Tang Ho Hei v. Chan Po Mei

CACV 95/2020

[2022] HKCA 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 95 OF 2020

(ON APPEAL FROM HCPI 1114 OF 2014)

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Before:  Hon Kwan VP, Chu and Au JJA in Court

Date of Hearing: 30 June 2021

Date of Judgment: 8 June 2022

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

A.  INTRODUCTION

1.This is the defendant’s appeal against Wilson Chan J’s (“the Judge”) judgment dated 5 March 2020 (“the Judgment”) whereby the Judge allowed the plaintiff’s claim after trial in respect of serious burn injuries for which the defendant was found to be responsible.

B.  BACKGROUND AND THE JUDGMENT

2.This case arises from a fire that occurred on 4 November 2011 (“the Fire”) in a tenement building (“the Building”) situated at 107 Parkes Street, Jordan, Kowloon.

3.The facts and backgrounds of the case are comprehensively set out at [1] ‑ [13] of the Judgment.  In gist:

(1)  The Building contains six storeys which are served by a single staircase running from the ground floor to the roof;

(2)  The plaintiff lived with her parents on the 3^rd floor.  The defendant was the registered owner and occupier of the 5^th floor and the roof;

(3)  Miscellaneous articles (“Articles”) were placed by the defendant and her relatives at the common stairwell outside the defendant’s flat on the 5^th floor obstructing the plaintiff’s escape path to the roof;

(4)  The plaintiff suffered serious burn injuries to 55% of her body surface area while she attempted to escape from her flat on the 3^rd floor to the roof, together with her neighbours living on the 2^nd floor (Mr and Mrs Ng).  Mr and Mrs Ng passed away because of the injuries suffered during the escape;

(5)  Subsequently, the defendant was convicted of the offence of “obstructing means of escape” contrary to sections 14(1) and 14(2) of the Fire Services (Fire Hazard Abatement) Regulation (Cap 95F) (“the Regulation”).

4.By the action below, the plaintiff brought a negligence claim against the defendant for damages for breach of common law duty of care and/or breach of statutory duty.

5.The plaintiff’s case is in essence that by placing the Articles at the common stairwell outside the defendant’s flat on the 5^th floor, the defendant obstructed the plaintiff’s escape path to the roof during the Fire, which delayed her escape and prolonged her exposure to very high temperatures, thereby causing or materially contributing to her serious burn injuries.

6.As the Judge noted at [14] of the Judgment, the parties’ stances had crystallized over the course of the trial and by the time of closing submissions, the issues that required determination fell within a narrow compass:

(1)  Did the obstruction by the Articles in the staircase from the 5^th floor to the roof cause the plaintiff’s injuries by delaying her escape and / or rescue and treatment? (“the Causation Issue”)

(2)  Did the Articles obstruct a “means of escape” within the meaning of section 14 of the Regulation? (the “Statutory Interpretation Issue”)

(3)  If liability is established, what amount of general damages should be awarded under the head of pain, suffering and loss of amenities (“PSLA”)?

7.At trial, other than her own evidence accounting for how the injuries occurred, the plaintiff relied, inter alia, upon the following evidence in support of her claims:

(1)  A fire investigation report prepared by the Fire Services Department (“FSD Report”);

(2)  Photographs taken by the FSD at the material time (“FSD Photos”);

(3)  A joint report prepared by both parties’ fire experts (“Joint Fire Experts Report”);[1]

(4)  A joint report prepared by both parties’ plastic surgery experts (“Joint Plastic Surgery Report”);

(5)  The oral evidence of the plaintiff’s fire expert (Mr Magnus‑Hannaford), and her plastic surgery expert (Dr Nicolson).

8.By way of the Judgment, the Judge answered “yes” to both issues on liability and awarded HK$1.5 million as damages for PSLA.

9.In particular, under the Causation Issue, after carefully analysing and accepting substantially the plaintiff’s evidence, the evidence of Mr Magnus‑Hannaford and Dr Nicolson, and the evidence contained in the FSD Report, the Joint Fire Experts Report and the Joint Plastic Surgery Report[2], the Judge concluded and found as a matter of fact at [81] of the Judgment that:

“… the obstructions created by [the Articles] delayed the plaintiff’s ascension of the staircase from the 5^th floor to the roof floor of the Building and also meant that she had to keep to her right by the handrail, thereby increasing the plaintiff’s exposure to very high temperatures and materially contributing to the burn injuries which she sustained.”

C.  THE PRESENT APPEAL

C1.    The Notice of Appeal

10.The defendant in this appeal seeks to challenge only the Judge’s findings and conclusion on liability, ie, the Causation Issue and the Statutory Interpretation Issue.  Mr Maurice Chan for the defendant has set out 14 grounds of appeal in the Notice of Appeal.  Under these 14 grounds, the defendant effectively seeks to challenge all the material findings or conclusions made by the Judge under these two issues.

