U STORAGE GROUP LTD v. DIRECTOR OF FIRE SERVICES

HCAL 490/2019

[2020] HKCFI 2114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 490 OF 2019

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J U D G M E N T

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A. INTRODUCTION

1.  This is the rolled-up hearing of the applicant’s (1) application for an extension of time to apply for leave to apply for judicial review; (2) application for leave to apply for judicial review; and (3) substantive application for judicial review.

2.  The Notice of Application for Leave to Apply for Judicial Review (“Form 86”) was filed on 20 February 2019.

3.  By its Amended Form 86, the applicant challenges the following decisions (“Decisions”):

(1) The Fact Sheet issued by the Director of Fire Services (the “Director”) entitled “Potential Fire Hazards in Mini-Storages and Related Abatement Measures” (“Fact Sheet”) published in December 2016;

(2) The Fire Hazards Abatement Notices dated 28 June 2017 (“Subject FHANs”) in respect of the applicant’s premises at 5/F, 6/F and 8/F of Kwong Tai Building, 750 Cheung Sha Wan Road, Kowloon (“Premises”); and

(3) The Director’s letters dated (a) 21 November 2017 and 22 November 2017 rejecting the applicant’s alternative proposals for remedial layouts (“Director’s Nov 2017 Letters”) and (b) 16 May 2018 refusing to extend the time for complying with the Subject FHANs (“Director’s 16.5.18 Letters”).

4.  The grounds upon which the applicant challenges the Decisions are:

(1) The Director failed to consult with the trade industry (“Trade”) in breach of the applicant’s procedural legitimate expectation before implementing the Fact Sheet (“Ground 1”);

(2) The Director fettered his discretion by rigidly adopting the fire abatement measures in the Fact Sheet without considering any other alternatives before imposing the Layout and Window Requirements in the Subject FHANs (“Ground 2”);

(3) The Director acted ultra vires the Fire Services Ordinance (Cap 95) (“FSO”) by effectively regulating the use of industrial buildings by the Mini-Storage Industry through the issuance of FHANs when the power to regulate the use and occupation of premises within a building lies with the Director of Buildings (“DB”) under the Buildings Ordinance (Cap 123) (“BO”) and its related regulations (“Ground 3”);

(4) The Fact Sheet is discriminatory of the Mini-Storage Industry and in contravention of the Art 25 of the Basic Law (“BL 25”) by treating the Mini-Storage Industry less favourably than other industries which regularly occupy old industrial buildings (“Ground 4”);

(5) To the extent sections 2(f) and 9(a) of the FSO and section 3 of the Fire Services (Fire Hazard Abatement) Regulation Cap 95F (“FS(FHA)R”) entitle the Director to regulate the use of industrial buildings by the Mini-Storage Industry, those provisions are unconstitutional, or alternatively, the Subject FHANs disproportionately interfered with the applicant’s property rights under BL 6 & 105, read in conjunction with BL 118 & 119 (“Ground 5A”);

(6) The Subject FHANs are Wednesbury unreasonable in that the Subject FHANs are disproportionate (“Ground 5B”);

(7) Sections 2(f) and 9 of the FSO do not satisfy the “prescribed by law” requirement and are unconstitutional (“Ground 5C”). 

5.  The applicant pointed out that Grounds 3 and 5C form the basis of the applicant’s Core Proposition in this case, which is this:

“The Director’s use of section 9(a) of the FSO, to serve a prescribed notice against any mini-storage operator whose premises are not in compliance with the Window and Layout Requirements contained in the Mini-Storage Compliance Policy, such non-compliance being deemed to be a “fire hazard” for the purpose of section 2(f) of the FSO, is ultra vires of the FSO.”

The applicant submits that the Core Proposition is sufficient to determine the present application for leave for judicial review and judicial review because the use of the powers under section 9(a) of the FSO to raise minimum fire safety standards in industrial buildings with mini-storage businesses by defining standards higher than those contained in Building Fire Safety Code (specifically the Window and Layout Requirements) is contrary to:

(1) The purposive reading of the FSO, bearing in mind that the framework governing fire safety for access to buildings and specifically building works is vested in the Legislature and the Secretary of Development (and delegated to the Buildings Department) under the BO, Fire Safety (Commercial Premises) Ordinance, Cap 502 (“FS(CP)O”) and Fire Safety (Buildings) Ordinance, Cap 572 (“FS(B)O”), and not the Director;

(2) The legislative history of the FSO in which the legislature specifically reduced the Director’s power under section 2 of the FSO to find non-compliance with prescriptions of Building Fire Safety Code (and its predecessors) a “fire hazard”;

(3) The common law principle of legality under which general words of section 2(f) of the FSO are not capable of imputing a legislative intent that fundamental property rights would be affected in the manner such as the present case; and

(4) The requirement of “prescribed by law” which requires fundamental rights to be guaranteed by clear and accessible laws and not left to unchartered administrative discretion.

6.  The applicant’s original Form 86 consisted of 5 Grounds, 4 of which were based on a systemic attack and the fifth Ground on proportionality and rationality based on the applicant’s own premises.  In light of the evidence filed by the Director, the applicant is no longer pursuing Grounds 2, 4 and 5B.  The applicant continues to maintain all other Grounds (ie, 1, 3, 5A and 5C) for the purpose of this rolled up hearing.  They can be grouped into three categories, namely:

(1) Grounds 3 and 5C which make up the systemic challenges as summarised in the Core Proposition above;

(2) Ground 1 which is a procedural challenge, the breach of legitimate expectation to consult and/or the failure to consult; and

(3) Ground 5A which is a challenges on specific facts to the Subject Premises in this case.

7.  In a nutshell, the Director’s position is that:

(1) There has been undue delay by the applicant in taking out this application for leave to apply for judicial review and no extension of time should be granted in the circumstances of this case;

(2) The grounds of challenge are without merit and both the leave application and the substantive application for judicial review should be dismissed;

(3) The court should in any event exercise its discretion to decline granting any relief in this case by reason of the undue delay in challenging the Decisions and the significant prejudice and detriment to good administration, as well as the overriding public interests in fire safety at stake.

B. OVERVIEW AND BACKGROUND

8.  On 21 June 2016, a No 4 alarm fire broke out at a mini-storage facility in the Amoycan Industrial Centre, 7 Ngau Tau Kok Road, Kowloon Bay (the “Amoycan Fire”).  About 2,900 fire and ambulance personnel and 650 fire appliances and ambulances were mobilised to fight the fire.  After 108 hours of fire-fighting, the Amoycan Fire was eventually put out on 25 June 2016.  However, a Senior Station Officer and a Senior Fireman of the Fire Services Department were tragically killed, while 10 other fire-fighting crew required medical treatment in hospital.  The third and fourth floors of the Amoycan Industrial Centre were severely damaged by the fire.

9.  The Amoycan Fire tragedy sent shockwaves throughout the community in Hong Kong, exposing for the first time the unique inherent fire hazards and safety risks arising from the layout and setting of mini-storage facilities.  The tragedy acted as a sobering wake-up call that prompt action was needed to eradicate these fire hazards and safety risks as soon as possible. 

10.  During the fatal Amoycan Fire in June 2016, firefighters encountered tremendous unprecedented operational difficulties in putting out the fire due to the blockage of all windows, as well as the setting and configuration of the mini-storage facility, including difficulties in (a) locating the fire; (b) searching for possible casualties; (b) supressing the fire; (d) ventilating the fire scene; and (e) the additional risks posed to firefighters. The firefighting operation took 108 hours over 5 days.

11.  Recognising the pressing urgency to address the situation as soon as possible, on 28 June 2016, just 3 days after the Amoycan Fire was put out on 25 June 2016, the Government mobilised each of the Fire Services Department (“FSD”), Buildings Department (“BD”), Lands Department (“LandsD”) and Labour Department (“LabourD”) to commence territory-wide inspections on all mini-storage facilities in Hong Kong.

12.  On the part of the Director, the purpose of the immediate territory-wide inspection was two-fold: (1) to identify as a matter of priority the fire safety risks associated with mini-storage facilities and (2) to improve the fire safety of those premises generally.

13.  By 18 September 2016 (ie less than 3 months after the operation began), the Director had inspected all 756 mini-storages that had been identified at that point and issued 242 FHANs.

14.  In respect of the applicant:

(1) The Director conducted one preliminary and one in-depth inspection of the Premises on 5 July 2016 and 11 October 2016 respectively.  During the latter, a holistic risk assessment and detailed measurements to the Premises were conducted. 

(2) Fire hazards commonly found in mini-storages were identified within the Premises.  In particular, it was found that (a) all windows were obstructed or encased by storage cubicles; (b) the layout of the mini-storage cubicles was undesirable, as they were arranged in a row/cluster occupying an area over 50m² with sides measuring more than 20m in length; (c) the provision of directional signs was insufficient; and (d) there was obstruction to exit(s) leading from the unit to area(s) designed as means of escape by the locking of doors. 

(3) The Director issued the first set of FHANs to the applicant on 14 October 2016, requiring it to abate the fire hazards within 60 days.  No less than 3 extensions of time were granted to the applicant.  The applicant made 2 further requests for a 4^th extension of time but both requests were declined by the Director.

(4) Follow-up inspections on the Premises were conducted by the Director on 20 December 2016, 7 March 2017, 26 May 2017, and 18 January 2018.  The follow-up inspections revealed that the applicant had complied with the FHANs relating to the obstruction to exits on (a) 5/F and 8/F on 22 November 2016 and (b) 6/F on 8 December 2016.  The applicant did not comply with the FHANs relating to insufficient directional signs until around 18 January 2018.

(5) On 28 June 2017, the Subject FHANs were issued to the applicant.

15.  As submitted by the Director, there are 3 important points to note in relation to how the Director has gone about formulating the fire hazards abatement measures.

(1) First, the formulation of fire hazards abatement measures is not a straightforward exercise, and involves a cautious assessment of a myriad of different possible scenarios which may emerge at the time of a fire emergency involving life and death situations.

(2) The mini-storage business is an emerging business model with no universally applicable fire safety standard at present.  While the Director made references to local and international standards and codes, it must be borne in mind that these were simply one of the many factors that the Director had referenced – obviously it may not always be appropriate to directly transport overseas standards where it is more sparsely populated to a high density location that is Hong Kong.

(3) Real life, hands-on operational experience and knowledge acquired from the Amoycan Fire tragedy – one of the biggest challenges faced by the Director in recent years – formed an integral and indispensable part of the formulation.  The theoretical fire engineering analyses and computational fluid dynamics simulations relied upon by the applicant cannot replace and do not even begin to address the practical operational needs of front-line fire-fighters.

(4) The two challenged measures aim to address – undesirable layout and insufficient windows – directly affect the formulation and effectiveness of fire-fighting strategies which involve multi-faceted dynamic risk assessments and may constantly evolve during a fire-fighting and rescue operation.

(5) The Director submits that in matters of public fire safety, which involves judgements not only of a technical nature, but more importantly, issues of fire-fighting strategies and effectiveness drawn from front line experience, the courts are not equipped (nor is it their role) to identify or determine the relevant lines to be drawn.  I agree that a wide margin of discretion and deference should be given to the Director in identifying fire hazards and formulating abatement measures. 

(6) Second, to strike a balance between the public safety and social benefits of mini-storages, the Director has repeatedly stressed that extensions of time may be granted to mini-storage operators for compliance with the FHANs.  The applicant itself was given no less than 3 extensions of time to comply with the Subject FHANs.

(7) Third, the Government including the Director had repeatedly emphasised to the Trade that it welcomed proposals for alternative approaches and that the Director would review and consider the proposed alternatives on their individual merits on a case by case basis.

