POPULAR SIGNS LTD v. RADIATION BOARD

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

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BETWEEN

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J U D G M E N T

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The applicant and GTLD

1.  The applicant is the distributor in Hong Kong of gaseous tritium light devices (“GTLD”) made by a US supplier, Isolite. Isolite is a supplier of GTLD self-luminous EXIT signs used in commercial and industrial premises and in places to which the public has access.

2.  GTLD are devices that are self-illuminated by means of internal light sources called gaseous tritium light sources (“GTLS”). A GTLS is a glass tube filled with tritium gas. The glass tube resembles a miniature fluorescent tube. The inner surface of the glass tube is coated with luminous phosphor. The beta radiation from the decay of tritium induces the emission of light from the phosphor when it hits the inner wall of the tube. The tritium gas is sealed inside the GTLS glass tube.

3.  GTLD are usually displayed as “EXIT” signs or direction signs showing ways of escape during emergency. They have the advantage that they do not need external power to operate. When a power failure occurs, the signs are still visible in the dark, thus performing their safety function.

The Radiation Ordinance

4.  Tritium is a “radioactive substance” as defined in section 2 of the Radiation Ordinance (Cap 303) (“the Ordinance”). The Ordinance was enacted in 1957 to, amongst other things, “control the import, export, possession and use of radioactive substances”. Any substance with specific radioactivity exceeding 75 Bq per gram is regarded as a radioactive substance under the Ordinance and is subject to the control of the Ordinance.

5.  Section 3(1) of the Ordinance establishes the Radiation Board. It comprises three ex officio members (the Director of Health, the Commissioner for Labour or his nominee, and the Director General of the Trade and Industry or his nominee) and not more than 10 other persons as the Chief Executive may appoint.

6.  Section 4 of the Ordinance sets out the functions of the Board. Amongst other things, the Board is charged with the responsibility to grant licences under the Ordinance and to impose conditions on any licences so granted. It is also responsible for the cancellation, suspension and renewal of licences, and the exercise of any other powers vested in the Board under the Ordinance.

7.  Section 5 enables the Board to appoint such advisory, technical or medical committees as it thinks fit to advise on such matters within the scope of its functions as are referred thereto by the Board. Pursuant to section 5, the Board has set up three advisory committees, namely, the Licensing Committee, the Exemption Sub-Committee, and the Medical Panel.

8.  Section 7(1) of the Ordinance provides that subject to such exemptions as may be prescribed, no person shall, except under and in accordance with a licence issued under the Ordinance, manufacture or otherwise produce, or sell or otherwise deal in or with, or have in his possession or use, any radioactive substance or irradiating apparatus.

9.  Section 9 of the Ordinance deals with the grant or renewal of licences. Section 12 specifically empowers the Board to impose conditions of licence.

10.  Section 15 of the Ordinance empowers the Board to grant exemption from the provisions of the Ordinance. Sub-section (1) reads:

“The Board may grant, subject to such conditions or restrictions as it may consider expedient, exemption from any of the provisions of this Ordinance to any specified person, group or class of persons or in respect of a specified radioactive substance or irradiating apparatus or class thereof 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.”

Control of GTLD EXIT signs

11.  As a beta radiation generator, tritium is a known human carcinogen. Tritium presents limited hazards if outside the human body because the beta radiation released during radioactive transformation does not have enough energy to penetrate the outer layer of dead skin cells. However, there are significant internal radiation hazards when tritium is taken into the body. Tritium may be taken into the human body through inhalation, skin absorption, ingestion and injection. Tritium in gaseous form is inhaled and exhaled with only about 0.005% of activity deposited in the lungs. However, tritium in the form of tritiated water has near to 100% uptake through ingestion and skin absorption. It poses much greater health hazards than exposure to gaseous tritium. Apart from direct consumption, ingestion of tritium may occur if an individual who has handled a device that has external contamination eats, drinks, applies cosmetics or touches the mouth or lips before washing hands. Injection may occur if an individual handles a tritium device that breaks and part of the device penetrates the skin and forces tritium into the body. Once in the body, it is distributed uniformly throughout the body.

12.  In relation to GTLD EXIT signs, the Board’s policy is as follows:

“(A)  The use of tritium signs is only justified by the potential benefit of saving of life and where the use of electrical power is not possible or feasible;

(B)  If the aggregate activity of tritium in signs that are securely fixed at specified locations inside any specified premises is 1,000 GBq [ie 1 TBq] or less, user/possessor of tritium signs may be granted an exemption which is renewable triennially so that the administrative burdens to the Board can be reduced without unduly compromising the health and safety of the public;

(C)  If the aggregate activity of tritium in signs that are securely fixed at specified locations inside any specified premises exceeds 1,000 GBq, the end-user/possessor of tritium signs shall be bound by licence so that the status of management and condition of the signs are reassessed annually;

(D)  Importers, manufacturers, producers, distributors and sellers of tritium signs should be subject to licence requirements so that the health and safety of workers and directly affected members of the public will be adequately protected and the transfer and disposal of tritium signs will be kept under proper management from “cradle to grave”, so as to minimise the potential exposure of indirectly affected members of the public to tritium;

(E)  No local disposal of tritium sign is permissible. All such signs are to be returned to the overseas manufacturer when they can no longer serve the dedicated purpose of usage.”

(Paragraph 7 of Cheng Kit Man’s first affirmation)

Licensing vs exemption

13.  This application for judicial review is only concerned with whether the Board should, as a matter of policy, grant exemption from the licensing requirements under the Ordinance to end-users of GTLD EXIT signs. There is no dispute that distributors and sellers like the applicant are required to obtain licences for their businesses.

14.  As regards an end-user, the immediate consequence of his not obtaining an exemption from the licensing requirements is that he is required to pay an annual licence fee. The fee is currently $3,190, covering an entire building, where GTLD EXIT signs are to be used. However, this is not the only difference between having to obtain a licence and getting an exemption. According to the evidence, the requirements on liability, management responsibility, supervision and enforcement attention are significantly different as between the licensing and exemption regimes. Under the licensing regime, the justification of use is subject to pre-licensing assessment and premises of use are subject to pre-licensing and ad hoc inspections. The licensee is required to appoint a qualified person with training and experience in radiological protection matters to supervise any activities involving the tritium signs. Conditions are prescribed in the licence regarding protection of persons who are engaged in the handling and use of tritium signs, safety precautions to be exercised by the licensee in the workplace and equipment, proper record keeping and management of the signs, and methods of disposal of wastes. Furthermore, there are requirements on emergency preparedness to deal with incidents and accidents. Finally, as a licence is renewed annually, the licensee is reminded, through the licence renewal process, of its responsibilities and liabilities on a yearly basis; and, on the other hand, the status of the licensee and the condition of the tritium signs are verified by the Board at least once a year.

