Tomorrow Finances Ltd v. Director of Fire Services

HCAL 1467/2018

[2019] HKCFI 3025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1467 OF 2018

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J U D G M E N T

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A.     INTRODUCTION

1.The applicant is the operator of a mini-storage facility.  The applicant seeks leave to challenge the Fire Hazards Abatement Notices of reference numbers (753) and (754) in FP 16/30171HW (H115) dated 25 April 2018 served by the Director of Fire Services (the “Subject FHANs” and “DFS” respectively).

2.The applicant seeks to challenge the Subject FHANs on 3 grounds: (a) the Subject FHANs infringe the applicant’s right to the use of property under Articles 6 and 105 of the Basic Law (“BL”) (“Ground 1”); (b) DFS acted illegally or irrationally in issuing the Subject FHANs (“Ground 2”); and (c) breach of common law fairness (“Ground 3”).

3.Under the Amended Form 86, no challenge is made to the legality or constitutionality of the relevant statutory provisions viz., sections 2 and 9(1) of the Fire Services Ordinance, Cap 95 (“FSO”) or regulations 3 and 9 of the Fire Services (Fire Hazard Abatement) Regulation, Cap 95F (“FS(FHA)R”).  Nor is there any challenge to Window Hazards 2(c), (d) and (e).

4.DFS submits that the intended judicial review has no realistic prospects of success and is therefore not reasonably arguable.[1]  As such, leave should be refused. 

5.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 DFS was legally permitted to require the applicant to abate in the manner that he did.

6.As detailed below, the DFS has submitted that the Subject FHANs are legitimate and proportionate means to abate the fire hazards arising from the mini-storage setting within the Premises, in furtherance of the paramount interest of public fire safety, so as to prevent the fatal Amoycan Fire from reoccurring, and to enable fire-fighters to effectively discharge their duties in the event of fire.  In issuing the Subject FHANs, the DFS considered, inter alia, the particular layout and structure of Premises, as well as the views and alternative proposals submitted by the Trade.

7.By a Notice of Intention to Amend Form 86 belatedly filed on 17 July 2019, almost 1 year after the original Form 86 was filed and more than 5 months after this leave hearing was fixed, the applicant seeks to re-amend its Form 86 to introduce 2 new grounds of review.  DFS opposes the re-amendment application. 

B.     LEAVE SHOULD NOT BE GRANTED TO RE-AMEND FORM 86

8.On 17 July 2019, the DFS was served with a Notice of Intention to Amend Form 86 by which the applicant seeks to introduce two completely new grounds to challenge the Subject FHANs, namely:

(1)     DFS acted ultra vires in imposing the requirements in the Subject FHANS because another government department was empowered to take enforcement actions against certain fire hazards pursuant to another statute viz. the Building Ordinance (“BO”); and

(2)     The Subject FHANs infringed the applicant’s right to equality under BL 25 by imposing differential treatment between operators of mini-storage businesses and operators of other logistics/warehousing businesses.

9.At the hearing, the applicant does not seem to dispute that the two intended new grounds are identical to and mirror the grounds of challenge raised in the application for leave to apply for judicial review launched by one U Storage Group Ltd (“U Storage”) in HCAL 490/2019.

10.For the following reasons, I disallow the application by the applicant to make re-amendments to the Amended Form 86:

(1)     The application for re-amendment is plainly late.  The original Form 86 was filed on 25 July 2018, and amended on 4 December 2018.  The applicant did not make any application or indicate its intention to re-amend the Amended Form 86 at the directions hearing held jointly with HCAL 490/2019 on 29 May 2019, despite having had ample notice of the systematic challenge raised by U Storage.  The question as to whether HCAL 490/2019 should be heard first was debated at the directions hearing on the basis that, if U Storage succeeds in its systematic challenge, this application (HCAL 1467/2018) would not need to be heard.

(2)     Viewed in the context of a judicial review application which requires an application for leave to apply for judicial review to be taken out promptly, and in any event within three months when the grounds first appeared, the delay in taking out the application for re-amendment is a lengthy one – more than 1 year after the Subject FHANs were issued on 25 April 2018.

(3)     It is well established that (a) the question of delay for the purpose of Order 53 would be relevant in a late addition of new grounds, and a satisfactory explanation must be given for such a delay; and (b) the mere fact that the innocent party is put in the unenviable position of having to decide whether to proceed with the hearing notwithstanding the new matters raised or to seek an adjournment is in itself a prejudice: Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corporation, HCAL 12/2009 (unreported, 21.09.2009), §§4-5, 8-10.

