HKSAR v. OWNERS’ CORPORATION OF KAM YING COURT (PHASE II)

[English Translation – 英譯本]

HCMA 186/2020

[2021] HKCFI 2405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 186 OF 2020

(ON APPEAL FROM STS 6098-6104/2019)

____________

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JUDGMENT

A.  Introduction

1.  The appellant was charged with a total of seven summonses.  It was alleged that it “failed to comply with fire hazard abatement notices” (hereinafter referred to as “the Notices”), contrary to the Fire Services (Fire Hazard Abatement) Regulation (hereinafter referred to as “the FSR”) made under the Fire Services Ordinance, Cap 95 of the Laws of Hong Kong.

2.  The particulars of the summonses alleged that the appellant failed to comply with the Notices by repairing a number of damaged smoke doors in seven residential buildings within the time limit specified.  Each summons covered one residential building.

3.  The appellant pleaded not guilty.  The trial was conducted before Miss Leung Nga Yan, Frances, a magistrate of the Shatin Magistrates’ Courts (hereinafter referred to as “the magistrate”).  The parties had no dispute on the facts of the case. The only dispute was on whether the seven Notices involved were effectively served on the appellant in law.

4.  After the trial, the magistrate found that the Notices had been effectively served on the appellant and found the appellant guilty of all seven summonses.  The appellant was fined $8,000 on each summons, and the total fine was $56,000.

5.  The appellant appeals against conviction.

B.  Facts of the case

6.  Mr Chan Ka Hin, Jeff, Public Prosecutor representing the respondent, adopted the written submissions of Mr Hui Man Nok, Matthew, Public Prosecutor.  Mr Hui outlined the undisputed facts of the case in his written submissions, which I adopt below:

“5. The prosecution case was detailed in paragraphs 5 to 14 of the Statement of Findings and Reasons for Sentence[1].

6. In short, a Senior Station Officer (hereinafter referred to as PW1) inspected Kam Ying Court in November 2017 and found that a total of around 180-odd smoke doors in the common parts of seven buildings of Phase II were damaged, causing fire hazards.

7. On 25 January 2018, PW1 personally went to a conference room at Ground Floor, Kam Shun House, Phase II, Kam Ying Court upon invitation to attend a meeting of the owners’ corporation in respect of the smoke doors. Attendees of the meeting included the chairperson and members of the corporation. During the meeting, a person claiming to be Mr Wong Kwok Hung (transliteration) (hereinafter referred to as Mr Wong) said to PW1 that he was the person in charge of the matter relating to the repair of the smoke doors and asked PW1 to contact him in dealing with the related matter in future.

8. In June and July 2018, PW1, in the company of Mr Wong, inspected the seven buildings again and found that there were still damaged smoke doors.

9. On 24 July 2018, PW1 issued to the appellant seven notices[2], requiring the appellant to rectify all the damaged smoke doors within 60 days from the service of the notices and conduct maintenance so that they function well in fire hazards abatement.

10. PW1 first mailed the notices by registered post to the appellant’s registered address shown in the Certificate of Incorporation[3], namely “Room 2, Ground Floor, Kam Shun House, Kam Ying Court, Ma On Shan”, according to the information at the Land Registry. However, the Post Office failed in the delivery and the notices were returned.

11. On 5 October 2018, PW1 contacted Mr Wong by phone, telling Mr Wong the contents of the seven notices. Mr Wong told PW1 to put the seven notices into the letter box of the corporation of the defendant. On 8 October 2018, PW1 personally went to Ground Floor, Kam Shun House and put the notices into a transparent letter box with “Letter box of the corporation” printed thereon outside the conference room, and took photos[4].

12. On 23 January 2019, PW1, in the company of Mr Wong, inspected the seven buildings again, and found that a total of 98 smoke doors were still damaged[5], in contravention of the requirement of the notices.

13. Under cross-examination, PW1 admitted that:

(a) He did not verify the identity of Mr Wong;

(b) He did not receive any written confirmation certifying that Mr Wong had been authorised by the appellant to be in charge of handling the matter relating to the smoke doors; and

(c) He believed that the conference room at Ground Floor, Kam Shun House was the registered office of the appellant, but there was no doorplate of “Room 2” at the conference room.

14. PW1 further testified that in the meeting on 25 January 2018, Mr Wong and other committee members of the owners’ corporation told PW1 that all documents and letters for the appellant could be put into this letter box of the corporation.