15.  Under the exemption regime, while justification of use is also subject to pre-exemption assessment, most of the requirements available under a licence are excluded. Inspection will not be conducted unless deemed necessary under law enforcement action, although in theory the power of inspection, provided under section 16 of the Ordinance, is equally applicable to premises of exempted end-users. There is no monitoring of the exempted use throughout the exemption period, which is three years under the present policy of the Board.

16.  It should be noted that the Board’s policy is premises-based, rather than purely device-based. According to the Board, the significant drawback of a purely device-based exemption limit is that it takes no account of the potential aggregation of individually exempted devices (and potentially harmful radiological effects) within the same premises. Even where the potential radiological risk of individual standalone items may be discounted, the combined risk arising from mismanagement of such items or wastes in bulk quantities, according to the Board, can become a serious matter of concern. The Board takes the view that the primary public health and risk concern in the use of tritium signs is the potential exposure of the uninformed public arising from breakage of tritium signs in the course of an accident, acts of vandalism and inadequate management leading to loss and improper disposal. The risk to the public is, therefore, to be determined by factors that include the radioactivity in individual devices, the distribution and concentration of tritium radioactivity upon dispersion in indoor air within buildings and other premises, and the proper management of waste tritium signs in bulk quantities. Hence the risk is not only determined by the radioactivity in individual signs, but is also determined by the aggregate radioactivity of tritium signs in the same premises under the same management. For those reasons, according to the Board, a premises-based exemption scheme is adopted. From its own experience, the Board also feels that there is indeed a real and significant risk of improper management of exempted tritium EXIT signs in Hong Kong. In the view of the Board, there is a need for an appropriate system of licensing, monitoring and review.

Implications for the applicant’s signs and its application for exemption

17.  The GTLD EXIT signs supplied by the applicant are designed with a roll of 17 parallel cavities to fit a maximum of 17 GTLS. The maximum activity in each GTLS is 45 GBq. The signs supplied by the applicant usually contain no more than 13 GTLS and the total activity of a GTLD sign is usually less than 620 GBq, although the potential maximum capacity is higher (if all 17 cavities are fitted with GTLS). It is therefore common ground that an end-user of only one GTLD EXIT sign supplied by the applicant will normally have no problem in obtaining a conditional exemption from the licensing requirements under the Ordinance from the Board, given the limit of 1 TBq (ie 1,000 GBq) per premises set by the Board. However, under the policy of the Board, an end-user of more than one sign supplied by the applicant will inevitably have to obtain a licence from the Board before he may use the signs in the relevant premises.

18.  For obvious reasons, the exemption policy adopted by the Board, which effectively permits only one GTLD EXIT sign supplied by the applicant for any building under common ownership or management, has adverse commercial implications for the applicant, as distributor and seller of GTLD EXIT signs. After a series of correspondence with relevant officials, departments and the Board, by a letter dated 28 March 2007, the applicant formally applied through solicitors to the Board for reconsideration of its exemption policy with regard to GTLD EXIT signs. The letter invited the Board to adopt a new policy as follows:

“Exemption [be granted for] any person to use the requisite number of GTLDs in any building provided that: -

(i)  The total activity of tritium in each GTLD shall not exceed 800 GBq.;

(ii)  The total activity of tritium in each GTLS shall not exceed 45 GBq.;

(iii)  any such GTLD be supplied by a person or company holding a valid licence to import, convey and sell GTLDs and that person or company complies with the condition of that licence so far as:

(a)  labelling and other notices affixed thereto are concerned; and

(b)  notification of such supply to the Radiation Board is concerned

(iv)  apart from the more restricted activity levels specified in provisos (i) and (ii) above, and in addition to the Hong Kong specific labelling requirements in proviso (iii)(a) above, each such GTLD complies with the specification and standards of the British Standard for Fire Safety Signs BS 5499 Part 2;

(v)  the number and location of all GTLDs used in any building comply with the requirements of the Fire Services Department;

(vi)  the user undertakes to use all such GTLDs only for Fire Safety purposes and to return them to the supplier for disposal when no longer required.”

(Para 156 of the letter of 28 March 2007)

19.  In support of the application, the applicant through solicitors made detailed representations, which were backed by reports written by two prominent radiological experts, Dr Keith Eckerman and Dr Anthony Wrixon.

20.  The application was taken seriously by the Board, which took the exceptional step of inviting the applicant to make a one-hour presentation of its case to the Board. The Board also sought and obtained a report from the Board’s Exemption Sub-Committee, which was tasked by the Board to conduct a thorough investigation of the applicant’s case and to report to the Board its findings. In a meeting of the Board, the Board considered and endorsed the findings made by the Sub-Committee in its report (“the RBES report”). The Board decided to maintain its existing policy on exemption.

21.  By a letter dated 19 November 2007, the Board informed the applicant of its decision. The letter stated:

“i.  The use of tritium signs is only justified by its potential benefit of saving of life and where the use of electrical power is not possible or feasible;

ii.  The policy for conditional exemption of tritium signs set out by the Board is by no means restrictive when compared with our neighboring areas/countries.  It is consistent with the international exemption criteria and the radiation protection standards for GTLD promulgated by the Nuclear Energy Agency of the Organization for Economic Cooperation and Development;

iii.  The Board noted that the model concerning sign breakage scenarios submitted by your experts was different from that proposed by the Radiation Health Unit (RHU).  RHU model was a more cautious model.  As a regulatory body, the Board considered it prudent and fully justifiable to adopt a cautious approach for the protection of public health; and

iv.  The current licensing and exemption policy permits the use of tritium signs whenever benefits outweigh risks.  The overriding concern is protection of public health.”

22.  After receipt of the Board’s letter, the applicant through solicitors made further submissions to the Board, with a view to persuading the Board to change its mind. By a letter dated 14 March 2008, the Board informed the applicant that after considering the applicant’s further submissions at its meeting held on 29 February 2008, the Board had come to the conclusion that its relevant exemption policy conformed to the consideration governing exemption prescribed by the Ordinance and there were no valid grounds to relax its policy. The Board also took the view that there were no exceptional circumstances which would warrant treating the applicant’s application as an exception to the exemption policy. The Board therefore affirmed its earlier position.