16.  Further, as submitted by the Director, it is trite that in judicial review proceedings, the court does not exercise an appellate jurisdiction on an administrative decision.  A wide margin of discretion and deference must be given to a decision-maker where expert and technical matters are involved.  The court only plays a supervisory role.  It is concerned with the legality rather than the merits of the decision.  In other words, the question for this court is whether the relevant fire hazards in the Subject FHANs were ones which the Director was legally permitted to require the applicant to abate in the manner that he did.

17.  The applicant accepts that the application for judicial review is made out of time and an extension of time is required.

18.  The principles to be applied in an application to extend time for judicial review is summarised by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 303 at §27 as follows:

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53, rule 4(1) and section 21K (6) are not intended to be applied in a technical manner.  As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All ER 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined.  In most cases, this would be a ‘multi-faceted question’ the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance:

(a) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(b) Explanation for the delay: While Order 53, rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(c) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ).  An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26.10.06, at §13, per Hartmann J).

(d) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(e) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

19.  As the merits of the applicant’s challenge is a significant matter in determining whether to extend time, I shall come back to the question of delay and whether leaves should be granted after a full consideration of the merits.

C. GROUND 3: ALLEGED ULTRA VIRES

20.  The applicant’s Core Proposition is set out in paragraph 5 above.  At the heart of this ground of review, the applicant submits that the key question is whether the Director has the power under the FSO to regulate a sector specific industry which in his professional opinion, carry specific fire risks, and if so what is the source of that power.  In the present case, the applicant submits that the Director has taken upon this role in relation to the mini-storage industry in Hong Kong by using his powers under section 9(a) of the FSO to issue FHANs, on the basis that the failure to comply with inter alia Windows and Layouts Requirements amounts to a section 2(f) “fire hazard”.

21.  Thus, this issue turns on the proper construction of sections 2(f) and 9 of the FSO. 

22.  The applicant’s complaint of ultra vires hinges upon the following contentions:

(1) The delineation of powers between the Director and DB entrenched by the Upgrading Ordinances[1] is such that the Director’s statutory powers in relation to fire safety in buildings is limited to matters concerning fire service installation or equipment, whereas the BD has exclusive power to prescribe and enforce fire safety regulations relating to the planning, design, and construction of buildings.  Thus, the powers to prescribe and enforce fire safety standards and regulations in relation to building works (whether structural or otherwise) are vested exclusively in the BD, not the Director.  The Director’s role on these matters is at most “a consultant and advisor”.

(2) Hence, under sections 2(f) and 9 of the FSO, the Director only has the power to identify fire hazards and issue FHANs with reference to the Fire Safety Code and the provisions in the BO, the FS(CP)O, the FS(B)O and the Fire Safety (Industrial Buildings) Bill 2018, on a case by case basis if there is a unique fire hazard specific to a premises. According to the applicant, “non-compliance of the [Fact Sheet] when a mini-storage is otherwise fully complying with [the existing] Building Fire Safety Code, cannot, as a matter of law, amount to a fire hazard that requires abatement” (“applicant’s Interpretation”). 

(3) The Director has acted ultra vires his above limited powers by issuing the Fact Sheet, as the Layout and Window Requirements are prescriptive “deemed-to-comply” provisions amounting to a code of practice or policy governing the operation of mini-storages, that impose more stringent requirements than otherwise contained in the Building Fire Safety Code.

23.  As submitted by the Director and explained below, the fallacy underlying the applicant’s arguments is that they are premised upon erroneous factual and legal interpretations. The Fact Sheet entitled “Potential Fire Hazards in Mini-Storage and Related Abatement Measure” is not a code of practice/policy as alleged by the applicant.  As the Director has repeatedly explained and as accepted by this court in Tomorrow Finances Limited v Director of Fire Services [2019] HKCFI 3025 at §79, by the Fact Sheet, the Director only “clearly explained the potential fire hazards identified in mini-storages and the corresponding abatement measures to be taken”. 

24.  On a proper construction of the FSO and the FS(FHA)R, the Director as the authority with expertise in fire-fighting, identification of fire hazards and the formulation of fire protection measures, clearly has the power to identify and abate fire hazards beyond those relating to fire service installation and equipment.  I agree the roles of the Director and the DB are complementary to each other, safeguarding fire safety from different perspectives – the Director’s duty is to protect the public from fire and calamites and will consider fire safety issues from fire hazards and fire-fighting perspectives, whereas the BD is entrusted with the power to regulate fire safety in buildings and to stipulate and enforce fire safety standards from building safety perspective.

C1.    Legal principles on interpretation

25.  It is well established that the court adopts a purposive construction in interpreting a statutory provision, and in construing statutory provisions, the court does not merely look at the relevant words.  It construes the relevant words having regard to their context and purpose.  The context of the relevant statutory provision should be taken in its widest sense and will include other provisions of the statute.  It may also be relevant in any given case to look at the history of the relevant provision: see Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196 per Ma CJ at §29. 

26.  In Yung Chi Keung v Protection of Wages on Insolvency Board (2016) 19 HKCFAR 469, Ma CJ held that in construing a legal provision, the court must not distort or ignore the plain meaning of the text and construe the ordinance in whatever manner which achieves a result which the court considers desirable.  The Court is after all “an interpreter not a legislator”. 

27.  In construing a legal provision, the court will seek to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature.  The court gives a very wide meaning to the concept of “absurdity”, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter-mischief: Bennion on Statutory Interpretation (7^th Edn) §12.1; Hung Chan Wa v HKSAR [2005] 3 HKLRD 291 per Stock JA at §58.

C2.    The Fact Sheet is not a Code of Practice/Policy

28.  The applicant is adamant in insisting that the Layout and Window Requirements in the Fact Sheetare prescriptive requirements amounting to a code of practice/policy governing the operation of mini-storages, but they are not.  The Fact Sheet is not a code of practice or policy.  It is only an information sheet which the Director has published with the sole aim of highlighting common fire hazards in mini-storages and facilitating members of the Trade to spot and eliminate fire hazards in their respective premises.  The Director has adopted a pragmatic approach in the issue of FHANs, taking into account the specific layout and condition of each individual mini-storage premises.  The Layout and Window Requirements are not mandatory standards imposed across the entire mini-storage industry, but are merely intended as guidelines which a mini-storage operator may follow to abate the common fire hazards identified in the Fact Sheet.  As detailed below, the Director welcomes and have considered and approved many alternative proposals submitted by mini-storage operators to abate fire hazards found in their respective premises. 

29.  Once the nature of the Fact Sheet is understood properly, a large part of the applicant’s complaints under the alleged Ultra Vires Ground and the alleged Legal Uncertainty Ground (which are both largely premised on its allegation that the Fact Sheet is a “de facto code of practice/policy”)will fall away. 

30.  After the territory-wide inspection of mini-storage facilitates by the FSD, BD, LandsD and LabourD, the FSD identified 5 major fire hazards which are commonly found to exist in mini-storage premises, namely:

(1) Undesirable arrangement of storage cubicles;

(2) Obstruction to/insufficient number of windows;

(3) Undesirable types of locking devices for escape doors;

(4) Insufficient exit signs and directional signs; and

(5) Insufficient coverage of the hose reel system. 

31.  These common fire hazards were explained to the Trade in the 21 September 2016 Meeting and subsequently included in the Fact Sheet as “Potential Fire Hazards in Ministorage”.  In the Fact Sheet, the Director further set out abatement measures which the operators may adopt to abate the fire hazards.  In the cover letter dated 6 July 2017 enclosing the Fact Sheet sent to the Trade (including the applicant), the Director made clear that the Fact Sheet are “for reference” only and that if members require fire safety advice on individual mini-storages, they should contact the case officers concerned whose contact information were provided along with the FHANs. 

32.  Before issuing any FHANs, the Director would conduct site visit(s) and inspections of the particular mini-storage to ascertain whether there exist any fire hazards in the premises.  A pragmatic approach has been adopted in identifying fire hazards and issuing FHANs. 

33.  With respect to the applicant’s Premises:

(1) The Director conducted a preliminary inspection of the Premises on 5 July 2016 under the territory wide inspection programme of mini-storage premises and a further in-depth inspection on 11 October 2016;

(2) A holistic risk assessment was conducted on the Premises during the inspections.  Detailed measurements of each floor of the Premises including its dimensions and all storage cubicles were taken.  As a lot of the window openings in the Premises were blocked by storage cubicles or other items at the time of the FSD’s inspection, it was not possible to take measurement of all the windows without clearing all the items laid in front of the windows.  To avoid creating unnecessary nuisance to the applicant’s operation of the mini-storage, the FSD made use of the window dimensions stated in the approved building plans of the Premises for its assessment;

(3) After considering (a) the layout plans of the Premises; (b) the observations made during the inspection on 11 October 2016; (c) the FSD’s experience in relation to fire safety concerns in mini-storages in Hong Kong; and (d) the relevant Guidelines, the FSD considered that the layout and the settings of the Premises presented typical fire hazards found in mini-storage premises.  Amongst others, the provision of windows was insufficient (as all windows were blocked by storage cubicles) and the layout of the mini-storage cubicles was considered undesirable;

(4) In view of the fire hazards found in the premises, the FSD issued the FHANS (including the Subject FHANs) to the applicant. 

34.  The Director has emphasised that he welcomed and would consider alternative proposals provided that the alternative suggestions can be equally effective in combating the fire hazards identified.  The suggested fire abatement measures in the Fact Sheet are not prescriptive rules or standards which the mini-storage operators are mandated to comply with. 

35.  As a matter of fact, some of the alternative proposals suggested by the Trade and individual members of the Trade were accepted by the Director:

Alternative Proposals by the Trade

(1) On 10 February 2017 and 17 February 2017 respectively, 2 technical meetings were held between the FSD and the Trade together with their consultant, Ove Arup & Partners Hong Kong Limited (“Ove Arup”), to discuss the interior layout arrangement of mini-storages.  During these meetings, the FSD expressly informed the Trade that the FSD is open to any alternative proposals which would achieve the same level of safety as the abatement measures suggested in the FHANs;

(2) After considering the alternative proposal to the Layout Requirements prepared by Ove Arup on behalf of the Trade, by letter dated 25 May 2017, the FSD informed the Trade that the layout plans proposed were generally acceptable subject to a few exceptions as explained in the letter.  In particular, the FSD will in principle accept the “fire-rated box concept” as an alternative to the requirement of “separation distance of not less than 2.4 metres between each cluster of mini-storage cubicles of 50 sq metres”.  The FSD reiterated that “This Department would consider alternative proposals from members of the trade, provided that the same level of safety standard could be achieved”;

(3) Thereafter, a “Note 3” was added to the Fact Sheet to make clear that individual mini-storage operators may submit alternative proposals on the requirement for separation distance of 2.4 m between rows or clusters in mini-storages, and that such proposals may be accepted in principle by the FSD subject to the fulfilment of certain conditions along the lines of the “fire-rated box concept”;

(4) By letters dated 22 November 2017 and 25 January 2018, Freevision Limited submitted 2 Computational Fluid Dynamics (CFD) Simulation Reports (ie fire engineering reports) on behalf of the Trade for the FSD’s consideration.  However, the FSD found these 2 reports “fundamentally unacceptable”.  This is because the CFD reports were based on the assumption that there were only minor localised fires due to small ignition source and initiating item of fire origin, disregarding the fact that fires arising in mini-storage premises may originate from a wide range of ignition source.  Further, generally speaking, fire engineering reports frequently involve simulations based on certain estimations.  The applicability and the relevance of these fire engineering reports should be restricted to cases where it is shown to be impracticable to comply with the fire abatement measures.