(4)     The potential systematic challenge arising from the intended new grounds was clearly known to the applicant.  It has been legally advised and represented at all stages of the process.  Yet, it chose not to “jump onto the band wagon” until almost 2 months after the directions hearing, after the court had rejected the applicant’s application for a rolled-up hearing.  No explanation at all has been proffered for the lengthy delay in making the re-amendment. 

(5)     It is unnecessary for the court to hear the two intended new grounds in this case, as they will in any event be fully canvassed and determined in HCAL 490/2019.  The rolled-up hearing in HCAL 490/2019 is fixed to be heard on 27 May 2020.  Even if leave is granted (for the intended new grounds or otherwise) in this case, the substantive hearing will unlikely take place before the rolled-up hearing in HCAL 490/2019.  If U Storage is successful in its systematic challenge, this will invariably affect the Subject FHANs.  Thus, no prejudice will be suffered by the applicant if the intended re-amendments are disallowed.

(6)     In the exercise of my discretion, I also take into account that the subject matter of the leave application concerns public fire safety.  It is plainly in the public interest to have the leave hearing determined as soon as possible.  The fact that the DFS, not wanting to lose the current hearing date, refrains from asking for an adjournment of the leave application, is itself a prejudice warranting the court’s refusal to grant leave to introduce these new grounds: Wise Union (supra).

11.For the above reasons, and as a case management decision, I agree that the belated application to re-amend the Amended Form 86 should be dismissed with costs.  The costs order is on a nisi basis, which shall become absolute if no application is made within 21 days to vary the same. 

C.      RELEVANT BACKGROUND

12.During the fatal Amoycan Fire in June 2016, fire-fighters encountered tremendous unprecedented operational difficulties in putting out the fire due to the setting and configuration of the mini-storage facility, including difficulties in (a) locating the fire; (b) searching for possible casualties; (c) suppressing the fire; (d) ventilating the fire scene; and (e) the additional risks posed to fire-fighters.

13.The tragedy prompted an immediate territory-wide inspection of all mini-storage facilities by the Fire Services Department (“Department”) in Hong Kong, with the aim to (a) identifying as a matter of priority the fire safety risks associated with mini-storage facilities and (b) improving the fire safety of those premises.

14.The Department conducted one preliminary and one in-depth inspection of the Premises in question on 17 August 2016 and 24 February 2017 respectively.  During the latter, a holistic risk assessment and detailed measurements to the Premises, including its dimensions, windows and all storage cubicles were conducted.

15.Fire hazards commonly found in mini-storages were identified within the Premises in question.  In particular, it was found that (a) there was one cluster of storage cubicles that occupied an area of over 50m² with sides measuring more than 20 m in length; (b) the separation distance between each row/cluster of storage was about 1.1 m only (ie less than 2.4 m), with some points at 1.07 m only; (c) the distance between the ceiling and the top of the storage cubicles and/or stored articles was 0.74 m (ie less than 1 m); and (d) all windows were obstructed or encased by storage cubicles. 

16.DFS issued the first set of FHANs to the applicant in March 2017, requiring it to abate the fire hazards within 60 days.  In reliance upon the applicant’s repeated representations that it had “started works” to comply with the FHANs, the DFS adopted a “flexible approach” and granted two time extensions to the applicant. On 25 April 2018, the DFS issued the Subject FHANs to the applicant.

17.DFS requested the applicant to abate the fire hazards as stated in the Subject FHANs based on (a) the specific layout, setting and circumstances of the Premises, following the Department’s inspections of the Premises and (b) its operational experience gained from the Amoycan Fire.  DFS also took into account comments of the Trade, as well as local and international standards and codes, including the LPC Rules for Automatic Sprinkler Installations incorporating BS EN 12845:2003 (“LPC Rules”), the Code of Practice for Minimum Fire Service Installation and Equipment of the Department and the Fire Code 2013 of Singapore Civil Defence Force (“Singapore Fire Code”).  In particular, the DFS adopted a cautious and pragmatic approach in devising the requirements, and ensured that each of the requirements is technically feasible before issuing the Subject FHANs.