Proceedings

23.  Dissatisfied with the Board’s answer, on 22 May 2008, the applicant sought leave from the court to apply for judicial review. Leave was initially refused by Reyes J; but on appeal, the Court of Appeal allowed the appeal and granted leave on 20 November 2008. Under the original Form 86A, the applicant sought to challenge the relevant decisions of the Board on two grounds only, namely, failure to give proper and adequate reasons; and taking into account irrelevant factors. In a nutshell, the challenge focused on the reasons given by the Board in its letter dated 19 November 2007, as well as a number of “fallacies” which, the applicant claimed, had coloured the Board’s whole approach to the application for a revision of its exemption policy.

24.  The Board filed with the court its evidence in opposition to the application in late January 2009. The main affirmation, the one made by Cheng Kit-man, was filed on 29 January 2009. In his affirmation, Mr Cheng mentioned the obtaining of the RBES report by the Board. He exhibited a copy of the report to his affirmation.

25.  On 23 October 2009, ie almost 9 months after the filing of Mr Cheng’s affirmation by the Board and the disclosure of the RBES report, the applicant filed a notice of an intention to amend the Form 86A to include two further grounds, namely, procedural unfairness due to the non-disclosure of the RBES Report during the application stage; and irrationality, based on matters gleaned from the report and some observations made by the Court of Appeal. The applicant filed an affirmation (2^nd affirmation of Cheng Kwok Chee George) in support of the proposed new grounds. All this took place less than 2 months prior to the scheduled hearing.

26.  In response, the Board filed the 2^nd affirmation of Cheng Kit-man on 9 December 2009, 3 working days before the scheduled hearing[1]. On 12 December 2009 (Saturday), the applicant filed the 3^rd affirmation of Cheng Kwok Chee George in reply. On the second day of the hearing, counsel for the respondent, Mr Abraham Chan, handed up to the Court a 5‑page document, saying that it represented the instructions given by the Board to him about the matters raised in the applicant’s latest affirmation. Counsel indicated that his client was prepared to make a supplementary affirmation to confirm the matters set out in the document handed up to the Court.

27.  The Court found it expedient to hear the applicant on its original grounds and, on a de bene esse basis, on its proposed new grounds.

Crucial difference

28.  Although various grounds have been raised, central to the challenge against the refusal of the Board to revise its exemption policy is the adoption by the Board, in setting the relevant limit for exemption, of a worst-case scenario, which has been described by the applicant as going beyond what is “ultra ultra conservative or cautious”. Indeed, according to the applicant, it is wholly irrational. In the present case, inevitably, a great deal of technical materials and scientific learning are involved, but stripped of all non-essentials, the dispute may be briefly described in the following paragraphs.

29.  The applicant’s case is essentially that under normal use, its GTLD EXIT signs pose no or wholly negligible risk to public health. Its GTLS tubes are completely sealed, and they fully comply with the safety standard specified in BS 5499-2: 1986 – Fire safety signs, notices and graphic symbols – Part 2: Specification for self-luminous fire safety signs issued by the British Standards Institution (“BSI”) in 1986. In particular, the amount of water-soluble tritium inside each GTLS tube is no more than 2% of the total activity of tritium contained inside the tube. This is of crucial importance because, as mentioned, tritiated water is 10,000 times more absorbable by the human body than gaseous tritium. In its calculations, therefore, the applicant has based its working model for leakage under accidental conditions on the assumption that only 2% of the tritium would be tritiated water, whereas the remaining 98% would be in gaseous form.

30.  On the other hand, the Board’s worst-case scenario model has proceeded on the assumption of 100% tritiated water.

31.  Quite plainly, this has given rise to very different results.

32.  The applicant attacks the Board’s model based on 100% tritiated water as being wholly unscientific and speculative. It is irrational and arbitrary for the Board to adopt the assumption of 100% tritiated water.

33.  Quite plainly, this is a crucial matter of contention in the challenge by the applicant.

The Court’s approach

34.  The Court’s function in judicial review is, of course, not to determine differences in scientific opinion. Nor is it charged with the responsibility for setting policy, or for adopting assumptions for the purposes of making the relevant policy. The applicant relies on no fundamental rights argument in the present challenge, which proceeds on orthodox public law grounds. In those circumstances, so far as the difference in starting assumption is concerned, the Court is not here to determine whether the Board has adopted the best starting assumption, or whether a certain scientific opinion is to be preferred. The Court’s role is simply to ask itself whether the starting assumption adopted by the Board is one that no reasonable board in the position of the Radiation Board could ever come to it.

35.  In this regard, one also bears in mind several matters. First, the legislature has deliberately given the Board a wide discretion under section 15 regarding the grant of exemption. It is up to the Board to devise its own policies regarding how its discretion should be exercised in different circumstances. Secondly, quite plainly, the overriding consideration here is public safety and public health. This is reflected by the Board’s starting premise that any use of radioactive substance in the community has to be justified. This is in accordance with international standards and requirements. This is, also, common sense, given the potential harmful effect of radioactive substances. Thirdly, as I mentioned, a large part of the parties’ respective cases is based on scientific and technical materials, opinions and details. In this sort of area, the court generally defers to the view of the expert authority, to whom the legislature has entrusted the task of guarding public safety and health. R v The Human Fertilisation and Embryology Authority [2002] EWCA Civ 20, 31 January 2002. Finally, on the facts of the present case, one is concerned with the use of GTLD signs in indoor public areas usually occupied by members of public. In most circumstances, the presence of radioactive substances in these signs is unknown to the occupants or visitors of the premises. There are no practical means to detect gradual leakage of tritium gas. Loss, damage and breakage of tritium signs may easily be overlooked for long periods of time. People at the scene of damage, breakage and vandalism will most probably be unaware of the potential risks that they are exposed to. There are also concerns over the potential improper management and disposal of disused signs especially when management is changed or when the premises are to be renovated or demolished. All these are understandable concerns and it is the statutory responsibility of the Board to properly address them.

36.  Bearing all this in mind, the Court should approach the differences between the parties with a substantial degree of latitude allowed to the Board. The Board has explained in reason (iii) in its letter dated 19 November 2007 that the worst case scenario model it has adopted is a more cautious model; as a regulatory body, the Board has considered it prudent and fully justifiable to adopt a cautious approach for the protection of public health. Indeed, section 15 of the Ordinance specifically requires the Board to take into account “the degree of risk, if any, to human health involved by the granting of … exemption”. Further, it is for the Board to decide whether it is “expedient and safe” to grant the exemption.

37.  However, this does not mean that the Board can select arbitrarily any worst-case scenario model, or adopt a starting assumption merely to cater for a wholly theoretical or fanciful risk to human safety. There must be a limit, as a matter of public law, to what the Board can or cannot do; however, a great deal of respect and latitude must be accorded to the Board’s decision.

