Minutes of Meeting of the Bills Committee to study
the Buildings (Amendment) (No. 3) Bill 1995

The Construction Site Workers General Union failed to turn up for the meeting.

Action

I. Meeting with the Hong Kong Institute of Architects (HKIA)

2. The second submission of the HKIA was tabled at the meeting.

3. The representatives of the HKIA went through their submission. In response to Members’ questions, they supplemented the following points :

1. The HKIA considered that site safety could only be improved on site but not on the desks of architects nor administrators. To put emphasis on legislation rather than site safety was tantamount to placing the cart before the horse. The HKIA was of the view that apart from the proposals put forth in its earlier submission, site safety could be enhanced by increasing safety officers on site and stepping up monitor by the site supervisory team of the Buildings Authority (BA).
2. Referring to the Deputy Secretary for Planning, Environment and Lands’ answer to Mr Edward HO’s question (para 2 in page 2 of the HKIA’s submission), the HKIA agreed with Mr Edward HO’s view that the term "professionally competent persons" did not mean AP/RSE solely. It included works supervisors in different levels. The Chinese translation of the term should be " ", not " ". The phrase "would have saved some lives" should be translated as " ".
3. There was no criminal intent on the part of AP/RSE for the occurrence of an accident. It was therefore unreasonable to hold them criminally liable for it. The proposal to criminalise for non-compliance with the approved supervision plan even though no accident happened was unique to Hong Kong. No similar practice was found internationally.
4. In requiring the submission of a supervision plan by AP/RSE, the Bill, in effect, expected AP/RSE to take over the role of the registered contractor (RC). It was unfair to the RC who would have to concur with the views of AP/RSE on works supervision and stick to the supervision plan prepared by AP/RSE. Should the RC disagree with the plan, he would have to submit a revised plan to the BA for approval, which was time wasting. There was no such a requirement for the submission of a supervision plan in the building industry elsewhere in the world.
5. The requirement for an approved supervision plan before the commencement of building works reflected the lack of confidence in the profession. Under the existing provisions, AP/RSE was required to ensure the works be carried out in general accordance with the approved building plan. Clause 12 of the Bill required AP/RSE to ensure that the approved plans would be followed. This would then leave no room for AP/RSE to exercise professional judgement in the light of site circumstances. AP/RSE would hesitate to allow any deviation, however slight, from the approved building plan which was deemed necessary before submitting a revised plan to the BA for approval. This would not be in line with the present practice and would seriously affect the progress of works.
6. Given that a supervision plan would govern the procedures to be followed by the parties involved in a building project, the foremost person to be answerable for the occurrence of an accident would be the person who submitted the supervision plan, i.e. AP/RSE. In each and every accident, AP/RSE would have to prove his innocence in court by showing that the party who failed to supervise was not himself but other designated persons provided in the supervision plan.
7. In private practice, professionals, apart from being held liable under the common law for negligence, would have to compensate for any loss incurred due to delayed completion of a project under a commercial obligation. Both of these liabilities did not apply to public officers. Since the Bill did not apply to Government building works, public officers would not be subject to criminal sanction for failure to supervise works. There was obvious differential treatment between private practitioners and public officers in the same field.

4. The response of the Administration is set out below.

1. Whether or not the Bill was enacted, the Administration had no intention of disallowing the current practice under which AP/RSE normally submitted a revised plan listing out minor amendments to the approved plans after the works had been completed. The Bill required the submission of a supervision plan. It should be distinguished from building plans for the overall project. As advised in earlier meetings, the Bill was never intended for AP/RSE to take over the responsibilities of contractors. Neither did it require AP/RSE to be responsible for every aspect of site supervision. A supervision plan, to be produced by consultation among AP/RSE and registered contractors, aimed to clearly set out the responsibilities of different parties in site supervision. There should not be any worry that an approved supervision plan would restrict the exercise of professional judgement.
2. The proposal on criminal sanction was in line with the international trend. The Council of European Communities had issued in June 1992 a Directive concerning liability for supervision on site. The United Kingdom enacted the Construction (Design and Management) Regulations in 1995 which imposed criminal sanction on building professionals, contractors and other persons involved in construction for negligence of duties in respect of safety and health measures. As provided in a paper submitted earlier to the Bills Committee (Ref: LP No. HB 119/95-96), failure to supervise attracted criminal penalty in Singapore. The Administration was gathering further nformation on the Directive and the UK legislation and would later forward the information to Members for reference.

Adm

3. The Buildings Ordinance did not apply to public works. However, the Architectural Services Department would normally liaise with the BA to ensure the standards for public works were comparable with those for private works. In project management, Government was often in the lead on safety requirements. The Administration would clarify the liability of public officers in the performance of duties and the dual mechanism for supervision of construction works.

Adm

4. The Administration’s approach to site safety was not academic. The Administration was well aware of the dynamic conditions on construction sites. The proposals of the HKIA to improve site safety were already implemented or would soon be implemented. A consultant was about to be commissioned to compile a code of practice for demolition. The Occupational Health and Safety Council had issued guidelines on safe demolition works. The Government had provided training and education programmes for site workers with a view to enhancing safety awareness and precautions. Clause 13 of the Bill, indeed, was intended to strengthen site supervision and to enhance the quality of site personnel.

