HKSAR v. Lap Fung Fire Engineering Company Ltd

HCMA 29/2024 [2025] HKCFI 4301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 29 OF 2024

(ON APPEAL FROM ESS 41001 TO 41003 OF 2024)

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BETWEEN

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DECISION

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1.The Applicant was originally summonsed for four offences of “being a registered contractor failing to issue a certificate to the instructing person and forward a copy to the Director of Fire Services within 14 days after completion of work of fire service installation or equipment”, contrary to r. 9(1) and 9(3)(a) of the Fire Service (Installations and Equipment) Regulations (Cap. 95B) made under the Fire Services Ordinance (Cap. 95), to which it pleaded not guilty to all summonses but was convicted of three of them after trial.

2.The Applicant appealed against the conviction, which was dismissed under my judgment dated 3 June 2025.

3.The Applicant now, pursuant to s. 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, seeks to certify two points of law of great and general importance to enable it apply for leave to appeal to the Court of Final Appeal. The proposed points of law are:-

Question (1): On a proper construction of r. 9 of Cap. 95B, is the common law defence of honest and reasonable belief under Kulemesin (2013) 16 HKCFAR 196 (amending Hin Lin Yee (2010) 13 HKCFAR 142) available to a contractor?

Question (2): On a proper construction of r. 9 of Cap. 95B, does the 14 days start to run after or regardless of the completion of a test in conformity with the Codes of Practice for Minimum Fire Service Installations and Equipment and Inspection, Testing and Maintenance Installations and Equipment (“the Code of Practice”) in light of the existence of a statutory declaration contained in an FS 251?

4.As required under s. 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484:-

“Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

5.The relevant principles for this application are usefully summarised by Zervos JA for the Court of Appeal in HKSAR v Kwan Tat Yee [1]. The grant of a certificate by the immediate appellate court is the first step in the process of applying for leave to appeal to the Court of Final Appeal on a point of law of great and general importance involved in its decision pursuant to s. 32(2) of the Court of Final Appeal Ordinance, Cap 484. The certifying court needs to be satisfied that the point of law (a) is involved in its decision; (b) is reasonably arguable; and (c) of great and general importance: Lee Kin Pong v HKSAR[2]; HKSAR v Fong Kwok Shan Christine[3].

6.It is submitted by the Applicant that Question (1) orbits which alternative the relevant statutory offence should be slotted under the Court of Final Appeal decisions of Hin Lin Yee and Kulemesin. It is also submitted that the above issue has potentially huge regulatory implications as registered fire services contractors would require guidance as to how to properly comply with the statutory and administrative measures stipulated by the authority concerned.

7.It is important to note that this common law defence of “honest and reasonable belief” was never relied upon by the defence at the trial in this case[4]. It was only raised at appeal by counsel for the Applicant[5]. I had nevertheless considered it, on the assumption that such defence was available, and came to conclude that there was insufficient evidential basis in this case to support any “honest and reasonable belief” on the part of the Applicant for the subject matter[6]. As such, the proposed point of law under Question (1) does not arise and is therefore an academic question which does not warrant a certificate for the Court of Final Appeal to consider and, in any event, not reasonably arguable.

8.Question (2) is about whether the 14-day period prescribed under r. 9 of Cap. 95B for issuing and forwarding a FS 251 certificate commences only after the completion of a test in conformity with the Code of Practice. It is submitted by the Applicant that the FS 251 mechanism is of paramount importance which relates to the safety of the general public, and that the precise timing of when a contractor is required to lodge a FS 251 certificate is pivotal to how that regulatory mechanism could work effectively to satisfactorily protect the safety of the general public.

9.The subject regulation r. 9(1) of Cap. 95B provides:

“Whenever a registered contractor installs, maintains, repairs or inspects any fire service installation or equipment in any premises, he shall within 14 days after completion of the work issue to the person on whose instructions the work was undertaken a certificate and forward a copy thereof to the Director.”

10.It clearly stipulates that a registered contractor who has installed, maintained, repaired or inspected any fire service installation or equipment must, within 14 days after completion of the work, issue the relevant certificate (i.e. FS 251) to the instructing person and forward a copy of which to the Director of Fire Services. The wordings and the language of the regulation is clear, that the 14-day period commences upon the completion of the relevant work, not upon the completion of any subsequent test.

11.As I observed in the appeal judgment[7], that FS 251 is not a statutory prescribed form under Cap. 95 or Cap. 95B but devised by the Fire Services Department for administrative purpose. That FS 251 comprises of three parts, Part 1 is for annual maintenance, Part 2 is for the details and nature of the work and, Part 3 is for reporting defects. The declaration in a FS 251 is designed to accommodate different scenarios where the fire service installation or equipment is either in efficient working order or with defects. The contractor’s obligation to issue to the instructing person (and forward a copy to the Director) a FS 251 within 14 days upon completion of the relevant work applies regardless of the outcome or result of the work, whether it is in full working order or with any defects, as the declaration caters for both scenarios and the contractor could and should accurately report.

12.As I also considered in the judgment[8], if it is as contended by the Applicant that the test under the Code of Practice should be read into r. 9 and that a contractor would only be required to issue and forward a FS 251 after completion of that test, it would lead to an absurd result. That would mean the contractor in question could decide by itself on when to carry out the test and when to issue a FS 251. As such , the Department of Fire Services would not be able to know what the contractor had done or been doing during the work process and as a result would not be able to assess the relevant risks or act accordingly. The Department therefore would not able to protect the safety of the general public through that FS 251 report mechanism. That could not possibly be the legislative intent.

13.As submitted by the Respondent, the Applicant’s proposed Question (2) on whether the 14-day period should be tied to the completion of a test under the Code of Practice misconstrues the purpose and the operation of the subject regulation r. 9. The Code of Practice only provides technical guidance for compliance with fire safety standards but does not alter or affect the statutory timeline required under r. 9.

14.Furthermore, as pointed out by the Respondent, for the incidents concerning the two summonses ESS 41002/2022 and 41003/2022, the Applicant in fact did not issue any FS 251 at all. So in those cases it matters not from when that 14-day period under r. 9 should start to run and/or whether the commencement date should depend on the completion of the test under the Code of Practice, but whether what the contractor did amounted to an installation, maintenance, repair or inspection of any fire service installation or equipment which would trigger the commencement of the 14-day period. For another incident under the remaining summons ESS 41001/2022, the Applicant’s case was that it issued the relevant FS 251 on 21 July 2022 which it claimed to be covering “part of the work” conducted on 9 June 2022 as well as “another part of the work” subsequently conducted. Again the issue is whether the particular work done on that day amounted to an installation, maintenance, repair or inspection of any fire service installation or equipment.

15.As such, the proposed point of law under Question (2) is all about factual dispute and, in any event, not reasonably arguable.

16.For the above reasons, I am not convinced that the requirement under s. 32(2) of the Court of Final Appeal Ordinance, Cap 484 has been satisfied. I decline to issue a certificate for the two proposed questions of law and this application is refused.

Mr. Cheuk Hei Ho, SPP(Ag) of the Department of Justice, for the Respondent

Mr. Simon So, instructed by Lennon & Lawyers, for the Appellant