18.The challenged fire hazards under the Subject FHANs (the “Challenged Hazards”) are as follows: –

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

(a)     occupying an area over 50 square metres (“50m² Cubicle Area Requirement”);

(b)     with separation distance less than 2.4 metres (“2.4 m Separation Requirement”);

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

(d)     with distance between the ceiling and the top of storage cubicles and/or stored articles less than 1 metre (“1 m Headroom Requirement”).

(2)     Window Hazards

(a)     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”);

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

(i)     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 Requirements”);

(ii)     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”).

19.Prior to and after the issuance of FHANs to the mini-storage operators, a total of 17 meetings and 2 seminars were held from 8 July 2016 to 23 October 2017 between the Department and the Trade, discussing the aims, rationales and feasibility of the fire abatement measures.  DFS also responded to enquiries from the Trade in writing and made various on-site clarifications to mini-storage operators on the fire hazard abatement requirements. 

20.Importantly, the DFS expressly informed the Trade that it welcomed alternative proposals to the fire hazard abatement measures stated in the FHANs and would assess any such proposals on their individual merits.  Further, the DFS considered various alternative proposals put forward by the Trade, including the alternative proposals prepared by Ove Arup (“Ove Arup Proposals”) and Freevision Limited.

21.Some of the alternative proposals suggested by the Trade were accepted by the DFS.  In particular, the DFS (a) accepted in principle the alternative proposal of using “Compartmentation” and “Fire-rated Box” in lieu of the 2.4 m Separation Requirement as suggested in the Ove Arup Reports (“the Accepted Alternative to 2.4 m Separation”); (b) accepted the use of wire mesh in lieu of the 1 m Headroom Requirement; and (c) stated that individual mini-storage operators may submit alternative proposals to the 2.4 m Separation Requirement which may be accepted in principle provided certain conditions are met. 

D.      GROUND 1: ALLEGED INFRINGEMENT OF BL 6 AND BL 105

22.DFS accepts that BL 6 and 105 are engaged for the purposes of this application.  However, the DFS submits that the Challenged Hazards satisfy the 4-stage proportionality test as laid down in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, the Challenged Hazards (a) serve legitimate aims; (b) are rationally connected to the legitimate aims; (c) are no more than necessary to accomplish the legitimate aims; and (d) strike a reasonable balance between the societal benefits of the encroachment and the inroads made into the applicant’s rights to use private property as protected under BL 6 and BL 105.

D1.    Stage 1: Legitimate Aims (accepted by the applicant)

23.The applicant accepts that the Challenged Hazards pursue the broad legitimate aims as set out in the definition of “fire hazard” under section 2(f) of the FSO to abate “any matter or circumstance which materially increases the likelihood of fire or other calamity or the danger to life or property that will result from the outbreak of fire or the occurrence of any other calamity, or which would materially hamper the [Department] in the discharge of its duties in the event of fire” (“Legitimate Aims”). 

D2.    Stage 2: Rational Connection

24.I agree there can be no doubt that the Challenged Hazards are rationally connected to the Legitimate Aims.  As explained in the DFS’s evidence, each of the Challenged Hazards serves the practical purpose(s) of abating the risk of fire or injury to life and property, as well as conditions that materially hamper the Department in the discharge of its duties in the event of fire. 

25.The applicant contends that two of the Challenged Hazards are not rationally connected to the Legitimate Aims, namely, the 2.4 m Separation Requirement and the Access Window Interval Requirement. 

26.The 2.4 m Separation Requirement: as explained in the DFS’s evidence, the narrow passageways in the affected unit in the Amoycan Fire posed heavy constraints to the movement of fire-fighters in full Personal Protective Clothing and Personal Protective Equipment and severely hampered the fire-fighting operations. 

27.The 2.4 m Separation Requirement aims to facilitate fire-fighting and rescue operations by allowing sufficient width in the passageways for the fire-fighting crew to access, egress and manoeuvre under extremely high temperature.  In particular, fire-fighters required ample clearance in the passageways to carry large and heavy equipment into the site and to handle the fire hose which is heavy and difficult to manoeuvre when fully charged.  In addition, the 2.4 m Separation Requirement aims to slow down fire spread by ensuring sufficient isolation between goods stored in the mini-storage cubicles.

28.This requirement was formulated by reference to the Department’s operational experience in the Amoycan Fire and the standard set out in section 6.2.2 of the LPC Rules.  The applicant’s suggestion that the LPC Rules “has nothing to do with fire safety” is clearly wrong and not reasonably arguable.  The scope of the LPC Rules at Section 1 states: “This standard specifies requirements and gives recommendations for the design, installation and maintenance of fixed fire sprinkler systems in buildings and industrial plant, and particular requirements for sprinkler systems, which are integral measures for the protection of life”.

