HKSAR v. KIT CHOY DEVELOPMENT LTD

HCMA62/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.62 OF 2005

(ON APPEAL FROM ESS 17127 OF 2004)

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J U D G M E N T

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1. An information was laid by way of Summons that on 30 December 2003 the appellant “being the owner of the specified commercial building at 38 Jervois Street, 215 Queen’s Road Central, Hong Kong without reasonable excuse did fail to comply with a fire safety improvement direction dated 18.11.2002, the non-compliance being more particularly described as items as specified in the attached CB/101 - Fire Service Installations and Equipment Requirements for Specified Commercial Buildings”, contrary to Section 5(7)(b) of the Fire Safety (Commercial Premises) Ordinance, Cap.502.

2. The appellant entered a plea of not guilty.  The appellant was convicted and fined the sum of HK$2,800 together with $1,000 costs, payment of which was to be made within one month.  The appellant appeals the conviction.

3. It was the prosecution evidence that on 16 August 2002, a fire services officer inspected the building.  The fire service officer again inspected the premises on 30 September 2003 and the Fire Safety Improvement Direction had not been complied with. 

4. It was admitted between the parties that the Fire Safety Improvement Direction was issued by the Fire Services Department and forwarded to the appellant company on 18 November 2002. 

5. Prior to the issue of the notice Mr Choy argued with the fire services officers that the premises were too small to warrant the installation of a sprinkler system in the building and that the Fire Services Department was in error and ultra vires the legislation giving rise to the issue of fire safety directions because of that unreasonableness.

6. When the matter came before me the appellant also argued that the magistrate was biased in that there was no reason to convict and that the appellant company was not guilty of the offence.  Mr Choy also argued on behalf of the appellant that in the course of argument the magistrate was referred to HKSAR v. TheIncorporated Owners of No. 10 Bonham Strand and Another, HCMA 239/2004.  In that case it was held by McMahon J that an allegation that the directions issued by the Director of Fire Services in circumstances such as these was not a defence available to a defendant in a prosecution for failing to comply with those directions.  The appellants in that case applied for leave to appeal to the Hong Kong Court of Final Appeal.  Their applications were dismissed by the Appeal Committee in The Incorporated Owners of No. 10 Bonham Strand and Another v. HKSAR, FAMC 41/2004.

7. Firstly, I considered with great care the transcript which I ordered produced in respect of the proceedings in the court below to see whether the magistrate had displayed any bias in respect of the appellant or personally in respect of Mr Choy.  He did not.  He listened with patient care.  Far from exhibiting any bias, he permitted Mr Choy to continue with his argument at great length to a point where it could not be argued that any opportunity was missed by Mr Choy or the appellant.  This was a very difficult case for the magistrate to try.  Mr Choy did not structure his argument in a manner that made it easy for the magistrate to understand.

8. Indeed, when he came before me, I had great difficulty in discerning the nature and the facts of his argument.  Mr Choy moved from topic to topic without properly developing a sequence to his argument, his English was poor and had he obtained representation, the whole matter could have been dealt with within 2 to 3 hours.  As it was the matter went on for a very protracted period of time. Mr Choy crossing and re-crossing ground that he had dealt with before and quoting at great length, often inaccurately, from cases which he considered relevant in which I could often see no value.

9. It is relevant to refer to the case of The Incorporated Owners of No. 10 Bonham Strand, HCMA 239/2004 to which I had already referred :

“8.   As to the complaint of the appellants that the Director wrongly exercised his discretion to issue the relevant directions, Mr Choy argues that the directions, and particularly the direction to the appellants to install a sprinkler system into their building, was unreasonable.  The building, albeit used as commercial premises and conceded to be a specified commercial building by Mr Choy, is very small.  It is, said Mr Choy, too small to sensibly require or to even be able to safely structurally install a fire sprinkler system.  Accordingly, argues Mr Choy, the exercise by the Director of his discretion to issue the directions was unreasonable and wrong in law and the appellants committed no offence in not complying with those directions.

9.    Offences which come into being because of a breach of an administrative order are not always easy to fit into the practice and principles of the criminal law.  One course would be to simply regard the breach of the order as the offence and make no inquiry in the criminal court into the merits of the order itself.  That is a course which, as a general proposition, has much to commend it.  The other course would be to allow an examination of the merits of the order in terms of the principles of public law.

10.  In Boddington v. British Transport Police [1998] 2 All ER 203, the appellant had smoked a cigarette in a carriage of a train designated non-smoking.  A preliminary matter arose as to whether he was, in his defence, entitled to challenge the transport authorities designation of all carriages in the train as non-smoking as ultra vires.  His argument was that under the relevant by-law, the authority was entitled only to regulate smoking on its trains and not ban it altogether.

11.   In that case, Lord Irvine LC, after reviewing various authorities, came to the following conclusions :

(1)   That a defendant was entitled to challenge, by way of his defence to a criminal charge of breaching an administrative order, the validity of that order.

(2)   But that in certain instances there may be qualifications upon his right to do so.  Those qualifications may include a construction of the legislation which clearly prohibited a defendant from raising a defence in public law.  Such a construction may be supported where there are other avenues available to the defendant to appeal the administrative order prior to any breach of it coming into being.