11.In his skeleton submissions, Mr Chan effectively repeats the grounds as stated in the Notice of Appeal without much material elaborations.

12.At the hearing, other than correcting some clerical errors in his skeleton submissions, Mr Chan adopted entirely the arguments as already set out in the Notice of Appeal and the written submissions and confirmed that he had nothing further to add.  In other words, all the submissions that the defendant relied on in the appeal are effectively those that have been set out in the Notice of Appeal and repeated in the written submissions.

13.Mr Wong Chi Kwong (together Mr Dexter Leung) for the plaintiff, submitted in his written submissions that all grounds are unmeritorious and filed a Respondent’s Notice to support the Judge’s decision.

14.At this junction, we wish to point out that the Notice of Appeal is drafted in a convoluted and unfocused manner.  Further, most of the grounds (Grounds 1 - 4, 6 - 11) are challenges against the Judge’s findings of facts, and the submissions made in support of which (as set out in the Notice of Appeal) are mere repetitions or regurgitations of the contentions the defendant through counsel had advanced before the Judge but were rejected.

15.This is most unsatisfactory and does not assist the court.  The Notice of Appeal was thus prepared in blatant disregard of the guidance given by this Court in China Gold Finance v CIL Holdings Ltd [2015] HKCA 560 at [11] - [30] in failing to identify with any specificity any palpable errors in the Judgment.

16.Be that as it may, we will now turn to consider these grounds of appeal.

C2.    Grounds of appeal

17.As mentioned above, the 14 grounds of appeal are stated correspondingly at paragraphs 1 ‑ 14 of the Notice of Appeal, and the submissions made in support of each of those grounds are as stated in each of those paragraphs.  There are no further material elaborations by Mr Chan either in his written submissions or orally at the hearing.

18.In the premises, in dealing with these grounds, and when necessary, we would simply set out the relevant paragraphs of the Notice of Appeal to set out the defendant’s respective contentions under the relevant grounds of appeal.

C3.    Grounds of appeal challenging findings of fact (Grounds 1 - 4 and 6 ‑ 11)

19.As mentioned above, by Grounds 1 - 4 and 6 - 11, the defendant challenged the Judge’s findings of fact on the Causation Question.

20.In ZJW v SY [2017] HKCA 614 at [27] - [34], this Court has summarised the principles governing an appeal on findings of facts:

(1)  Findings of fact may be categorised as (a) findings of primary fact; (b) findings based on evaluation of facts; (c) findings based on inferences;

(2)  For (a), the Court of Appeal will not disturb a finding of primary facts unless it is “plainly wrong”.  The Court of Appeal must be satisfied that the judge had fallen into “palpable error” in his finding of primary fact, such as where the conclusion was one (i) which there was no evidence to support; (ii) which was based on a misunderstanding of the evidence, (iii) which no reasonable judge could have reached.  The greater the advantage is enjoyed by the judge over the appellate court in terms of fact-finding (eg, seeing and hearing the witnesses), the more reluctant the appellate court should interfere.

(3)  For (b), it involves an assessment of a number of factors which have to be weighed against each other.  As in appeals against judges’ exercise of discretion, the Court of Appeal will not interfere so long as it is within the degree upon which different judges can legitimately differ;

(4)  For (c), depending on whether the inference is made from primary facts or after a process of evaluation, the Court of Appeal adopts the same approach as per (2) or (3) above.

21.Further, in deciding the Causation Issue, the Judge rightly directed himself that the critical question was whether the delay to the plaintiff’s escape resulting from the obstruction caused by the Articles materially contributed to her injuries.  It is not necessary for the said obstruction to be the sole cause: [23] of the Judgment.  These principles are not disputed by the defendant in this appeal.

22.With these principles in mind, we will now examine these grounds.

23.Ground 1: paragraph 1 of the Notice of Appeal is as follows:

“The learned Judge was wrong in finding (in Para.16 of the Judgment of 5 March 2020) that the Defendant’s case consists of putting the Plaintiff to strict proof as to how her injuries were caused. In para.9 of the Re Amended Defence, the Defendant’s case is also that here [sic] injuries were caused by her attempt to descend to the Ground Level through the 1/F where the heat generated by the fire was the most intense.”

24.Thus, under this ground, the defendant submitted that the Judge erred in “finding” her case as consisting only of putting the plaintiff to strict proof at [16] of the Judgment[3].  The defendant argued that the Judge ought to have also considered her case that the plaintiff’s injuries were caused by her attempt to descend to the ground floor level pleaded at paragraph 9 of the Re-Amended Defence.

25.This complaint is entirely without basis.  Other than referring to the defendant’s position to put the plaintiff to strict proof[4], the Judge in any event had also clearly understood the defendant’s case that the plaintiff’s burn injury was sustained instead at the common areas at or near the vicinity of the source of the Fire, ie, the 1^st floor of the Building as he identified at [39] of the Judgment.  The Judge then went on to reject it on the basis that there was no evidence to support such a case for the reasons given at [30] - [43].