Alternative Proposals by Individual Mini-storage Operators

(5) As at April 2019, alternative proposals submitted by 58 mini-storage premises have been accepted by the FSD;

(6) As of April 2020, up to 35.5% of the mini-storage premises are using alternative measures to abate the fire hazards identified by the FSD in the Fact Sheet. 

36.  As for the applicant, the FSD had also considered alternative proposals submitted by its consultant, Llewelyn-Davies (“LD”).  On 4 August 2017, the FSD held a meeting with the representatives of LD and Tai Yau Storage Group Limited (the applicant’s appointed representative) to discuss LD’s proposals.  After further discussions between the FSD, representatives of the applicant and LD over the telephone and emails, the Director eventually rejected the proposals by LD because the applicant failed to provide the Director with the requested essential information, including the height of the storage cubicles in the Premises, to enable the FSD to assess whether the applicant’s alternative proposal is acceptable.  The FSD has explained its reasoning and request for information by various emails and letters. 

C3.    Applicant’s interpretation

37.  The interpretation of the Director’s powers as contended for by the applicant is summarised in the Amended Form 86 at paragraph 61:

“… the [Director’s] powers under the FSO to issue FHANs should be construed as being restricted to case by case investigations of possible fire hazards by reference to:

(1) Codes on fire services installation and equipment issued by the FSD;

(2) Fire Safety Code issued by the Director of Buildings; or

(3) On a case by case basis, if the existing compliance with fire safety codes is revealed to be insufficient to abate an identified fire hazard identified after fire engineering is conducted.”

C3.1  Plain meaning of FSO and the FS(FHA)R

38.  It is the duty of the Director to take all lawful measures for the extinguishment of fires and the protection of life and property of members of the Hong Kong public in case of fire and other calamities.  The Director derives its powers from, inter alia, the FSO and the FS(FHA)R.  As pointed out by the Director, it is readily apparent from the Long Title and section 7 of the FSO that the Director has extensive and comprehensive duties and powers to safeguard and promote fire safety.  Such duties and powers are not confined to fire service installation and equipment or “non-building works”, which are only a few amongst many aspects of fire safety and fire-fighting. 

39.  The Long Title of the FSO explains the purpose of the ordinance as follows:

“To make better provision as to the constitution, duties and powers of the Fire Services Department and as to the discipline of members thereof and to make provision for the prevention of fire hazards, for the investigation into matters relating to a fire and for a welfare fund; and to regulate the registration of fire service installation contractors and to provide for the control of the sale, supply, installation, repair, maintenance and inspection of fire service installations or equipment; and for purposes connected with the matters aforesaid.”[Emphasis added]

40.   Section 7 of the FSO sets out the duties of the Director, they include:

“(a) extinguish fires;

(b) protect life and property in case of fire or other calamity;

(c) give advice on fire protection measures and fire hazards as occasion requires…”

41.  Similarly, the Director’s powers in respect of abatement and prevention of fire hazards under sections 2(f) and 9 of the FSO are not confined to ensuring proper fire service installation and equipment or “non-building works”. 

42.  Section 9 of the FSO provides that:

“For the purpose of abating a fire hazard or preventing it from recurring, the Director—

(a) if satisfied of the existence in or on any premises of any fire hazard, may serve a prescribed notice on a person requiring the person to do such things as may be specified by the Director to abate the fire hazard within the period specified in the notice;” [Emphasis added]

43.  Section 2 of the FSO defines a “fire hazard” to mean:

“(a)- (b) (Repealed…)

(c) any removal from any building of any fire service installation or equipment which was provided in such building in accordance with plans certified by the Director for the purposes of section 16 of the Buildings Ordinance (Cap. 123);

(d) the presence in any building of any fire service installation or equipment which from lack of proper maintenance or for any other reason is not in efficient working order;

(e) inadequate means of egress from any premises in a building to street level outside the building or using such means of egress for a purpose which give rise to any circumstances described in paragraph (f);

(f)  any other matter or circumstance which materially increases the likelihood of fire or other calamity or the danger to life or property that would result from the outbreak of fire or the occurrence of any other calamity, or which would materially hamper the Fire Services Department in the discharge of its duties in the event of fire or other calamity” [Emphasis added]

44.  I agree there can be no doubt that the legislature must have intended section 2(f) of the FSO to encompass fire hazards on top of those arising from fire service installation and equipment, as the latter have been expressly provided for in section 2(c) and (d).

45.  Further, there is nothing in the wide definition of a “fire hazard” under section 2 of the FSO, or indeed the entire FSO and its subsidiary legislations, which suggest that the Director is only empowered to deal with fire hazards which do not involve building works.  Rather, the following provisions in the FSO and the FS(FHA)R confirm that the Director can procure any works in the premises for the purposes of abating fire hazards:

(1) Section 9(b) of FSO: “For the purpose of abating a fire hazard or preventing it from recurring, the Director may, under the prescribed circumstances, cause to be carried out any works in respect of any premises and recover the expenses incurred from any person”.  

(2) Regulation 3(2) of FS(FHA)R: “A fire hazard abatement notice may (a) require the person on whom the notice is served to abate the fire hazard within the period specified in the notice; (b) require the person on whom the notice is served to carry out such works as may be necessary for the purpose in paragraph (a); and (c) if the Director thinks fit, specify any works to be carried out for the purpose in paragraph (a)”.  

(3) Regulation 4(1) of FS(FHA)R: “Subject to subsection (2), if the person on whom a fire hazard abatement notice is served—(a) fails to abate the fire hazard to which the notice relates within the period specified in the notice; or(b) causes, permits or suffers the fire hazard to recur at any time within a period of 12 months after the date of service of the notice,the Director may cause to be carried out in or on the relevant premises such works, and cause to be removed and taken possession of such article or thing, that is considered necessary by the Director to abate the relevant fire hazard and to prevent its recurrence in or on the premises”.

(4) Regulation 11(2)(c) of FS(FHA)R: “A magistrate may not make a prohibition order unless the Director proves to the satisfaction of the magistrate that the fire hazard is a result of the structural character of the relevant premises”.

(5) Regulation 13(4)(b) of FS(FHA)R: “… if an appeal… (b) against a fire hazard order that requires the carrying out of structural works … is dismissed or abandoned …”.

(6) Regulation 13(9) and (10) of FS(FHA)R: “… a fire hazard order that requires the carrying out of structural works …”.

[Emphasis supplied]

46.  In this regard, it must always be borne in mind that context and purpose are not to be seen in isolation.  Just as it would be wrong to construe words in a statute without regard to context and purpose, it is equally impermissible to ignore the actual words used in a statute in order to construe its effect: see, Yung Chi Keung v Protection of Wages on Insolvency Board,Supra, at §22.

47.  The object of empowering the Director to issue FHANs and introducing the definition of “fire hazards” in section 2 of the FSO is to “ensure, so far as is possible, that fires, which can be prevented by ordinary precautions, are prevented, and, secondly, that the damage likely to life and property when fire of other calamity does occur is minimized”: see “Objects and Reasons” of the Fire Services (Amendment) Bill 1963, Official Report of Proceedings 4 December 1963.  Hence, section 2 of the FSO is deliberately couched in wide terms to cater for fire hazards which may arise from different and constantly evolving circumstances, ranging from the layout and structure of a premises to floating obstructions (for example, unused boxes or rubbish) being placed in the means of escape of the premises which may materially increase the likelihood of fire or obstruct fire-fighting operations.  The Director was therefore given the power to use his expertise to identify fire hazards and request the responsible person to abate them.  The suggestion that a fire hazard can only be identified after a fire engineering assessment is clearly unsustainable.

48.  Indeed, in paragraphs 2.34-2.35 of its Skeleton, the applicant also accepts that on a literal reading of sections 2(f) and 9 of the FSO, the power of the Director therein “is wide” and “would clearly enable the FSD Director to regard building works…as prima facie ‘fire hazards’…”, and issue FHANs to require its abatement. 

49.  To suggest that the Director’s powers under sections 2(f) and 9 of FSO should somehow be restricted to dealing only with fire service installation and equipment and non-building works or fire hazards identified after a fire engineering assessment flies in the face of the clear wording of the provisions discussed in paragraphs 39 to 45 above.  The applicant cannot ask the court to strain and distort the plain meaning of the text in the FSO and the FS(FHA)R to achieve its desired results. 

C3.2  The Director and DB are empowered to look at the same issue from their respective perspectives

50.  The various provisions in the BO and its subsidiary legislations, the Building Fire Safety Code, the FS(CP)O, the FS(B)O and the Fire Safety (Industrial Buildings) Bill 2018 (“the Bill”) (collectively, the “Other Legislations”) relied on by the applicant cannot advance the applicant’s case because while they show that the Director has a specified role to play in some of the provisions in those legislations, it does not follow that the Director can only perform those limited roles under the FSO and the FS(FHA)R. For example:

(1) Under section 16(1)(b) of the BO, the Director is tasked to consider and issue certificates certifying that having considered the building plan, a building does not require fire service installation or equipment, or that the building has comprised the minimum fire service installations and equipment necessary for such building in accordance with a Code of Practice published from time to time by the Director (ie the Code of Practice for Minimum Fire Service Installations and Equipment and Inspection, Testing and Maintenance of Installations and Equipment, April 2012 version);

(2) For the purposes of FS(B)O, FS(CP)O and the Bill, “enforcement authority” is defined in section 3 therein as the Director in relation to any fire service installation or equipment, and the DB in relation to the planning, design and construction of a composite building or domestic building. 

51.  The FSD and the BD are 2 distinct government authorities which derive their respective powers under different ordinances.  As stated above, the FSD’s mission is to protect the public from fire and calamities, whereas the BD is committed to promoting building safety, setting and enforcing safety, health and environmental standards for private buildings and improving the quality of building development. 

52.  The FSO, the FS(FHA)R and the Other Legislations do not contain anything which suggests that fire safety regulations touching upon building works or anything beyond fire installation and equipment are within the exclusive purview of the DB.  The fact that a matter covered by the FSO may also be regulated by the BD or another authority from other perspectives does not prevent the Director from exercising its powers under the FSO from the perspective of fire safety.  From a fire safety perspective, the BD simply does not possess the requisite expertise to determine, for example, what would “materially hamper the FSD in the discharge of its duties in the event of fire” or other forms of fire hazards.

53.  In Hong Kong Cable Television Limited v The Telecommunications Authority,HCAL 62/2003 (unrep., 1/11/2004) §§87-88 Hartmann J (as he then was) held that “Different statutes may give different - sometimes overlapping - powers to the same public authority.  The legislature may have its own reasons for doing so.  I know of no principle of interpretation that allows the court to reduce the broader powers contained in one statute so that they meet and do not exceed the lesser powers contained in the other”. I agree a fortiori, there is nothing incompatible or unusual for two different statutes governing the powers of two different government authorities to give each of the authorities the power to deal with the same issue (here, fire safety issue) from their own perspectives. 

54.  The complementary nature of FSD’s power and the power of other departments (for example, LabourD and BD) in dealing with fire safety issues has long been recognised, and is generally considered to be desirable by the Administration and the Legislature as the powers often serve different purposes:

(1) In a reply to the oral question raised by members of the Legislative Council on 18 August 1971 with respect to enforcement actions in factories, the then Commissioner of Labour Mr R.M. Hetherington noted that the power of the FSD (by issuing FHANs) and the power of the LabourD in relation to fire hazards serves different purposes.  Mr Hetherington stated “Independently, the Director of Fire Services is empowered, under the Fire Services Ordinance and the Dangerous Goods Ordinance, to take action to abate fire hazards in respect of any premises and such action can be taken and is taken by him against factories. In the ordinary way, officers of the Labour Department and the Fire Services Department keep each other informed of action taken.  That there are two separate enforcing agencies keeping an eye on the constantly changing conditions in factories in domestic and commercial buildings is welcomed by me. Clearly, co-ordination of the work of the Fire Services Department, which is primarily interested in the overall risks in a particular building, and the work of the Labour Department, which is mainly concerned with the protection from fire hazards of the employees of a factory and, additionally of other persons who may be affected by the operators of the factory, is desirable”;

(2) In the same meeting, when being asked by another Legislative Council member as to what steps were being taken by the Building Authority and the Director to prevent the erection of illegal barriers and other obstructive structures in occupied buildings, Mr J.J. Robson, the then Director of Public Works, stated that both the Building Authority and the Director would take enforcement steps under the respective ordinances: Official Report of Proceedings 18 August 1971. 