15. The appellant did not call any defence witness.”

C.  Issues and Reasons for verdict

7.  Mr Hui also stated the issues and the reasons for verdict of the present case in his written submissions:

“16. At the trial, the appellant was represented by counsel Mr [Tony] Li. Mr Li submitted that the seven notices involved were not effectively served on the appellant. His arguments are as follows:

(a) The Fire Services Regulation specifies two modes of effective service of notices, namely serving “by registered post” or “personally”[6]. In this case, the delivery by registered post failed, and therefore the focus is on whether PW1 has effectively served the notices “personally”[7].

(b) To effectively serve the notices “personally”, the appellant must receive the notices through a natural person officially authorised (such as a director or senior officer of a company). In this case, there is no evidence to prove that Mr Wong or any other senior officer has received the notices, or that Mr Wong has been officially authorised by the appellant[8].

(c) Section 3 of the Fire Services Regulation specifically requires the notices be served “personally”, whereas section 16 of the Building Management Ordinance, Cap 344 of the Laws of Hong Kong, stipulates that any notice which relates to any of the common parts of the building may be served upon the owners’ corporation at its registered office. The former, which is a more specific provision, should prevail the latter (specific provisions prevails over general provisions). Therefore, according to section 3 of the FSR, the notices were not effectively served on the appellant by merely serving them at its registered address [9].

(d) In any event, there was no “Room 2” at Ground Floor, Kam Shun House, and PW1 did not in fact serve the notices at the appellant’s registered address[10].

Reasons for verdict

Conviction

17. The magistrate made the following findings:

(a) Regarding the modes of service of documents, if there is a written law providing for other requirements, the written law shall prevail. The written law applicable to this case is section 16 of the Building Management Ordinance. Therefore, the seven notices may be served on the corporation at its registered address[11].

(b) The address in the Certificate of Incorporation was provided by the defendant. Unless the defendant provided a wrong address (be it on purpose or not), “Room 2” definitely existed at Ground Floor, Kam Shun House[12].

(c) The letter box concerned only had the words “Letter box of the corporation” written thereon, but the letter box was installed at the external wall at Ground Floor, Kam Shun House, and Kam Shun House is a building of Phase II, Kam Ying Court. The only reasonable inference is that that letter box was the letter box of the owners’ corporation of Phase II, Kam Ying Court[13].

(d) There was a lock on that letter box. Therefore, it should be the case that only a holder of the key to that letter box could have access to letters in that letter box[14].

18. The magistrate found that PW1, in putting the seven notices into the letter box, was in compliance with the requirement of section 3(1) of the Fire Services Regulation, and effectively served the seven notices on the appellant “personally” on 24 July 2018 [the correct date should be 8 October 2018][15].

19. On 23 January 2019, when PW1 was inspecting the seven buildings of Phase II, he still found damaged smoke doors in each of the buildings. The appellant failed to comply with the requirements of the seven notices.  The magistrate found the appellant guilty.”

D.  Relevant laws

8.  Before dealing with the grounds of appeal, I will first identify the laws relevant to the present case.

D.1.  Section 3 of the FSR

9.  Pursuant to section 3 of the FSR,

“(1)The Director may, if satisfied of the existence in or on any premises of a fire hazard, serve a fire hazard abatement notice in the form of Form 1 in Schedule 1 either personally on or by registered post sent to—

(a) the person by reason of whose act, default or sufferance the fire hazard arose or continues;

(b) if the person referred to in paragraph (a) is the servant or agent of some other person, such other person; or

(c) if the person referred to in paragraph (a) and, if any, the person referred to in paragraph (b) cannot readily be found or is absent from Hong Kong, the owner, tenant, occupier or person in charge of the premises.” (Emphasis added)

D.2.  Section 9 of the FSR

10.  Section 9 stipulates that:

“(1) A person on whom a fire hazard abatement notice is served commits an offence if that person fails to comply with a requirement of the notice within the period specified in the notice and shall (whether or not a fire hazard order has been made in respect of him) be liable on conviction to a fine at level 6 and to a further fine of $10,000 for each day during which the offence continues.” (Emphasis added)

D.3.  Section 16 of the Building Management Ordinance, Cap 344 of the Laws of Hong Kong