26.We therefore reject Ground 1 without any hesitation.

27.Ground 2: paragraph 2 of the Notice of Appeal is as follows:

“The learned Judge also erred in his finding (in Para.21) that ‘When Mr and Mrs Ng attempted to go down from the 2^nd floor to the 1^st floor, they were unable to do so as the Fire was too intense’. The Trio, consisting of Mrs Ng, the Plaintiff, and Mr Ng also attempted to descend but was unable to do so for the same reason.”

28.This ground relates to the Judge’s finding at [21] of the judgment which is as follows:

“21. At the trial, the plaintiff explained under cross‑examination that before the Fire, she had never ventured up to the 5^th floor and the roof of the Building.  At the time of the Fire, she went down from her flat on the 3^rd floor to look for Mr and Mrs Ng on the 2^nd floor as she was very scared and wanted to look for adults.  When Mr and Mrs Ng attempted to go down from the 2^nd floor to the 1^st floor, they were unable to do so as the Fire was too intense.  After returning to their flat, Mr and Mrs Ng decided to escape by going up the staircase to the roof.  In such circumstances, the plaintiff cannot be blamed for following Mr and Mrs Ng up the staircase, even though in hindsight (and in calmer circumstances) one may question if the plaintiff ought to have acted differently.”

29.The defendant appeared to contend under this ground that the Judge failed to find that the plaintiff had attempted to go down from the 2^nd floor to the 1^st floor but was prevented by intense fire from doing so.

30.The complaint is plainly unjustified.  The Judge had at [40] of the Judgment accepted the plaintiff’s own evidence that she had “tried to go down the steps at S5 [ie, staircase between the 2^nd floor and the 1^st floor] but definitely not reached L4 [ie, landing of the 1^st floor]”[5].  Other than merely asserting that the Judge erred in this respect, the defendant has advanced nothing in the appeal to point out why the Judge’s acceptance of plaintiff’s evidence is without basis or plainly wrong.  This ground is totally unfounded.

31.Ground 3: paragraph 3 of the Notice of Appeal is as follows:

“The learned Judge’s finding (in Para.21) that ‘After returning to their flat [ie, the Ngs’ flat on 2/F above 1/F (where the fire originated)], Mr and Mrs Ng decided to escape by going up the staircase to the roof. In such circumstances, the plaintiff cannot be blamed for following Mr and Mrs Ng up the staircase, even though in hindsight (and in calmer circumstances) one may question if the plaintiff ought to have acted differently’ is inconsistent with his finding that one must take”

32.In gist, the defendant argued that the Judge’s finding that the plaintiff cannot be blamed for following Mr and Mrs Ng up the staircase was inconsistent with his finding that the defendant must take reasonable duty of care. 

33.There is again nothing in this ground.  The Judge’s analysis of the reasonableness of the plaintiff’s act is unconnected to the question of whether the defendant owed a duty of care to the plaintiff. Insofar as Mr Chan is now trying to argue under this ground contributory negligence on the part of the plaintiff, he is not allowed to do so since he has not pleaded such a defence.  See [20] of the Judgment.  In any event, the Judge also went on to say at [20] of the Judgment that there was no basis to make a finding of contributory negligence.

34.Ground 4:  paragraph 4 of Notice of Appeal is as follows:

“The learned Judge erred in his finding (in Para.23) on a balance of probabilities, that the Defendant’s negligence, if any, did materially contributed [sic] to the plaintiff’s injury in the sense that it was more than de minimis.”

35.The Judge set out the legal principles relating to causation at [23] ‑ [24] of the Judgment as follows:

“23. As explained by Sakhrani J in CMY v Tam Siu Wing [2008] 4 HKLRD 604 at §§20-21, it is well-established that it is sufficient for the plaintiff to show, on the balance of probabilities, that the defendant’s negligence has materially contributed to the plaintiff’s injury (ie it was not de minimis). It is not necessary for the plaintiff to show that the defendant’s negligence was the sole cause of the plaintiff’s injury.

24. Further, in CMY (ibid) at §22, Sakhrani J cited with approval the following statement by Kirby J in Shorey v PT Ltd (2003) 197 ALR 410 at §41: –

‘The principle of law is that a negligent defendant must take its victim as it finds her and must pay damages accordingly.’”

36.The defendant now contended that the Judge failed to consider that the damage caused by fire to the Articles was de minimis and therefore inconsistent with the extent of the plaintiff’s burns.

