Regarding the possibility of users being prosecuted for knowingly using prohibited electrical products under the existing provisions, with the onus placed on the users to prove his innocence in the absence of contrary evidence, the CC considered that the provisions were too onerous for consumers and were not in line with the spirit of the Bill to safeguard consumer interests. The CC thus had recommended to put the burden of proof on the prosecution. As for the Administrations response that it was necessary to put the burden of proof on the defendant for the strict liability offence as human lives were involved and there were similar provisions in the Factories and Industrial Undertaking Ordinance, the CC believed that consumers should be treated differently from the industrial sector. While it might be justifiable to put the burden of proof on the industrial sector for a strict liability offence, it was unnecessary and unreasonable to treat consumers in the same way, as consumers would certainly choose not to use an unsafe electrical product if they knew the use of the product was prohibited for safety reasons.
|3. Regarding (b) above, the Chairman said that this concern involved a policy issue: the level of responsibility of a consumer in using an electrical product which did not meet the prescribed safety requirements. The Administration would be asked to clarify the circumstances under which the burden of proof was on a consumer to prove his innocence in using a prohibited electrical product.||Admin|
(Post meeting note: The Administration has given an explanation for the provisions vide its letter of 14 October 1996 which has been circulated to members vide LegCo Paper No. CB(1) 128/96-97 dated 15 October 1996.)
III Meeting with the Hong Kong & Kowloon Electric Trade Association
(LegCo Paper No. CB(1) 2054/95-96)
4. At the invitation of the Chairman, Mr Peter WONG said that the Hong Kong & Kowloon Electric Trade Association (ETA) was in support of the spirit of the Bill and the proposed Electrical Products (Safety) Regulation (the Regulation), but had reservations about the following aspects:
- The repeal of subsection 24(1) would prohibit local supply of electrical products intended for use outside Hong Kong. Those products would be considered hazardous under the Regulation simply by virtue of the incompatibility of their configurations with the wiring practice in Hong Kong. This legislative amendment would have serious adverse impact on the businesses targetted on overseas visitors.
- With the enactment of the Bill and the Regulation, it would be a criminal offence to supply electrical products not fully in compliance with the prescribed safety requirements or to use those electrical products the use of which was prohibited. According to the Bill, the burden of proof for innocence was on the supplier or the user in a prosecution. ETA considered that these summary offence provisions were unreasonably harsh for both suppliers and users.
- Under the Bill and the Regulation, all suppliers which included manufacturers, importing agents, wholesalers and retailers had to make sure that the electrical products they supplied were in compliance with the prescribed safety requirements. However, many of the above parties did not have adequate technical knowledge to ascertain if an electrical product was in compliance with the prescribed safety requirements. ETA was disappointed that the Administration had declined to establish a central facility which suppliers and users could resort to for verification and authentication of information contained in safety certificates.
- Because of jurisdictional constraints, the legislation could only be effectively enforced on local suppliers but not overseas suppliers. This was unfair to local suppliers as the supply of an electrical product usually involved overseas manufacturers and exporting agents.
- The proposed addition of subsection 59(6) would empower the Secretary for Economic Services to amend certain provisions contained in Schedules to regulations made under the Ordinance. ETA was concerned that such provision might be subject to abuse and misuse.
5. Regarding ETAs concern set out in (e) above, Assistant Legal Adviser (ALA) advised that the wordings "may by order in the Gazette" in subsection 59(6) implied that under this provision amendments to the legislation were to be subsidiary legislation of the Ordinance. Under Cap. 1 of the Laws of Hong Kong, subsidiary legislation enacted by such negative procedures would be subject to LegCo Members scrutiny and Members were entitled to raise objection to it within 28 days after the subsidiary legislation was gazetted. She also advised that this kind of empowerment provisions was common in other ordinances.
IV Meeting with the Hong Kong & Kowloon Electrical Appliances Merchants Association Ltd
(LegCo Paper No. CB(1) 2054/95-96)
6. At the invitation of the Chairman, Mr WONG Shi-kam presented the following concerns of the Hong Kong & Kowloon Electrical Appliances Merchants Association Ltd (EAMA):
- The definitions of "recognised manufacturer" and "recognized certification body" were not clearly specified in the Bill. The Administration should provide a list of recognised manufacturers and certification bodies for reference by suppliers and consumers and establish a mechanism where changes to the list could be effectively disseminated to suppliers and consumers.
- A reasonable period should be allowed for suppliers to exercise due diligence in the case of a need to recall products which were found to have safety problems after release to the market. EAMA had taken note of the Administrations response that DEMSs powers in this regard and the general recall procedures were set out section 11 of the Regulation. Yet, EAMA would like to reiterate the concern that in exercising his powers, DEMS should give due consideration to the circumstances and allow a reasonable period for the recall process.