11.  Section 16 of the Building Management Ordinance, Cap 344 of the Laws of Hong Kong, stipulates that:

“When the owners of a building have been incorporated under section 8, the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by, and the liabilities of the owners in relation to the common parts of the building shall, subject to the provisions of this Ordinance, be enforceable against, the corporation to the exclusion of the owners, and accordingly—

(a) any notice, order or other document which relates to any of the common parts of the building may be served upon the corporation at its registered office;

(b) any proceedings in the tribunal in respect of any of the common parts of the building may be brought and pursued by or against the corporation.” (Emphasis added)

E.  Grounds of appeal

12.  The grounds of appeal put forward by Mr Tony Li, who also represented the appellant at the trial, were basically a reiteration of the issues that he put forward at the trial.  The appellant’s stance was that the magistrate erred in law in finding that there was “effective service” of the seven Notices on the appellant.

E.1.  Service

13.  The appellant pointed out that pursuant to section 9(1) of the FSR, “[a] person on whom a fire hazard abatement notice is served commits an offence if that person fails to comply with a requirement of the notice within the period specified in the notice and shall (whether or not a fire hazard order has been made in respect of him) be liable on conviction to a fine at level 6 and to a further fine of $10,000 for each day during which the offence continues.”  Therefore, the elements of the seven charges that the appellant faced included that “the fire hazard abatement notice was served”.  And as for the requirement of “service”, section 3(1)(a) of the FSR clearly provides for two modes of “service”, namely personal service and service by registered post.  The present case does not involve “registered post”.

14.  The appellant considered that “personally” in section 3(1) of the FSR meant that the notice had to be served on the persons specified in the Ordinance (subsections (a)-(c)).  On the contrary, the focus of section 16(a) of the Building Management Ordinance was on the address for service, which was totally different from the literal requirement of section 3(1) of the FSR.

15.  The appellant submitted that effective service of notices had special significance in criminal cases.  Mr Li cited two cases of the United Kingdom in respect of land / town planning permission notices in support of his argument.  He submitted that the court must require all statutory procedures be strictly adhered to (See Miller Mead v MHLG[16] and Stevens v L B Bromley[17]).

16.  The appellant submitted that the purpose of personal service was to draw the defendant’s attention to the institution of criminal proceedings: If the defendant did pay attention, then consideration would be made as to whether there was compliance by that person.  Another case, Forward v West Sussex County Council and Others, was cited in support of the argument[18].

17.  Pursuant to Section 9(1) of the FSR, it was a criminal offence if a person, who had been served a fire hazard abatement notice, failed to comply with a requirement of the notice.  Therefore, according to the case of Miller-Mead, the Fire Services Department must strictly adhere to the requirement of personal service under section 3(1) of the FSR.

E.2.  What constituted “personal service”

18.  The appellant contended that personal service was a specific mode of delivery.  The appellant urged the court to refer to Order 10, rule 1 of the Rules of the High Court: —

“(1) A writ must be served personally on each defendant by the plaintiff or his agent.

(2)      A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served—(a) by sending a copy of the writ by registered post to the defendant at his usual or last known address; or (b) if there is a letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.”

19.  The appellant considered that the wording of this rule was worth noting.  Rule 1(1) mentioned that a writ must be served personally on each defendant.  Rule 1(2) went on to state that a writ for service on a defendant within the jurisdiction might be inserted through a letter box, “instead of being served personally on him”.  This rule clearly brought out that inserting through a letter box was a mode of service alternative to personal service, which meant that inserting through a letter box and personal service were both accepted within the scope of application of this rule.  However, this provision clearly showed that the two were not the same mode of service.

20.  According to the relevant authorities, “personal service” was “effected by leaving a copy of the document with the person to be served.”  The focus was on the recipient being given a copy of the document, and not on the personal delivery of the deliveryman.  (See Hong Kong Civil Procedure 2021 vol.1 §10/1/4).

21.  To follow, in law there were other modes of service which are exceptions to “personal service”, such as registered post, insertion into a letter box and so on.  (Hong Kong Civil Procedure 2021 vol.1 §10/1/5).  Section 3(1) of the FSR did not provide for insertion into a letter box, but specified “personal service” and “registered post”.  Obviously, the focus was on the recipient, and not on the delivering person.  If the focus was on the personal delivery by the deliveryman, then the deliveryman personally inserting into a letter box would be sufficient to constitute effective service.