37.This argument is without substance.  Even assuming that damage caused to the Articles was “de minimis”(which is in any event the defendant’s bare assertion contrary to the evidence showing that some Articles were deformed as recorded at [25(3)] and [73] of the Judgment), it does not as a matter of logic follow that the fire would only cause “de minimis” injury to human body.  In any event, since the defendant did not dispute the findings of the FSD Report at trial, the Judge cannot be faulted for relying on the report and the FSD Photos to find that temperature in the area of the Articles was sufficiently high to cause serious injuries to the plaintiff.  See: [25] - [28] of the Judgment.[6]

38.Ground 6: paragraph 6 of the Notice of Appeal is stated as follows:

“Given that the learned Judge had agreed (in Para.27 thereof) that the FSD Report (ie, Fire Services Department Report) supports the plaintiff’s evidence that she and Mr and Mrs Ng had been delayed when they ascended the staircase from the 5^th floor to the roof, he ought also to have adopted the Report’s acceptance of the Plaintiff’s claim that the Trio merely needed to ‘double their effort to travel one floor up from 5/F to roof when compared with their process from below 5/F’ (as set out in Para.25(1) thereof). This doubling of efforts must implicitly entail a doubling of time in that the expression was used in the context of the subject of delay and retardation. That being the case, the doubling could not possibly have supported the learned Judge’s holding that it was the 5/F to Roof Obstruction, on a balance of probabilities, that must have materially caused the Plaintiff’s injury in the sense that it was not de minimis.”

39.The defendant effectively argued that the Judge’s conclusion on causation cannot be supported by the FSD Report, in particular his finding that a doubling of effort was taken by the plaintiff in her escape from the 5^th floor to the roof.

40.There is no merit in this Ground.  The Judge has accepted the plaintiff’s evidence that the escape from the 5^th floor to the roof “took around twice as long” (at [55] of the Judgment) and expressly bore in mind the said finding in the FSD Report (at [25(1)] of the Judgment) in reaching the view that the obstruction of the Articles lengthened the plaintiff’s ascent (at [27] of the Judgment) and thus her exposure to extraordinarily high temperatures (at [81] of the Judgment).  With these, and given the undisputed medical evidence that any delay would cause or exacerbate the plaintiff’s burn injury (see [76] of the Judgment), the Judge is plainly entitled to reach his finding on causation.

41.Ground 7: paragraph 7 of the Notice of Appeal states as follows:

“The learned Judge erred in accepting the FSD Report's finding that a chimney effect did occur. As the Plaintiff’s own fire expert (Mr Stephen Magnus‑Hannaford) concedes in XX (cross examination), the chimney effect would only occur in a shaft of space when the top end has no opening for hot gas to escape, so that heat would be accumulated at the top end and then descend downwards. On the facts, both the Roof Door and the Roof Window were agreed to have been opened.”

42.The defendant thus submitted that the Judge erred in accepting the FSD Report’s finding that a chimney effect had occurred because the roof door and the roof window were opened.

43.This ground is completely misplaced.

44.Insofar as Mr Chan is saying under this ground that Mr Magnus-Hannaford’s evidence disagreed with the said finding of the chimney effect in the FSD Report, counsel has taken Mr Magnus-Hannaford’s words completely out of context.  All that Mr Magnus-Hannaford was saying under cross examination was that there would still be a chimney effect despite the opened door, although the temperature so built up would be reduced.  However, he then went on to emphasize in his answer to Mr Chan’s cross‑examination on this, using the fire at Garley Building as an example, that the hottest point would still be at the top instead of at the source of the fire as suggested by Mr Chan[7].  Given this, the Judge is clearly entitled to find that chimney effect had occurred.

45.Ground 8: paragraph 8 of the Notice of Appeal states as follows:

“The learned Judge erred in accepting the FSD Report’s finding that, ‘Deformation of plastic materials found at upper floors indicated that the staircase temperature was intensely high (melting point of PVC ranged from 100°C to 260°C,and that such temperature is sufficient enough [t]o cause severe damage to human body’. He ignored the evidence of the plaintiff’s own fire expert that:

(1) A valid distinction can be made between melting point, which is when solids begin to be liquefied, and softening point, when solids begin to soften, such as the softening of wax;

(2) The photos of the plastics show softening of the plastics. There was no evidence of plastics having melted into liquid and then solidified again on the surfaces of the stairs, bearing in mind that the learned Judge found (in Para.26 thereof) that ‘The photos were accepted as ‘accurate, reliable and objective visual evidence as to the state of the staircase from the 5^th floor to the roof’.”

46.Under this ground, the defendant sought to refer to the evidence of Mr Magnus-Hannaford to challenge the finding in the FSD Report that the temperature on the upper floors was high because of the deformation of plastic materials.  Contrary to the defendant’s contention, Mr Magnus‑Hannaford agreed with the said finding.  As stated by the Judge at [72] ‑ [73] of the Judgment:

“72. Mr Magnus-Hannaford agreed with the findings in the FSD Report.