12.  In Boddington’s case the court concluded that the appellant was entitled to raise a defence based upon the unlawfulness of the transport authorities’ order.  One fundamental aspect of the case was that there was no real opportunity for the defendant to challenge the order by way of any appellate process or prior approach to the courts to question the legality of the authorities’ prohibition before he had actually committed and been charged with the offence.

13.  Accordingly, to disentitle him raising that defence in his criminal trial would be to interpret the relevant statute so as to lead to an injustice, that is, to prevent him ever exercising his right in a meaningful way to challenge the authorities’ order.

14.  R. v. Wicks [1997] 2 All ER 801 was a decision approved in Boddington.  In Wick’s case, an enforcement notice was issued by a town planning board which required certain parts of a building to be removed within a period of a month.  The appellant failed to do so.  At his trial, the appellant tried to raise as a defence that the board’s decision was motivated by immaterial considerations and was unlawful.  The trial judge refused to allow him to do so.  That decision was upheld on appeal.

15.  Their Lordships recognized there were conflicting interests involved.  The first involved a defendant’s right to present a defence which was available to him; the second was the communities’ interest in the proper administration of justice and the determination of issues affecting the public well being in the appropriate civil forum.

16.  In considering how to balance these two conflicting policies, Hoffmann LJ said :

‘.... The question must depend entirely upon the construction of the statute under which the prosecution is brought.  The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is.  In such a case, the justices will have to rule upon the validity of the act.  On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review.  In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices.  It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute.’

17.  By that he was suggesting in my view that the question was whether the legislative intent was to have questions as to whether the decision in issue was based upon irrelevant or improper grounds dealt with by a criminal court.  In the present case, which factually is very similar to the circumstances in Wick’s case, it is certainly possible to argue that our legislature cannot have intended that a busy magistrates’ court was the proper forum to go behind the Director’s issued directions and determine whether his decision to issue those directions to the appellants was Wednesbury reasonable or not.

18.  That argument is all the stronger because unlike the position in Boddington’s case where the defendant was unaware of the particular order or law until or shortly before he committed and was charged with the offence, the provisions of the Ordinance and the directions issued thereunder allow for a reasonable time for compliance with the issued order : section 5(3) of the Ordinance.  Accordingly, there is ample time to challenge the Director’s directions in a more appropriate forum.

19.  Having said that, I appreciate also that the bringing of proceedings in the High Court is expensive and there is little in the way of any alternative procedure provided for in the Ordinance.  But it seems to me, on balance, that given the time available to a defendant under the Ordinance before non-compliance with a direction occurs, any challenge to the reasonableness of the Director’s exercise of his discretion could, without difficulty, be commenced in the High Court.  In terms of policy, such a course would allow consistency of decisions, the appearance of the Director as a party to the proceedings and the potential complexity of such matters being dealt with in a specialised forum.

20.  Further so far as a construction of the legislation’s intent is concerned, the offence creating provision is worded as follows :

‘(7)(b)     an owner or occupier of a specified commercial building who, without reasonable excuse, fails to comply with a Fire Safety Improvement Direction is guilty of an offence and is liable on conviction to a fine at level 4 and to a further fine of $2,500 for each day or part of a day during which the failure continues after the expiry of the period specified in the direction.

(8)   The reference in subsection 7(a) or (b) to reasonable excuse includes, but is not limited to, the excuse that, at the time when the fire safety direction or Fire Safety Improvement Direction, as the case may be, was not complied with, it was not reasonable to expect the owner or occupier of the premises or building to comply with the direction—

(a)   because of the risk of prejudicially affecting the structural integrity of the building where the premises or building are located; and

(b)   because the technology required to comply with the direction is not reasonably available.’  (emphasis added)

21.  It is obviously contemplated by the legislation that the failure to comply with the directions is the gravamen of the offence and that the offence is one of strict liability subject to a reasonable excuse for non-compliance being available to the defendant, such as that which is contained in subsection (8).

22.  That provision suggests a reasonable excuse based on technical and practical grounds will afford a defence to non-compliance with any such fire safety direction.  That provision, in my view, would require a somewhat awkward construction to extend it to include a defence based on the Director’s breach of the principles of public law, and I do not think such a defence is contemplated by the legislation as an answer to non-compliance with a section 5(1A) direction.

23.  In short, for reasons of policy and statutory construction, the reasonableness of the Director’s exercise of his direction in issuing Fire Safety Improvement Directions under section 5(1A) of the Ordinance is not an available defence to a prosecution brought pursuant to section 5(7)(b).

24.  I particularly emphasise that to allow such a defence may mean the magistrate would be required to determine in a criminal trial issues of considerable public importance without the Director having any standing as a party to the proceedings.  He could not appeal any such decision.  I do not think any sensible difference can be drawn between orders in rem as in Boddington’s case and orders in personam as in the present case.  Matters of statutory interpretation of building or other regulatory codes of practice may arise in both sorts of case so as to establish an interpretation of law or procedure without the relevant authority having an opportunity to argue its position before the court.  That, in my view, is a situation to be avoided.”

10. I have quoted at great length from the learned judgment of McMahon J which was approved by the Court of Final Appeal and can do no more than to say that the magistrate was bound by it as am I, and that consequent upon that judgment this appeal against conviction is dismissed.

11. I must also consider the question of costs.  Mr Choy has prolonged this case to a degree where, if I could, I would make costs payable by Mr Choy personally on an indemnity basis.  I cannot do so, but there will be costs against the appellant, both here and in the court below for the Respondent