55.  If the Legislature considers overlapping of responsibility between the Director and the DB should be avoided in any particular aspect, it is entitled to, and would make amendments to the ordinances to avoid such overlap.  By the Fire Services (Amendment) Ordinance 1985, the Legislature did amend the FSO by deleting section 2(a) and (b)[2] and repealing section 24 to reduce the overlap of responsibility between the Director and DB in respect of means of escape: Official Record of Proceedings of the session on 19 December 1985. Since then, the Legislature has not made any further changes to the definition of “fire hazard” under section 2.  As such, I agree the Legislature must be taken to have approved the overlapping of responsibility between the Director and the DB regarding all other fire safety issues. 

56.  Building Authority v Appeal Tribunal (Buildings) [2010] 3 HKC 368 does not assist the applicant.  In that case, Andrew Cheung J (as Cheung PJ then was) rejected the Appeal Tribunal’s contention that Regulation 41(1) of the Building (Planning) Regulations (Cap 123F) had no application and was spent once a new building had been completed in accordance with an approved plan. 

57.  The learned Judge was of the view that while Regulation 41(1) concerns means of escape and fire hazard, and that “fire hazards” would involve the consideration of circumstances by the Director not the Building Authority, Regulation 41(1) was only one amongst many provisions in the Building (Planning) Regulations and the Building Authority is the natural authority to oversee the matters covered by the other provisions in the Regulations.  In the context of considering the Building Authority’s role under the Building (Planning) Regulations, Andrew Cheung J held at 375 E-G that “it is true that in relation to means of escape, the Director of Fire Services obviously has a statutory responsibility.  However, it does not follow that the Building Authority need not concern itself with the same subject matter after completion of construction.  That would represent too restrictive a view about the statutory role and responsibility of the Building Authority which is concerned not only with new buildings but also with existing buildings, old buildings and dangerous buildings”[Emphasis added].  I agree the same logic applies to the present case.  While it is true that that the DB has a role to play in fire safety in buildings as provided for in the Other Legislations, it does not follow that the Director need not concern itself with the same subject matter, particularly when the Director’s statutory role is to, inter alia, protect life and property in case of fire or other calamity and give advice on fire protection measures and fire hazards as occasion requires: see section 7 of the FSO.

58.  Contrary to applicant’s submission, the Building Fire Safety Code is not an exclusive code dealing with fire safety issues found in mini-storage premises. Bearing in mind that the Director and the DB were both tasked to deal with building fire safety issues, the fact that common contraventions of the Building Fire Safety Code are found in mini-storage premises[3] does not mean that fire hazards cannot also be located in the mini-storages, which requires the Director to identify from a fire hazard prevention and fire-fighting perspective (and not just from a fire engineering perspective as the applicant contends) and take appropriate action under sections 2 and 9 of the FSO.  Fire hazards are not limited to those set out in the existing codes, whether the Building Fire Safety Code or codes published by the FSD and other Government departments.  Fire hazards may arise out of different and evolving conditions.  It is therefore wrong for the applicant to suggest that as along as a mini-storage premises is compliant with the Building Fire Safety Code, then no fire hazards can exist or that no FHANs may be issued by the Director against fire hazards unless those fire hazards have been identified after a fire engineering assessment. 

59.  Specific to the applicant’s case, on top of FHANs being issued by the Director pursuant to section 2 of the FSO, Building Orders and warning letters were also issued by the BD and the LandsD pursuant to their respective statutory powers.  The applicant is under no confusion that the role of the FSD, the BD and the LandsD are mutually exclusive and the applicant is required to meet the legal provisions administered by all 3 different authorities:

(1) Building Orders were issued by BD under sections 24 and 26 of the BO requiring the owners of the Premises to remove dangerous structures and the illegal building works which were constructed in breach of Regulation 41(1), and 41A of the B(P)R and/or Regulation 90 of the Building (Construction) Regulations (“B(C)R”) and the Building Fire Safety Code;

(2) Warning letters issued by the LandsD were registered against the Premises as the use of the premises for storage purposes was in breach of the prevailing lease condition. 

C3.3  Sections 2 and 9 of the FSO are not sector specific legislations

60.  In the applicant’s Skeleton, the applicant alleges that the Director is using its powers under sections 2 and 9 of the FSO to regulate the mini-storage industry.  The applicant relies on Re Sea Dragon Billiard and Snooker Association [1991] 1 HKLR 711 and says that the Director has no power to do so. 

61.  First of all, the Director’s powers to abate fire hazards are not “industry based” or “business based”, but “fire hazards” based.  The FSD will consider all types of storage facilities (including warehouses and mini-storages) on a case by case basis to ascertain if there is fire hazard in that particular premises.  The Fact Sheet was not intended to contain any exhaustive list of prescriptive requirements covering the entire mini-storage industry in Hong Kong.  The Fact Sheet only summarised potential fire hazards which commonly featured in the mini-storages. 

62.  Similarly, the DB has not issued any specific “code of practice/policy” to regulate mini-storage premises as an industry. 

63.  The potential fire hazards set out in the Fact Sheet (and the Subject FHANs) all concern items “in or on the premises”, falling within the definition of fire hazards under section 2(f) of the FSO.  The applicant’s reliance on Re Sea Dragon is misplaced:

(1) In Re Sea Dragon, it was common ground that the only way to comply with the FHAN in question was for the applicant to cease business at the premises as the FSD had considered running a billiard salon in an industrial building constituted an inherent fire hazard;

(2) In quashing the FHAN, Kaplan J held that for a “fire hazard” to exist within the scope of the FSO, the person concerned must have done something constituting a fire hazard other than the lawful running of a business on the premises in question. 

64.  I agree with the Director’s submission that the present case is clearly distinguishable.  The potential hazards highlighted in the Fact Sheet and the Subject FHANs do not solely target the use of the Premises as in the “done nothing” situation in Re Sea Dragon.  Rather, the applicant has clearly “done something” “in or on the premises” by configuring the layout and setting of the mini-storage facility in a manner that materially increases the likelihood of fire or hampers the FSD in the discharge of its duties in the event of fire. 

C3.4  Applicant’s interpretation would lead to absurdity

65.  The applicant’s interpretation, which is highly restrictive, would mean that:

(1) The Director’s role in preventing and abating fire hazards would be substantially undermined despite being the authority with the requisite expertise in the area of fire safety and fire-fighting.  A fire engineering approach does not necessarily address issues arising from a fire-fighting perspective.

(2) The FSD would not be able to issue FHANs in a timely manner to address fire hazards which may arise from constantly changing conditions. 

(3) Section 9(b) of the FSO and Regulations 3(2) and 4 of the FS(FHA)R would be rendered redundant if the Director in fact was not allowed to require building works to be carried out to abate the fire hazards. 

66.  I accept these are plainly absurd results and does not accord with the purposes of the FSO and the FS(FHA)R. 

67.  On the other hand, adopting the Director’s interpretation would be entirely consistent with and further the purposes of the FSO and the duties imposed on the Director in addressing and preventing fire hazards on a case by case basis. 

68.  The Director’s interpretation would not lead to the absurd results alleged by the applicant.  In particular:

(1) As to the applicant’s Skeleton §§2.36(1) & (2), as explained above, the Fact Sheet does not contain any prescriptive requirements and does not serve to impose any prescriptive regulations on the mini-storage industry.  Pursuant to sections 2 and 9 of the FSO, the Director will only point out fire hazards existing in an individual mini-storage premises and require abatement by the means suggested in the Fact Sheets or alternative proposals which have the same effect.  Hence, the requirement under section 39 of the BO and section 25 of the FS(B)O and FS(CP)O, being safeguards relating to prescriptive rules/standards, does not apply to the Director’s power to issue FHANs.

(2) The reliance in the applicant’s Skeleton §2.36(3) that the BD has set out technical requirements in relation to ingress, egress and access to premises for firefighting does not assist the applicant.  None of these technical requirements address the operational difficulties and fire hazards identified by the FSD arising as a result of the provision of insufficient windows and undesirable layout commonly found in mini-storage facilities.

(3) As to the contention in the applicant’s Skeleton §2.36(4) that section 9 of the FS(FHA)R “is a strict liability offence with no recourse to make any argument before a criminal magistrate, who is not required to consider whether the FHAN was lawfully issued because the element of offence is simply non-compliance with such notice”, this is incorrect.  This is plainly inconsistent with the applicant’s own stance taken in the magistrate proceedings concerning the Subject FHANs.  At the plea taking before the magistracy on 11 July 2018, rather than proceeding on the basis that there is no defence to section 9 of the FS(FHA)R, the applicant’s counsel indicated that the applicant would defend the prosecution by, inter alia, arguing there was no fire hazard in the premises. 

C4.    Principle of Legality

69.  The applicant argues that the Director has acted ultra vires of sections 2 and 9(a) of the FSO by:

(1) Issuing prescriptive regulations in the Fact Sheet and imposing retrospective penalties on mini-storage operators for non-compliance with those regulations; and

(2) Using the Fact Sheet to regulate the mini-storage sector. 

70.  While the applicant accepts that sections 2(f) and 9(a) of the FSO have by necessary implication authorised the Director to interfere with property rights and the right of presumption of innocence, it contends that:

(1) These provisions do not expressly or by necessary implication allow the Director to interfere with a person’s right against retrospective penalties: applicant’s Skeleton §2.56 (“Retrospective Penalties Argument”); and

(2) Even though these provisions authorise the Director to interfere with property rights, they do not go so far as “to allow it to regulate an entire sector of business by use of such powers and to force such businesses to modify their premises”: applicant’s Skeleton §2.60 (“Regulation of Business Sector Argument”). 

71.  These arguments are, again, premised on the erroneous assumption that the Fact Sheet is a set of “de facto prescriptive regulations” and the Director is using the Fact Sheet to regulate the mini-storage industry, and should be rejected for the reasons below. 

C4.1  Applicable legal principles

72.  The principle of legality is well-established and can be summarised as follows. 

73.  The principle of legality is a principle of statutory construction which requires that any abrogation or restriction of fundamental rights by statute should be done unmistakably, ie expressly or by necessary implication.  In other words, in the absence of express language or necessary implication to the contrary, the courts will assume that even the most general statutory words were intended to be subject to fundamental rights: De Smith’s Judicial Review (8^th ed), §5-046; A v Commissioner of ICAC (2012) 15 HKCFAR 362 per Ribeiro PJ at §§67-69.

74.  It is meant to “guard against the risk that the full implications of general or ambiguous statutory language said to have abrogated or curtailed fundamental rights or freedoms went unnoticed by the legislature.  So it is essential to have that risk at the forefront of one’s mind when applying the principle”: A v Commissioner of ICAC at §29. 

75.  “Necessary implication” is said to be “a matter of express language and logic not interpretation”: R (Morgan Grenfell Ltd) v Special Commissioner [2003] 1 AC 563, per Lord Hobhouse at §45. 