73. Mr Magnus-Hannaford was also taken to the photographs taken by Ms Ho Mo Sin.  Mr Magnus-Hannaford observed that items that were placed higher up appear to have been more deformed.  In relation to Photo 1, he observed that as the vertical gap in the middle of the stairwell was blocked with stuff, at that point the hot air would be moving around up the staircase around the chimney.  Air would be travelling horizontally up the stairway rather than up the middle.”

47.Mr Chan again has not been able to refer to any part of the evidence to show that Mr Magnus-Hannaford had allegedly accepted that there was a distinction between melting point and softening point and that the photographs of the Articles showed merely softening of plastic materials. This ground is without any merits.

48.Ground 9: paragraph 9 of the NOA states as follows:

“The learned Judge’s adoption of the FSD Report’s finding that ‘Heat became more intense when they reached upper floors due to the chimney effect’ (in Para.25(2)), is also inconsistent with his adoption of the Report’s finding that:

(1) ‘As the firefighters made their way up the staircase, they ‘noticed that some electrical wiring was still burning at the staircase from l/F to 2/F’, and

(2) [they] ‘also noticed melted electric lamp shade fallen on the ground at 4/F and 5/F staircase’.

Given such findings, heat must be more intense between 1/F to 2/F, and between 4/F to 5/F, than between 5/F to Roof.”

49.The defendant sought to argue that the finding of the FSD Report that heat became more intense on the upper floors as a result of the chimney effect was “inconsistent” with other findings of the FSD Report, such as electrical wiring was burning and melted electric lamp shares had fallen on the lower floors.

50.This submission is plainly unsupported.  As a matter of logic, the mere fact that the temperature is high on the lower floors is not inconsistent with the suggestion that heat may become even more intense on the upper floors due to the chimney effect.  Quite to the contrary, as pointed out above, the expert evidence fully supported the existence of the chimney effect in the present case.  This ground must also fail.

51.Ground 10: paragraph 10 of the Notice of Appeal is stated as follows:

“The learned Judge also erred in his finding of facts (in Para.28 thereof) that ‘during the period of time when they were delayed in the staircase from the 5^th floor to the roof floor, the temperature in that area was very high and capable of causing severe burn injuries’. The basis for such a finding is flawed, in that he did not make any finding as to the duration of the delay. He ought to have attributed at least a time frame, as an (sic) proper basis for such a finding.”

52.The defendant therefore contended that the Judge ought to make a finding as to the duration of the delay caused by the Articles’ obstruction.  However, this finding was unnecessary for the Judge to reach his conclusion on causation.  As noted at [76] of the Judgment, both parties’ experts agreed in the Joint Plastic Surgery Report that “any delay in this hot environment could cause or exacerbate her burn injuries”.  As the Judge accepted the plaintiff’s evidence that “doubling of time” was taken to escape from the 5^th floor to the roof through the Articles’ obstruction, it is plainly open to the Judge to find causation on the basis of such delay ([79] ‑ [80] of the Judgment).

53.The defendant also argued that the Judge had ignored the heat and duration of exposure encountered by the plaintiff during her descent.  This complaint is also unfounded.  The Judge has clearly took that into account at [79] of Judgment, “as she had already been exposed to heat before she reached the 5^th floor, the prolonged exposure to high temperatures from the 5^th floor to the roof floor would have exacerbated her injuries…”.  Insofar as the defendant is trying to re-argue her case on the plaintiff’s descent being the effective cause of her injury, as discussed above, it has been considered and rejected by the Judge for reasons given at [39] ‑ [43] of the Judgment.  The conclusion is plainly justified based on the evidence accepted by the Judge.

54.Ground 11: Paragraph 11 of the Notice of Appeal states that:

“The learned Judge ignored:

(1) The objective, uncontroversial, undisputed and/or evidentially documented fact, that It was at around 22:00 that the Plaintiff received a phone call from her mother, Kwan Fung Ling, who informed her about the fire, and who told her to leave. She said she already knew about it, but would go down to tell Mr and Mrs Ng also to leave;

(2) It must have been at around 22:04 that the 1^st fire appliance, TST/LRU arrived;

