LegCo Paper No. CB(2) 1182/96-97
(The minutes have been seen by
Ref : CB2/BC/43/95/S2
Bills Committee on the
Fire Safety (Commercial Premises) Bill
Minutes of the 10th Meeting
held on Monday, 13 January 1997 at 4:30 pm
in Conference Room B of the Legislative Council Building
Members Present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Dr Hon Samuel WONG, OBE, FEng, JP
Hon LEE Cheuk-yan
Hon LEE Kai-ming
Hon TSANG Kin-shing
Members Absent :
Hon Edward S T HO, OBE, JP *
Hon Mrs Miriam LAU, OBE, JP *
Public Officers Attending :
- Security Branch
- 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
- Senior Assistant Law Draftsman
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. Discussion with the Administration
(LegCo Paper No. CB(2) 904/96-97(01))
The Administrations written reply dated 8 January 1997
Members noted the Administrations comments on the submission dated 18 December 1996 from the Hong Kong Tourist Association.
Annex A of the Administrations written reply dated 8 January 1997 - Committee stage amendments (3rd draft as at 8 January 1997)
Clause 3(1) - Definition of "occupier"
2. Assistant Secretary for Security advised that as agreed at the 9th Bills Committee meeting held on 19 December 1996, the definition of "occupier" had been revised to include :
- "any person who is carrying on a business activity on the premises";
- "any person who is controlling and managing the premises as the agent of the person so occupying the premises".
3. Mr Ronald ARCULLI did not consider the revised definition of "occupier" acceptable. He was concerned that the expression at paragraph 2(a) above would include a salesperson in the premises concerned. Senior Assistant Law Draftsman advised that the expression referred to the proprietor of the business, not a salesperson. Mr ARCULLI considered that if that was the case, the word "activity" should be deleted from the expression. Senior Assistant Law Draftsman did not agree and pointed out that "business activity" was the concept used in other parts of the Bill.
(Post-meeting note: Senior Assistant Law Draftsman advised after the meeting that what he meant by his reply at paragraph 3 above was that "commercial activity" was the concept used in other parts of the Bill.)
4. Regarding the expression at paragraph 2(b) above, Mr Ronald ARCULLI was concerned that it would include the manager of the premises concerned. He considered it unreasonable to hold the manager, who was only the employee of the occupier, responsible for complying with the requirements under the Bill and subject him to legal liability. The Chairman appreciated his concern but pointed out that at the 9th Bills Committee meeting, members had, after balancing the need to ensure that no one would unreasonably be caught by the definition of "occupier" against the enforcement difficulties encountered by the Administration, agreed to define "occupier" to include the expression at paragraph 2(b) above. The intention was to cover very senior staff, but not the junior staff, in the premises concerned.
5. Mr Ronald ARCULLI then suggested to replace "managing the premises" by "managing the business". Senior Assistant Law Draftsman said that a person "who is controlling and managing the premises" might, in most cases, be the same person as the one "who is managing the business". However, there could be cases where they were not the same person. In those cases, it would be probably easier to identify the person "who is managing the premises".
6. In response to the Chairmans enquiry, Chief Fire Officer (Protection) of the Fire Services Department (FSD) advised that under the revised definition of "occupier", the enforcement authorities would, in case where the occupier could not be found, look for the manager in the premises concerned. If the manager was not in the premises, the enforcement authorities would ask for his name from the salesperson and then, serve a fire safety direction on him. If the revised definition of "occupier" was changed to include someone "who is managing the business", it would be difficult to identify the person concerned, particularly for those small units in a shopping arcade.
7. In response to Mr Ronald ARCULLIs enquiry, Chief Fire Officer (Protection) of the FSD advised that estate agents would not be covered by the expression at paragraph 2(b) above.
8. After discussions, Mr Ronald ARCULLI suggested to add "or managing such business" in the end of the expression at paragraph 2(a) above. Assistant Secretary for Security agreed to look into this proposal.
9. Mr Ronald ARCULLI also suggested to delete "so occupying the premises" from the expression at paragraph 2(b) above to cater for vacant premises. Chief Fire Officer (Protection) of the FSD considered it unnecessary because vacant premises, where there were no commercial activities conducted, would not be covered by the Bill.
II. Clause-by-Clause Examination of the Bill
Clause 2 - Purpose of Ordinance
Clause 24 - Secretary for Security may amend Schedule 1
10. Assistant Secretary for Security advised that after the 9th Bills Committee meeting, the Administration had reviewed the drafting of clauses 2 and 24 and concluded that it was not necessary to introduce any changes to clause 2. According to the Administrations legal advice, the phrase "such as banks and department stores" in clause 2 had no implications on the scope of the Bill. The Administration therefore would like to retain this phrase.