76.  Even where a statutory power authorises an intrusion upon fundamental rights, it is interpreted as authorising only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question: R (UNISON) v Lord Chancellor (Equality and Human Rights Commission and another intervening) [2017] 3 WLR 409 per Lord Reed JSC §§78-80, 88.

C4.2  The Retrospective Penalties Argument

77.  The Retrospective Penalties Argument is again premised on the applicant’s mischaracterisation that the Fact Sheet is a code of practice or policy.  The applicant’s logic is that at the time when the mini-storage operators commenced their businesses, they were entitled to expect that they only had to comply with the Building Fire Safety Code and the BO for the purposes of fire safety in their premises. By the Fact Sheet issued pursuant to section 2 of the FSO, the Director introduced new fire safety prescriptions beyond those set out in the Building Fire Safety Code.  The Director then issued FHANs pursuant to section 9 of the FSO against mini-storage operators so to compel them to meet the alleged new fire safety regulations, failing which retrospective penalties would be imposed pursuant to section 9 of the FS(FHA)R for non-compliance with the FHANs. 

78.  The Director reiterates and it is accepted by this court that the Fact Sheet is not a code of practice or a policy.  The Director only summarised common potential fire hazards in mini-storages and set out suggested ways of overcoming them.  The mini-storage operators are free to propose alternative means so long as they are equally effective in removing the fire hazards.  The Director has not sought to issue any code or policy pursuant to section 2 of the FSO. 

79.  Thus, the issue of retrospective penalty simply does not arise. 

(1) Article 12(1) of the Hong Kong Bill of Rights provides that “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.  If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby” [Emphasis added].

(2) The powers of the Director to identify fire hazards and require relevant persons to abate fire hazards were introduced to the FSO by the Fire Services (Amendment) Bill back in 1963 (see paragraph 47 above), the offence creating provision, ie section 9(1) of the FS(FHA)R, was introduced in 2004.  These provisions were all in place when the applicant started to use the Premises.  Any suggestion that mini-storage operators laboured under any expectation or understanding that they only had to comply with the Building Fire Safety Code and the BO for the purposes of fire safety in their premises is nonsensical.  Obviously, fire hazards can arise from a myriad of circumstances and it cannot be seriously suggested that mini-storage operators did not expect any FHANs would be issued against their premises for fire hazards provided they complied with the Building Fire Safety Code and the BO.

(3) As the applicant accepts in §2.52 of its Skeleton, its obligation to comply with a FHAN would only arise after a FHAN is issued.  The applicant will be liable to criminal penalty only if it fails to comply with the FHANs within a prescribed time stated in the FHAN.  In this case, the original FHANs issued on 14 October 2016 provided 60 days for the applicant to comply (ie by 18 December 2016), which was later extended 3 times to 6 September 2017.  In other words, the applicant was given almost one year to comply with the FHANs.

(4) The offence lies in the continuing hazards created by the applicant through its non-compliance with the FHANs, and does not punish the applicant for past actions per se.  Thus, the applicant will not be subject to any penalty with retrospective effect. 

80.  For completeness, with respect to applicant’s other arguments:

(1) It is difficult to see how the powers to issue FHANs would deprive the applicant of its right to a fair trial, as any breach of the FHANs would have to be prosecuted and argued before the Magistrate’s court.  The applicant is entitled to defend the prosecution, as it appears to be doing so in the present case.

(2) As to the suggestion that BL 118 and 119 have been interfered with, the applicant has not even begun to explain why these articles confer any fundamental rights for the purposes of the principle of legality (as opposed to setting out the basic principles of governance for the Government).

(3) As to the contention that section 9 of the FS(FHA)R creates a strict liability offence, as pointed out in paragraph 68(3) above, this does not mean there can be no defence and is inconsistent with its position taken in the Subject FHANs prosecutions.  In any event, as accepted by the applicant, sections 2 and 9(a) of the FSO authorise interference with the right of presumption of innocence by necessary implication. 

C4.3  The Regulation of Business Sector Argument

81.  As to the Regulation of Business Sector Argument, as discussed in Section C3.3 above, the Director’s exercise of its powers under sections 2 and 9(a) of the FSO is “fire hazard based”, not “sector based”.  By locating fire hazards in individual mini-storages and issuing FHANs to require abatement of them, the Director was not seeking to impose any sector-wide regulations over the mini-storage industry.  As the Director has repeatedly emphasised, it has adopted a pragmatic and holistic approach in ascertaining whether a set of premises (be it a mini-storage or otherwise) poses fire hazards.  The Director has also adopted a pragmatic approach in devising fire hazards abatement measures taking into account the condition of each premises and considering alternative proposals submitted by the relevant parties.

82.  Contrary to the applicant’s contention, the FSO’s purposes (or primary purposes) is not limited to conferring power on the Director to abate fire hazards only with reference to the Building Fire Safety Code and the Fire Services and Installation Code.  The Director is given extensive powers under the FSO and the subsidiary legislations to enable him to discharge his duty to protect the public in Hong Kong from the risk and harm of fire and other calamities: see Section C3.1 and C3.2 above. 

83.  The Director’s compilation of the Fact Sheet as a guide to the Trade to identify and overcome common fire hazards in mini-storages and its issue of FHANs upon spotting fire hazards in mini-storage premises are clearly within his powers as conferred under sections 2 and 9(a) of the FSO.

D. GROUND 5C: ALLEGED LEGAL UNCERTAINTY

84.  Alternative to and independent of Ground 3, the applicant submits the Director’s use of sections 2(f) and 9(a) of the FSO to regulate the entire mini-storage industry and how operators use their premises property is an unconstitutional use of such power, because it offends the requirement that restrictions on private property be “prescribed by law”.

85.  First, the use of section 2(f) to delineate a prescription of minimum standards more stringent than the Building Fire Safety Code, and to enforce the more stringent standards by section 9(a) of the FSO is a new and unprecedented form of fire safety building regulation or deem to comply provision.  The right to private property is therefore engaged by this new restriction: Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372§§29–40. 

86.  Second, since Articles 6 and 105 of the BL guarantees that property rights are to be secured by “clear and accessible laws, and not, for instance, left to uncharted administrative discretion”: ibid §30.  This stems from the requirement that property rights be protected “in accordance with law”, which is relevantly similar to the legal import of the phrase “prescribed by law” in other articles of the BL.

87.  In other words, a norm must be formulated with sufficient precision to enable a citizen to regulate his conduct so that he is able, with legal advice if necessary, to foresee the consequences which a course of action will entail: Chee Fei Ming v Director of Food and Environmental Hygiene [2020] 1 HKLRD 373 (§28).

88.  The need for foreseeability is also supported by BL Articles 118 and 119, which provide, that the Government has a positive obligation to provide an economic and legal environment to encourage investments, and development of new industries, and to formulate appropriate policies to promote and co-ordinate development of various trades. 

89.  To the contrary, the Director submits that the applicant’s argument under this ground of review is again based on its mischaracterisation that the Director is using sections 2(f) and 9(a) of the FSO “to regulate the entire mini-storage industry and how operators use their premises property” and “regulate and prescribe minimum standards that exceed those contained in the B(P)R and the [Building Fire Safety Code]”.  As this court accepts the Director’s submissions set out in Section C2 above and finds that the Director has not used sections 2 and 9(a) of the FSO to impose any prescriptive regulations on the mini-storage industry, this ground has no leg to stand on and must be rejected. 

90.  Without prejudice to the above, the Director makes the following further submissions. 

91.  It is not at all clear from the Amended Form 86 and the applicant’s Skeleton whether it is saying sections 2(f) and 9(a) of the FSO lack legal certainty or it is the Subject FHANs which have offended the principle of legal certainty.  Insofar as the applicant is challenging sections 2(f) and 9(a) of the FSO, the Director submits that the provisions are not subject to the legal certainty scrutiny as they do not purport to limit any fundamental rights (in particular rights under BL 6, 105, 118 and 119).  If the applicant is challenging the Subject FHANs, the Director submits that they were clear and foreseeable, in compliance with the prescribed by law requirement.

D1.    Challenge against sections 2 and 9(a) of FSO - The Principle of Legal Certainty is not Engaged

92.  The latest authority on this subject is the Court of Appeal’s decision in Leung Kwok Hung v Secretary for Justice [2020] HKCA 192 on the constitutionality of the Emergency Regulations Ordinance (Cap 241) (“the ERO”). 

93.  The applicant there submitted that section 2(1) of the ERO[4] is unconstitutional and falls foul of the prescribed by law requirement due to the wide scope of power conferred on the Chief Executive in Council (the “CEIC”) and the undefined meaning of “public danger” therein.  The Court of Appeal and the Court of First Instance rejected the argument.  The Courts concluded that the ERO by itself does not and does not seek to limit any fundamental rights.  In the premises, the requirement of legal certainty should be applied to the actual regulations that are enacted under the ERO but not generally to the enabling ERO: see Section G2 of the Judgment.  In particular, it was held by the CFI and upheld by the CA at §§309, 315-316, 320 that: 

(1) Legal certainty is not a notion existing in the abstract and in a vacuum.  Article 39 of the Basic Law provides that the provisions of the ICCPR as applied to Hong Kong shall remain in force, and states that those rights and freedoms shall not be restricted unless as prescribed by law.  As such, the “prescribed by law” requirement applies to the restraints on the rights and freedoms of the individual.  It is the ‘norms’ which purport directly to restrict the citizen’s freedom that must be sufficiently precise to enable the citizen to conduct himself accordingly;

(2) The CEIC’s exercise of discretionary power under the ERO to make a regulation is not an exercise of power that will necessarily violate any fundamental right.  It is only when there is a regulation that has indeed been enacted under the ERO which provides for the restriction of fundamental rights that an individual’s relevant fundamental rights or freedoms are or are sought to be restricted.  In such a case, the regulation itself has to meet the prescribed by law requirement and that would not be dependent upon whether or not the power under the regulation has in fact been exercised or not.

94.  In the present case, the definition of “fire hazards” in section 2 of the FSO, and the Director’s exercise of its power under section 9(a) of the FSO to serve a prescribed notice on a person requiring him to do such things as may be specified by the Director to abate the fire hazard will not necessarily violate any fundamental rights.  It is only the requirements in the FHANs issued pursuant to section 9 of the FSO which may interfere with fundamental rights, and which may be subject to the “prescribed by law” requirement. 

95.  Hence, I agree any blanket challenge against the Director’s FHAN issuing power under sections 2 and 9(a) of the FSO must fail. 

96.  Further, even if the principle of legal certainty is engaged for the purposes of sections 2 and 9(a) of the FSO, the prescribed by law requirement is still satisfied, given that:

(1) It is well established that absolute precision or certainty is not required: see paragraph 98 to 100 below.  This applies a fortiori in the context of fire hazards abatement, where sections 2 and 9(a) of the FSO are concerned with a statutory power applicable to a wide range of variable situations.

(2) The definition of “fire hazard” in section 2 of the FSO is sufficiently precisely formulated such that it provides more than an adequate basis for legal debate, including debates before the court, with effective judicial supervision through judicial review: see paragraphs 98 to 100 below.

D2.    Challenge against the Subject FHANs – The Prescribed by Law Requirement is fulfilled

97.  The applicable principles under the prescribed by law requirements were analysed in detail by the Court of Appeal in Chee Fei Ming v Director of Food and Environmental Hygiene [2020] 1 HKLRD 373 at §§23-81. 

