LegCo Paper No. CB(2) 1120/96-97
[The minutes have been seen by
Ref : CB2/BC/43/95/S2
Bills Committee on the
Fire Safety (Commercial Premises) Bill
Minutes of the 8th Meeting
held on Tuesday, 10 December 1996 at 10:45 am
in Conference Room B of the Legislative Council Building
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon Edward S T HO, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Hon Mrs Miriam LAU, OBE, JP
Dr Hon Samuel WONG, OBE, FEng, JP
Hon LEE Cheuk-yan
Hon LEE Kai-ming
Hon TSANG Kin-shing
Public Officers Attending :
- Security Branch
- Mrs Sarah KWOK
- Principal Assistant Secretary for Security
- Miss Agnes TSE
- Assistant Secretary for Security
- Fire Services Department
- Mr LAM Chun-man
- Chief Fire Officer (Protection), Fire Protection Bureau
- Mr Peter WONG
- Senior Engineer (Protection), Fire Protection Bureau
- Buildings Department
- Mr CHEUNG Hau-wai
- Assistant Director/Legal and Management
- Mr LAM Siu-tong
- Chief Building Surveyor/Legal(Acting)
- Legal Department
- Mr Duncan BERRY
- Consultant, Law Drafting Division
Clerk in Attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in Attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Miss Salumi CHAN
- Senior Assistant Secretary (2)1
I. Confirmation of Minutes of the Fourth and Fifth Bills Committee Meetings
(LegCo Paper No. CB(2) 554/96-97)
(LegCo Paper No. CB(2) 629/96-97)
The minutes of the fourth and fifth Bills Committee meetings respectively held on 31 October and 4 November 1996 were confirmed.
II. Discussion with the Administration
(LegCo Paper No. CB(2) 643/96-97(01))
(LegCo Paper No. CB(2) 676/96-97)
The Administrations written reply dated 6 December 1996
Item (a) and Annex - Similar overseas legislation on fire safety
2. Principal Assistant Secretary for Security briefed members on the table summarizing the major provisions in the following legislation:
- Local Government (Backpackers Hostels) Amendment Act 1990 in New South Wales;
- Fire Prevention Act 1971 in the United Kingdom (UK);
- Fire Safety Act 1994 in Singapore; and
- Dorothy Mae Ordinance in Los Angeles, USA.
3. The Chairman asked whether, under these overseas legislation especially those in the UK and USA, the owners/occupiers concerned were required to constantly upgrade fire safety standard of their premises to meet the requirements of the most up-to-date standard.
4. Regarding the requirements under the Fire Prevention Act 1971 in the UK, Consultant, Law Drafting Division said that he would look into the relevant provisions and provide a response later.
5. Regarding the Dorothy Mae Ordinance in Los Angeles, USA, Chief Fire Officer (Protection) of the Fire Services Department (FSD) advised that following a fire in 1982, the Ordinance was introduced to require the provision of additional fire service installations and equipment in those pre-1943 residential premises of three or more storeys. The provision of the relevant items, such as an automatic sprinkler system, would be once and for all. Mr Edward HO pointed out that this legislation was different from the Bill as it would not apply to newly completed buildings. Mr HO said that while he had no objection to upgrade fire safety standard of old buildings, he considered it unreasonable to require upgrading of fire safety standard of newly completed buildings to meet the requirements of the most up-to-date Codes of Practice.
Item (b) - To include the implementation plan in the legislation
6. Principal Assistant Secretary for Security advised that since the number of premises used for the prescribed commercial activities under the Bill would be changing all the time, the inclusion of the implementation plan in the legislation would cause practical difficulties to the enforcement authorities. However, the Administration undertook:
- to publicize the implementation plan;
- to consult the industry on the implementation plan and then issue the plan as a practice note to the industry; and
- after completing each phase of implementation, to consult the LegCo Panel on Security before proceeding to the next phase.
7. Members accepted the arrangements proposed by the Administration .
Item (c) - To extend the period for complying with a fire safety direction
8. Members noted from the Administrations reply that in taking enforcement action under other related legislation, it was the current practice of the enforcement authorities to extend the specified period for complying with an order if the owner found that, after commencement of the improvement works, he could not finish the works due to unforeseen problems. The Administration would adopt the same practice under this legislation. It would reiterate this point in the Secretary for Securitys speech during the resumption of the Second Reading debate of the Bill. Members accepted the Administrations reply.