11. The Chairman pointed out that at the 9th Bills Committee meeting, the Administration had indicated that it would consider his suggestion to amend clause 24 to the effect that the Secretary for Security, in amending Schedule 1, must consider those factors which were related to fire safety. The Chairman still considered it essential to introduce an amendment to limit the Secretary for Securitys power to amend Schedule 1 so that only those commercial activities with fire risk could be included. After discussions, Assistant Secretary for Security agreed to review the drafting of clause 24 to reflect this point.
Clause 3 - Interpretation
Clause 3(1) - Definitions of various terms
12. Members accepted the definitions of the various terms in clause 3(1).
Clause 3(2) - Definition of "prescribed commercial premises"
13. In response to the Chairmans enquiry, Chief Fire Officer (Protection) of the FSD advised that the threshold of 230 m² stated in clause 3(2) was not to be amended by subsidiary legislation. It was a standard requirement that premises exceeding 230 m² should be protected from fire hazard by the installation of an automatic sprinkler system. This standard had been put in use for a very long time and widely accepted by the industry.
14. Members accepted clause 3(2).
Clause 3(3), 3(4) and 3(5)
15. Members accepted the above subclauses.
Clauses 4, 5, 6 and 7
16. Members accepted the above clauses.
Clause 8 - Effect of use restriction order
17. In response to the Chairmans enquiry on clause 8(2)(b), Chief Fire Officer (Protection) of the FSD advised that if the owner concerned appealed against a use restriction order, the order would not take effect until the appeal was finally rejected or was withdrawn. Chief Building Surveyor/Legal (Acting) of the Buildings Department (BD) confirmed that the same practice was adopted under the Buildings Ordinance (Cap. 123).
18. The Chairman was concerned that the suspension of a use restriction order during the appeal period might endanger public safety. Chief Fire Officer (Protection) of the FSD pointed out that under clause 8(3), the District Court might, if considered it appropriate to do so, direct a use restriction order to come into force from the date on which the order was served on the owner of the premises concerned.
19. Members accepted clause 8.
Clause 9 - Offence to contravene use restriction order
Clause 11 - Power to remove persons from premises in certain cases
20. Members noted that under clause 9, a person who contravened a use restriction order "is guilty of an offence and is liable on conviction to a fine of $250,000 and to imprisonment for 3 years and to a further fine of $25,000 for each day or part of a day during which the contravention continues." The Chairman considered the further fine of $25,000 per day too heavy.
21. Chief Fire Officer (Protection) of the FSD pointed out that under the Bill, the enforcement authorities would adopt a three-step approach, i.e. to serve a fire safety direction, a fire safety compliance order and then a use restriction order. The penalties for failure to comply with the former two direction/order were provided under clause 5(6) and clause 6(8). A person who failed to comply with a fire safety direction or a fire safety compliance order was liable on conviction to a further fine of $2,500 or $5,000 respectively for each day or part of a day during which the failure continued after the expiry of the period specified in the direction/order. If the person continued not to comply with the direction/order, the enforcement authorities might apply to the District Court for a use restriction order. If the person contravened the use restriction order, it was not unreasonable to impose on him heavier penalty and a further fine of $25,000 for each day or part of a day during which the contravention continued. Senior Assistant Law Draftsman added that $25,000 per day was the maximum fine and that it was very rare for the court to impose the maximum.
22. The Chairman considered that even the court imposed the maximum fine, the contravention against a use restriction order might still continue. For example, in case the owner of the premises concerned had passed away and the ownership of the premises was under disputes, it was not certain who would be the new owner and therefore, responsible for complying with the use restriction order. In order to protect public safety, the Chairman considered that the enforcement authorities should :
- adopt the existing practice under the Buildings Ordinance, i.e. to carry out the required improvement works on behalf of the owner and then recover the costs from him; or
- require the closure of the premises concerned.
23. Chief Building Surveyor/Legal of the BD pointed out that the Bill was different from the Buildings Ordinance in the sense that the required improvement works under the Bill were related to the usage of the premises concerned. In other words, the owner of the premises concerned would not be required to carry out the improvement works if the premises were not used for any of the prescribed commercial activities listed in Schedule 1 of the Bill. Hence, the owner might, after receiving a fire safety direction/fire safety compliance order/use restriction order, choose to change the usage of the premises to those not listed in Schedule 1. In the circumstances, it was not appropriate for the enforcement authorities to carry out the required improvement works for him or to require closure of the premises concerned.