22.  Therefore, “personal service” required personally passing something to the recipient himself. The protection under the law was: a person was liable only if he had received the Notices through either of these two modes of service.

E.3.  Personal service on a body corporate

23.  Generally speaking, if a document had to be served on a body corporate, it might be effected by “personal service” or “registered post” (Hong Kong Civil Procedure 2021 vol.1 §10/1/17), which was expressed in the same way as section 3(1) of the FSR.  These two modes were complementary to the enforcement of section 9 of the FSR.  In Hong Kong, the “premises” addressed by section 9 were generally, apart from houses, buildings.  Since around the 1970s, due to the development of residential premises, [owners’] corporations had emerged in Hong Kong.  It was therefore impractical to require the Fire Services Department to carry out personal service of Notices in respect of the common parts of a building on each and every household, which was then substituted by personal service on [owners’] corporations.

24.  The appellant was a body corporate.  An [owners’] corporation, as a body corporate, possessed legal personality, and a body corporate definitely needed to handle matters through its representative person.

25.  If a document has to be served on a body corporate by way of personal service, it has to be served on its representative person in person.  It must be noted that not every person in a company or body corporate can handle matters for the company / body.  Under common law, the respective responsibilities and rights of persons of different ranks in a company were clearly defined.  The appellant cited the judgment of Lord Denning in H. L. Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd in support of their argument[19].

26.  The appellant was of the view that if a company / body was to receive a notice of legal effect, it had to be received through a senior officer of the company / body.  The appellant urged the court to refer to the same wording in the law of civil procedure, in particular Order 65, rule 3(1) of the Rules of the High Court: “Personal service of a document on a body corporate [may … be effected] by serving it […] on the chairman or president of the body, or the clerk, secretary, treasurer or other similar officer thereof.”  Therefore, the appellant was of the view that in accordance with the requirement of section 3(1) of the FSR, personal service on the appellant meant that the Notices were required to be served on such senior officers of the appellant.

E.4.  Chan Wing Go[20]

27.  The appellant contended that the magistrate applied section 16(a) of the Building Management Ordinance to reach her verdict, but did not explain at all why this section was applicable to the present case, or even replaced the specific requirement of section 3(1) of the FSR.  The magistrate cited the case of Chan Wing Go, but the appellant was of the view that the facts of Chan Wing Go were obviously different from those of the present case.  In the case of Chan Wing Go, the issue that the District Court dealt with was whether a writ of summons had been duly served on the owners’ corporation by personal service.  The relevant legislation was Order 65, rule 3(1), the Rules of the District Court, which reads —

“Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any written law, be effected by serving it in accordance with rule 2 on the chairman or president of the body, or the clerk, secretary, treasurer or other similar officer thereof.” (Emphasis added)

28.  The Deputy District Judge ruled in paragraph 47 of the judgment that this rule was replaced by section 16(a) of the Building Management Ordinance and that it was the location of service that mattered (“… the requirement that the document be served on certain officers has been replaced with a requirement that it be served at its office.  It was the location that matters”).  In other words, serving a writ of summons upon the corporation at its registered office could constitute effective personal service.

29.  However, there was a critical difference between Order 65, rule 3(1) of the Rules of the District Court and section 3(1) of the FSR involved in the present case.  It was pointed out in paragraph 45 of the judgment of the District Court that Order 65, rule 3(1) specifically provided that it only applied in cases “for which provision was not otherwise made by any written law”.  On the contrary, section 3(1) of the FSR clearly stipulated two modes of service without stating any other requirements.  In other words, there were only two modes of service in respect of the charges that the appellant faced.  Therefore, in the present case, the magistrate’s application of the principle in Chan Wing Go, namely “in cases for which provision is otherwise made by any written law, the written law shall prevail”, as the basis on which she ruled that the written law applicable to the present case was section 16(a) of the Building Management Ordinance, was precisely a neglect of the significant difference between Order 65, rule 3(1) of the Rules of the District Court and section 3(1) of the FSR, and even an override of the requirement of s section 3(1) with section 16(a).