98.  The relevant principles concerning a complaint of lack of sufficient clarity as to the scope of an authority’s statutory power and the manner of its exercise are summarised by the CA in §313 of Leung Kwok Hung (Supra):

(1) The prescribed by law requirement stems from BL39(2) and BOR 16 and 17.  It entails two limbs: (a) the requirement as to the accessibility of the law; and (b)the requirement of foreseeability;

(2) The second limb requires that “a norm must be formulated with sufficient precision to enable a citizen to regulate his conduct so that he is able, with legal advice if necessary, to foresee the consequences which a course of action will entail”. This requirement is to be assessed by examining if there is sufficient clarity to protect an individual against arbitrary interference of his rights and freedoms;

(3) The crucial question in such context is whether there is sufficient clarity as to the scope of the authority’s power and the manner of which its exercise and whether the law provides adequate safeguards against abuse.  If these tests are met, there would be legal protection against arbitrary interference by the authority with the subject freedoms and rights in question;

(4) At the same time, under the prescribed by law requirement, absolute precision or certainty is not achieved or required.  It only requires that the “core” of the norm should be sufficiently formulated, and “the mere existence of debatable issues surrounding the settled core does not make the norm legally uncertain”;

(5) For the purpose of determining what the “law” is for the prescribed by law doctrine, the court should adopt a “holistic approach”.  In assessing in a particular case whether foreseeability requirement is satisfied, the court can take into account not only the statutory provision in question, but also unwritten law, including the common law.  Under the holistic approach, the court will also examine how the law is actually administered, including the effectiveness of judicial supervision through judicial review.

See also: Hong Kong Television Network Ltd v Chief Executive in Council [2015] 2 HKLRD 1035 per Au J (as he then was) at §§121-122 (Judgment upheld by the Court of Appeal[2016]2 HKLRD 1005)

99.  At §§334-335 of Leung Kwok Hung (Supra), the Court of Appeal further emphasised that a general enactment does not necessarily mean that it falls foul of the legal certainty test under the prescribed by law requirement.  The CA referred to the judgment of Justice Gonthier in the Supreme Court of Canada in R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 to highlight the relationship between the scope of precision required and the need for general enactment in the modern world.  In gist, a legal provision will be considered as vague such that it falls foul of the prescribed by law requirement only if “it does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.  It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion.  Such a provision is not intelligible and therefore it fails to give sufficient indications that could fuel a legal debate.  It offers no grasp to the judiciary…” [Emphasis added]

100.  The crux of the applicant’s argument is simply that it had complied with the Building Fire Safety Code.  However, there is no legal basis (under statute or case law) suggesting that compliance with the Building Fire Safety Code, for example, at the time of conducting building works necessarily support a legitimate expectation that the premises would be considered by the FSD as being free from any fire hazards at any time in the future. 

101.  I agree the Layout and Window Requirements set out in the Subject FHANs are of sufficient clarity and foreseeability:

(1) The Director published the Fact Sheets back in December 2016.  The revised Fact Sheet was sent to the Trade in July 2017 including the applicant.  The Fact Sheet is uploaded on the FSD’s website and is easily accessible to the public.  In the Fact Sheet the Director has highlighted the common fire hazards in mini-storage premises.  The court is clearly entitled to look at the publicly accessible guidelines set out in the Fact Sheet to assess whether the criterion of foreseeability has been satisfied, see Hong Kong Television Network (Supra) at §121(2);

(2) The clarity and the foreseeability of the Layout and Window Requirements in the FHANs are reflected by the fact that a substantial number of mini-storage operators have already complied with the same or similar requirements or have abated the layout and window fire hazards by alternative measures.  These members of the Trade have no difficulty understanding the fire abatement measures laid down in the FHANs issued to them;

(3) Further, the Director’s power in identifying fire hazards and issuing FHANs cannot be exercised arbitrarily.  The Layout and Window Requirements are intelligible and can provide an adequate basis for legal debate, including debates before the court. Amongst others, judicial review proceedings can be brought to challenge the Director’s issue of a particular FHAN, as demonstrated by the cases of Re Sea Dragon (Supra) and Tomorrow Finance (Supra). 

E. GROUND 1: BREACH OF PROCEDURAL LEGITIMATE EXPECTATION

102.  The essence of the applicant’s case under this ground of complaint is that the Fact Sheet and any decisions arising therefrom are unlawful because a fair process of consultation in respect of the abatement measures relating to windows and layout fire hazards brought about by the Fact Sheet did not take place.

103.  The question arising is therefore whether there was a duty to consult in advance of the Director issuing the Fact Sheet.

104.  The applicant accepts that there is no implied duty to consult as held by this court in Tomorrow Finances Ltd (Supra) at §§74-75 but contends that a duty to consult should be imposed by virtue of procedural legitimate expectation.

E1.    Three different types of legitimate expectation

105.  In R (Bhatt Murphy) v The Independent Assessor; R (Niazi) v Secretary of State [2008] EWCA Civ 755 (“Niazi”) [2008] EWCA Civ 755, Laws LJ described three different types of situation where a legitimate expectation might arise at §50:

“A very broad summary of the place of legitimate expectations in public law might be expressed as follows. The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. If it has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation). If it has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation). If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation). To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power.”

106.  As recently summarized by Anderson Chow J in Levaire Romain Pierre v The Judiciary Administrator [2020] HKCFI 404 (HCAL 1719/2019, 11/03/20)at §§24-25:

“…The first type of legitimate expectation (procedural) refers to the paradigm case where there was a distinct promise to consult those affected or potentially affected (as in AG v Ng Yuen Shiu [1983] 2 AC 629). The second type of legitimate expectation (substantive) refers to the case where there was a distinct promise to preserve an existing policy for a specific person or group who would be substantially affected by the change.

That leave the third type of legitimate expectation (also procedural) where there was established a policy distinctly and substantially affecting a specific person or group who in the circumstances ‘was in reason entitled to rely on its continuance’ and did so.”  [original emphasis]

E2.    Procedural not substantive legitimate expectation

107.  The applicant characterises this ground as a “procedural challenge” and relies solely on procedural legitimate expectation in this case.

108.  This is to be contrasted with substantive legitimate expectation, which relates to substantive benefits which a policy confers rather than the procedural mechanisms governing change to that policy: Niazi, §32.  No substantive legitimate expectation is contended for in this case.

109.  The circumstances which the common law will impose a duty on a public body to consult by virtue of the doctrine of (procedural) legitimate expectation are threefold:

(1) Where there has been a promise to consult (ie what Laws LJ called the “paradigm case” of procedural expectation in Niazi at §§29 & 50);

(2) Where there is an established practice of consultation (ie also what Laws LJ called the “paradigm case” of procedural expectation in Niazi at §§29 & 50); and

(3) Where, in exceptional cases, a failure to consult would lead to conspicuous unfairness (ie the “secondary case” of procedural legitimate expectation identified by Laws LJ in Niazi at §§39 & 47-50). 

See: R (on the application of Brooke Energy Limited) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012, §52 (Flaux LJ & Holgate J).

110.  The applicant seeks to bring itself within the first and third categories identified above.  Its case is set out in the applicant’s Skeleton §§4.7 & 4.10, namely:

(1) There was an express promise to maintain existing standards and to consult if any enhanced standards were to be introduced and by which non-compliance would amount to a fire hazard under section 2(f) FSO (ie the first category);

(2) Fairness required consultation before any departure from a previous policy or practice especially when what is at risk is criminal prosecution and liability and the risk of demolition (ie the third category or “secondary” legitimate expectation).

111.  Neither the Amended Form 86 nor the applicant’s Skeleton contends for a duty to consult arising from an established practice of consultation (ie the second category).

E3.    Alleged express promise to consult

112.  This type of procedural legitimate expectation refers to the “paradigm” case where there was a distinct promise to consult those affected or potentially affected before it changes an existing substantive policy: Levaire Romain Pierre v The Judiciary Administrator (Supra), §24.

113.  It is well established that, in order to found a claim of legitimate expectation, it is necessary that the statement relied upon should be clear, unambiguous and devoid of qualification: R v Inland Revenue Commissioners ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545 at 1569G per Bingham LJ; Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1, §103.

114.  The question is “what the statement unambiguously promised”: R (Bancoult) v Foreign Secretary (No 2) [2009] 1 AC 453, §62, per Lord Hoffman. 

115.  In particular, the court will be anxious to analyse just what are the limits of the expectation. Where there is ambiguity (meaning that there are reasonable competing interpretations), the correct approach is to accept the interpretation that has been applied by the public authority in reaching the relevant decision: Ng Siu Tung v Director of Immigration, §104; as summarised by Ma CJHC (as he then was) in Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation [2007] 2 HKLRD 668 (CA), §37(1).

116.  As part of the exercise of construction and identifying the legitimate expectation claimed, any legitimate expectation must be reasonable (the terms “legitimate” and “reasonable” being the same): Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation (Supra), §37(2) referring to Ng Siu Tung v Director of Immigration (Supra), §101.

117.  Where a legitimate expectation has not been complied by the decision-maker, it will usually, but not invariably, follow that the relevant decision will be quashed.  The jurisdiction to review an administrative decision for “failure to take into account a relevant consideration will only be exercised when the decision is materially affected by that failure”.  But once the court is satisfied that the outcome would not have been different had the relevant consideration been taken into account, the decision will not be quashed: Ng Siu Tung v Director of Immigration, (Supra) §98; Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation (Supra), §37(3).

118.  The alleged representations relied upon are now said to have been made during a meeting held on 8 July 2016 (“8.7.16 Meeting”) attended by representatives from the FSD, BD, LabourD and LandsD (collectively, “Government Departments”), as well as representatives from the Trade. 

119.  What was said in this meeting is the only evidence relied upon by the applicant in support of the alleged express promise to maintain existing standards and to consult if any enhanced standards were to be introduced.

120.  I agree that read in its proper context, it is patently obvious from the Minutes of the 8.7.16 Meeting that no such promise (let alone, a clear, unequivocal, and unqualified promise) was made.  On the contrary, the Government Departments made clear that it would take follow-up actions on three fronts:

(1) First, the Government Departments would inspect mini-storages in Hong Kong and take enforcement actions against any breach of the existing laws.  Clearly, this was intended as an immediate measure and enforcement actions against breach of existing laws include the issuance of FHANs for fire hazards under the FSO.  The Trade did not raise any objection, and only “appealed for more time to comply with the orders for rectification works due to the need to notify the affected clients”.  There was no suggestion at all that (a) the enforcement of existing laws would be limited to the enforcement of the Code of Practice for Fire Safety in Buildings 2011(“Fire Safety Code”), as suggested in applicant’s Skeleton §4.8(1); or (b) the Trade would be consulted prior to the formulation or issuance of the FHANs.

(2) Second, the Government would be in touch with members of the Trade to better understand the operation of such premises and to discuss with them short-term and medium-term measures to “enhance fire safety”.  As submitted by the Director, on a common sense reading:

(a) The “discussion” contemplated with the Trade was short-term and medium-term measures to “enhance fire safety”.  Such measures to “enhance fire safety” would include measures such as requiring users to sign a declaration to prevent storage of dangerous goods, the provision of fire safety training to staff, the creation of a self-regulatory code for the Trade etc. 

(b) There were no words to the effect that measures to “enhance fire safety” meant “anything more stringent than or adding to the Building Fire Safety Code and by way of a novel classification as a fire hazard” as contended in the applicant’s Skeleton §4.8(2).

(c) There was no suggestion or representation that the Trade would be consulted prior to the formulation of fire hazards abatement measures.

(3) Third, the Government would study how to “enhance fire safety” of old industrial buildings and strengthen statutory control over mini-storages as a long-term measure. 

121.  The foregoing interpretation is reinforced by a further meeting held between the Government Departments and the Trade on 21 September 2016.  It is important to note that at this meeting:

(1) A report was made on the progress of the territory-wide inspections conducted by the Government Departments.  FSD reported that as at 18 September 2016, it had inspected 765 mini-storages and issued 242 FHANs to operators of 58 mini-storages with irregularities found. 