The 100% tritiated water assumption

38.  Returning to the central question of whether it is acceptable, from the Court’s supervisory point of view, for the Board to adopt the assumption of 100% tritiated water, I take the view that despite the opinion expressed very strongly by the experts engaged by the applicant and the many materials that the applicant relies on in support of its case, the Board cannot be criticised for adopting the assumption in question. As mentioned, the applicant has proceeded on the assumption of 2% tritiated water. According to the applicant’s experts, measurements of tritiated water in various studies have, in general, demonstrated that GTLS tubes complied with the 2% limit under the BSI standard even after prolonged use. The experts acknowledge that up to 12% tritiated water was reported in a study by the Brookhaven National Laboratory in the States (which was relied on by the Board). However, that result is criticised by the applicant’s experts as being a standalone one, which does not tally with the results obtained in other relevant studies.

39.  Under the BSI standard, the amount of water-soluble tritium measured for a GTLS must not exceed 2% of the total activity of the source. Whilst it might reasonably be assumed, therefore, that the tritiated water content in a tritium sign should be within the 2% limit at the time of fabrication, it is another matter whether the same limit would necessarily be met and maintained over time and in diverse accidental scenarios, particularly when a typical GTLD EXIT sign is supposed to last 10 to 12 years.

40.  The Brookhaven study reported tritiated water content in aged tritium signs of up to 12.2%. The study is referenced in a number of later reports. In addition to this study, the evidence has pointed out that there are also other studies, which have indicated percentages much higher than 2%, and these other studies have also been taken into account by the Board. The position has been summarised in paragraph 95 of the first affirmation of Cheng Kit-man:

“(a)  The paper Radiological Hazards of Tritium Activated Luminous Devices, by Knapton and Comer published in Health Physics, Volume 20, 1971 [copy as exhibit KMC (Part-58)], which estimated that ‘from 6 to 52 percent of tritium in light tubes should be considered as HTO or T₂0 [both tritiated water in different forms].’ (emphasis added)

(b)  The report Radiological Testing of Consumer Products: 1976-78 by Wilkins and Dixon (NRPB R-85, 1979), which reported that ‘between 1.5 and 4.2 percent (average 2.8 percent) of the released gas was retained as water soluble tritium’ (emphasis added).

(c)  The SEPA-Report [copy as exhibit KMC (Part-07)], which reported that:

  ‘Harding (1993) summarised the findings of an analysis of redundant GTLDs that had been undertaken by AEA Technology in 1989.  Analysis of GTLDs that were over 10 years old found that only a small percentage of the tritium present existed in gaseous form.  Devices that were 10 years old contained about 10% gaseous tritium, and devices older than 15 years contained on average less than 2% gaseous tritium.  Based on this analysis, it was concluded that tritium s1owly exchanges with combined hydrogen atoms in the component materials to form a range of tritiated species, water being the predominant form. Thus, at some time after manufacture, GTLDs will fail to satisfy the exemption order condition that the activity in the form of tritium oxide and other water-soluble compounds of tritium in any sealed container does not exceed 2% of the total activity’. (emphasis added)

(d)  The possibility of tritium signs being involved in fire on the premises where they are installed cannot be ruled out.  In the report Oxidation of Tritium Gas under Accident and Transport Conditions, Los Alamos National Laboratory, Department of Energy, USA, 2002 [excerpt as exhibit KMC (Part-59)], Mishima and Steele pointed out that

  ‘various mechanisms for this conversion of tritium gas into tritiated water are known (e.g. isotopic exchange between tritium and protium (¹H), combustion, microbial and vegetative processes, long-term reaction between residual oxygen during storage, etc.). ... Due to the uncertainty of configuration and conditions, a conversion rate of 100% is used to bound conversion of ³H₂ (tritium gas) to tritiated water from involvement in fire or explosion. ... The most significant accident condition that could result in the large-scale oxidation of tritium gas to tritiated water (typically in vapour form) is termed combustion.  Due to the many potential physical configurations and sequences for such an event, the only conservative “bounding” assumption is complete conversion (100%)’(emphasis added).

(e)  The NRC posited in its regulatory guide Sample Calculation of Maximum Dose Commitment: Estimated Radiation Dose Commitments, Program-Specific Guidance About Exempt Distribution Licenses, NUREG-1556, Vol.8 [excerpt as exhibit KMC (Part-54)] the sample assumption that all tritium content in a ruptured GTLD is in the form of tritiated water in the assessment of the maximum dose commitment for accidental rupture of GTLS in gun-sight system, which contains 0.444 GBq tritium.  In this NRC guide, the maximum dose commitments to the exposed person in storage and accident are to be modelled on the basis that all tritium contents in a ruptured GTLD are in the form of tritiated water.  While the NRC acknowledged that this overestimated the true dose commitments in this situation, it clearly considered the assumption useful and sound for the purposes of determining where the upper bounds of acceptability were to be set.”

(emphasis in original)

41.  As Mr Cheng pointed out, in short, the published peer-reviewed reports show that the percentage of tritiated water in an aged GTLD could be anything from 1.5% to 52%, or even “predominant”. Furthermore, in an accident involving fire or explosion, the only conservative “bounding” assumption is said to be that all the tritium gas will be converted to tritiated water. Apparently, the Nuclear Regulatory Commission (“NRC”), the regulatory authority in the States, also recommends in its sample calculation of maximum dose commitment the assumption that tritiated water constitutes 100% of the tritium radioactivity in a GTLD ruptured event.

42.  Needless to say, counter (scientific) arguments and opinions are not in short supply. Indeed one peculiar, albeit understandable, feature of this case is the “ping-pong game” (as Mr Philip Dykes SC for the applicant has put it) engaged in by the parties in the filing of seemingly endless expert evidence and arguments.

43.  However, this is beside the point. The real question here is, in the light of these materials and arguments, whether no reasonable board, in the position of the Radiation Board, could come to the starting assumption of 100% tritiated water.

44.  Given that this is a matter concerning public safety and in light of the materials referred to by the Board, I do not think the Board can be criticised for adopting the 100% tritiated water assumption in working out the potential worst case scenario, nor can one say that the worst case scenario so worked out by the Board is one which is wholly theoretical and fanciful.

Significance of the Board’s worst-case scenario

45.  It is important to appreciate the significance of the worst-case scenario so worked out by the Board. Based on the applicant’s assumption of 2% tritiated water, the effective dose resulting from the intake of the entire tritium content from a GTLD of 800 GBq is 1.8 mSv. This is significantly higher than the allowable annual intake of a member of the public under normal circumstances, which is 1 mSv, according to the International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources issued by the International Atomic Energy Agency (“IAEA” and the “IAEA Standards”). However, in special circumstances, the IAEA Standards allow an effective dose of up to 5 mSv in a single year, provided that the average dose over five consecutive years does not exceed 1 mSv per year. The applicant argues that since leakage is only practicably possible in the case of an accident, the standard to be applied should be that for special circumstances, rather than under normal circumstances. Therefore, an effective dose of up to 5 mSv is acceptable. Hence 1.8 mSv is well within the IAEA Standards.

