Kwong Chiu v. Sunshine Heights Ltd.

HCPI000071/2000

HCPI 66 - 77/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTIONS NOS. 66 TO 77 OF 2000

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Coram: Hon. Seagroatt, J. in Court.

Dates of Hearing: 9 - 12 and 17 October 2001.

Date of Judgment: 20 December 2001.

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J U D G M E N T

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1.On the 25 January 1997 in the early hours, a fire was deliberately started in parts of the premises occupied by Top One Karaoke, a business run by the 3rd Defendant on the 2nd to the 4th floors of a building known as Fung Lee Commercial Building at 6 - 8A, Prat Avenue in Tsimshatsui.

2.It is an 18 storey high structure built in about 1983. It is owned by the 1st Defendant and managed by the 2nd Defendant. The two Defendant companies are in the same group and for the purposes of this action are one and the same. They have been represented by the same firm of solicitors and by the same counsel.

3.The fire was started some time around 3 a.m. by a number of persons, some if not all of whom had triad links. The means chosen was a form of "molotov" cocktail - a beer bottle filled with petrol or some other highly inflammable liquid. Probably only three such bottles were used and although there has been some discussion about the size of the bottles - possibly 330 or 640 millilitres - nothing turns upon the potential variation in the amount of liquid. The time taken to burn off such material, once ignited, cannot have varied by more than a few seconds.

4.17 persons were murdered in this arson attack and 13 others suffered principally from smoke inhalation and were treated in hospitals.

5.4 persons were prosecuted for murder or manslaughter. The 2 persons who entered the building and actually threw the "molotov" cocktails have never been caught. 3 of the 4 were convicted of murder and the other one of manslaughter.

6.High Court actions have been brought on behalf of 12 of those who lost their lives. All are entitled to succeed if negligence can be shown on the part of one or more Defendants. In relation to the 3rd Defendant liability has already been admitted and it has taken no part in these proceedings. The 1st and 2nd Defendants and the 4th Defendant deny any negligence or breach of any duty. I will need to deal with the cases advanced against these Defendants and their Defences a little later. It is important to see where the fire started and how it developed.

The Premises

7.Top One Karaoke had the main entrance to its own leased premises on Prat Avenue. There was a short internal stairway linking the ground floor to the 2nd, 3rd and 4th floors. On the 1st floor the lift lobby had been partitioned into a small Karaoke room. On the 2nd Foor there were 29 Karaoke rooms, and the cashier counter and reception area. On the 3rd floor were 31 Karaoke rooms. Finally on the 4th floor were the food and drink preparation area and two Karaoke rooms. There was also part of a flat roof onto which the internal stairway led.

8.Fire doors separated the interior of the Karaoke premises from the lift lobby and the internal stairway on each floor. The staircase landings on the 1st, 2nd and 3rd floors were used as reception waiting areas for customers for whom no Karaoke room was readily available. These areas were carpeted and fitted out with sofas, tables and television sets. The sofas were composed of polyurethane foam filling. This material was not banned in Hong Kong. It has for many years been known to smoulder readily and give off highly toxic smoke fumes when it is ignited. The framework of such sofas is almost always substantially wooden and combustible.

9.Each of the 2nd to the 4th floors had a rear exit and stairway diagonally opposite to the entrance stairway. Wooden panelling cladded the walls of the internal staircase from the ground floor to the 1st floor. On the half-landing was a wooden structure of some form. On the 1st floor lobby the ceiling had wooden fixtures beneath a false ceiling and beams. There was wooden partitioning of the small Karaoke room taking up the lift lobby area.

10.The 1st and 2nd floor half-landing had a wooden structure with wooden cladding and panelling up the stairs. The same situation existed from the 2nd and the 3rd floors, and from the 3rd to the 4th floors. There were also armchairs and stools on the 4th floor stairway landing. It is apparent that there were, at all levels, extensive combustible materials.

The seat of the fire and fire damage.

11.Mr Cheung Kwok-keung, the officer, carried out, with other officers, a careful scientific inspection of the premises. He concluded that there were three seats of fire - on the 1st floor lobby near to the sofas, on the half-landing between the 1st and 2nd floors, and at the top of the stairs opening to the 2nd floor lobby. Logically the sequence of fire-raising would have been in reverse order, working downwards as the arsonists retreated out of the premises. The 2nd floor lobby area ignited first. Melted glass fragments were found at all three sites. That fact itself gave some indication of the intensity of the heat which was generated. There is no dispute as to the reliability of these conclusions.

i) The second floor lobby and premises

12.There was widespread fire damage with most of the combustible materials in the lobby having disintegrated. Intensive damage had occurred near the downstairs region and the windows in front of and beneath which the sofas had been situated. All the sofas had disintegrated leaving only deformed metal springs.

13.Fire had consumed the upper parts of the fire doors, the lower parts remaining fixed to the door frame. They were in an open position. Fire had thus spread to the interior of the premises through the open doors.