30.  The appellant submitted that there was an error in principle in the judgment of Chan Wing Go.  Section 16(a) of the Building Management Ordinance stated that a document relating to the common parts of a building “may be served upon the corporation at its registered office”, but section 16(a) did not equate this mode with personal service.  Therefore, in Chan Wing Go, the District Court in fact did not have any reasonable ground to rule that section 16(a) of the Building Management Ordinance could replace Order 65, rule 3(1) of the Rules of the District Court, because what the latter required was personal service.  In any event, whether or not Chan Wing Go was correct was not the focus of the present case.

31.  Section 3(1) of the FSR specifically provides for only the two acceptable modes of service, namely (1) personal service and (2) service by registered post.  Since section 16(a) of the Building Management Ordinance was not related to personal service, the magistrate should not have ruled that section 16(a) of the Building Management Ordinance was the written law applicable to the present case.  Besides, section 3(1) of the FSR is a regulation that particularly addressed fire hazard abatement notices.  In comparison, section 16(a) of the Building Management Ordinance was only a provision of a general nature, which referred to “any notice, order and other documents in relation to the common parts of the building”.  According to the fundamental legal principle of “generalia specialibus non derogant” (the special must prevail over the general: Bennion on Statutory Interpretation s.21.4),[21] the law applicable to the present case was obviously only section 3(1) of the FSR, and not section 16(a) of the Building Management Ordinance.

E.5.  UDL Contracting Limited v Apple Daily Printing Limited & Others[22]

32.  In respect of another civil case mentioned by the prosecution in their closing submissions, UDL Contracting Limited v Apple Daily Printing Limited & Others, the appellant was of the view that this case was not related to the controversial issues of the present case at all.  In the case of UDL, the problem that the Court of First Instance dealt with was whether a writ had been duly served on a company, and the relevant law was section 827 of the Companies Ordinance (Chapter 622): “A document [may] be served on a company [by] leaving it at … the company’s registered office”.  The Court of First Instance eventually ruled that the deliveryman putting the writ into the fence of the registered address of the company could constitute effective service.  Section 827 of the Companies Ordinance is obviously completely different from section 3(1) of the FSR involved in the present case.  What section 3(1) requires is [personal] service and it does not allow the deliveryman to “leave” the notice “at” the registered office of the company.

E.6.  Error in the ruling of the magistrate

33.  The appellant contended that in the light of the discussion above, PW1 found the appellant’s registered address from the Certificate of Incorporation (Exhibit P1) issued to the appellant under section 8(1) of the Building Management Ordinance, he could also find in P1 the addresses of the senior officers of the appellant.  PW1 only put the seven Notices into the letter box, but did not choose to mail them to the senior officers by registered post.  The magistrate did not consider this aspect.  On the contrary, the magistrate stated, “I believe that after PW1 had put the Notices into this letter box of the corporation, the defendant of this case could receive the notices concerned from this letter box of the corporation. I do not believe that PW1 putting [the Notices] into this letter box of the corporation could not be an effective [mode] of service —— enabling PW1 to effect the service.”[23]

34.  This shows that the magistrate was mistaken about the focus of the present case.  The issue needed to be resolved was not whether the appellant in fact received the Notices (no matter what mode of service PW1 chose); but whether the mode of service that PW1 chose was in compliance with the requirement of section 3(1) of the FSR, thereby proving the element of the charge.  This was a question of definition in law[24].  The appellant contended that the prosecution failed to prove that PW1 by putting the Notices into the letter box of the corporation had met the meaning of “service” in the legislation, and hence failed to prove that the appellant had been served the Notices.

F.  Response from the respondent

35.  I have already pointed out that Mr Chan adopted the written submissions of Mr Hui. I will summarise the main points.

36.  In respect of the term “personally” (with the Chinese term being “面交”), the respondent submitted that the Fire Services Department sent its officer to serve the Notices in person in order to distinguish it from the service of the Notices by registered post by the Post Office which was not under the purview of the Fire Services Department.  “Personal service” did not specify that the owners’ corporation was required to send someone to receive the Notices in person[25].

F.1.  Development history of the FSR

37.  The provision of section 3 of the FSR first appeared in section 9 of the Fire Services Regulation enacted in 1961, which did not have the word “personally”[26].

38.  In 1969, the Government amended section 9(1) of the Fire Services Regulation, adding subsection (c) which allowed the service of notices by registered post[27].

39.  In 2004, the Government enacted the FSR.  Section 9 of the Fire Services Regulation was re-enacted as section 3 of the FSR[28].  When section 9(1)(a) and 9(1)(c) of the original Fire Services Regulation were combined, the wordings of “personally” [in English] and“面交”[in Chinese] were added.