(3) The Plaintiff’s insistence in XX that all the while during her Ascent, she was conscious of her surroundings and clear minded, and that she did not hear any siren during her Ascent, and that the first time when she heard a siren was 5 minutes after she got onto the Roof. On the plaintiff’s own testimony, irrespective of whether her perception of time was reliable, the 1^st siren was definitely heard after she got onto the Roof. The learned Judge unreasonably and unfairly ignored this on the ground that her ‘perception of time ... was not perfectly accurate’ (in Para.57 thereof). But if her perception of time was inaccurate, then it must also support the Defendant’s submission that the Passage of time from the Plaintiff’s first Descent from her 3/F to the Ngs’ 2/F with a view to collective escape through l/F (the origin of the fire), would only have been 4 minutes, which, in the circumstances, must be overwhelmingly more probable on a balance of probabilities than the learned Judge’s finding of 15 to 20 minutes from 5/F to the Roof (in Para.56 thereof). It is wholly unreasonable for the learned Judge to find that on a balance of probability, due to impairment of her ‘perception of time’, the siren that she could really perceive was the siren of the 5th fire engine which arrived at 22:16 or 22:21 (as he explained in Para.60 thereof). His finding is blatantly flawed because if there were misperception of time, the learned Judge ought to have held in the Defendant’s favour, that soon after she got to the Roof, she heard the siren of the 1^st fire engine. He ought not to have unfairly held that her perception of her 5 minutes’ stay on the Roof (before she heard a siren for the first time) was nevertheless accurate and reliable. Also, if the impairment of perception of time was to be logically applied, it could only relate to perception of durations, and not the impairment of her audio facility or mental faculty. It is prejudicial to the Defendant for the learned Judge to wholly ignore Plaintiff’s insistence that she only heard a siren for the 1^st time after she got onto the Roof and then make a baseless finding that she could not have heard, on a balance of probabilities, any of the combined chorus of siren of the 4 fire engines before the 5^th;

(4) The objective non partisan contemporaneous evidence of Madam Au Shui Ying of 4/F (known as Mrs Chan), who gave a contemporaneous FSD Statement dated 7 Nov 2011, and a Police Statement dated 10 Nov 2011, that:

(a) At around 9:58 pm on 4 Nov 2011, while at home listening to music alone, she smelled burning, and then saw from her window, smoke and fire outside. She then closed the windows, used wet towels to cover her mouth and nose. While sitting in the middle of her living room, she heard Mr Ng shouted about a fire;

(b) She opened the door, saw a lot of smoke, but did not see anyone. But she also heard a female crying, ‘I am almost dying, ...save me’;

(c) She thought that the party went up the Roof, closed the door, and went back to her living room;

(d) After 1 to 2 minutes or so, she heard the sound of the fire brigade;

The account of Madam Au, who remained in her flat unscathed with no injury whatsoever, entirely supports the Plaintiff’s own account about her fall between 4/F to 5/F, and the arrival of the fire brigade after the party had ascended to the Roof.

(5) The evidence of Dr Nicholson, the Plaintiff’s medical expert, in XX that in sauna’s temperature could go as high as 110°C. That being the case, it is more probably [sic] than not that the Ngs could not suffer burns so serious as to be fatal, and the Plaintiff could not have suffered the severe injuries that she suffered during the Delayed Ascent between 5/F to the Roof;

(6) The obstruction of the well of the staircases between 5/F to the Roof by articles and objects stuffed there by the Defendant (as clearly depicted in the photos) could not be consistent with the finding that the Plaintiff suffered slightly more serious injury on her right hand and arm rather than her left hand and arm. For that to happen, objectively, the well ought to have been clear of obstructions;

(7) The fact that the Plaintiff never herself gave any testimony that she had covered her face with both of her hand during her Delayed Ascent. It was entirely speculative on Dr Nicholson’s part. And it does not make sense for her to cover her face, and hence, deprive her use of her hands to wade through the obstructions, for she would then not be able to see and negotiate her way upwards. If she did, she would have been contributorily negligent by impairing her vision and sight. More probable than not, the lack of any injury to her face could only be objectively explained by her having the benefit of using a wet towel for her attempted Descent from 2/F to G/F through l/F (which is not disputed), something which she did not have the benefit of, during her Delayed Ascent, because on the Plaintiff's own case, she lost her wet towel in a Fall between the 4/F and 5/F.”

55.The defendant thus contended that the Judge’s conclusion on causation cannot be supported by the evidence of the plaintiff, Madam Au, and Dr Nicholson. Despite the defendant’s submissions, we take the view that the Judge had ample basis and was fully entitled to reach his conclusion in light of the following evidence:

(1)  The plaintiff’s perception of time while fleeing might not be perfectly accurate due to emergency of the time: [57] of the Judgment;

(2)  The plaintiff’s perception of her five minutes’ stay after reaching the roof was made in a calmer situation and hence could be more reliable;

(3)  Madam Au’s statements to the Fire Services Department and Police were inadmissible because she was not a factual witness at trial;

(4)  Dr Nicholson’s evidence that a person might become more susceptible to heat and burn after being exposed to heat for some time: [79] of the Judgment;

(5)  Dr Nicholson’s evidence that the plaintiff was exposed to heat for sufficient time to cause her burn injuries: Dr Nicholson’s letter dated 19 August 2019; Transcripts, p65-C;

(6)  Mr Magnus-Hannaford’s evidence that the chimney effect will lead to more serious injury on the right side (ie the side closer to the handrail) of the plaintiff: [66] of the Judgment;

(7)  The heat moved around up the staircase because of the chimney effect, thus the effect of the heat would be greater on the back of the plaintiff’s body than on the front when she went up the staircase.  That was consistent with the evidence that the plaintiff suffered relatively minor injury on her face: [65], [67] and [69] of the Judgment.