14.There was a high level of damage to the area behind the fire doors. The false ceiling was partly consumed. The charred wooden panel supporting it had partly collapsed.

15.At the reception counter three stools behind it were charred on the top, probably from heat radiating down from the ceiling. The back rest and top of the seating of a polyurethane foam filled sofa had been consumed. The cashier office was burnt on its upper part and the interior was affected by heat and smoke.

16.Markings in the corridors linking the Karaoke rooms showed that the upper half of the corridors filled up with hot smoke. The ceiling was about two metres above the floor. If the average height of a person is about 5'7" or 8" the clearance of the ceiling would be only a little over 5 or 6 inches. The upper part of a person's body would be enveloped by the hot smoke.

17.Once the windows had been damaged by the heat and collapsed the resultant increased ventilation aggravated the severity of the fire and the smoke. With the fire doors open as well, hot smoke and fumes spread freely and quickly to the interior of the premises, unchecked.

ii) The stairway from the 2nd floor to the 3rd floor.

18.There was widespread fire damage with the wooden panels and cladding consumed. A rectangular wooden structure on the half-landing was charred but had survived in its form. There was no intense fire damage to the floor.

iii) The 3rd Floor.

19.Again there was widespread fire damage with all combustible materials having been badly burned. The sofas in the lobby area were less damaged than on the lower floor but all polyurethane foam material had been consumed leaving the wooden frame work intact. Fire spread up the stairs and also through a broken window.

iv) The stairway from the 3rd floor to the 4th floor.

20.There was mild damage. The wooden cladding on the walls had been consumed but most of the underlying panels had survived.

v) The 4th floor.

21.The fire doors were scorched with the right hand side fire door being open and scorched on both sides. An armchair and stools were burned.

vi) The 1st floor lobby.

22.This was the likely last seat of fire. It sustained very severe damage. The false ceiling, other wooden fixtures on the ceiling and beams were consumed by fire. The concrete surfaces on the ceiling had cracked and crumbled exposing the steel frame work. The single Karaoke room by the lift opening had disintegrated. The row of sofas in front of the window had been consumed to the extent that for the most part only deformed metal springs with badly burned frames remained - in the case of one sofa the frame work was almost entirely reduced to white ash. All the padding and covering had of course been consumed.

The fatalities.

23.All who died suffered from smoke inhalation as the cause of death. The principal gases resulting from the fire were carbon monoxide and hydrogen cyanide which attack the oxygen supply in the blood. An initial effect of such gases is irritation of the eyes thus affecting the ability of persons to find exits and, with increasing intensity, disorientating them.

24.They were all found on the 2nd floor. A number of Karaoke rooms must have filled up with toxic gases whilst the occupants were unaware initially. They were trapped in their rooms, quickly overcome by the fumes, or became incapacitated in the corridors as they sought an exit.

25.A plan was prepared showing the position in which all 17 persons who died were found. 6 were found in the corridor running from south to north in the direction of the exit. 2 were found in the corridor running from east to west which linked with the former corridor. One was found inside room 15 and one at the exit from that room where it gave on the east-west corridor. 2 were found behind the cashier counter and 5 in room 1. [Volume 3 page 238]

26.The location of 2 fatalities in room 15 tends to suggest that these occupants were the last to be alerted to the dangers. Conversely those in room 1 and behind the cashier section were probably overwhelmed more quickly. There were polyurethane filled sofas outside room 1 and opposite the cashier section.

27.The fire and smoke were able to develop so quickly because polyurethane foam filled the sofas in the lobby areas as well in the interior. There were synthetic materials in the decoration of the premises which acted as an accelerant. There was substantial combustible material such as wood.

The Fire Protection System - the Fire Services Investigation.

28.A number of instances was found in which the fire prevention measures as required by the approved building plan were deficient.

29.There was no indication of the existence of hose reels in the basement and 1st floor levels. A manual fire alarm bell on the 17th floor was found to be detective. All exit signs were found to be below the standard size.

30.However, the most serious deficiency lay with the sprinkler system. The gate valve within the recessed ceiling on the 2nd floor was partly closed. That in the ceiling on the 3rd floor was completely closed. As a consequence the sprinkler system installed within the premises i.e. the interior premises on those levels, failed to function to a substantial extent quite simply because water was not released through the system. 8 sprinkler heads on the 2nd floor had actuated but with poor water discharge. 37 other heads on the same floor had actuated but with no water discharge. On the 3rd floor 5 heads had actuated but without water discharge.

31.A sprinkler in the lift lobby on the 4th floor was obstructed by the partition. Though of no relevance directly to the situation created by the other factors already mentioned, this does perhaps give some indication of the regard or concern for the system and its purpose or potential.

32.The automatic starting device for the sprinkler pumps was found to be defective. However the main problem which prevented any benefit being afforded by the sprinkler system was the closure of the gate valves. There was no sprinkler system on the landing lobbies, which had been converted in effect to extended reception or waiting areas containing high fire-risk materials.