29.I agree the complaint by the applicant that the 2.4 m Separation Requirement is “inconsistent” with the less stringent aisle width requirement of 1.05 m laid down by the Buildings Department (“BD”) is not to the point.  It goes to show that the DFS considered the BD’s less stringent requirement inadequate from an operational perspective, based on the experience gained from the Amoycan Fire. It does not mean that 2.4 m Separation Requirement is not rationally connected to the Legitimate Aims.  It clearly is.

30.Similarly, whether or not the Accepted Alternative to 2.4 m Separation is more effective than the 2.4 m Separation Requirement is neither here nor there.  On the applicant’s own evidence, a separation of 2.4 m can delay spread of fire by around 6 minutes.  Clearly, both the 2.4 m Separation Requirement and the Accepted Alternative to 2.4 m Separation can slow down fire spread, hence rationally connected to the Legitimate Aims. 

31.The Access Window Interval Requirement: as explained in the DFS’s evidence, the inability to gain access into the affected unit through external window openings severely hampered the fire-fighting and rescue operations during the Amoycan Fire.  This requirement aims at facilitating fire-fighting operations as it ensures access windows are evenly distributed along external walls, as well as the effective dispersion of smoke, toxic and combustible gases.

32.The window arrangement in the specific context of the Premises posed an obvious fire hazard as the Department’s inspections revealed that there were no access windows in the Premises at all: a fact not disputed by the applicant.  All existing windows were covered and obstructed or otherwise encased by storage cubicles.

33.The Access Window Interval Requirement was formulated with reference to and is reinforced by 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”.

34.I agree the applicant’s suggestion that the fire-fighters may not access the southern external wall of the Premises by fire engines or ladders is not to the point.  As explained by the DFS, if the situation warrants, the DFS will also make use of access windows for the conveyance of equipment by abseiling from upper floors or for fire-fighters to climb into the Premises from an adjacent building.  In any event, how the fire-fighters may make use of the access windows to reach the Premises or deliver fire-fighting equipment into the Premises is a matter of fire-fighting strategy and does not alter the fact that the requirement rationally pursues the Legitimate Aims. 

35.The tailored combination argument: The applicant contends that the absence of a tailored combination of the requirements for the Premises, having regard particularly to the fact that sprinkler systems are installed, demonstrate or reinforce the lack of a rational connection.  I agree with the DFS’s submission that this contention is factually flawed and does not withstand scrutiny.

36.First, the requirements in the Subject FHANs were specifically tailored to address the fire hazards identified in the Premises after 2 inspections, as evidenced by the crossing out of requirement 5 in Appendix A of FHAN 753.  DFS had also indicated to the applicant that it was open to consider alternative proposals.

37.Second, the DFS did take into account the existence of a sprinkler system at the Premises when it issued the Subject FHANs.  The sprinkler system was specifically noted in the Inspection Report.  However, while a sprinkler system is an effective fire suppression installation, its existence is not a complete answer to fire abatement.  A sprinkler system has its own limitations, particularly if the seat of fire is blocked or the fire is a deep-seated fire.

38.Finally, the 50m² Cubicle Area Requirement and the 2.4 m Separation Requirement 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 m² for any single block, with no less than 2.4 metres clearance around the block.  This shows that the installation of a sprinkler system would not render these two requirements redundant.  The system of “fixed spray units” or “enhanced sprinkler system” referred to in the Amended Form 86 §35.3 serves similar functions as a sprinkler system.  They cannot replace the other fire hazard abatement measures in combating fire hazards. 

D3.    Stage 3: Proportionality

39.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. 

40.A wide margin of discretion and deference should be afforded to the DFS 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 Department from the Amoycan Fire, as well as the special knowledge, fire-fighting strategies and technical issues involved: Hysan, §116; Fok Chun Wa v Hospital Authority[2]at §75(3);Hong Kong Aircrew Officers Association v Director-General of Civil Aviation[3] at §76. 

41.Where a wide margin of discretion exists, in applying the “manifest” 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).