56.Other than simply repeating the contentions raised below and making assertions under this ground, Mr Chan has singularly failed to show why the Judge’s reliance on this evidence is plainly wrong or is without basis.  This ground must fail.

C4.    Conclusion under Grounds 1 - 4 and 6 - 11

57.For all the above reasons, we are satisfied that the Judge had given proper consideration and proper weight to the evidence, including the FSD Report, the expert evidence, and the plaintiff’s own evidence in reaching his factual findings on the question of causation.  The defendant failed even to start to show that there is palpable error in the court’s findings of fact.  Nor was the Judge unreasonable in his evaluation of the facts.  We therefore reject Grounds 1 - 4 and 6 - 11.

C5.    Grounds of appeal based on alleged errors of law

58.Under Grounds 5, 12 - 14, Counsel for the Defendant contended that the Judge had made errors of law on both the Causation Issue and the Statutory Interpretation Issue.

59.Ground 5 relates to the Causation Issue, and is set out at paragraph 5 of the Notice of Appeal as follows:

“The learned Judge erred in his application of the principle in CMY v Tam Siu Wing [2008] 4 HKLRD 604, that negligent defendants must take their victim as they find him.”

60.Mr Ng argues that the Judge erred in applying the principle that negligent defendants must take their victim as they find him by applying CMY v Tam, because that authority is only for the plaintiff’s physical peculiarities but not “[the defendant’s] own frolic”[8].

61.This argument is misconceived.  The principle is plainly apposite in this case in that the defendant should be held liable even if the plaintiff, when she faced the Articles’ obstruction at the 5^th floor, was more susceptible to heat as a result of her previous exposure to heat in the course of escape.

62.Grounds 12 - 13 relate to the Statutory Interpretation Issue and they will be dealt with together below.

63.At this juncture, it is necessary to set out the relevant provisions in the Regulation:

(1)  Section 2(3):

“In sections 14 and 15, means of escape (逃生途徑), in respect of premises, means such means of escape as may be required for the safety of persons having regard to the use or intended use of the premises.” (emphasis added)

(2)  Section 14(1):

“In relation to any premises, a person commits an offence if the person—

(a) sets out or leaves or causes to be set out or left; or

(b) being the owner, tenant, occupier or person in charge of the premises, permits or suffers to be set out or left,

any article or thing that obstructs or may obstruct the means of escape in respect of the premises.”

64.At [103] of the Judgment, the Judge held that “the whole of the staircase in the Building, from the street level to the roof floor, and vice versa, must be a ‘means of escape’ within the meaning of section 14 of the Regulation”.

65.Mr Chan argues that the Judge’s construction of the words “means of escape” was wrong for the following reasons:

(1)  The Judge should not “impose” the meaning of “means of escape” in the Building (Planning) Regulations (Cap 123F) (“BPR”) into the Regulation;

(2)  The Judge erred in construing “means of escape” as including a “mean of escape” into a private premises (ie, the roof) as opposed to an escape out of it; and

(3)  The Judge erred in construing “means of escape” as covering the part of the staircase from the 5^th floor to the roof floor given that the plaintiff has no right of access to that part under the DMC.

66.These grounds are devoid of merits.

67.First, the Judge did not “impose” the meaning of “means of escape” in the BPR to the Regulation.  Rather, the Judge construed the two pieces of regulations together: [99] of the Judgment.  This is an entirely correct approach to statutory construction based on the well-established principles on construing statutes in pari materia as explained by Cheung PJ (as the learned Chief Justice then was) in HKSAR v Kwan Ka Hei [2020] HKCFA 21 at [47] ‑ [49]:

“47. … As Bennion on Statutory Interpretation explained:

‘Two or more Acts may be described as in pari materia if … they otherwise deal with the same subject matter on similar lines. … Acts that are in pari materia are sometimes described as forming a single code on a particular matter in the sense that they deal with the same or a similar subject matter and are to be construed as one. They ‘are to be taken together as forming one system, and as interpreting and enforcing each other’. The principle underlying the treatment of Acts which are in pari materia is based on the idea that there is continuity of legislative approach and uniformity in the use of language.’

...

48. In a passage also cited by Bennion, Lord Mansfield said:

‘Where there are different statutes in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other.’

49. In deciding whether the legislation concerned is in pari materia, what matters is not so much the sequence of the enactment of the legislation as the content or substance of the legislation. ...” (emphasis added)

68.Having referred to the above principles, Cheung PJ, at [50] ‑ [51], held that since the subject matters of Part VII of the Crimes Ordinance (Cap 200) and the Dangerous Goods Ordinance (Cap 295) overlap in that both regulate and control the manufacture, possession, custody, or use of explosive substance, it is reasonable that the same word “explosive” means the same under both statutes.  And this is despite that the former statute is penal and the latter regulatory in nature because they may be considered as forming different parts of a complete code on the subject matter.