46.  That being the case, it is immediately apparent that if instead of using 2% tritiated water as the starting assumption, one adopts 12% as indicated by the Brookhaven study, even the maximum effective dose for special circumstances laid down in the IAEA Standards would be exceeded. Needless to say, under the Board’s assumption of 100% tritiated water, the maximum allowable dose would be grossly exceeded. Indeed according to the Board’s calculations, a complete intake of the entire content of a ruptured tritium EXIT sign would amount to an intake that is 6,000 to 16,000 times the annual intake limit for a member of the public. As I said, from a public law point of view, I do not believe the Board’s assumption of 100% tritiated water can be faulted. In any event, even assuming the Board were wrong in adopting 100%, it should be remembered that any percentage that is substantially higher than 2% would defeat the applicant’s calculations in terms of the IAEA Standards.

Adopting the 1 TBq limit for conditional exemption

47.  However, this is just the worst-case scenario. It is based on many assumptions – 100% tritiated water is just one of them. Another obvious one is that the whole of the tritium content of a broken GTLD is assumed to be consumed or absorbed by one single person. One would certainly not say that this is going to be an everyday occurrence. Yet, what is important is that the Court cannot fault the Board for taking the prudent course of not ignoring or excluding this possibility from its consideration. It being a worst-case scenario, which is not wholly theoretical or fanciful, in my view, the Board is quite entitled to take it into account. But it does not mean that this has to be determinative of the Board’s exemption policy.

48.  As the evidence has explained, the Board’s reference to a possible intake that is 6,000 to 16,000 times the intake limit for the public should be understood as a statement of the upper bounds of the potential dose commitment. The worst-case scenario, being an event of greatest potential consequences, is naturally expected to be associated with the lowest probability of occurrence, as the Board recognises.

49.  On the other hand, it should be remembered that tritium signs, if permitted to be used, will be located at public places where, as the evidence puts it, the occupants are often unaware of their presence, untrained as regards radiation protection, are not covered by any scheme of radiation monitoring and surveillance, and are unaware of any emergency response actions. The Board is quite entitled to bear all this in mind.

50.  According to the evidence, in arriving at the 1 TBq limit for conditional exemption, the Board has taken into account the existence of the pre-requisite requirement that the use shall be justified. Where the use is properly justified, the Board considers it appropriate to apply the concept of exemption so as to reduce the administrative burden to the Board while taking due consideration of the public interest to be served and the degree of risk. In this regard, according to the evidence, the Board has taken into account international standards (ie the IAEA Standards and the Radiation Protection Standards for GTLD promulgated by the Nuclear Energy Agency of the Organization for Economic Co-operation and Development), the administrative burdens involved, the risk to public health, the public interest to be served, the drawback of a purely device-based exemption limit (as opposed to a premises-based exemption scheme), and the differences between the licensing regime and exemption regime (already described). The Board has eventually decided to adopt a relaxation factor of 1,000 times the automatic (unconditional) exemption limit prescribed by the IAEA Standards, ie a limit of 1 TBq for tritium in tritium EXIT signs.

51.  The applicant criticises that the limit of 1 TBq is actually based on the Risk Assessment for the Storage of Gaseous Tritium Light Sources by the Ministry of Defence in the United Kingdom which is concerned with the risk in normal use of GTLD[2]. It shows that the Board is not “really concerned” about the risk involved in accidental breakage of GTLD (and thus the 100% tritiated water assumption).

52.  This is disputed by the Board on evidence. According to the evidence, the Board has taken into consideration both normal and mismanagement situations. The fact that the RBES report made express reference to the study by the Ministry of Defence when discussing the 1 TBq limit does not mean that the Board has only got leakage in normal circumstances in mind when setting the limit of 1 TBq.

53.  On the evidence, I see no reason to doubt the Board’s assertion that in setting the limit, it has taken into account possible leakage in both normal as well as accidental situations. Indeed, the 100% tritiated water scenario is based on accidental situations, including fire and explosion. I see no merit in the applicant’s doubt. Common sense dictates that the Board must have taken into account both possible leakage in normal use as well as that under exceptional circumstances.

54.  In the Court of Appeal’s judgment, a query was raised:

“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.”

55.  This was, of course, raised by the Court at a stage when it only had the materials filed by the applicant. The Board has since explained in detail the apparent illogicality:

“113.  The Board recognises that a relevant fact in the risk assessment of GTLDs is that “all components with tritium in them leak”:see paragraph 84 above.  Hence the Board considers it prudent that the limit for conditional exemption of user of tritium sign should aim at ensuring that the radiation exposure of any uninformed members of the public arising from leakage of tritium during normal usage of tritium signs is well below those attracting regulatory concerns.  As detailed above, the potential effective dose commitment to the public arising from leakage of tritium inside premises containing GTLD of up to 1,000 GBq would be in the range of a few microsievert to tens of microsievert in a year, depending on the size of the premises.  At such dose levels, there will not be deterministic health effects occurring to the public.  The risk of stochastic health effects will be kept below both the de minimus level (as explained in paragraph 12 above) as well as the risk constraints recommended by ICRP.  The Board’s assessment is that the overall risk to public health will not be unduly compromised by applying such a conditional exemption limit (l,000 GBq), despite it is more than ten times (in exact terms 13.5 times) the device-based limit (74 GBq) recommended by the RP Standards for GTLD.  This is bearing mind, among other considerations, the unlikelihood of a close concentration of GTLDs, (particularly exit signs) within a particular small part of a premises, and the benefits of administrative reduction for the Board, which will allow resources to be allocated to other parts of its control scheme.

114.  While granting a relatively higher level of relaxation for justified uses of tritium signs, consideration has also been given to the potential consequences of mismanagement of signs during normal use and disposal and arising of orphan tritium signs.  At the aggregate tritium activity of 1,000 GBq that is to be held and managed by a single person (or a single proprietorship as the case may be) under the premises-based exemption limit, the potential radiological risks, assessed to be well in excess of 1 mSv, could not be discounted.  Hence for users holding tritium signs of activity above 1,000 GBq, a normal system of control in the form of licensing of the user as provided by the law should be more appropriate.