42.The applicant’s complaints set out in the Amended Form 86 §35 amount to nothing more than a contention that there exist alternatives to the Challenged Hazards.  As explained in the DFS’s evidence, the formulation of fire 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.  I agree that the applicant’s complaints fall far short of demonstrating that the DFS has acted manifestly without reasonable foundation in formulating the Challenged Hazards, which clearly fall well within the spectrum of reasonable options.

43.First, the criticisms in the Amended Form 86 §35.2 as to the lack of a rational connection for the 2.4 m Separation Requirement and Access Window Interval Requirement do not withstand scrutiny, for the reasons detailed in Part D2 above.

44.Second, the allegation in the Amended Form 86 §35.3 that the DFS had failed to consider Ove Arup’s proposals for “fixed spray Units” and “enhanced sprinkler systems” do not assist the applicant:

(1)     These proposals are just two possible alternatives in a wide spectrum of options.  The Department had stated due to the urgency in resolving the fire hazards, these solutions will not be considered at this stage but can be considered at a later stage as they may require detailed assessment and testing.

(2)     In any event, the systems cannot fully address the fire hazards in the Premises, and would not render the Challenged Hazards unnecessary or manifestly without reasonable foundation.

45.Third, the reliance on the Computational Fluid Dynamics Simulation Report (“CFDS Report”) in the Amended Form 86 §35.4 to suggest that the 1 m Headroom Requirement has gone too far to meet the need for smoke dispersion is wholly misplaced.

(1)     The Report does not address the need for fire-fighters to make use of a minimum 1 m headroom to access and climb inside the storage cubicles when required; thus the alternative proposal is plainly incapable of achieving the required level of safety.

(2)     The 1m Headroom Requirement serves 2 purposes: to facilitate fire-fighting operations and ventilation.  The 1 m distance would allow sufficient headroom for water jets to be applied towards the ceiling of the cubicles, which is more effective than the use of a sprinkler system as the latter’s function is much more limited.  The 1 m headroom is the minimum distance required for geared fire-fighters to access and climb inside the storage cubicles to fight fire.  The required headroom also allows for ventilation so that toxic and combustible gases would not accumulate in the Premises.

(3)     In formulating this requirement, the DFS took into account (a) the Department’s operational experience; (b) the down-stands projected from the ceiling or the floor beams in a mini-storage facility do not exceed 1 metre; and (c) the fact that it is technically feasible for operators to comply with the requirement. 

(4)     The CFDS Report was considered “fundamentally unacceptable” as its scope was limited to “minor localised” fire incidents and excluded major incidents or fires involving use of accelerants multiple ignitions.

(5)     Having regard to the aforesaid aims, I agree the 1 m Headroom Requirement is clearly not one that goes beyond the spectrum of reasonable options.

46.Fourth, as to the 20 m Side Measure Requirement:

(1)     The requirement aims to simplify or reduce the complexity of the layout of mini-storage premises to facilitate the access and egress of fire-fighting crews, as well as fire-fighting and rescue operations.  Combined with other layout requirements, this requirement would also slow down fire spread as well as providing an easier route for escape in the event of fire;

(2)     When the DFS referred to its “operational experience”, it explained that the requirement has taken into account the fact that the length of a typical fire hose is 23 metre.  The 20 m Side Measurement Requirement would allow a fire hose to extend down the entire row/cluster, with some buffer factored in to retain flexibility and manoeuvrability;

(3)     Apart from a bare assertion, the applicant has failed to explain why there are “immense difficulty” in complying with this requirement (which only requires the applicant to reshuffle its mini-storage cubicles or adjust the length of the row of cubicles). 

47.Fifth, as to the complaints in the Amended Form 86 §35.6 regarding the criterion of 6.25% or 2% of the “total floor area of the mini-storage”:

(1)     The Total Window Percentage Requirement (6.25%) aims to provide access for fire-fighting and rescue as well as to facilitate effective ventilation for the dispersion of smoke, toxic and combustible gases.  Based on the operational experience gained from the Amoycan Fire and Clause 4.30 of the Code of Practice for Minimum Fire Service Installations and Equipment of the Department, the provision of 6.25% openable windows was considered an effective means of ventilation and could serve as an alternative to the provision of a smoke extraction system.

(2)     The Access Window Percentage Requirement (2%) aims to provide access for fire-fighting and rescue as well as to facilitate effective ventilation for the dispersion of smoke, toxic and combustible gases.  Fire-fighters may use the access windows to convey equipment or climb into the Premises from an adjacent building.  Based on the Department’s operational experience, having regard to the Total Window Percentage Requirement (6.25%), it was considered that roughly one-third of those unobstructed and breakable windows should be access windows to pursue those aims.