- While retailers would be obliged to present the certificate of compliance in respect of an electrical product supplied on demand by consumers, it would be difficult for retailers to assure consumers that the product met the prescribed safety requirements as the Regulation did not provide a means for clear and easy reference by consumers in respect of a products safety. In this respect, the enforcement of the safety requirements for indoor wireless telephones set a good example, where all the telephones certified by the Electrical & Mechanical Service Department (EMSD) to have met the safety requirements were clearly labelled with a code inscribed by EMSD.
(Post-meeting note: In respect of certification of indoor wireless telephones, the Administration has given a comment that the reference should in fact be to the Office of the Telecommunications Authority (OFTA), which carries out type tests on samples of indoor cordless telephones supplied by manufacturers. If the telephone meets OFTAs requirements (which essentially concerns with avoidance of radio interference), a certificate to that effect is issued by OFTA.)
7. In reply to the Chairman, Mr WONG said that EAMA also anticipated that with the repeal of the exemption provision for electrical products intended for use outside Hong Kong, local suppliers would be adversely affected to some extent. The Chairman invited EAMA to forward its further submission in this regard, if any, to the Bills Committee.
V Meeting with Clipsal Asia Limited
(LegCo Paper No. CB(1) 2054/95-96)
8. At the invitation of the Chairman, Mr Parklin HO and Mr Patrick WONG presented the views of Clipsal Asia Limited (Clipsal) on the Bill and the Regulation as follows:
- From a suppliers point of view, it was more economical and practical to have a universal standard of configurations for all electrical products for use in Hong Kong. It was also preferable for Hong Kong to continue to follow the standard applied in UK as the UK standard had all along been the main reference for the configurations of the electrical products for use in Hong Kong.
- The repeal of the exemption provision for electrical products sold in Hong Kong but intended for use outside Hong Kong would have adverse impact on both suppliers and consumers. It appeared that under the Bill, suppliers would be prohibited from selling electrical products to other suppliers, not to say consumers, of overseas markets because in most cases products manufactured to meet the configurations of overseas countries would not meet the prescribed configurations under the Regulation. Overseas visitors and intended emigrants would not be able to buy electrical products in Hong Kong for use in most other countries.
- Clipsal suggested that instead of repealing the exemption provision, the Administration should employ other measures such as compulsory labelling with prescribed wordings and format on the products which were intended for use outside Hong Kong.
- Clipsal recommended that the Regulation should also govern the safety standard of metal and PVC conduits. Although these were not current carrying products, they were insulation harnesses contributing to the total safety of the household electrical network. The Administration had advised that metal and PVC conduits fell under the ambit of the Electricity (Wiring) Regulation. However, the company was of the view that the target readers of the Electricity (Wiring) Regulation were people knowledgeable in electrical installations but not general users of electrical products, who should be among the target readers of the Electrical Products (Safety) Regulation. Metal and PVC conduits were widely available in retail outlets just like plugs and adaptors and it was common for general users with little electrical installation knowledge to buy metal and PVC conduits for simple alterations to electrical products. While the safety requirements for plugs and adaptors were covered in both the Electricity (Wiring) Regulation and the Electrical Products (Safety) Regulation, metal and PVC conduits should be treated similarly.
- The proposed Regulation did not spell out clearly what national and international safety standards were compatible with the prescribed safety requirements. The worldwide trend was to use the standard published by the International Electrotechnical Commission (IEC) as the baseline for national standards. Clipsal therefore recommended that Hong Kong should also adopt the IEC standard as the baseline, so that suppliers would be able to ascertain easily if an electrical product was in compliance with the prescribed standards. Clipsal had taken note of the Administrations response that DEMS would publish a list of acceptable national and international standards for reference by suppliers after the enactment of the Regulation. Furthermore, for products certified under standards not included in the list, DEMS could be consulted to ascertain if the products met the prescribed safety requirements. However, Clipsal maintained the view that without a baseline standard like the IEC standard, many cases falling in the grey area would inevitably arise and it was uneconomical for such cases to be assessed individually by DEMS.
- The legislation should be enacted as soon as possible and with very clear stipulations on safety standards. It was because product development strategies could only be implemented after the acceptable safety standards were ascertained, and it would take a few months to obtain a certificate of safety compliance in respect of an electrical product.
VI Meeting with the Administration
(LegCo Paper No. CB(1) 2117/95-96)
9. Regarding the proposed definition of "supply" and the proposed repeal of the exemption provision for products intended for use outside Hong Kong, Mr Eric Johnson advised that the Administrations intention was to make the definition of "supply" comprehensive enough to cover all possible means whereby consumers could come into possession of an electrical product. The proposed definition would eliminate possible loopholes to better safeguard consumers against unsafe products.