69.Applying the same principle on statutory construction, the Judge is correct to seek to construe the BPR and the Regulation consistently as statutes in pari materia:

(1)  Under section 41(1) of the BPR, “means of escape” is described as means that “in case of emergency may be required by the intended use of the building”.  Under rule 2(3) of the Regulation, “means of escape” is defined similarly as means that“may be required for the safety of persons having regard to the use or intended use of the premises”;

(2)  The BPR provisions (in particular sections 39 and 41 which are set out at [92] of the Judgment) regulate the design and provision of “means of escape” in buildings while the Regulation (for example, section 14 which is set out at [27] above) provides a penal regime prohibiting the obstruction of “means of escape”;

(3)  For the regulatory and penal regimes to be effective, there must be uniformity in the meaning of “means of escape” between the two regulations.

70.In the premises, construing provisions of the BPR and the Regulation together, since the whole staircase in the Building (from street level to the roof floor, and vice versa) is required to be the “means of escape” under sections 39(2) and 41(1) of the BPR, it should also fall within the meaning of “means of escape” under section 14(1) of the Regulation such that any obstruction of it may be enforced by the authority.

71.Even if the BPR is not to be construed together with the Regulation, the same answer to the Statutory Interpretation Issue could be reached.  The Judge’s interpretation is clearly borne out by both the plain wordings and the purpose of the Regulation:

(1)  “Means of escape” is given a broad definition under section 2(3) of the Regulation and not defined or excluded by reference to whether a place is common area or under someone’s exclusive possession;

(2)  The purpose of section 14 of the Regulation is clearly to ensure that effective means of escape is / are available for people inside a building to escape from it in case of emergency.  If one narrowly construes “means of escape” as covering only ways out of private premises, people in a building with a single staircase and a privately-owned roof (like the Building in this case) may be left with no effective means of escape when a fire breaks out at the lower floors and prevents exit to the street level.  This would lead to absurd results and flies in the face of the Regulation’s purpose of providing effective means of escape in case of emergency;

(3)  Furthermore, such narrow interpretation of “means of escape” would produce the further absurd result that where the roof of a building is privately owned, the question of whether the single staircase is a “means of escape” would depend on whether it is used for going up the roof or down to the street level.  This must be incorrect because liability of section 14 of the Regulation is not contingent upon any person making (or not making) use of the “means of escape”; and

(4)  Whether the plaintiff has a right of access under the DMC has no bearing to the Statutory Interpretation Issue.  As liability under section 14 does not depend upon the use of the “means of escape”, a fortiori the meaning of “means of escape” cannot depend upon whether any user has a right of access.

72.Under Ground 14, Mr Chan contends that the Judge should consider “whether or not the injury was causally linked to section 14’s strict liability for obstructing exits from private premises”.  The defendant’s formulation of the causation question is simply another way of arguing that her liability should only arise from obstruction of “means of escape” out of (rather than into) private premises.

73.In light of our conclusion above, this ground should equally fall away.  Insofar as the defendant argues that the effect of the Judge’s decision would “automatically” extend the defendant’s liability in negligence to any outsiders or uninvited trespassers who entered into private premises, the argument is invalid.  The court considers whether a duty of care is owed by a defendant to a plaintiff on the facts of each case hence it remains for future plaintiffs (whoever they are) to establish that a duty of care is owed to them by the defendant.

D.  CONCLUSION

74.For the above reasons, none of the grounds of appeal discloses any error in the Judge’s decision.  Accordingly, we dismiss the appeal by the defendant.

75.As to costs, the parties have agreed that costs should follow the event.

76.In this respect, Mr Wong invited us to impose costs on a higher basis as he submitted that the present appeal was frivolous.  Opposing this, Mr Chan simply stated that there was no abuse of process and the grounds of appeal were valid grounds.

77.We agree that costs should be made on indemnity basis due to the wholly inappropriate manner in which the appeal had been conducted in light of what we said in relation to the proper role of the court of appeal and the proper function of an appellate process.

78.As explained above, the defendant’s grounds of appeal are mostly regurgitations of the arguments that she had run and failed in the court below.  Other than doing that, the defendant has singularly failed in the Notice of Appeal or skeleton submissions to identify any errors, let alone palpable errors, of the Judgment.  This court has repeatedly said that these are improper and invalid grounds of appeal, in particular when the appeal is principally against the trial judge’s findings of fact.  See also [14] ‑ [15] above.

79.In the premises, we make an order that the costs of this appeal should be paid by the defendant to the plaintiff on an indemnity basis, to be taxed if not agreed.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr Maurice Chan, instructed by Fung, Wong, Ng & Lam LLP, for the defendant (appellant)

Mr Wong Chi-Kwong and Mr Dexter Leung, instructed by Paul CK Tang & Chiu, assigned by the Director of Legal Aid, for the plaintiff (respondent)