48.Sixth, the alleged difficulty in complying with the window requirements set out in the Amended Form 86 §35.7 is unsupported by evidence and does not in any event render them manifestly without reasonable foundation:

(1)     There is no evidence to show that the applicant has encountered any difficulty in obtaining permission to change the window structure to comply with any of the window requirements.  On the contrary, the Department’s inspections of the Premises revealed that several storage cubicles of the Premises had been vacated to facilitate the conversion of an existing window into an access window.  Further, in a letter to the Department dated 13 April 2018, Store Friendly[4] claimed that it had appointed 2 Authorised Persons to handle the fire abatement measures and rectification proposals would be submitted to the Department.

(2)     As at 31 December 2018, 5 other mini-storage facilities situated in the same building have fully complied with their respective FHANs with similar or identical requirements as the Subject FHANs.  I agree this strongly demonstrates that the requirements in the Subject FHANs are technically feasible;

(3)     In response to the applicant’s allegation that it is impossible for the applicant to comply with the Total Window Percentage Requirement, the DFS has demonstrated by a simple analysis at Exhibit “HWM-21” that the window requirements can be satisfied by minor non-structural changes to the window frames and opening configurations.  Hence, the applicant’s complaint of impossibility is simply untrue. 

49.Seventh, contrary to the suggestion in the Amended Form 86 §35.8, it is plain for the reasons set out in Sections D2 and D3 above that the Challenged Hazards, whether individually or collectively, (a) are not manifestly unreasonable and fall well within the spectrum of reasonable options; and (b) were fashioned to the specific conditions of the Premises and the applicant.

50.Finally, the applicant’s attempt to distinguish the Premises from the mini-storage facility at the Amoycan Fire is wholly irrelevant.  As the DFS has repeatedly emphasised, the Subject FHANs specifically targets the fire hazards in the Premises and were issued following one preliminary and one in-depth inspection of the Premises, as well as thorough consideration of the applicant’s situation.

D4.    Stage 4: Fair Balance

51.I agree with the DFS’s submission that the Subject FHANs strike a fair balance between the public interest of safety to life and property and the private business interest of the applicant: Hamalainen v Finland 37 BHRC 55 at §67. 

52.First, there can be no question that abatement measures are required for the fire hazards commonly found in mini-storage facilities, including the applicant’s, to prevent the Amoycan Fire tragedy from reoccurring and facilitate fire-fighting operations when fire occurs.  The suggestion in the Amended Form 86 §36.1.2 that the hazards specified in the Subject FHANs had existed for a long time but were not considered hazardous in nature reinforces the overdue need to increase the safety level of mini-storage facilities in the light of the Amoycan Fire.

53.Second, the Challenged Hazards would not impose an excessive burden on the applicant.  The applicant is simply required to incur some cost to make alterations to the Premises and the setting of the mini-storage cubicles.  The allegation by the applicant that a “huge capital investment” is required to comply with the Subject FHANs is a bare assertion without any evidential support.  On the contrary, 5 mini-storage premises in the same building have fully complied with their respective FHANs without any complaint as to any excessive burden: see §48(2) above. 

54.Third, the applicant claimed that complying with the Subject FHANs would be detrimental to its business reputation and goodwill, and would lead to a loss of customers.  This claim is directly contradicted by Store Friendly’s own conduct in advertising to the public that its mini-storages have complied with the fire hazard abatement measures imposed by the Department, including the 50m² Cubicle Area Requirement, the 1 m Headroom Requirement, Total Window Percentage Requirement and the Access Window Percentage Requirement.  In other words, the applicant is seeking to capitalise on its purported compliance with the Department’s fire hazard abatement measures and obviously views this as a selling point that would attract customers and abate their fears in light of the Amoycan Fire. 

55.Finally, 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.

E.      GROUND 2: ALLEGED ILLEGALITY/IRRATIONALITY

56.The challenge on administrative law grounds can be divided into three parts: (a) fettering of discretion; (b) Wednesbury unreasonableness; and (c) failure to take into account relevant considerations: Amended Form 86, §§38-42.

E1.    Fettering of Discretion

57.The thrust of the applicant’s complaint here is that the DFS had rigidly applied an identical set of requirements under the FHANS across the board, and ignored the local circumstances of the Premises.