(2) FSD further explained that fire hazards identified in the mini-storages included (a) undesirable arrangement of storage cubicles; (b) provision of insufficient windows and (c) inadequate clearance (less than 1m) between the ceiling and the top of mini-storage cubicles etc.

(3) The Trade only asked for sufficient and adequate consultation and communication “if legislation was to be implemented in the future”.

122.  It is clear beyond peradventure from the above that the Trade was in no way labouring under any expectation that it would be consulted before FHANs are issued, including FHANs in respect of insufficient windows and undesirable layout, which were specifically identified in the 21 September 2016 Meeting as fire hazards. 

123.  In the light of the incontrovertible evidence, there was no express promise, let alone one that is clear and unequivocal, such as to give rise to an expectation of consultation as contended by the applicant.  As such, there is no question of a “paradigm case” of procedural legitimate expectation arising in this case.

124.  To the extent there may be any ambiguity in the interpretation of the 8.7.16 and 21.9.16 Meetings, the correct approach is to accept the interpretation that has been applied by the Director: Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation [2007] 2 HKLRD 668 (CA) (Supra), §37(1).

E4.    Secondary case of procedural legitimate expectation

125.  Here, the applicant seeks to utilise and expand a very exceptional ground of challenge ie the “secondary case” of procedural legitimate expectation, a new form of legitimate expectation enunciated by Laws LJ in Niazi. 

126.  Guidance on the circumstances in which this type of legitimate expectation may arise can be found at §§47-49 of Laws LJ’s Judgment:

“[47] I posed the question earlier: what are the conditions under which a public decision-maker will be required, before effecting a change of policy, to afford potentially affected persons an opportunity to comment on the proposed change and the reasons for it where there has been no previous promise or practice of notice or consultation? Under this head I will first cite one of the cases given by Simon Brown LJ in Ex p Baker as ‘clear examples’ of this kind of legitimate expectation. In Ex p Schemet [1993] 1 FCR 306 the claimants were the parents of two children who went to a school outside the local authority’s district. The local authority had paid for the elder child’s travel costs, but then changed their policy. They stopped paying for the elder child’s travel, and never paid for the younger’s. There had been no promise or practice of notice or consultation. Roch J as he then was nevertheless held (324C-D) that the claimants enjoyed a legitimate expectation that the benefit would continue in relation to the elder child until there had been communicated to them some rational ground for withdrawing it on which they had been given an opportunity to comment. It might be thought that the decision was a generous one. However, again, the affected persons were few in number. And Roch J’s reason for upholding the expectation was expressed thus (324D - E):

‘There could well be cases where the withdrawal of a travel pass would mean that the child would have to change schools, and it would seem right and sensible that the local education authority should pay some regard to the effect that a change of schools would have on that particular child before finally deciding whether to withdraw that advantage.’

[48] The next case is Ex p Unilever. The facts were very stark. The case concerned the Inland Revenue’s treatment of a taxpayer’s claims for loss relief against corporation tax. A time limit for making such claims was stipulated in the legislation, but (as was common ground) the Revenue enjoyed a discretion to entertain late claims. On thirty occasions over a period of more than 20 years the taxpayer submitted late claims and the Revenue accepted them. But then for the accounting years 1986, 1987 and 1988, with no prior notice, warning or consultation, they refused the taxpayer’s claims on the ground that they were not made within the statutory time limit. Sir Thomas Bingham MR as he then was said (691g):

‘On the history here, I consider that to reject Unilever’s claims in reliance on the time-limit, without clear and general advance notice, is so unfair as to amount to an abuse of power.’

It is plain both from Sir Thomas Bingham’s judgment and that of Simon Brown LJ (Hutchison LJ added no reasoning of his own) that the court regarded the Revenue’s conduct as outrageous (see for example Simon Brown LJ at 697c: ‘so outrageously unfair that it should not be allowed to stand’).

[49] I apprehend that the secondary case of legitimate expectation will not often be established. Where there has been no assurance either of consultation (the paradigm case of procedural expectation) or as to the continuance of the policy (substantive expectation), there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power. Here is Lord Woolf again in Ex p Coughlan (paragraph 66):

‘In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process.’

Accordingly for this secondary case of procedural expectation to run, the impact of the authority’s past conduct on potentially affected persons must, again, be pressing and focused.  One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change.  In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notifies and consult.”

[Emphasis supplied]

127.  Thus, a secondary case of legitimate procedural expectation would arise where:[5]

“If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation). To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power.”

128.  As can be seen, the bar is set very high – the circumstances in which this secondary case of legitimate procedural expectation would arise are exceptional and the court will insist on a requirement to consult only where a failure to do so would give rise to conspicuous unfairness amounting to an abuse of power, but subject to “overriding public interest”: Niazi §42. 

(1) Law LJ explained the reasons for limiting these types of legitimate expectation to exceptional situations as follows at §41 (under the heading “Generally”):

“There is first an overall point to be made. It is that both these types of legitimate expectation are concerned with exceptional situations (see Lord Templeman in Preston at 864; compare ABCIFER [2003] QB 1397 per Dyson LJ at paragraph 72). It is because their vindication is a long way distant from the archetype of public decision-making. Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO [2007] EWCA Civ 1139 paragraph 43) as the entitlement of central government to formulate and re-formulate policy. This entitlement – in truth, a duty – is ordinarily repugnant to any requirement to bow to another’s will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult. [emphasis added]”

(2) Similarly, Anderson Chow J stated in Levaire Romain Pierre v The Judiciary Administrator [2020] HKCFI 404 at §26:

“It is clear that, where there was no distinct promise to preserve, or to consult before a change of, an existing policy, it would only be in a compelling case that the court would find that the recipient of a benefit under an existing policy has a legitimate expectation that the public body would not change the policy without first consulting that person or giving that person an opportunity to make representations against the proposed change.”

129.  In this case, the basis upon which the applicant contends that the secondary case of procedural legitimate expectation is engaged is that:

(1) The Windows and Layout measures effectively amended the Building Fire Safety Code by imposing more stringent or new prescriptive standards that were previously not in existence;

(2) This represented an abrupt and substantial alteration to the previous understanding / policy in relation to the definition of “fire hazard” under section 2(f) of the FSO and a change of the enforcement authority for “building works” to also include the Director; and

(3) Fairness required the existing group of mini-storage operators including the applicant to be consulted before effecting a change to the previous understanding / policy.

130.  For the reasons detailed in Section C2 above, this court held that the Window and Layout measures do not represent any change in policy or understanding. 

131.  In any event, fairness does not require the existing group of mini-storage operators including the applicant to be consulted before setting out the Windows and Layout measures in the Fact Sheet or FHANs.

132.  In this context, it is important to bear in mind that what fairness requires will, of course, differ according to the circumstances.  More often than not, what fairness requires is essentially an intuitive judgment: Yook Tong Electric Co Ltd v Commissioner for Transport (HCAL 94/2002, 7/02/03), §30 per Hartmann J (as he then was). 

133.  In R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 at 560, Lord Mustill laid down the following principles to give some guidance in the determination of such intuitive judgment:

“... (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstance. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

134.  As submitted by the Director:

(1) The Director is the statutory body having the expertise in extinguishing fires and giving advice on fire protection and measures and fire hazards: section 7 FSO.  The Director is exclusively tasked under the FSO and FS(FHA)R to apply its expert knowledge to devise appropriate fire abatement measures.  On top of issuing FHANs, the Director has extensive powers to carry out works for the purposes of the FHANs, as well as to abate fire hazards without issuing FHANs: Regulations 4 & 5 FS(FHA)R; Tomorrow Finances Ltd, §75(1).

(2) The prevention of fire hazards are matters in the general public interest.  The Director, in the exercise of his administrative powers in issuing FHANs, must exercise that power in a manner which is fair to and for the benefit of the public as a whole, while at the same time ensuring the safety of all those who may be adversely affected by the presence of a fire hazard.  In the context of this case, this includes not only existing mini-storage operators (as the applicant contends) but also users of the mini-storage facilities, business operators and users of premises within the vicinity of the relevant mini-storage facilities, as well as fire-fighters.  As such, the applicant is wrong to suggest that the Director’s past or present conduct in formulating fire hazards abatement measures or issuing FHANs only affects existing mini-storage operators.

(3) It is essential to good, responsive administration for the Director to retain a wide discretion under the broad definition of “fire hazards” in section 2 of the FSO. Obviously, fire hazards may be generated by a wide range of circumstances, some of which may necessitate an urgent response or the formulation of new fire hazards abatement measures.

(4) As stated by this court in Tomorrow Finances Ltd, measures to combat fire hazards must be imposed and implemented in a timely manner to protect the public against the risk of fire.  The imposition of a duty to consult (whether on all those affected or even a smaller defined group of those affected) would delay the Director’s formulation of fire abatement measures and leave the fire hazards unaddressed during the consultation period.  This would frustrate the purpose and effectiveness of the FSO, and severely hamper the work of the Director: Tomorrow Finances Ltd, §75(2).

(5) The fact is that every formulation of a new measure for the abatement of fire hazards will affect everyone who uses the relevant premises and the premises within its vicinity, perhaps some more than others, and has the potential to cause “pressing and focussed” adverse effects on some members of some groups.  This in itself is not sufficient to render a new fire hazard abatement measure reviewable on the basis of a secondary case of procedural legitimate expectation.  There must be something more precise and individual – as in the Unilever case – which makes that particular new measure so unfair or conspicuous or “outrageous” so as to amount to an abuse of process.

(6) This case has no such special features.  To impose a duty to consult in the circumstances of this case would risk overburdening the Director with consultation obligations and could seriously undermine his capacity to discharge his functions efficiently, as well as public interest in fire safety.

(7) None of the matters set out in applicant’s Skeleton §4.14 render it so unfair or conspicuous or “outrageous” for the Director to impose the fire hazards abatement measures in the FHANs so as to amount to an abuse of process.  In particular, the fact that fire hazards in mini-storage facilities have been left unexposed for a long time until the Amoycan Fire despite compliance with the relevant building legislations provides all the more reason that such fire hazards should be eradicated as soon as possible.

F. GROUND 5A: HYSAN PROPORTIONALITY

135.  The applicant challenges the following hazards identified in the Subject FHANs as unconstitutional, as they allegedly infringe the applicant’s rights under BL 6 and BL 105 when read in conjunction with BL 118 and BL 119(“Challenged Hazards”):

Layout Hazards: Mini-storage cubicles are arranged in a row/cluster

(1) Occupying an area over 50 square metres (“50m² Cubicle Area Requirement”);

(2) With separation distance less than 2.4 metres (“2.4 m Separation Requirement”);

(3) Having any side measuring more than 20 metres in length (“20 m Side Measure Requirement”);

Window Hazards

(4) The total area of unobstructed and breakable window(s) (including “access window(s)”) is less than 1/16 (ie 6.25%) of the total floor area of the mini-storage (“Total Window Percentage Requirement”);

(5) The provision of “access window(s)” is inadequate in that –

(a) The total area of “access window(s)” is less than 1/50 (ie 2%) of the total floor area of the mini-storage (“Access Window Percentage Requirement”);

(b) It does not meet the requirement that at least one “access window” should be provided at an interval of 20 metres on each external wall with windows (“Access Window Interval Requirement”);

(c) The dimensions of the “access window(s)” are less than 1 metre (height) x 0.85 metre (width) (“Access Window Dimensions Requirement”);

(d) The sill(s) of the “access window(s)” is/are higher than 1,100 millimetres above the finished floor level (“Access Window Sill Requirement”);

(e) The “access window(s)” is/are not directly connected to the internal means of escape of the mini-storage (“Access Window Connection Requirement”). 