33.The situation with regard to the fire doors has already been covered earlier. Those on the 2nd floor in particular fulfilled no function other than to facilitate the spread and acceleration of fire and smoke into the premises, the complete antithesis of their proper function.

The Expert Evidence.

34.Two well-known experts in this field, Dr John Bland and Dr Peter Jowett, both from the United Kingdom, and respectively instructed by the Plaintiff and the 1st and 2nd Defendants, examined all the evidence in statement, documentary and photographic form to provide reports, covering essentially whether any fire prevention system could have avoided the horrific consequences of this arson attack. That has necessarily entailed a consideration of how the fire developed and the determinant forces, fire and/or smoke, in bringing about this tragic series of deaths. Both have given evidence before me and their reports are also in evidence.

35.Dr Bland and Dr Jowett are not significantly at variance in their conclusions. Dr Bland, dealing with the smoke generated by the fire on the stairs and lobby, says that it would have varied as it progressed. At some stage of course the fire that broke out within the 2nd floor premises generated its own smoke primarily at ceiling level. The time interval is impossible to ascertain. Intense toxic fumes from both sources would have mingled.

36.Those who escaped via the staircase on the 2nd floor particularly those who had been in room 9 had been aware of noise outside that room and black smoke percolating in through the door edges. Some had time to return to the room and make an emergency call. Conditions on the 2nd floor did not therefore become untenable immediately as a consequence of the initial fire and smoke. Any means of reducing the intensity of the fire or the smoke, or of reducing or containing its spread or course, would have afforded more time to people in the rooms on the 2nd floor who were not alerted quickly to the fire. The indications there, I would add, are that any system of alarm was hopelessly inadequate and Dr Bland gives force to this. There was no evidence of there ever having been in place a planned warning or evacuation system.

37.In making due allowance for the fact that fire prevention measures are designed and implemented to prevent accidental fires, not arson, Dr Bland asserts that if sprinklers had been installed on the stairs and landing it is likely that they would have had a very significant effect upon the growth of the fire in severely retarding the development of the fire in other combustible materials, once the flammable liquid had burned off, thus also reducing the amount of smoke.

38.An operational sprinkler system on the 2nd floor might have reduced smoke generated by the fire on the 2nd floor in the ceiling area. The level of smoke above the floor was high. Given that many who died were close to the exit onto the escape stairway, and safety, any delay of even a few seconds might well have ensured survival. It is of course impossible to determine whether those overcome had been affected only by the smoke and fumes from the stairs/landing fire or only by the smoke and fumes from the ceiling fire on the 2nd floor or by a combination of both. Dr Bland's view is that it is most likely that there would have been sufficient smoke from the fire on the stairs and landing entering the 2nd floor premises unimpeded to have caused fatalities. How many of the fatal casualties could then be attributed to smoke and fumes from that source remains an imponderable What is certain is that the open fire doors allowed that smoke to enter and had they been closed more time to escape would have been afforded. It is equally clear that the fire in the premises on the 2nd floor was intense and generated smoke and fumes of the same toxic nature. It undoubtedly added to that entering from the fire on the stairs and landing. A sprinkler system covering the stairwells would not have affected the fire and generation of smoke onto the 2nd floor but once the combustible material had been soaked in water from a sprinkler system there would have been a significant reduction in smoke. Indeed the existence of combustible materials is the rationale for a sprinkler system as an absolute minimum. However an effective sprinkler system within the 2nd floor premises could have affected the amount of smoke generated from the fire on that floor itself.

39.Turning to the report of Dr Jowett it is quickly seen how close the views of these two experts are. This was an area of high fire loading or risk. As another witness was to say "this was an accident waiting to happen." It was not in Dr Jowett's view easy to determine the proportion of smoke which would have risen up the staircase to the floors above and the proportion which would have entered through the open fire doors into the premises could not easily be determined. I venture that it is incapable of assessment. Smoke was generated from three sources; the staircase, the lobby containing the combustible materials, and the reception/cashier section within the premises with its own combustible materials. It is impossible to say how much later than the ignition of the combustible materials on the landing was the beginning of the smouldering of material in the reception/cashier area. The one may have followed very quickly. Dr Jowett makes it clear and it is common ground that any measures taken to reduce the rate at which smoke spread and to hasten evacuation could only have helped to reduce casualties. The closure of the fire doors would have delayed the spread of fire to the electrical equipment thereby delaying the electrical failures - the operation of the lights for a longer time would have assisted the exit of persons from the premises. Just as the open doors facilitated the entry of smoke from the landing so they would have afforded ventilation to the burning material within the premises.

40.Although he appears to take issue with Dr Bland on the effectiveness of sprinklers had they been installed in the common parts now filled out with combustible materials as extensions of the premises, he does concede that sprinklers on the staircase would have reduced the rate of fire-development and "in time, possibly controlled the fire."