Draft Committee stage amendments (CSAs)
Briefing by the Administration
9. The Administration tabled the draft CSAs at the meeting. Principal Assistant Secretary for Security advised that in brief, the CSAs covered the following points:
- To specify the division of responsibilities between owners and occupiers of prescribed commercial premises in complying with the requirements under the Bill;
- In respect of jewellery or goldsmiths business, to state clearly that only those premises which had a security area would be covered by the Bill;
- To clarify what constituted a "reasonable excuse" for not complying with a fire safety direction; and
- To specify the version of the three Codes of Practice applicable under the Bill and that the application of any revised Codes in the future would be subject to a resolution by the LegCo.
Clause 3(1) - Definition of "owner"
10. Members noted that under the Buildings Ordinance (Cap. 123), "owner" was defined as follows:
"includes any person holding premises direct from the Crown whether under lease, licence or otherwise, any mortgagee in possession and any person receiving the rent of any premises, solely or with another, on his own behalf or that of any person, or who would receive the same if such premises were let to a tenant, and where such owner as above defined cannot be found or ascertained or is absent from the Colony or is under disability, the agent of such owner."
11. Since this definition had been used for a long time and widely accepted, members considered it appropriate to adopt the same definition for "owner" under the Bill. They queried why the Administration proposed CSAs to extend the definition of "owner" under the Bill to include "any person who is managing or otherwise controlling the premises on behalf of the owner". Consultant, Law Drafting Division advised that this phrase was added to cater for situations where the owner concerned was not in Hong Kong. In those circumstances, the fire safety direction would be served on the person who was responsible for managing or controlling the premises.
12. Members queried which categories of persons would be regarded as "managing or otherwise controlling the premises on behalf of the owner". Consultant, Law Drafting Division advised that this newly added phrase mainly referred to the agent of the owner concerned. The Chairman asked whether, in extreme cases where the owner concerned could not be found, the tenant would be covered by the definition. Consultant, Law Drafting Division considered that would not be the case as the tenant was not an agent of the owner. ALA4 also advised that normally, a tenant would not be a person who was managing or controlling the premises on behalf of the owner.
13. Mrs Miriam LAU asked whether security guards or watchmen of prescribed commercial premises would be covered by the definition. Consultant, Law Drafting Division considered that it was a question to be determined in each particular case.
14. In response to members enquiry, Chief Fire Officer (Protection) of the FSD advised that if the owner concerned was not in Hong Kong, the revised definition of "owner" under the Bill would enable the enforcement authorities to serve fire safety direction on his agent, such as the management company of the relevant premises. Mr Ronald ARCULLI and Mrs Selina CHOW considered that even the owner was not in Hong Kong, it was his ultimate responsibility to carry out the required improvement works. It was unreasonable to hold the management company accountable for that.
15. Mr Ronald ARCULLI considered that if the owner was not in Hong Kong, the enforcement authorities should post the fire safety direction on the entrance of the premises concerned. If the owner failed to comply with the direction within the specified period, the enforcement authorities could require the closure of the premises. Chief Fire Officer (Protection) of the FSD pointed out that under the Bill, the enforcement authorities had to go through a series of steps as follows before it could require the closure of the premises concerned:
First step : To serve a fire safety direction
Second step: To serve a fire safety compliance order
Third step : To serve a use restriction order
He therefore considered it essential for the enforcement authorities to ensure that the fire safety direction could be served on the owner concerned or his agent.
16. ALA4 pointed out that the definition of "owner" under the Buildings Ordinance (paragraph 10 above) provided that where the owner could not be found or ascertained or was absent from the Colony or was under disability, the term "owner" would include any person who was the agent of the owner. As such, members considered it sufficient to define "owner" under the Bill as having the same meaning of "owner" under the Buildings Ordinance. They proposed and the Administration agreed to delete "and includes any person who is managing or otherwise controlling the premises on behalf of the owner" from the definition.
Clause 3(1) - Definitions of "mechanical ventilating system" and "occupier"
17. Members accepted the Administrations proposed definition of "mechanical ventilating system".
18. Regarding the proposed definition of "occupier", members queried why it included "any person who is managing or otherwise controlling the premises on behalf of the occupier". Chief Fire Officer (Protection) of the FSD advised that this phrase was added to cater for situations where the occupier concerned could not be found and therefore, the fire safety direction could not be served on him. Some members considered this situation rare, except for vacant premises. They were concerned that this phrase would cover the managers of banks, supermarkets, jewellery shops etc. They considered it unreasonable to hold this group of persons accountable for complying with a fire safety direction.
