R. v. CHOI CHI TAK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1301 of 1996

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J U D G M E N T

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1. The appellant was convicted of the offence of signing a certificate pursuant to Regulation 9(1) of the Fire Service (Installations and Equipment) Regulations, Cap.95 which was false or misleading in material particulars. The summons alleged the false or misleading particulars as this :

"... the false or misleading nature being more particularly described as 'The product "Super Shield SS-A001" was not an approved type of flame retardant solution for spraying on wall paper, carpet, sofa and curtain as indicated in item 7 of Part 1 of the Certificate' ..."

2. The subject certificate is a Certificate of Fire Service Installations and Equipment in respect of City Night Club. The appellant did not dispute that he signed this certificate. It was Item 7 in Part I in this certificate which was alleged as being false or misleading by the prosecution. Item 7 stated under the column "Type of Installation", the product "(Super Shield) Flame Proofing Solution SS-A001 solution" and under the column "Nature of Work Carried out", the work "Spay 2 Layers on Wall Paper, Carpet Sofa and Curtain". At the bottom of the certificate there was a declaration in this form :

"The works listed in Part I above were completed on 7.5.96 and the above installations/equipment have been tested and found to be in efficient working order in accordance with the Code of Practice for Minimum Fire Service Installations and Equipment published from time to time by the Director of Fire Services. Exceptions are listed in Part 2."

3. The effect of all this was that the appellant had signed a certificate stating, among other things, that the curtains, wall paper etc. had been sprayed with this flame proofing solution and he certified that the installations/equipment listed were in efficient working order in accordance with the Code of Practice. It should be noted that the certificate did not state that "Super Shield SS-A001" was an approved flame retardant solution.

4. The prosecution evidence was that the product "Super Shield SS-A001" was for use on timber for fire proofing and this was accepted by the appellant. A fire officer who inspected the premises found the curtains were made of cloth. He did not find out what was sprayed on the curtain. The appellant did not give evidence.

5. On these facts, the magistrate found the appellant had signed a certificate with false or misleading particulars.

6. The appellant appealed on the ground that there was no evidence as to what substance was applied on the curtain, wall paper etc. and the certificate did not assert that the product sprayed on the curtain, wall paper was an approved flame retardant solution for that purpose.

7. Mr Wong for the prosecution submitted from the start that the prosecution did not support the conviction and the appeal should be allowed. He accepted that there was no evidence that the particulars were false or misleading. The Code of Practice was not in evidence and even if it was, it would be tenuous argument that spraying solution came within the meaning of installations/equipment.

8. There was no evidence to show Item 7 of Part I of the Certificate was false or misleading. The appeal must be allowed. The conviction is quashed and the sentence set aside. Fine paid to be repaid to the appellant.

9. Mr Yeung for the appellant indicated that the appellant would not ask for costs.