41.He does not think that the sprinkler heads would have broken rapidly enough to prevent the spread of fire and smoke to the reception/cashier area inside the premises where the combustible material those would have fuelled the fire.

42.Dr Jowett went on to say that "it is difficult to determine with confidence whether sprinklers operating correctly on the 2nd floor would have reduced the amount of smoke at low level where it was a danger to life". However low level in the corridors being two metres in height would have meant a level below head level. What is of importance in what I have to determine is Dr Jowett's view that

"Smoke produced in reception was a greater source of danger than the smoke produced on the stairs. However I would say that it is impossible to determine with confidence whether the fatalities were caused by smoke produced in the staircase or by smoke produced within the karaoke club."

43.It is scientifically impossible to separate the extent of the smoke from one source from that from another. Smoke was generated from within the premises before the actual outbreak of fire there. Smoke had almost certainly entered the premises before that stage. The victims succumbed to the accumulation of smoke from both sources. The sources of the generated smoke were inextricably responsible for the deaths.

44.Although sprinklers in the common parts would not have had any effect upon the burning accelerant it would have had some effect upon the smouldering material and the consequent toxic fumes and smoke. A like effect would have resulted from an effective sprinkler system within the premises which would probably have operated within a minute or so of the burning of the accelerant. Any appreciable reduction would have afforded more time for the occupants of the rooms to escape.

45.The factors responsible for these deaths were: the accumulation of smoke within the premises from two sources, the open fire doors which allowed smoke from one source to enter, and which facilitated the extension of the fire, the absence of a sprinkler system on the landing and the ineffectiveness of a sprinkler system within the premises, the absence of any proper alarm system and of any form of drill. If these factors had not existed there would have been time for all to escape and there would have been no fatalities.

The 4th Defendant's FSI Contractor/Fire Project Engineer.

46.Mr Fung Yui Hong was called by this defendant to give purportedly "expert" evidence. He was most certainly not an expert in this field though I do not detract from his competence or expertise as a Fire Services Contractor. He had never investigated a major fire event as far as I can deduce from his curriculum vitae. His experience has been in the commercial field as a Class 3 FSI contractor.

47.He has never given evidence in the capacity of an expert. Again, as far as I can tell, he has never compiled an "expert" report prior to the one dated 14 September 2001 which purports to emanate from him. His evidence, such as it was, was of a simplistic and superficial nature. Some of it, specifically that in relation to the means of access to the gate valves, was given without much thought or understanding.

48.A closer examination of the circumstances and form of his instructions leading to his being advanced as an expert by the solicitors for the 4th Defendant disclosed a very troubling state of affairs. Apparently he had received only oral instructions; there had been no written confirmation from the solicitors. He prepared a draft report which he submitted to the solicitors for their approval. He prepared a final report to accord with what he said was the format desired by these solicitors. He did not keep his draft report. He had no written record of the solicitors' requests in relation to the format. He had no working notes. His final report was produced at the solicitors' office on the solicitors' word processor or such like. He kept no original copy of it. All he had was a photostat bundle provided by the solicitors. I gave the solicitors for the 4th Defendant, through Miss Doris To, their counsel, the opportunity to produce any written instructions to Mr Fung, any copy of his draft report, any note of what was discussed or agreed in respect of the change in the format of the report. Nothing was forthcoming.

49.The retaining of Mr Fung to give evidence was pointless. His evidence was worthless. He had been put into the arena ill-equipped and, in my view, any cloak which he might have worn to lend himself the air of an expert, had been denied him by the wholly unsatisfactory way in which the solicitors instructing him had contrived matters. It is to be hoped that such a situation will never be repeated.

The Case Against the 1st/2nd Defendants.

50.As owners and managers respectively of the building it is convenient to deal with them together. As I stated at the outset they are essentially one and the same for the purposes of this action in relation to liability. No evidence has been called by or on behalf of either of them to suggest there is any distinction to be drawn.

51.The management company had wide powers in respect of the common areas of the building. The 1st Defendant had leased certain well-defined premises to the 3rd Defendant. The lease expressly excluded the common areas. The 1st/2nd Defendants kept complete control of those common parts. These included the stairways, landings and lobby areas.

52.The Defendants pleaded in their Defence that the 3rd Defendant had exclusive possession of those common parts. However there is no document to support such a variation in the terms of the lease, nor was any evidence called to support the contention, nor did the witness statements, adduced by agreement, attest to such variation or extension of the terms of the lease.

53.There is no doubt however that the 1st/2nd Defendants allowed the 3rd Defendant to use the common parts referred to, as evidenced by the letter of the 8 November 1994 from the 2nd Defendant in which their right to terminate such use was clearly set out. That letter is also significant in that it sets out, albeit in somewhat general terms, that the 3rd Defendant had fitted out the areas and was using them as an extension of the premises.