19. Mr Edward HO and Mr LEE Cheuk-yan considered that if the occupier was not in Hong Kong, then the owner of the premises concerned should be responsible for complying with the fire safety direction. Mrs Selina CHOW held different views and considered that the occupier should have the ultimate responsibility for that. Mr Ronald ARCULLI shared her view and pointed out that if the occupier was not in Hong Kong, the enforcement authority should post the fire safety direction on the entrance of the premises concerned.
20. After discussions, Principal Assistant Secretary for Security undertook to consider revising the definition of "occupier".
21. Mrs Selina CHOW asked why the proposed definition of "occupier" included "sublessee" but not "lessee". Consultant, Law Drafting Division advised that "lessee" meant "owner" in Hong Kong law.
22. Mrs Miriam LAU asked whether "sublessee" included "sub-sublessee". Consultant, Law Drafting Division considered it arguable as to where the line should be drawn. Mr LEE Cheuk-yan suggested to include item (b) of the original definition of "owner" under the Bill - "a sublessee of the premises (whether the sublease is from an owner as so defined or another sublessee)", in the revised definition of "occupier". After discussions, members requested the law draftsman and ALA4 to look into this drafting point.
New clause 3(6)
23. Principal Assistant Secretary for Security advised that to address views expressed by members before, the new clause 3(6) was introduced to reflect that offices in prescribed commercial premises (e.g. offices in banks) would not be covered by the Bill if they were separated by a fire resistant wall, floor or ceiling from the area to which members of the public generally had access (e.g. banking hall) and, if they had a separate means of escape. Members supported this policy intent but considered that it was not clearly reflected in the proposed amendment. Moreover, it was not clear as to whether those administration offices of banks, such as accounting offices, which situated at a separate location from the retail banking offices and were not accessible by members of the public, would be covered by the Bill. The Chairman quoted the Hongkong Bank Card Centre in Cheung Sha Wan as an example and asked whether such offices would be covered by paragraph 1(a) of Schedule 1 of the Bill. Principal Assistant Secretary for Security confirmed that the policy intent was not to cover such offices. She undertook to review the drafting to reflect more clearly the policy intent.
24. Regarding the new clause 3(6)(b)(i), Mr Edward HO considered that the phrase "physically separated by a fire resistant wall, floor or ceiling from the parts to which members of the public generally have access" should be amended by adding ", door" after "wall". Assistant Director/Legal and Management of the Buildings Department (BD) agreed but Chief Fire Officer (Protection) of the FSD disagreed. The latter pointed out that while wall, floor and ceiling were structural items that could not be easily removed, door was not. In fact, even self-closing doors were always left open intentionally by persons going in and out of the premises for the sake of convenience. In case of fire, smoke would quickly pass through these doors, which were left open, to the adjoining room. He therefore considered it not appropriate to include "door" in the new clause 3(6)(b)(i). Assistant Director/Legal and Management of the BD said that the adjoining room would not be affected if it had separate means of access as required under the new clause 3(6)(c).
25. Members considered the FSDs views not convincing. Chief Fire Officer (Protection) of the FSD advised that if fire resistant doors in common areas of a building were found being left open, the FSD would issue fire hazard abatement notice requiring rectification of the situation. However, the FSD was not empowered under existing legislation to take enforcement action against the same problem within individual units of the building. Mrs Selina CHOW considered that the Administration should, if necessary, propose amendments to the existing legislation for extending the FSDs power in this respect. Mr LEE Cheuk-yan did not favour such an extension of power as it would result in a situation where the FSD had to conduct inspection on individual units in various buildings. Mr Ronald ARCULLI suggested that the Administration should review its policy on fire resistant doors.
26. In response to the Chairmans enquiry, Chief Building Surveyor/Legal (Acting) of the BD advised that for a fire resistant wall with an opening, the installation of a fire shutter was required to protect the integrity of the wall. The fire shutter was operated by a detection system, i.e. it would be closed automatically to cover the opening when smoke was detected. He proposed to add a provision to the effect that any opening in the fire resistant door should be protected by the installation of a fire shutter. Chief Fire Officer (Protection) of the FSD pointed out that a fire shutter costed over $100,000. The Chairman requested the Administration to further look into the BDs suggestion.
27. Regarding the new clause 3(6)(c), members considered its drafting unclear. If a banking hall situated on the ground floor and its related office on the first floor of the same building had separate means of access leading to a common staircase, it was not clear whether the office in this case would be covered by the new clause 3(6)(c). The Chairman requested the Administration to look into this point.
III. Date of Next Meeting
28. The next meeting would be held on Thursday, 19 December 1996 in Conference Room A of the Legislative Council Building.
IV. Close of Meeting
29. The meeting ended at 12:40 pm.
22 January 1997
Last Updated on 14 December 1998