40.  The respondent contended that the choice of using “personally” and“面交”obviously had the only aim of distinguishing whether the Fire Services Department was serving the notice by its own officers in person, and did not specify that the recipient was required to receive the notice in person.  And the phrase “serve … to” (with Chinese term being“送達”) only meant giving a document to someone, without specifying whether the recipient would receive the document directly or indirectly.

41.  The respondent emphasised that it would of course be most prudent to put the notices into the hand of the recipient, but they did not consider that this was the requirement of section 3 of the FSR.  If the recipient of the notice was a corporation, section 3 of the FSR did not specify the corporation was required to receive the notice through its senior officers.

42.  The respondent submitted that receiving the notice through senior officers was only an option under the common law, and the Building Management Ordinance provided a mode of receipt outside the common law.

43.  The respondent emphasised that the Government enacted the Building Management Ordinance in 1970 with an aim to organise owners of a residential building to establish an owners’ corporation that could sue and be sued, to bear the liabilities of management of the common parts of the building.  D. T. E. Roberts, the then Attorney General, explained during the Second Reading of the Bill[29]:

“the effect of the incorporation of owners of a building is to make the corporation responsible in law for the liabilities of the individual owners in relation to the common parts of the building.”

44.  The respondent submitted that the purposes of the relevant policies were embodied in the provisions, such as sections 8(2)(aa)[30], 16[31] and 17(1)[32].

45.  The respondent contended that the Building Management Ordinance covered most of the liabilities in relation to the common parts of the building, whether or not the relevant liabilities were mentioned in the Building Management Ordinance.  Judgments and orders made, in general, could not be enforced against individual owners.

46.  According to the requirements of sections 8 and 16 of the Building Management Ordinance, the Fire Services Department could not issue notices relating to the disrepair of the smoke doors directly to individual owners.  The liabilities of complying with the notices under the FSR, repairing the smoke doors and abatement of fire hazards were on the appellant.

47.  The respondent stated that the appellant understood that since the appellant did not have limbs, it must receive the notices through certain media.  Section 8(4) of the Building Management Ordinance stipulated that an owners’ corporation should have a registered office in Hong Kong.  The registered office naturally provides an ideal medium, and the problem of receipt of documents is solved.  Therefore, section 16(a) of the Ordinance expressly provides this option.

48.  The respondent contended that the use of the word “may” in section 16 provided an option in the written law, which was not in contravention of the “vesting principle” of the common law.  In other words, an owners’ corporation might receive notices from the Fire Services Department through its registered office or senior officers.  There was no conflict between the two.

49.  The respondent stated that PW1 put the seven Notices into the letter box on 8 October 2018, effectively serving the notices at the appellant’s registered address, which was in compliance with the requirement of section 16 of the Building Management Ordinance.  PW1 had already served the notices on “the owners’ corporation personally”.

G.  The Rules of the High Court were not applicable to criminal proceedings

50.  At the hearing, Mr Chan submitted that according to Order 1, rule 2(3) of the Rules of the High Court, such rules did not apply to any criminal proceedings other than those to which certain orders applied as specified in the rules.

51.  The appellant agreed with the above submission, but emphasised that the appellant was only drawing a parallel with the Rules of the High Court for comparison.

H.  Discussion

52.  The evidence of the present case shows that the registered address of the appellant in the Certificate of Incorporation (Exhibit P1) was “Room 2, Ground Floor, Kam Shun House, Kam Ying Court, Ma On Shan”.  PW1 mailed the Notices to the above registered address by registered post.  However, the delivery by the Post Office failed and the Notices were returned.  According to the testimony of PW1, he had attended a meeting at the conference room located at Ground Floor, Kam Shun House.  “Room 2” was not written at that conference room, but there was a transparent letter box with the words “Letter box of the corporation” printed thereon outside the conference room.

53.  The appellant’s registered address was provided by the appellant.  As to why there was “Room 2” in that registered address, whereas there was no “Room 2” at Ground Floor, Kam Shun House, only the appellant could tell. However, if the delivery by registered post failed because the appellant had given an incorrect or incomplete address for registration, then the relevant authorities may need to follow it up.  Otherwise, an owners’ incorporation may use a wrong or incomplete address to avoid receiving documents sent by registered post.