54.At the most it can be argued that the 1st/2nd Defendants had granted a licence in respect of the common parts for the use indicated. A more accurate assessment may be that the 1st/2nd Defendants had acquiesced in the overspill use of the common parts by the 3rd Defendant. There is in the documentation disclosed by the 1st/2nd Defendants a comment to the effect that they should adopt a sympathetic line because of the high level of rent being paid by the 3rd Defendant for the premises.

55.It may well be a chronic problem in Hong Kong for property owners to restrain tenants from pushing out beyond the strict limits of their tenancy to turn common space into their exclusive use. But the risks are obvious; common accesses become restricted and cluttered if not terminated altogether. Fire hazards are easily created. Accesses and escapes are blocked. This is a matter of common knowledge. Appreciation of the risk is a matter of common sense.

56.In retaining possession and control of the common parts when the lease was granted, these Defendants retained responsibility for those areas in all respects under the Occupiers Liability Ordinance. In that position it owed a duty of care to all legitimate users, or invitees to the premises who had access to the common parts.

57.That duty of care was to no extent diminished or affected by the acquiescence in the use of those common parts by the 3rd Defendant. These Defendants had some clear knowledge of how those common parts were being used. They had the obligation to ensure that nothing had happened or would happen to those parts as a consequence of that extended use, which would or could constitute a hazard to any legitimate user. Their duty of care remained intact.

58.They had actual and constructive knowledge of what had been done to the common parts including the lobbies, and the materials with which they had been fitted out. They were combustible materials. Quite apart from the wooden panelling, the inflammable panelling and the fire risk from malfunctioning electrical equipment, it was well known that polyurethane foam filled furniture was not only highly combustible but gave off strong toxic fumes. It did not need an act of arson to put this into effect. A carelessly dropped or mislaid lighted cigarette would be sufficient. That was and is a well known, common enough risk and event.

59.And yet these Defendants did nothing to meet that risk. There were two simple choices. One was to require the removal of all material which could possibly constitute a fire hazard - viz. the restoration of the common parts and lobbies to their original state. The other was to require the installation of a sprinkler system on the ceilings with regular checks as to its efficient function, the positioning of fire extinguishers of an adequate size and number, an alarm system that was easy to operate and the posting of notices setting out what should be done in the event of fire. A rigid enforcement of the fire-doors being kept closed was essential. Furthermore a fire drill regularly practised, was essential. None of these matters required subtle foresight, merely the application of common sense. Yet not one single measure was implemented. That neglect contributed directly to these 17 fatalities.

60.There was a very high fire risk in these common parts. That is common ground in the expert evidence. If it was recognised by the 1st/2nd Defendants they did nothing to demonstrate their recognition of this. In my view it was utter folly for the Defendants to have allowed these common parts and lobbies to have been so used in the first place. Their action negated any real control over matters unless they were present, on the spot on a daily basis. Since their inaction indicated a total indifference to the proper purpose of such common parts and to the risks thereby presented to every user they had abdicated their duty of care. One cannot help concluding that venal considerations of income overcame all sense of responsibility. They were prepared to let the 3rd Defendant continue, relatively unimpeded, because it was paying a "good rent". It is not difficult to see that greed has directly led to neglect of such responsibility, a not unknown state of affairs in Hong Kong with property owners.

61.During the course of the hearing I raised the matter of Garley Fire disaster as an event which received a good deal of publicity, naturally enough, and gave rise to certain factors for consideration long before the official inquiry took place.

62.That tragedy occurred on 20 November 1996 over two months before the one at the Top-Karaoke premises which we have been considering. An article in the South China Morning Post on Saturday 14 December 1996 contained the following:

"When doors intended to prevent smoke spreading are wedged open, when others earmarked as emergency exits are locked, when occupants do not leave by emergency exits immediately an alarm is sounded, and when people ignore safety regulations - no law can protect them."

"The report (an early official one) ... is also on firm ground in calling for old commercial buildings to upgrade these fire safety standards."

What was or may have been adequate, or simply minimal legal requirements at the time when the building received approval in respect of Fire Service requirements were not up to the mark by the time this fire occurred at the Top Karaoke premises. The very fact that there was no sprinkler system covering the fitted out common parts is eloquent testimony to this.

"Regular inspections should be made of Hong Kong's commercial buildings to ensure that regulations are constantly observed."

63.This applied to those who owned and managed such buildings as it did to the authorities tasked with the enforcement of such regulations. It needed only common sense to realise that, with such an event as the Garley Fire, the 1st/2nd Defendants as owners and managers of the Fung Lee Commercial Building ought to have carried out an immediate inspection of the fire provisions in it, particularly in the common parts which they knew had been fitted out with combustible material. Polyurethane foam filled upholstery had been for years a known fire hazard. It did not need newspapers, in the English or Chinese language, to highlight the potential for disaster.