58.The starting point is that it is legitimate for a decision-maker with whom a discretion has been entrusted to adopt a policy to guide his exercise and implementation of the discretion.  Such a course would promote, amongst other things, consistency and efficiency: Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp [2009] HKLRD 620, §31.

59.Having identified common fire hazards in mini-storage facilities following a territory-wide inspection involving 756 mini-storage premises as at December 2016, the Department was entitled, as a matter of consistency and efficiency, to devise minimum fire safety safeguards to abate these common fire hazards, a matter that lies exclusively within its expertise, experience and judgment.

60.However, it is accepted by the DFS that, as a matter of principle, the DFS must not maintain a rigid policy with no exceptions to the effect of fettering its discretion in individual cases: BI v Director of Immigration HCAL 174/2013 [2014] HKCFI 2228 §78.

61.I agree it is clear from the evidence that the DFS has not blindly or overly rigidly applied the fire abatement requirements, as evidenced by the crossing out of requirement (5) in Appendix A of FHAN (753).  As detailed above, the requirements in the Subject FHANs were specifically tailored to address the fire hazards in the Premises, taking full account of the circumstances of the applicant, following two inspections: see paragraphs 14 and 15 above.  DFS had also indicated to the applicant that it was open to consider alternative proposals and would consider the proposals on a case-by-case basis.

E2.    Wednesbury Unreasonableness

62.To establish irrationality, the applicant must show that the Subject FHANs are so unreasonable that no reasonable fire services authority could have come up with such requirements.  This is a notoriously high threshold.

63.The only ground relied upon by the applicant in attacking the logic of the Subject FHANs is the lack of rational connection between the Challenged Hazards and the Legitimate Aims. In other words, this ground stands and falls with the “rational connection” argument under the proportionality analysis in Ground 1.  For the reasons set out in Section D2 above, this ground is not reasonably arguable.

E3.    Failure to take into account relevant consideration/material facts

64.It is contended that the DFS failed to take into account (a) the local circumstances of each case including the Premises; (b) the practical effectiveness and practicality of the 2.4 m Separation Requirement and Access Window Interval Requirement; and (c) the alternative proposals for compliance: Amended Form 86 §41.5.

65.The applicant accepts that the considerations which it claims that the DFS should have, but did not, take into account are “discretionary” and not “mandatory”, and hence the usual irrationality standard applies: Amended Form 86 §41.4.

66.As submitted by the DFS, the weight to be attached to each consideration is entirely a matter for the DFS, not for the court, to decide after balancing different considerations, subject to rationality: Fok Chun Wa, §97; Pagtama, Victorina Alegre & Anor v Director of Immigration[5], §195. 

67.I agree with the DFS that the applicant’s allegations are untenable in light of the accepted principles.

68.First, the court will accord “a great deal of respect and latitude” to the decision-maker as regards its methodology, key assumptions, and ultimate preferences for a particular expert view: Popular Signs Ltd v Radiation Board, HCAL 53/2008 (unreported, 12.01.2010) at §§34-37; Chan Ka Lam v Chief Executive in Council, HCAL 28/2015 (unreported, 24.11.2017) at §112. 

69.Second, the DFS did take into account the individual circumstances of the Premises, as evidenced by the crossing out of requirement (5) in Appendix A of FHAN (753).  The requirements in the Subject FHANs were specifically tailored to address the fire hazards in the Premises, taking full account of the circumstances of the applicant, following two inspections: see paragraphs 14 and 15 above.  As explained in paragraphs 37 and 38 above, the sprinkler system in the Premises cannot fully address the fire hazards in the Premises and cannot replace the requirements in the Subject FHANs.

70.Third, the DFS did take into account the practical effectiveness and practicability of the 2.4 m Separation Requirement and the Access Window Interval Requirement: see paragraphs 26 to 34 above.

71.Fourth, the alternative proposals were as a matter of fact raised and considered by the DFS in the various meetings held with the Trade.  Some of the alternative proposals were accepted by the DFS in principle: see paragraphs 20 and 21 above.  The reasons as to why other proposals could not address the Department’s operational needs in the event of a fire are detailed in paragraphs 37, 38 and 45 above.

72.In the premises, there is no proper basis for judicial intervention bearing in mind the wide discretionary margin of judgment due to the DFS.