115.  Moreover, on setting the conditional exemption limit of 1,000 GBq (equivalent to 1 TBq) for tritium signs that are securely installed in the same premises under the same management, the Board focuses upon the potential exposure of the public during the normal usage of tritium signs, including situations of accidental breakage and poor managements, which are unfortunately well within the range of possibilities arising in the course of normal use.  The Board is of the view that suitable administrative requirements, particularly annual reassessment of the licensed users or triennial reassessment of the exempted users together with the requirement of training of the responsible persons and inspections by Board Inspectors and appointed supervisors of the supplier, will ensure that the probability of damage and loss due to mismanagement of tritium signs is reduced to a low and manageable level.

116.  Hence although the maximum dose commitment in the worst case scenario as discussed above following the complete inhalation by one person of 1,000 GBq tritium in the form of tritiated water might possibly be up to about 20,000 mSv, this scenario serves, in the case of a premises based exemption, as the upper bound of potential consequences for the development of necessary mitigating measures.

117.  The practice of assessing the maximum dose commitment to the public in the worst case scenario is commonly used in setting policy parameters.  An illustrative example is the development and siting of nuclear premises/facilities.  In assessing proposals in this regard, the worst case scenario may be taken into consideration as an aid to determining appropriate administrative and control measures and emergency response plans.  The worst case scenario, however, does not necessarily constitute a determining factor in the approval or rejection of a nuclear development programme.  Otherwise the potential catastrophic and fatal consequences of incidents arising from the operation of nuclear facilities, despite being very improbable, will dictate that no nuclear facilities be permissible.”

(emphasis in original)

56.  In short, the Board has taken into account the worst case scenario. But it is by no means the only consideration. Bearing all other relevant considerations in mind, the Board has felt it safe to set the limit at 1 TBq. From a public law point of view, that decision on the part of the Board cannot be challenged.

Availability of power supply

57.  For the sake of completeness, I should also mention that the Court of Appeal has noticed in its judgment another apparent illogicality:

“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.”

58.  From the discussion above, it is plain that given that use of radioactive substances has to be justified, the Board is quite entitled to take into account whether there are viable alternatives to using tritium in EXIT signs. The availability of electricity supply therefore is a relevant consideration.

59.  Again, it is for the Board, which has been charged with the responsibility and entrusted with the discretion to decide on the granting or refusal of exemption, rather than for the court, to set the conditions for exemption.

Alleged “fallacies”

60.  I now move on to deal with a number of alleged “fallacies” in various statements made by the Board or its executive arm, the Radiation Health Unit (“RHU”) of the Department of Health. They can be disposed of quickly.

61.  The so-called “exemption level fallacy” is basically an allegation that the RHU has forgotten that 1 GBq is for unconditional exemption when it says that an average tritium self-luminous sign in the Hong Kong market may contain tritium 300 to 800 times the upper limit for exemption. It is true that under international criteria for exemption, for sealed sources as opposed to unsealed ones, (conditional) exemption may be obtained even if the limit of 1 GBq is exceeded. The statement of the RHU may therefore appear to be misleading when read alone. However, in the light of the full explanations given on behalf of the Board regarding its decision-making process, it is plain that the Board has never misunderstood the international criteria.

62.  The “tritiated water percentage fallacy” and the “dosimetry fallacy” may be taken together. Both of them relate to the 100% tritiated water assumption discussed at some length above. There is nothing in the complaints of the applicant, from the Court’s supervisory point of view. They merely reflect the conflicting expert views on what the appropriate model should be.

63.  The “x‑ray fallacy” relates to whether GTLS would emit x‑ray during normal use. I do not think the Board has proceeded on the basis that there is significant emission of x‑ray under normal use in setting the limit of 1 TBq. Whilst the experts may disagree on whether the amount of x‑ray emission should be regarded as negligible, it has little if any bearing on the legal questions that this Court has to decide in the present application.

64.  The “incident evaluation fallacy” relates to the Brookhaven study and the proper interpretation of the study results. I have already mentioned the study and the other relevant studies and materials that support the Board’s more cautious approach in terms of choosing the appropriate model to adopt. I do not think the suggested fallacy takes the applicant’s case anywhere. The bottom line is not what actually happened in the individual cases mentioned in the study; rather those cases mentioned in the study provide illustrations of some possible mishaps that might happen in the use of GTLD EXIT signs.

65.  The “statutory limit fallacy” relates to the dose limit of 1 mSv per annum for members of the public prescribed in the Radiation (Control of Irradiating Apparatus) Regulations made under the Ordinance. The point is that the Regulations have no application to GTLD EXIT signs because they are not irradiating apparatus. I agree with the Board that this criticism misses the point. The Board’s reference to the statutory limit in the Regulations is to demonstrate the limit which is statutorily considered to be safe for members of public, regardless of the source of radiation. In any event, I do not think the reference to the statutory limit, even if erroneous, could have the effect of invalidating the Board’s decision.

66.  The so-called “consumer product fallacy” centres on whether GTLD EXIT signs may be considered as consumer products. Again, I agree with the Board that here, the applicant has also missed the fundamental point, which is that in the course of ordinary use, GTLD EXIT signs are likely to be exposed to a significant number of the general public, and in that sense, they are no different from consumer products that contain tritium.

67.  I should also mention, for the sake of completeness, that the applicant argues that the fact that alternative, non-radioactive methods are available is irrelevant from a protection point of view. This may be true from a purely protection point of view. However, the Ordinance expressly requires the Board to consider the public interest to be served as well as the degree of risk (if any) to human health involved by the granting of the exemption applied for. Bearing in mind the principle of justification which cannot be faulted given the potential harm that radioactive substances can do to people, it is only natural and right that the Board takes into account whether alternative, non-radioactive, options are available and related questions.

68.  Put at the lowest, given the Court’s limited supervisory role, the Board cannot be faulted for taking such matters into account.

Four specific reasons given in the letter of 19 November 2007

69.  Returning to the four specific reasons given by the Board in its letter dated 19 November 2007 described above, reason (i) cannot be impugned. The Board says that the use of tritium signs is only justified by its potential benefit of saving of life and where the use of electrical power is not possible or feasible. For reasons explained, I believe this is a valid reason.

70.  Reason (ii) states that the policy for conditional exemption adopted by the Board is by no means restrictive when compared with neighbouring areas/countries. This is amply borne out by the evidence. In the materials filed by the Board, the practices in various States in Australia, Canada, the Mainland, Taiwan, Finland, Ireland, New Zealand, Singapore, Sweden, the United Kingdom and the United States are examined generally. Most of these places have more stringent restrictions on the use of tritium signs than Hong Kong, although, as may be expected, some countries have a more relaxed approach. The Board is factually correct in saying that its policy is by no means restrictive when compared with neighbouring areas/countries.