64.Again either indifference or complacency led to the 1st/2nd Defendants' indolence following the Garley Fire tragedy. This serves to underline the breaches of duty of care to all whose had legitimate access to the building.

65.It is not necessary for me to consider the various Codes of Practice and Regulations in force at different times. The foreseeable risks do not need repeating. The duty of care was not limited to the provision of fire safety measures in the common areas. As managers the 2nd Defendants had a duty to ensure that all proper fire protection facilities were in situ and functioning correctly. That extended to the facilities within the premises. The sprinkler system had been installed before Top One Karaoke became tenant of the premises. They commissioned extra work the nature of which I will examine shortly when I deal with the case against the 4th Defendant. The 1st/2nd Defendants (and the latter in particular) abandoned its duty in regard to that system. Their duty of care extended to ensure an effective system on the premises "in toto.". The attitude which led to a complete breach of duty as far as the fitted out common parts were concerned meant that the system within the premises was not likely to occupy their attention even in passing. Since they had taken no steps to protect the common parts it was in any event incumbent upon them to ensure that fire protection measures existed in the premises proper.

66.These Defendants have been concerned to an unrealistic and unwarranted degree with the Regulations and Codes of Practice at various times in force. It does not require a Code of Practice or Regulations to highlight that common areas such as staircases and landings turned into fitted out reception areas with inflammable materials require fire prevention/control measures. Common sense alone, never mind considerations of the Occupiers Liability Ordinance, demand them. They were clearly in breach of Regulation 8(a) and (b) of the Fire Service (Installations and Equipment) Regulations (Cap. 95). As indicated above it is not necessary for me to extend this judgment by a trawl through the various MFSIE Codes. There has been a wholly irrelevant preoccupation on the part of the Defendants with the various codes in existence from time to time. It is clear in any event that if the common areas were to be fitted out, a fire protection system, including sprinklers, was required.

67.It was suggested on behalf of these Defendants that there had been inspections with implicit approval by the Fire Authorities. There was no substance for this. There were none.

The case against the 4th Defendant.

68.In 1994/1995 the 4th Defendant carried out fire protection work at the premises. This consisted of an extensive replacement of the existing system as is obvious from the invoice for the work carried out. [Volume 3 page 1]. The 4th Defendant sought to suggest that this was simply a limited exercise involving the change of a few sprinkler heads, and the addition of a few, which did not amount to a change of layout. He said that if you change the position of fixed equipment it was merely a change of function. I reject his evidence without reservation. On the bases of the invoice, the work carried out was fundamental and a substantial overhaul of the system. His evidence and argument arising from it is simply not credible. Any consideration of the invoice which covered work carried out over a period of nine months will show without difficulty the extensive nature of the contract. It entailed a comprehensive review of the existing system.

69.Whilst this work was carried out in 1994/95 the gate-valves, he said, had been shut off, but were open (as they should be) at the completion of work in May 1995.

70.In May 1996 when the FS inspection was carried out he said he saw the gate-valves for the last time. He had asked his employee Mr Chan Yu Wah to carry out the annual inspection. It included the sprinkler system on the 2nd, 3rd and 4th floors which he said were inspected. According to Mr Chung Cheung Yau he said he checked Mr Chan Yu Wah's work and inspected the sprinkler heads on those floors and the gate-valves. I regret to say that he was not telling the truth. He did no such thing. Although he said that it was not for him to check everything that he has entrusted his employee to carry out, he did as a matter of course check the main items.

71.It was Mr Chung Cheung Yau's evidence in relation to the gate-valve on the 2nd floor, in particular which demonstrated that his evidence was not acceptable. He said that on the inspection in May 1996 he was able to obtain access to the gate-valves via an access panel which he said was shown in a photograph. There was no such access panel. When, after the fire, access to the gate-valves was finally achieved, it was necessary to remove the fixed suspended ceiling at various locations on the 2nd floor to locate the sprinkler pipes themselves in the first instance, and then a gate valve was found in the distribution pipe above the fixed suspended ceiling of Room 8.

72.When the sprinkler heads on the 3rd floor were checked a gate-valve was located above Room 67 after, again, the fixed suspended ceiling had been forcibly removed. This too was on a distribution pipe. That was the one which was completely closed.

73.At the disciplinary hearing against the 4th Defendant unchallenged evidence was given by Mr Wong Pak Wing that there were no access panels to the gate-valves on the 2nd and 3rd floors. He made it clear that they would do their best to find access panels. This obviously makes sense, the alternative being progressive forcible removal of the fixed ceiling which is what in fact had to be done. They had tried to locate the gate-valves from other access points but to no avail. The gate-valve on the 4th floor however did have an access panel. That of course was the one that was open.