F.      GROUND 3: ALLEGED FAILURE TO CONSULT AND GIVE REASONS

F1.    No Implied Duty to Consult

73.As submitted by the DFS, there is no general common law duty to consult before a public body could exercise a statutory power which might affect the public generally.  A public body before exercising its statutory power is only subject to a duty to ask itself the right question and take reasonable steps to acquaint itself with the relevant information to enable him to answer it correctly before it.  As to the steps which a public body should take to collect relevant information for the purpose of answering the right question, absent any specific statutory requirement, they would generally be matters for the public body to decide, subject to the court’s supervisory jurisdiction exercised by way of judicial review: Ho Loy v Director of Environmental Protection[6], §§51-53.

74.The court will exercise its unusual power to imply a duty to consult only if it is clear that the statutory procedure is insufficient to achieve justice and that to require additional steps of consultation would not frustrate the apparent purpose of the legislation: Yook Tong Electric Co Ltd v Commissioner for Transport[7], §§37-38.

75.In the present case, I agree the court should not exercise the unusual power to imply a duty to consult before the DFS can issue the Subject FHANs:

(1)     DFS is the statutory body having the expertise in extinguishing fires and giving advice on fire protection measures and fire hazards: section 7 of the FSO.  DFS 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 DFS has extensive powers to carry out works for the purposes of the FHANs, as well as to abate fire hazard without issuing FHANs: regulations 4 and 5 of the FS(FHA)R. DFS is clearly competent to formulate fire abatement requirements without the need to consult the public;

(2)     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 would delay the DFS’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 DFS.

76.DFS has not voluntarily assumed any duty to consult in respect of the issuance of the FHANs.  The communications between the DFS and the Trade do not amount to consultations.  These were occasions where the DFS collected relevant information for the purposes of answering the right question to exercise its statutory power to issue the FHANs and to explain the reasons and aims of the FHANs to the mini-storage operators.

F2.    No Implied Duty to give Reasons.  In any event, Sufficient Reasons given

77.There is no general duty at common law to give reasons for administrative decisions save in the following two exceptional circumstances: (a) if an administrative decision appears aberrant; and (b) where the decision engages an interest such as personal liberty that is so highly regarded by the law that fairness requires that reasons be given as of right: Lister Assets Ltd v the Chief Executive-in-Council[8], §§20-21. 

78.I agree the present case does not fall within the exceptional circumstances.  The Subject FHANs are not aberrant, and are consistent with the DFS’s aim to step up fire abatement measures in mini-storage facilities after the Amoycan Fire.  The Subject FHANs only affect the applicant’s economic interest in the operation of its mini-storage, as opposed to any fundamental interest of life or liberty.  Therefore, the DFS is not subject to any implied duty to give reasons for issuing the Subject FHANs.

79.Further and in any event, during the various communications between the DFS and the Trade and its experts, the DFS had voluntarily given reasons for its issuance of the FHANs, the reasons are clear and sufficient, giving the mini-storage operators an adequate indication of the DFS’s reasoning process: Capital Rich Development Ltd v Town Planning Board[9], §97.  In particular, by the Fact Sheet sent to all the mini-storage operators on 6 July 2017, the Department clearly explained the potential fire hazards identified in mini-storages and the corresponding abatement measures to be taken. 

80.I agree the fact that the Trade was able to put forward various technical and detailed alternative proposals to the Subject FHANs and the fact that the applicant is able to formulate its grounds of review in the Amended Form 86 in considerable detail prove that the Trade and the applicant have a clear understanding of the DFS’s policy and approach in issuing the Subject FHANs. 

F.     CONCLUSION

81.For the reasons stated above, I hold that none of the grounds put forward by the applicant in the Amended Form 86 is reasonably arguable or enjoys realistic prospects of success.  Accordingly, I refuse to grant leave to the applicant to apply for judicial review against the Subject FHANs.

82.In view of my findings that the present application clearly lacks any substantive merits; that the attendance of the putative respondent has been of material benefit to the court; and that the putative respondent’s presence at the hearing was necessary because of the application by the applicant for interim relief, I make an order on a nisi basis that the applicant should pay the DFS’s costs of these proceedings, such costs are to be taxed if not agreed.

83.The above costs order nisi shall become absolute in the absence of any application within 21 days to vary the same.

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

Mr Lewis CM Law and Mr Ernest CY Ng, instructed by Messrs Leung, Tam & Wong, for the applicant

Ms Catrina Lam and Ms Sabrina Ho, instructed by the Department of Justice, for the putative respondent