71.  Reason (ii) goes on to say that the Board’s policy is consistent with the international exemption criteria and the Radiation Protection Standards for GTLD promulgated by the Nuclear Energy Agency of the Organization for Economic Co-operation and Development. I do not think the Board is incorrect in its assertion. Certainly, the Board has taken international standards into account, and I do not think the Board has misunderstood the international standards. On the evidence, plainly the Board has not confused the international standards for unconditional exemption with that for conditional exemption, which this case is about.

72.  The applicant says that its GTLD meets the standard under the European Union’s Council Directive 2003/122/EURATOM on the Control of High Activity Sealed Radioactive Sources and Orphan Sources (“the HASS Directive”) of 22 December 2003. However, there is a dispute as to whether the applicant’s GTLS are sealed in accordance with the necessary requirements. In any event, the new exemption policy applied for is not restricted to the applicant’s EXIT signs.

73.  Reason (iii) deals with the two different worst-case scenario models adopted by the applicant and the Board respectively. As mentioned, the Board, as a regulatory body, has considered it prudent and fully justifiable to adopt a cautious approach for the protection of public health. For reasons explained, I believe the Board is quite entitled to adopt its model.

74.  Reason (iv) states that the current licensing and exemption policy permits the use of tritium signs whenever benefits outweigh risk. The overriding concern is protection of public health. As general statements, they are true.

75.  Given the differences between the licensing regime and the exemption regime described in the earlier part of this judgment, particularly in terms of the administrative burden on the Board, there is no merit in the argument that everything that is to be achieved under the licensing system may equally be achieved by imposing the same or similar conditions under a conditional exemption. Given the administrative burden involved, put at the lowest, the imposition of a licensing fee is more than fair and justifiable, particularly from the perspective of the public law. On the other hand, it is simplistic and indeed unfair to suggest that the only difference between the two regimes is that under one but not the other, a licence fee of $3,190 is chargeable.

Adequate reasons

76.  All this brings me to the ground that the Board has failed to give proper and adequate reasons. Insofar as this ground complains that the reasons given are not proper in the sense that they may be challenged as Wednesbury unreasonable (etc), it goes to the merits of the Board’s decision (in the public law sense) and has been examined elsewhere.

77.  However, under this ground, the applicant also complains that the Board has not given adequate and sufficient reasons for its decision. It is quite true that regardless of whether the Board is under a legal duty to provide reasons, once it chooses to give reasons for its decision, those reasons will be judged in the same way as if the reasons were obligatory: R v Criminal Injury Compensation Board, ex p Moore [1999] 2 All ER 90, 95j, per Sedley J. Once reasons are given, albeit voluntarily, they should be “clear as well as sufficient to the circumstances”: Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, 186, para 97, per Stock JA. More particularly, where the decision making involves evaluating expert evidence, adequate reasons must be shown why the analysis of one expert is preferred or rejected: Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377, 382 B-C; R (Bushell) v The Newcastle Upon Tyne Licensing Justices [2004] EWHC 446 (Admin), 15 March 2004, Lightman J; R (H) v Ashworth Hospital Authority [2003] 1 WLR 127.

78.  However, the law also allows evidence to be admitted to elucidate or, exceptionally, correct or add to the reasons given by an administrative body, although evidence could not be admitted to fundamentally alter or contradict the reasons given. The function of such evidence should generally be “elucidation not fundamental alteration, confirmation not contradiction”: R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302, 315j, per Hutchison LJ; Smart Gain v Town Planning Board, HCAL 12/2006, 6 November 2007, Andrew Cheung J, para 72.

79.  In the present case, I have no doubt that the further materials submitted by the Board to explain its decision, in the form of the first and second affirmations of Mr Chan, is admissible. They serve well the purpose of elucidation and confirmation, rather than fundamental alteration or contradiction.

80.  Of course, the Court must guard against ex post facto justification, particularly justification that only surfaced after commencement of proceedings. However, as Mr Chan has pointed out, the detailed reasons for the Board’s decision are essentially contained in the RBES report, which is a contemporaneous document. There is no question of the Board relying on entirely new matters or reasons to provide ex post facto justification for its decision. It is true that in the evidence filed, some materials postdating the decision or the report are also relied on. But by and large, they are materials produced by the Board to reinforce the points or position already taken in the RBES report, which the Board endorsed.

81.  Furthermore, even based on the original reasons given by the Board in its letter of 19 November 2007 (read in the context of the previous correspondence), the applicant had no apparent difficulty in knowing what the main reasons of the Board were, when formulating its grounds of challenge (such as the various “fallacies”) for the purposes of these proceedings.

82.  Ultimately, the question is one of fairness. Looking at the matter in the round, I have come to the conclusion that the Board has provided adequate and sufficient reasons for its decision. Whether one agrees with those reasons is another matter, which I have dealt with at great length in the earlier part of this judgment.

Non-disclosure of the RBES report

83.  This brings me to the last substantive point raised in these proceedings, namely, non-disclosure of the RBES report and thus procedural unfairness.

84.  Mr Dykes recognises that this was an internal report prepared by the Board’s own Exemption Sub-committee to assist the Board in its deliberation of the applicant’s application.

85.  As a general rule, internal reports need not be disclosed. However, the bottom line is one of fairness. In Bushell v Secretary of State for the Environment [1981] AC 75, 95E-96A & 102E/F, Lord Diplock set out the general principle in the context of a minister’s decision making role relating to his department’s motor-way proposal:

“ ... What is fair procedure is to be judged ... in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. ... Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who served the Crown in the department of which, for the time being, he is the political head.  The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise. ... This is an integral part of decision-making process itself; it is not to be equiperated with the minister receiving evidence, expert opinion or advice from sources outside the department after the local inquiry has been closed.

...

... Once he has reached his decision he must be prepared to disclose his reasons for it, ... but he is, in my view, under no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives from his department in the course of making up his mind.  If he thinks that to do so will be helpful to him in reaching the right decision in the public interest he may, of course, do so; but if he does not think it will be helpful – and this is for him to decide – failure to do so cannot in my view be treated as a denial of natural justice to the objectors.”