74.An employee of the 4th Defendant, Mr Chan Yiu-wah made a statement to the Police on the 25 January 1997 (i.e. the day of the fire) in the evening. The Fire and/or the Police Services were concerned about the fire protection system. He was clearly asked to recall what he did when he carried out the maintenance on the 27 May 1996. His understanding was that his employer was responsible only for the installation of fire-extinguishers at Top-One Karaoke and maintenance of the sprinkler nozzles. He said that another company was responsible for the sprinkler system.

75.At about the same time as he was giving a statement to one Police Officer, his employer, the 4th Defendant was giving a statement to another Police Officer. He had been called out to the scene of the fire at about 11 a.m. His attention was particularly focused on the 2nd floor gate valve which was partly closed. He said it was rather strange. It was covered by a false ceiling. He said that the fire prevention systems for all branches of Top-One Karaoke were handled by his business. The "fire facility and sprinkler system" should be inspected once each year. He referred to his employee, Chan Yiu Wah, carrying out an inspection on the facility and system once each year. When Chan Yiu Wah inspected in May 1996 he did not according to the 4th Defendant touch the valve. He made no mention then, as he did at this trial to his having checked on Mr Chan work, including the valves and finding the valves open. He went on to conclude the statement by saying that "according to the record of my company, the valves of the fire system on those three floors ... had never been shut."

76.Five months later he made another statement, very short but very conclusive:

"Chan Yiu Wah ... is responsible for installation of fire extinguishers and maintaining sprinkler systems, fire hoses and fire alarm systems ... Apart from this my company is also responsible for providing all fire prevention service for all branches ... They include the installation and maintaining services of sprinkler system." [my underlining]

This is an unequivocal statement though again there is no mention of his having on the occasion of the May 1996 maintenance, checked on Mr Chan's work to the extent of checking and ensuring the gate valves were properly open.

77.I did not believe the 4th Defendant. I suspect the gate valves were left in the state in which they were found on the day of the fire from the time of the 4th Defendant's extensive installation work in late 1994 through to May 1995. It is highly likely that these two gate valves were turned off at the time of the work in 1994/95, as the 4th Defendant said but not turned back on at the completion of the contract in May 1995. The certification of 22 May 1995 is in respect of the "efficient working order in accordance with the Code of Practice etc." of "the above installations/equipment". The comment of "efficient working order" must mean that water could flow through the sprinklers in the event of their activation. For some reason unknown there was no access panel to the gate valves on the 2nd and 3rd floors. But at the inspection and maintenance in May 1996 this should have been apparent. Nothing was done. The 4th Defendant was not telling the truth when he said he checked and all was in order on that occasion. If that had been the situation it would have appeared in one or other or both of his two statements to the Police. The position seems further complicated by reason of Mr Chan's understanding that another company was responsible for the "sprinkler system". He may have got this impression from the limited nature of the work he was required to carry out by his employer.

78.I have no doubt that the maintenance of the sprinkler system was within the contractual remit of the 4th Defendant. The operation of such system was dependent upon the gate valves being open. The 4th Defendant knew this and that is why he gave untruthful evidence. He had to account for the gate valve on the 2nd floor being partly closed and that on the 3rd floor being wholly closed. He therefore put forward his elaborate story of his double-check on Mr Chan's work in May 1996. He well knew that the state of the gate-valves was part of his responsibility and by his false story sought to suggest by inference that between the inspection, such as it was, in May 1996 and the tragedy of January 1997, someone must have altered the set of the gate-valves on the 2nd and 3rd floors and replaced access panels by extended fixed false ceiling. There is no evidence to support the inference he invites. It is also counter to common sense.

79.His neglect led directly to the failure of the sprinkler system to exert any influence upon the fire and smoke. It may have been a matter of cutting corners (and cutting cost) but it contributed in no small measure to the deaths of 17 people.

80.As far as the other aspects of fire protection and safety are concerned I am satisfied that by virtue of his contractual position he was required to advise as to this and did in some respects. However I am far from satisfied that the 3rd Defendants, whose concern for the safety of its customers, was non-existent, would ever have acted on any advice he gave, particularly if it meant a degree of expenditure on its part. I make this judgment in the light of the unarguable neglect of the 3rd Defendant in respect of even the simplest measures - e.g. alarms, notices, fire drill. Furthermore, it was so obvious to both the 1st/2nd and 3rd Defendants that a sprinkler system was necessary for the fitted out common areas, that advice to that effect would have been ignored in my judgment.

81.To the extent that any advice of the 4th Defendant should have been given to the 1st/2nd Defendants, I am quite satisfied from the evidence of their total indifference that it would have fallen on barren ground. Their implicit attitude, if it was ever formulated directly, would have been that the obligation or "problem" was for the 3rd Defendant to deal with.

Summary.

82.The Plaintiffs do not seek judgment in respect of the claims by the Plaintiffs in actions Nos. 66 and 70 of 2000 as they will be content with the judgments in those actions against the 3rd Defendants, whose insurers have undertaken to meet such judgments in full.