54.  Although the corporation argued whether that letter box was located at the corporation’s registered address at the trial, the corporation did not put forward any dispute in this aspect in particular in the present appeal.  It appeared that the appellant’s argument was that that letter box was indeed located at the corporation’s registered address, but putting the Notices into that letter box was not in compliance with the requirement of “personal service” in law.

55.  I will also take consideration on the basis that that letter box was located at the appellant’s registered address.

56.  Pursuant to section 3 of the FSR:

“(1) The Director may, if satisfied of the existence in or on any premises of a fire hazard, serve a fire hazard abatement notice in the form of Form 1 in Schedule 1 either personally on or by registered post sent to—

(a) the person by reason of whose act, default or sufferance the fire hazard arose or continues;

(b) if the person referred to in paragraph (a) is the servant or agent of some other person, such other person; or

(c) if the person referred to in paragraph (a) and, if any, the person referred to in paragraph (b) cannot readily be found or is absent from Hong Kong, the owner, tenant, occupier or person in charge of the premises.” (Emphasis added)

57.  Section 9(1) stipulates that:

“(1) A person on whom a fire hazard abatement notice is served commits an offence if that person fails to comply with a requirement of the notice within the period specified in the notice and shall (whether or not a fire hazard order has been made in respect of him) be liable on conviction to a fine at level 6 and to a further fine of $10,000 for each day during which the offence continues.” (Emphasis added)

58.  Section 2 of the Interpretation and General Clauses Ordinance, Cap 1 of the Laws of Hong Kong, stipulates that save where the contrary intention appears from the Ordinance, interpretation of words and expressions in section 3 shall apply:

“person （人、人士、個人、人物、人選）includes any public body and any body of persons, corporate or unincorporate, and this definition shall apply notwithstanding that the word “person” occurs in a provision creating or relating to an offence or for the recovery of any fine or compensation”

59.  Since the FSR does not specify that it is to address corporations or natural persons, nor does the “contrary intention” against the above definition appear in its context, sections 3 and 9 of the FSR shall apply to corporations, including owners’ corporations like the appellant.

60.  I agree with the argument in the appellant’s submissions.  Pursuant to the FSR, the law only mentions two modes of service: “personal service” or “service by registered post”.  As a corporation is a legal person, giving something to a corporation “personally” refers to giving something to the person in charge (senior officer) of the corporation or its representative in person.

61.  I agree with the appellant that Order 10, rule 1 of the Rules of the High Court may be used as reference in respect of how to achieve “personal service”.  Although the said rule does not apply to criminal proceedings, taking into account the seriousness of contravening the law due to failing to comply with notices carrying punitive consequences, I am of the view that there is no reason why the requirement of “personal service” will be lower than that in civil proceedings.

62.  Order 10, rule 1 obviously distinguishes between “personal service” and “instead of serving it personally”, putting the document into a letter box.

63.  I agree that “personal service” is “effected by leaving a copy of the document with the person to be served”, with the focus on the recipient.  I do not accept the respondent’s argument that the focus of “personal service’ was on the deliveryman.  I agree with the appellant’s submissions that I can make reference to the provision in respect of “personal service” on a body [corporate] in Order 65 of the Rules of the High Court, in that notices shall be “served personally” on the chairman or a senior officer, such as a secretary, of the corporation.

64.  Section 16 of the Building Management Ordinance stipulates that any notice which relates to any of the common parts of the building may be served upon the corporation at its registered office.

65.  The above rule does not specify the mode of service at the office of the corporation, and according to the specific mode stipulated in section 9(1) of the FSR, notices may be mailed to the registered office of the corporation by registered post.  Section 16 of the Building Management Ordinance does not override section 9(1) of the FSR.  I find that putting the Notices into the letter box at the appellant’s registered address was not in compliance with the legal requirement.  The Notices concerned therefore were not served on the appellant “personally”.

66.  The District Court case that the magistrate relied on does not apply to the circumstances of the present case.  (I will not, nor am I required to, comment on whether the finding of that case was correct.)

Conclusion

67.  For the reasons set out above, I find that PW1, by putting the Notices into the letter box at the appellant’s registered address, did not fulfil the relevant element of “personal service” required by the legislation.

68.  I allow the appellant’s appeal against conviction, quash the conviction and set aside the fine.