86.  However, Mr Dykes relies heavily on Edwards v Environmental Agency [2007] Env LR 126, a case involving the grant by the Environmental Agency of a pollution prevention and control permit to an interested party under the Pollution Prevention and Control Regulations 2000 to burn shredded and chipped tyres as a partial substituted fuel in cement kilns. There had been a statutory consultation exercise regarding the application for the permit; however, the Environmental Agency failed to disclose two internal reports which were highly relevant to the application. A local resident living in the vicinity of the cement works challenged by judicial review the grant of the permit, and one of his grounds was that the internal reports ought to have been disclosed to the public during the consultation exercise. The Court of Appeal agreed with the claimant on this point, saying that Lord Diplock did not intend to lay down an absolute rule in Bushell that internal reports need never be disclosed. Ultimately, it was a question of fairness. The Court took the view that the internal reports ought to have been disclosed.

87.  In my view, the decision in Edwards was heavily influenced by the general principle of administrative law that a public body undertaking consultation must do so fairly as required by the circumstances of the case. See generally Woolf, Jowell & Le Sueur, de Smith’s Judicial Review (6^th ed), para 7-052 et seq. This is particularly so when the public consultation forms part of the statutory requirement for the exercise of the discretion in question. Understood in that context, the decision of the Court of Appeal on this particular point is not difficult to comprehend. By withholding from disclosure the two internal reports, the public consultation was deprived substantially of its meaning. The internal reports were potentially material to the Environmental Agency’s decision, and to the members of the public who were seeking to influence it. The failure to disclose them, therefore, constituted a breach of the Environmental Agency’s common law duty of fairness.

88.  In my view, the facts in Edwards are far removed from those obtaining in the present case. Here, one is not dealing with an application by an end-user for exemption under section 15. Rather, one is concerned with an “application” by a distributor and seller of products containing a radioactive substance for a relaxation of the Board’s existing general policy guiding the exercise of its discretion to grant exemptions under section 15 regarding end-users’ possession and use of such products.

89.  The Board’s “decision” was therefore made much more in the context of the Board’s formulation of its policy or its revision thereof, than in the context of a determination of an application by an end-user for specific exemption under section 15. Absent any statutory duty to conduct public consultation or to hold hearings, it is difficult to see why fairness requires the Board to conduct its policy formulation or revision exercise in such a way as if it were conducting a hearing on an application by an end-user for the grant of an exemption.

90.  The Board has quite obviously taken the applicant’s application seriously, and has taken the unusual step of allowing the applicant to make a one-hour presentation of its case before the Board.

91.  The Board has also, in its correspondence with the applicant’s solicitors, mentioned to the solicitors that the Board would obtain a report from the RBES to assist its deliberation of the application. The applicant’s solicitors did not ask the Board for the supply of a copy of the report, whether before or after the Board’s letter of 19 November 2007. Instead, after receipt of the letter, the applicant through solicitors continued to make further submissions to the Board which were again duly considered by the Board. After the Board notified the applicant through its solicitors that it maintained its decision not to revise the exemption policy, still there was no request for further reasons or for discovery of the report.

92.  As mentioned, the original Form 86A did not rely on non-disclosure or procedural unfairness as a ground for seeking leave. This remained the case whether before Reyes J or before the Court of Appeal. Indeed this remained the case for almost 9 months after the Board filed the first affirmation of Mr Cheng and disclosed the report by way of an exhibit to Mr Cheng’s affirmation. No explanation whatsoever has been offered by or on behalf of the applicant as regards the delay in raising this new point (and a related complaint that the applicant was not invited to participate at the Board meeting on 25 October 2007 in which the report was discussed and eventually adopted).

93.  Mr Dykes argues that even if his client had asked for a copy of the report at the time, it would not have been supplied by the Board. But that argument misses the real point against his client – namely, that in terms of fairness, it was his client who knowingly decided not to, or, as the case may be, failed to, ask for a copy of the report at the time.

94.  I am not, for the moment, considering whether leave should be granted to run this late point. I am here dealing with the question of overall fairness. In my view, in deciding that question, the Court is entitled to look at not only the procedure prior to the making of the decision, which concerned a proposed policy revision, but also what happened after the decision to maintain the existing policy had been made, including the conduct of the parties after commencement of proceedings and the opportunity of the applicant to raise arguments in answer to the points and matters contained in the material that had not been disclosed prior to commencement of proceedings.

95.  In other words, the Court is entitled to look at the matter globally. Having looked at the matter in the round, I am of the view that in terms of fairness, the disclosure of the report by the Board in the first round of evidence filed after commencement of proceedings is sufficient to meet the requirement of procedural fairness.

96.  For similar reasons, I also reject the applicant’s argument that he was entitled to be present and be heard at the meeting of the Board in which the Board deliberated on the report and eventually resolved to adopt it.

97.  In any event, in terms of whether leave to run these new points should be granted, besides the question of merits, I also fail to see why the points were not raised earlier. No explanation for the delay was supplied. The late raising of the points led to delay in the filing of further evidence pertaining to the new points. As described in the earlier part of this judgment, it actually led to a second round, and then a third round, of evidence. But not only that – even on the second day of the hearing, counsel for the Board produced to the Court a 5‑page document said to contain the gist of the Board’s intended reply to the matters raised by the applicant in the third affirmation of Chan Kwok Chee George filed only on 12 December 2009, the Saturday before the substantive hearing, which commenced on 14 December 2009 (Monday).

98.  The further evidence was necessitated by the fact that the new points raised by the applicant would only assume significance if it could establish that if it had been made aware of the contents of the report and/or invited to attend the relevant Board meeting, it could have come up with answers that would have materially affected the outcome of the Board’s deliberation, or defeated the Board’s case on maintaining its existing exemption policy. If it were otherwise, the complaint about procedural fairness would be academic. Unfortunately, that led to the proliferation of evidence, particularly highly technical expert evidence, at the last minute.

99.  For all these reasons, in the exercise of my discretion, I disallow these new points to be run.

100.  As this Court reminded the profession in Wise Union Industries Limited v Hong Kong Science and Technology Parks Corporation, HCAL 12/2009, 21 September 2009, para 11, and again in Wong Hing Kong v Urban Renewal Authority, HCA 34/2009, 14 October 2009, paras 39-40, the Court takes the observations on late applications to amend the grounds of challenge after leave to apply for judicial review has been granted, made by Litton PJ a decade ago in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, 340 E/F to G, very seriously, particularly in this post-Civil Justice Reform era.

Irrationality

101.  As mentioned, there is yet another new point sought to be run, namely, irrationality. It is based on matters mentioned in the RBES report and some observations by the Court of Appeal.

102.  They are already covered by the applicant’s original case based on the Board’s alleged failure to provide proper reasons, which I have dealt with as a ground going to the merits of the Board’s decision (in the public law sense).

Outcome

103.  For all these reasons, the application for judicial review is dismissed. I make a costs order nisi that the applicant pay to the respondent the costs of these proceedings, to be taxed if not agreed.

104.  I thank counsel for their assistance.