83.There will therefore be judgment for the remaining Plaintiffs against the 1st and 2nd Defendants, and against the 4th Defendants for damages to be assessed and costs.

84.Neither the 1st and 2nd Defendants, nor the 4th Defendants have asked for an assessment of their relative contributions. Because the 3rd Defendants have taken no part in this action, for obvious and understandable reasons, I am not required to assess their liability as between the Defendants and do not do so. However if this is an oversight, to avoid any expensive pursuit by the remaining Defendants of a judgment as to contributions amongst themselves I have concluded that the 1st/2nd Defendants bear the greater liability vis-à-vis the 4th Defendant. The proportion between these Defendants should be 60%/40% with the 1st/2nd Defendants bearing the greater proportion. There was a high burden upon them and, as indicated earlier, they did nothing. As owner and managers of the property it is only right that they should bear the greater liability, having turned a blind eye to the situation from the outset.

85.These Defendants have contested this action in the face of overwhelming evidence, and the application of common sense, at vast expense. They are wholly entitled to but they called no evidence other than in relation to causation. Their arguments in other respects proceeded on a somewhat cynical basis. It says nothing for their recognition of their obligations at large and the public will not feel any sense of confidence, as a result. Their neglect and indifference contributed significantly to the deaths of these 17 young people.

High-Fire Risk.

86.Polyurethane foam filling for furniture had been known to be a potential lethal element for more than a decade before this fire.

87.A paper entitled "Polyurethane foam and its bearing on escape times" was published in the Fire Engineers Journal in December 1984, twelve years before the fire at the Top-One Karaoke. It drew on what was described as a substantial fund of literature including the "Home Office (1978) Report of the Technical Sub-Committee on the fire risks of new materials".

88.The latter report commented:

"Clear evidence was obtained that a lighted match dropped at the back of a seat cushion could rapidly lead to a rapid growth of fire with intense burning of the upholstery and the production of dense smoke."

And in a later paragraph:

"Foamed rubber has been shown to be capable of sustaining smouldering combustion at such low ambient temperatures as to deceive people into thinking no fire exists; when moved or shaken however, or subjected to a sudden draught, a zone of unburnt flammable gas and smoke ignited almost explosively."

89.In a reconstruction of the 1979 Woolworths' fire in the United Kingdom using settees with polypropylene fabric cover and polyurethane filling it was found that:

"the two seater settees and the bed-settee were both ignited with a match. The two-seater settee burned rapidly and in less than half-a-minute the temperature in the room had increased to 800°C. The bed-settee also burned rapidly and gave a maximum temperature of 1025°C with a rise in temperature of 800°C within about one minute. In both cases the flames at the height of the burning were approximately 12.6 metres long."

The report relating to this was published by the Home Office in May 1980.

90.The conclusions expressed in this useful study are of considerable significance. Thinking in 1984 in regard to fire safety in Britain revolved around the need to provide adequate protected means of escape and assumed that people will use them. Considerable doubt however was thrown on that assumption and recent studies then illustrated the need to encourage people to use the means of escape available.

91.Escape from fire when it involves polyurethane foam must be at the earliest opportunity. Between 1951 and 1980 the chances of death due to the inhalation of smoke and toxic fumes had increased by a factor of 3.

92.In Hong Kong a large number of people live, work and play in high rise buildings. Some of these are old and badly maintained. Fire Regulations and enforcement by the authorities, the issue of licences and inspections of buildings are only means of attaining a degree of protection for the public. Circumstances in a building can change rapidly in terms of occupancy and fitting out. The risks of fire and the means of fire prevention have been well known for decades.

93.Owners and managers of buildings have a clear duty of care to the users and occupants of such buildings. That includes the existence of proper maintenance and inspection to ensure safety and an administrative section to deal with fire risk and prevention. It cannot always be contracted out to Fire Service Inspection companies. Matters can change on a daily basis. They cannot fall back on a bland assertion that once or twice a year there has been granted a certificate as a result of an inspection. In this 18-storey building polyurethane foam filled furniture had been installed in or about 1994/5. That in the light of all knowledge was an act of extreme stupidity. Were the consequences not so tragic the existence of a sprinkler system which did not work because the gate-valves were not open would have been laughable. In the light of knowledge that has been current for some time, any failure to meet these simple and easily achieved requirements must be negligence, whether at common law or under the Occupiers Liability Ordinance.

Representation:

Mr John Bleach SC and Mr Raymond Leung, instructed by Messrs. Wilkinson & Grist, for the Plaintiffs.

Mr Ronald Tang, instructed by Messrs Hastings & Co., for the 1st and 2nd Defendants.

Miss Doris To, instructed by Messrs Hermes W.K. Lui & Co., for the 4th Defendant.

Mr Mohan Bharwaney, instructed by Messrs Hoosenally & Neo, for the 3rd Defendant appeared on the first day when the 3rd Defendant submitted to judgment in respect of Actions Nos 66 and 70 of 2000.