith or perversity on the part of the Director in taking his decision to issue this fire hazard abatement notice in advance of the judicial review already on foot. In my judgment, this point is not even arguable and I refuse leave for a judicial review to proceed on it. The Association will be confined in its substantive application to arguing the grounds of excess of power and (if it wishes to pursue it) reliance on the irrelevant or erroneous matters.

19. I now have to consider what practical steps ought to be taken to protect the Association's position pending the hearing of its present application for a judicial review. Mr Marshall rightly urged on me that, if I thought there was a serious risk of fire in these premises, I ought not even to consider granting a stay of any proceedings which the Fire Services Department may take. But I have heard and seen nothing which satisfies me that the risk is in fact so serious as to warrant the injustice that would be done to the Association if it is precluded from carrying on its activities at the premises pending the hearing of its application for a juidicial review. Accordingly, provided that the Association is prepared to undertake forthwith to apply to the court for the expedition of the hearing of its application for a judicial review (and also to apply for expedition of the hearing of its earlier application for a judicial review presently standing to be heard in February 1991), I will grant a stay.

20. If those undertakings are not forthcoming, I shall refuse a stay. The applicant must, of course, also apply for the two applications for a judicial review to be heard together. I understand there will be no objection to that.

21. For the reasons I have endeavoured to state, and subject to the limitations I have indicated, I grant leave to the Association to apply to this court for a review of the Director's decision to issue the fire hazard abatement notice of 22nd October 1990.