136.  The applicant accepts that for the purposes of the Hysan 4-stage proportionality test the Challenged Hazards satisfy the first and second stage ie (a) they serve legitimate aims; and (b) are rationally connected to the legitimate aims.  The applicant’s complaint is limited to the third and the fourth stage tests, namely, the Challenged Hazards:

(1) Are more than necessary to accomplish the legitimate aims; and

(2) Fail to strike a reasonable balance between the societal benefits of the encroachment and the inroads made into the applicant’s right to use private property under BL 6 and BL 105. 

F1.    Stage 3: Proportionality

137.  It is common ground that the “manifestly without reasonable foundation”standard should be adopted in assessing whether the Challenged Hazards are a proportionate means to achieve the legitimate aims.

138.  A wide margin of discretion and deference should be afforded to the Director who is clearly better placed than the court to assess what is needed in the public interest to combat fire hazards arising from mini-storage facilities, given the experience gained by the FSD from the Amoycan Fire, as well as the special knowledge, fire-fighting strategies and technical issues involved: Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, §116; Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §75(3); Hong Kong Aircrew Officers Association v Director-General of Civil Aviation, HCAL 96/2008 (unreported, 6/07/2009) at §76. 

139.  Where a wide margin of discretion exists, in applying the “manifestly unreasonable” standard, the court will allow the decision-maker latitude to adopt one of a relatively wide range of possible alternatives in fashioning the impugned measure which encroaches upon the protected right.  The court will only interfere where “the option chosen is clearly beyond the spectrum of reasonable options”to deal with the problem: Hysan, §120; Fok Chun Wa, §75(3).

140.  I accept the Director has adopted a cautious and pragmatic approach in identifying fire hazards and devising appropriate abatement measures.  The abatement measures in the Subject FHANs were formulated having regard to the specific circumstances, layout and setting of the Premises, as understood from the FSD’s inspections of the Premises: see paragraph 14 above.  The formulation of fire hazard abatement measures is not a straightforward exercise.  It involves a cautious assessment of a myriad of different possible scenarios which may emerge at the time of a fire emergency involving life-and-death situations.  The FSD has assessed and considered the fire hazard abatement measures in the FHANs to be technically feasible before issuing the FHANs to require the mini-storage operators to implement them. 

141.  The Director’s aims and rationale for formulating each of the Challenged Hazards are set out in Section C of the Affidavit of Wong Yuk Ping (“Wong 1^st”).  The Director has also explained the justifications for the other fire hazards regularly found in mini-storages in Section D of Wong 1^st. 

142.  The crux of the applicant’s argument here is that the Challenged Hazards are “manifestly without reasons” as it is in substance solely based on the FSD’s operational experience.  The applicant says the Director could not have seriously relied on the overseas Guidelines in formulating the Challenged Hazards as how the Guidelines are relevant to the subject hazards has not been properly explained.  The applicant also contends that it was manifestly unreasonable for the Director not to focus on fire engineering and the Building Fire Safety Code. 

143.  I accept the Director’s submission that none of the above allegations come close to show that the Director has acted manifestly unreasonably in identifying the Challenged Hazards and formulating the abatement measures.

F1.1  FSD’s Operational Experience

144.  First, the applicant is wrong to downplay the value and importance of the FSD’s operational experience (including those gathered from the Amoycan Fire) in the Director’s formulation of the fire hazards and abatement measures.  The Director’s experience obtained from the Amoycan Fire is summarised in Section A of Wong 1^st. Bearing in mind that the possible scenarios which may emerge in a fire ground could be very diverse, the DFS’s fire-fighting experience is the most direct information to rely on as it encompasses first-hand feedback from the fire-fighters who attended the fire scenes and combated real fires.  There is nothing manifestly unreasonable for the Director to rely on (or even to solely rely on) the FSD’s operational experience to formulate the fire hazards and abatement methods. 

145.  The applicant’s criticism of Mr Wong’s evidence is irrelevant and do not assist.  It is trite that in judicial review proceedings, the court is concerned with the legality rather than the merits of the decision.  The court only assumes a supervisory role and will refrain from making any finding of facts by itself. 

F1.2  Reference to the Guidelines

146.  Second, as explained in Wong 1^st §40, mini-storage is an emerging business model with no universally applicable fire safety standard at this stage, hence the Director made reference to the Guidelines in devising the fire hazard abatement measures, taking into account the local situation of mini-storages in Hong Kong.   

147.  The Director did explain how it relied on the Guidelines by highlighting the specific sections or clauses which were considered.  Some of the explanations have already been reviewed and accepted by this court in Tomorrow Finance.  The comments made by Mr James Lau on behalf of the applicant as to whether he himself would have referred to the Guidelines and what weight he would have given to them is neither here nor there.  As Mr Lau accepted, he is not a fireman.  There can be no question that the FSD is clearly more equipped and better placed than Mr Lau in deciding the approach that should be taken in considering the Guidelines from a fire safety and fire-fighting perspective. 

148.  With respect to the 50m² Cubicle Area Requirement and the 2.4 m Separation Requirement, they were formulated with reference to Section 6.2.2 of the LPC Rules in which one of the conditions for materials being stored in a sprinkler protected premises is that “the maximum storage areas shall be 50 square meters for any single block, with no less than 2.4 metres clearance around the block”.  This was accepted by this court in Tomorrow Finance (at §38). 

149.  In formulating the 2.4 m Separation Requirement, the Director also considered the standard set out in Section 6.2.2 of the LPC Rules.  This was also accepted by this court in Tomorrow Finance at §28. 

150.  The Total Window Percentage Requirement was formulated with reference to Clause 4.30 of the FSI Code which requires a static or dynamic smoke extraction system to be installed in high rise industrial/godown building where “the aggregate area of openable windows of the rooms/units of the building does not exceed 6.25% of the floor area of those rooms/units, calculated on a floor by floor basis”.

151.  With respect to the Access Window Interval Requirement, this court accepted in Tomorrow Finance at §33 that the requirement was formulated with reference to Clause 4.2.3(f)(iii) of the Singapore Fire Code which provides that “Access openings shall be remote from each other and located along the side of the building.  Such access openings shall be spaced at no more than 20m apart measured along the external wall from centre to centre of the access openings.”. 

152.  The Director has referred to Clause 4.2.3(e) of the Singapore Fire Code in formulating the Access Window Dimensions Requirement: Wong 1^st §60. 

F1.3  A Building which has complied with the Other Legislations and the Building Fire Safety Code does not mean that it is free from fire hazards

153.  In §§5.8 and 5.10 of the applicant’s Skeleton, the applicant pursued its repeated theme that once a building is compliant with the Other Legislations and the Building Fire Safety Code, it is free from all fire hazards.  The argument should be rejected for the reasons stated in Section C3.2 above.  It must be emphasised that the Building Fire Safety Code and the FSI Code serve distinct purposes from the FHANs.  The Building Fire Safety Code and the FSI Code aim to ensure that the design and construction of a building achieves an acceptable fire safety standard.  The Building Fire Safety Code is not specifically designed for providing fire safety requirements in mini-storages.  On the other hand, the FHANs aim to address fire hazards found in or on premises.  As the Director and the DB are dealing with the fire safety issue from different perspectives, the Building Fire Safety Code issued by the DB cannot anticipate all potential fire hazards which may arise in or on a premises.  Compliance with the Building Fire Safety Code cannot fully prevent the existence of fire hazards or calamities. 

154.  Indeed, as this court observed in Tomorrow Finance §29, the fact that the Director considers any separation less than 2.4 m to be a fire hazard while the Building Fire Safety Code issued by the BD only imposes an aisle requirement of 1.05 m goes to show that the Director is of the view that the BD’s requirement is inadequate from a fire-fighting operational perspective, based on the experience gained from the Amoycan Fire. 

F1.4  Mr Huang’s CFD Simulation Report and the Fire Engineering Approach

155.  Generally speaking, fire engineering reports involve simulations based on certain estimations and assumptions.  The applicability and relevance of these fire engineering reports should be restricted to cases where it is shown to be impracticable to comply with the fire abatement measures devised by the Director or achieve compliance through alternative means.  Specifically, Dr Huang’s CFD Simulation Report cannot be taken as any benchmark.  The CFD Simulation Report is wanting as it was generated based on various assumptions which did not reflect the actual situation of the Premises and failed to adequately address the fire hazards in the Premises.  I agree that no or little weight should be given to Dr Huang’s CFD Simulation Report. 

156.  As stated above, the Director welcomes and would consider alternative proposals submitted by mini-storage operators on a case by case basis.  A considerable number of mini-storages have abated fire hazards in their facilities by acceptable alternative measures.  The mini-storage operators can abate the fire hazards using their own alternative ways so long as the alternative means can adequately eliminate the fire hazards.  If an alternative measure is adopted by the FSD, it can generally be applied by the other mini-storage operators subject to the conditions of their premises. 

F2.    Stage 4: Fair Balance

157.  It is important to bear in mind that the four-stage proportionality analysis inevitably overlaps. Where the impugned measure passes the first three limbs, it would be unlikely to fail the test of proportionality at the fourth stage: Hysan §§70 & 73.

158.  As submitted by the Director, the Subject FHANs have struck a fair balance between the public interest of safety to life and property and the private business interest of the applicant.  The Director is well placed in a position to balance the interest of fire safety and individual’s property rights: Hamalainen v Finland 37 BHRC 55 at §67. 

159.  Abatement measures are required for the fire hazards commonly found in mini-storage facilities, including the applicant’s Premises, to prevent the Amoycan Fire tragedy from reoccurring and facilitate fire-fighting operations when fire occurs. 

160.  The Challenged Hazards would not impose any excessive burden on the applicant.  The abatement measures for the Layout Hazards and the Window Hazards are feasible in the Premises. The abatement measures are also not unduly burdensome on the applicant whether practically or financially. 

161.  There can be no question that the Director issued the Subject FHANs only after conducting a comprehensive assessment of the fire hazard risks in the Premises: see paragraph 14 above.  The Director has fully explained the reason for using the window measurements on the approved building plans of the Premises for its assessment and calculation. 

162.  It is telling that as of March 2020, there are 242 mini-storage premises which have fulfilled the same requirements as those laid down in the Subject FHANs.  163 of them were issued with FHANs and had completed the rectification works while 79 of them are newly established mini-storages.  In 2019, the FSD received a total of 39 proposals submitted by new mini-storage operators in relation to the compliance of the layout and window requirements, showing the Director’s steps to abate fire hazards in mini-storages have not deterred investors from entering into the mini-storage market.  This reinforces the Director’s submission that the abatement measures in the Subject FHANs are feasible and reasonable, and have not introduced any disproportionate interference with the applicant’s rights under BL 6 and BL 105, whether read in the light of BL 118 and BL 119 or otherwise. 

G. CONCLUSION AND DISPOSITION

163.  For the reasons set out above, I agree with the Director that there are no merits in this judicial review application.  At the very least, the merits are not so compellingly strong that it should outweigh the very significant delay in the application, as well as the lack of any satisfactory explanations for the delay, to justify an extension of time: Chan Kam Chuen & Ors v Director of Lands & Ors (HCAL 145/2014, 13/05/15), §37(3) per Au J (as he then was).

164.  In the premises: (1) the applicant’s application for an extension of time to apply for leave to apply for judicial review; and (2) the applicant’s application for leave to apply for judicial review are dismissed.

165.  The costs of the applications be paid by the applicant to the putative respondent and the putative interested party, such costs are to be taxed if not agreed with a certificate for 2 counsel.

166.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

167.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.