24. Members considered that the imposition of heavy fines under clause 9 might not be effective in deterring the owner from contravening a use restriction order. Chief Fire Officer (Protection) of the FSD advised that under clause 11, "a police officer of or above the rank of inspector may remove from premises any person who is contravening section 8(1)(a) in relation to the premises." Such an action would bring the business activities in the premises concerned to an end. The Chairman considered it not necessarily so. He pointed out that under clause 11, police officers were only empowered to remove any person who contravened a use restriction order, but not other persons, from the premises. As such, the customers could still enter the premises and get the products they wanted and, the owner/occupier concerned could collect the payment outside the premises.
25. Members suggested to add a provision in clause 9 to the effect that the court might, if considered it appropriate to do so, serve a closure order on the premises, the owner of which had contravened a use restriction order. Assistant Secretary for Security pointed out that the objective of the Bill was to require upgrading of fire safety measures in prescribed commercial premises, but not dangerous buildings. It might not be justified to serve a closure order on such premises. Chief Building Surveyor/Legal of the BD added that if the premises concerned were regarded as dangerous, the Building Authority was empowered under sections 26 and 27 of the Buildings Ordinance to apply for a closure order.
26. After discussions, members considered that if the required improvement works in prescribed commercial premises were not carried out, the potential fire hazard would endanger public safety. They requested the Administration to look into their proposal at paragraph 25 above and to explain how a police officer would exercise his power under clause 11.
Clauses 10, 12 and 13
27. Members accepted the above clauses.
Clause 14 - Authorized officers
Clause 14(2) - The Director of Fire Services (D of FS) and the Director of Buildings (DB) as authorized officers
28. Members queried why the D of FS and the DB, being the enforcement authorities, were taken to be authorized officers. Senior Assistant Law Draftsman advised that "enforcement authorities" and "authorized officers" were two different concepts. Under Clause 14(2), both the D of FS and the DB were taken to be authorized officers by virtue of their office so that they themselves could also exercise those functions conferred or imposed by the proposed Ordinance, e.g. to enter and inspect premises.
Clause 14(2) - Police officers as authorized officers
29. Members noted that under clause 14(2), all police officers were taken to be authorized officers who were empowered under clause 14(1) "to exercise such of the functions conferred or imposed by this Ordinance as are specified in the authorization." The Chairman considered "such of the functions" too general. Chief Fire Officer (Protection) of the FSD advised that the key function conferred by the Ordinance was to inspect premises. The Chairman asked whether similar provisions were made under relevant ordinances, such as the Buildings Ordinance and the Fire Services Ordinance, that all police officers were taken to be authorized officers to exercise such of the functions conferred or imposed by those ordinances. Senior Assistant Law Draftsman advised that this provision was certainly not unique. He undertook to provide information on similar provisions in relevant ordinances.
Clause 15 - Power to enter premises and other powers of authorized officers
Clause 15(1) and 15(2) - Authorized officers may enter and inspect premises without warrant
30. Members noted that under clause 15(1), "An authorized officer may enter and inspect premises without warrant if the officer reasonably believes that -
- the premises are being used for a prescribed commercial activity; or
- an offence against this Ordinance is being or has been committed on those premises."
31. In response to the Chairmans enquiry, Senior Assistant Law Draftsman advised that clause 15(1)(a) and (b) referred to two possibilities and therefore, the word "or", but not "and", was used between the two subclauses. Under clause 15(1)(a), an authorized officer might conduct a general inspection on the premises without warrant even no offence against this Ordinance had been committed.
32. The Chairman pointed out that it would be very easy to fulfil the condition under clause 15(1)(a). For example, it was obvious that a jewellery shop was being used for conducting jewellery business, i.e. a prescribed commercial activity. As such, authorized officers, including all police officers, might enter a jewellery shop without warrant for general inspection. The Chairman considered it not appropriate to empower police officers to inspect the fire safety measures of premises. They should only assist other authorized officers, such as officers of the FSD and the BD, to conduct the inspection. Mrs Selina CHOW pointed out that this related to clause 14(2) where all police officers were taken to be authorized officers for the purposes of this Ordinance. Discussion on this point would be deferred until the Administration had provided information on similar provisions in relevant ordinances (paragraph 29 above).
33. The Chairman also pointed out that clause 15(1) only provided the power of inspection, but not the purpose of inspection. He suggested to add "for the purposes of this Ordinance" after "without warrant" in clause 15(1). Then the revised clause 15(1) would cover the meaning of clause 15(2) which would become redundant. He requested the Administration to review the drafting of these two subclauses.
III. Date of Next Meeting
34. The next meeting would be held on Monday, 20 January 1997, at 4:30 pm in Conference Room A of the Legislative Council Building.
IV. Close of Meeting
35. The meeting ended at 6:50 pm.
10 February 1997
* -- Other Commitments
Last Updated on 14 December 1998