10. Members were concerned that the repeal of the exemption provision for electrical products intended for use outside Hong Kong might cause significant economic loss to Hong Kong as selling of electrical products to tourists, emigrants and travellers with configurations not compatible with the prescribed safety requirements would be outlawed. It would also cause inconvenience to people who wanted to buy electrical products in Hong Kong for use overseas.
11. Mr UY Tat-ping explained that the repeal of the exemption provision was proposed in response to the concern raised by the Consumer Council that the existing exemption provision might have loopholes, whereby consumers could be talked into buying unsafe products which suppliers claimed to be sold for use outside Hong Kong, and some consumers might not be wary of the danger of using the products in Hong Kong which were intended for use overseas. To remove the loopholes and to provide additional safeguard for consumers, it was considered that products that did not meet the prescribed safety requirements should not be supplied in the local market. There would be enforcement problems if electrical products not intended for use in Hong Kong were exempted from the legislation. As it was recognised that the only problem revealed from the issue was the incompatibility of the prescribed pin configurations with the sockets installed in other countries, this could be overcome by altering the plugs of electrical products after purchase or by using a travel adaptor. A member pointed out that it was sometimes not possible to make alterations to the plugs of electrical products and it was not safe for consumers to do so. Furthermore, travel adaptors were not widely available in the retail outlets in Hong Kong and even less common in overseas countries.
12. The Chairman said that while ensuring consumer safety was the underlying spirit of the Bill , the economic impact of the legislative amendments should also be carefully examined. She pointed out that while Hong Kong people might take the trouble to buy travel adaptors to overcome the incompatibility problem, tourists would choose not to buy electrical products not designed to fit their countries wiring practice. Thus, the proposed repeal of subsection 29(1) would seriously affect electrical appliances businesses targetted on tourists. She opined that the legislation should provide leeway for these businesses. She requested the LegCo Secretariat to obtain information from the Hong Kong Tourist Association (HKTA) on tourist spending on electrical products in Hong Kong.
(Post-meeting note: The relevant information provided by HKTA has been circulated to members vide LegCo Paper No. CB(1) 64/96-97 dated 7 October 1997.)
13. Hon Henry TANG enquired whether trade contracts made in Hong Kong between two companies registered in Hong Kong for a quantity of electrical products to be manufactured either within or outside Hong Kong, and supplied for sale in an overseas market would be exempted from the prescribed safety requirements under the Bill. Mr Johnson said that the products concerned might be construed as electrical products "under transhipment or in transit through Hong Kong" if they were not manufactured in Hong Kong, or manufactured in Hong Kong but only for export purpose i.e. "manufactured in Hong Kong for export". In either case, the electrical products would be exempted from the proposed Regulation. ALA advised that since the trade contract was made in Hong Kong, the products would most likely be construed by the court as electrical products "sold" in Hong Kong and as such would not be covered by the exemption provisions in the Regulation. However, this interpretation needed to be clarified by the Legal Department. Members were concerned that if this kind of trading contracts were not exempted, there would be serious ramifications for the trading sector. Hon Henry TANG requested the Administration to confirm if it was the Administrations policy intention not to exempt this kind of trading activities from the proposed Regulation.
|14. In view of the above issues related to local supply of electrical products intended for use outside Hong Kong, the Chairman requested and the Administration agreed to look into the following:||Admin|
- the feasibility of providing leeway in the legislation for the trading and retail sectors to supply electrical products not intended for use in Hong Kong without compromising the need to safeguard consumers from unsafe electrical products; and
- how the issue was dealt with in the relevant legislation of Singapore, a country that gave high priority to its tourism industry.
(Post meeting note: The Administration has responded to the issues set out in paragraphs 13 and 14 vide its letter of 14 October 1996. The letter has been circulated to members vide LegCo Paper No. CB(1) 128/96-97 dated 15 October 1996.)
|15. ALA pointed out a drafting issue that the proposed definition of "supply" for the principal Ordinance was very widely drawn, and with the repeal of the exemption provision in subsection 29(1), the principal Ordinance would apply to all electrical products "supplied" in Hong Kong. It was only in the Regulation that exemption provisions were stipulated. In a case where an act was not specifically exempted under the provisions of the subsidiary legislation, the principal Ordinance would apply, therefore, it was possible that a person would be successfully prosecuted for an act regarded as an offence under the principal Ordinance but was not specifically exempted in the subsidiary legislation. The Administration agreed to look into this drafting aspect.
|16. The Chairman requested that a representative from the Legal Department be present at futures meetings of the Bills Committee so that matters concerning with legal technicalities arising in the course of discussion could be clarified and explained.||Admin|
VII Date of next meeting
17. Members agreed that the next meeting would be held on 15 October 1996 at 10:45 am.
18. The meeting ended at 12:30 pm.
Legislative Council Secretariat
24 October 1996
Last Updated on 10 December 1998