U Storage Group Ltd v. Director of Fire Services
Read the full judgment text of HCAL 490/2019 on BabelCite. This High Court CFI judgment was delivered on 28 August 2020.
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.
Cited by 5 cases · Cites 20 cases
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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 ___________________
___________________ Before: Hon Wilson Chan J in Court Dates of Hearing: 27-28 May and 11 June 2020 Date of Judgment: 28 August 2020 ________________________ J U D G M E N T ________________________ 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”):
4.The grounds upon which the applicant challenges the Decisions are:
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 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:
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:
7.In a nutshell, the Director’s position is that:
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:
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.
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:
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:
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 (7th 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:
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:
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:
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:
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:
40.Section 7 of the FSO sets out the duties of the Director, they include:
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:
43.Section 2 of the FSO defines a “fire hazard” to mean:
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:
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:
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:
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:
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:
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:
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:
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:
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:
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 (8th 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.
80.For completeness, with respect to applicant’s other arguments:
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:
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:
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):
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:
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:
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:
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:
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:
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:
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:
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:
127.Thus, a secondary case of legitimate procedural expectation would arise where:[5]
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.
129.In this case, the basis upon which the applicant contends that the secondary case of procedural legitimate expectation is engaged is that:
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:
134.As submitted by the Director:
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”):
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:
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 1st”). The Director has also explained the justifications for the other fire hazards regularly found in mini-storages in Section D of Wong 1st. 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 1st. 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 1st §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 1st §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.
Mr Earl Deng, Mr Anthony Lai and Mr Jasper Wong, instructed by Messrs Howell & Co., for the applicant Ms Catrina Lam, Ms Sabrina Ho and Ms Tinny Chan, instructed by Department of Justice, for the putative respondent and putative interested party [1] i.e. FS(CP)Oand FS(B)O. [2] “Fire hazards” means: s.2 (a): any alteration to any building in contravention to the Buildings Ordinance such as might render escape in the event of fire or other calamity materially more difficult; and s.2 (b): the overcrowding of any place of public entertainment or public assembly such as might render escape in the event of fire or other calamity materially more difficult. [3]Namely, (a) excessive travel distance in the exit route due to extensive partitioning of the storage cubicles; (b) inadequate width exit routes along aisles between the storage cubicles due to wing-out cubicle doors; (c) obstruction to exit routes; and (d) replacement of fire rated doors by doors with inadequate fire resisting rating. [4] S. 2(1) ERO provides that“On any occasion which the Chief Executive in Council may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest”. [5] Niazi, §50 per Laws LJ. | |||||||||||||||||
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