II. Meeting with Association for the Rights of Industrial Accident Victims

5. The Association’s submission was tabled at the meeting. Mr CHAN Kam-hong highlighted the following two points :

1. The Association was of the view that only natural persons should be allowed to be registered as contractors to ensure that prosecution could be instituted against them for breach of the Buildings Ordinance. To permit a partnership or corporation to be a registered contractor would reduce the deterrent effects of the proposals in the Bill.
2. The proposal on criminal sanction on AP/RSE for failure to supervise works was reasonable. It would enhance their professional ethics which would in turn improve site safety. Since the proposal was targeted at irresponsible professionals, responsible AP/RSE should have nothing to worry about. The Association called for early enactment of the Bill.

6. In response to Mr Albert CHAN’s question, Mr CHAN Kam-hong replied that the Association did not support a legislative approach in dealing with the issue of safety management of workers on site. Since workers were under AP/RSE or contractors, they should not be prosecuted for any action done on the latter’s instruction. The Association considered it more appropriate to enhance safety management on site by administrative means taken by employers.

7. Members pointed out that under the proposal on criminal sanction, if construction workers did not carry out their supervisory duties in accordance with an approved supervision plan, they would be held liable as well. Mr CHAN Kam-hong said that the Association would further examine the proposals in the Bill and submit its views.

The Association

8. Responding to the Association’s point about registration of contractors, Mr CHENG Wei-dart clarified that the Administration had considered the issue. The No. 3 Bill provided that if a corporation applied for registration as a contractor, each of its directors had to meet the criteria eligible for registration as such. The director appointed by the corporation to act for a particular site would be personally liable for contraventions occurring at that site.

III. Meeting with Department of Architecture, University of Hong Kong

9. The submission of the Department was at LP No. HB 307/95-96.

10. The points raised by Professor Eric LYE and his response to Members’ questions are summarised below.

1. The Department was concerned about the effects of proposed criminal sanction on architecture education and on young people. The proposal would come as a damper to students who wished to pursue a study on architecture. It would be detrimental to the profession and would have far-reaching effects on the young people.
2. Unlike their ancient counterparts, architects were no longer master builders responsible for both design and construction of buildings. The students only studied the principles of construction and did not go into the details. Building was neither the basis nor the precise concern of architecture education.
3. Safety assurance was a shared responsibility. For the Government, to make laws in this regard might be the easy way out. In proceeding with its proposals regarding criminal sanction and supervision plan, the Administration had not consulted any of the Universities. The requirement to submit a supervision plan would demolish the concept of profession and indicated that the Administration had no trust in the profession. The necessity of a supervision plan would limit flexibility and cause unreasonable delay on construction works.

11. In response, Mrs Helen YU said that the Bill was not about architects or only architecture. The Bill was about AP including architects who wished to take on responsibilities under the Buildings Ordinance. Among these responsibilities, one was to provide periodical supervision in a prescribed manner under section 4(3)(a) of the Ordinance. This was a long-standing responsibility enshrined in the law since 1955. Whilst architects might see themselves as building designers, APs were required by the law to coordinate building works including design and other aspects of construction works. Mrs Helen YU shared the Professor LYE’s view that safety assurance was a shared responsibility. The Government was not shirking its responsibilities. The Government was not just providing a legislative framework but also providing other services and carrying out other duties like monitoring sites for safety aspects, educating and training, and subsidising training and education for workers. The Government was also heavily subsidising the education of architects, engineers and other building professionals. Lighter offences in the Buildings Ordinance already attracted criminal liability but failure to provide proper supervision, a far more serious breach, was not subject to criminal sanction. A supervision plan would define and demarcate who should be doing what, when and how.

12. Mr Edward HO said that rather than enhancing site safety, a supervision plan might prejudice it as it would restrict professional judgement. Mrs Selina CHOW agreed that a supervision plan would tie the hands of the professionals and would work against professional flexibility and judgement. Mrs CHOW was of the view that a supervision plan was a bureaucratic way to solve the problem of site safety.

13. Mrs Helen YU reiterated that a supervision plan was not a bureaucratic answer to a practical problem. The earlier version (No. 2 Bill) proposed that the professionals should provide adequate and proper supervision. The concept of "supervision plan" was directly a response to the request from the professions for clarification as to what should be done. The Administration respected professional judgement and therefore took on the professions’ suggestions.

IV. Date of next meeting

14. Members agreed that the next meeting would be held on 16 January 1996 (Tue) at 8:30 a.m. to receive the Hong Kong Association for the Advancement of Real Estate and Construction Technology Limited and the Real Estate Developers Association of Hong Kong . The Construction Site Workers General Union would be re-invited to meet the Bills Committee.

Clerk

15. The meeting ended at 12:35 p.m.

LegCo Secretariat
10 January 1996