LegCo Paper No. CB(2) 2083/95-96
(The minutes have been seen by the Administration)
Ref : CB2/BC/43/95/S2
Bills Committee on the
Fire Safety (Commercial Premises) Bill
Minutes of the 1st Meeting
held on Thursday, 18 July 1996 at 10:45 a.m.
in Conference Room B of the Legislative Council Building
Members Present :
Hon James TO Kun-sun (Chairman)
Hon Edward S T HO, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Dr Hon Samuel WONG, MBE, FEng, JP
Hon LEE Kai-ming
Members Absent :
Hon Mrs Selina CHOW, OBE, JP *
Hon Mrs Miriam LAU, OBE, JP *
Hon LEE Cheuk-yan *
Hon TSANG Kin-shing *
Public Officers Attending :
- Mr Andrew KLUTH
- Principal Assistant Secretary for Security
- Mrs Sarah KWOK
- Principal Assistant Secretary for Security
- Mr Duncan BERRY
- Consultant, Law Drafting Division
- Mr LAM Chun-man
- Chief Fire Officer
Fire Services Department
- Mr LAM Siu-tong
- Chief Building Surveyor (Acting)
Staff in Attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Miss Connie FUNG
- Assistant Legal Adviser 3
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
- Miss Salumi CHAN
- Senior Assistant Secretary (2)1
I. Election of Chairman
James TO was elected Chairman of the Bills Committee.
II. Meeting with the Administration
Briefing by the Administration
2. Mr Andrew KLUTH briefed members on the background of the Bill as follows :
(a) Fire investigation report
Following the fire at the Shek Kip Mei branch of the Hongkong Bank on 10 January 1994, a Government Interdepartmental Investigation Team was set up to identify what should be done to ensure that such a tragic accident would not happen again. The Team came up with a fire investigation report with recommendations on the upgrading of fire safety standards and means of escape in certain types of existing commercial premises, including banks and other commercial premises with significant customer flow. Normally, the customers concerned were not familiar with the overall layout of the building and would need to have clear means of escape and clear directions as to how they should behave in the event of fire in such premises.
(b) Consultation exercise in 1994
The Administration conducted a public consultation exercise in 1994 to seek comments from various parties on the recommendations of the fire investigation report. Both the associations responsible for running the relevant types of commercial premises and professional associations developing such premises were consulted. The majority of the respondents supported the proposal to upgrade the standard requirements for fire service installations and equipment and also for means of escape.
(c) Further deliberations within the Administration
Further deliberations within the Administration concluded that it was necessary to extend the scope of the application of the proposed legislation to cover not only the recommendations of the fire investigation report, but also other requirements for improving means of access for fire fighting and rescue purposes and the use of fire resistant materials. These requirements were broadly defined in the four Codes of Practice set out in Schedule 2 of the Bill. The reason for the extension was to ensure that fire fighters and rescue authorities could get into the premises quickly and that the actual building fabric of the premises should be as fire resistant as possible. This approach was generally welcome by the industry.
Purpose of the Bill
3. Mr Andrew KLUTH advised that the purpose of the Bill was to provide better protection from the risk of fire for occupants and users of, and visitors to, the prescribed commercial premises set out in Schedule 1 of the Bill by requiring the relevant owners to take improvement measures. The word "owner" was defined in clause 3 of the Bill to include :
- an owner as defined by the Buildings Ordinance (Cap. 123);
- a sublessee of the premises;
- a person who occupied the premises under a franchise or a licence to occupy.
Part II of the Bill - Compliance with fire safety measures
4. Mr Andrew KLUTH advised that the Administration was fully aware of the need to adopt a flexible approach in enforcing the legislation which had to be done in close cooperation and consultation with the industry. It therefore proposed to apply the actual compliance procedures in a 3-stage process as follows :
(a) Fire safety directions
Under clause 5, the relevant enforcement authority would be able to identify various improvement works that needed to be carried out in prescribed commercial premises and serve on the relevant owner a fire safety direction directing that these works must be completed within a specified period. The owner should then carry out the works. If he failed to do so without reasonable excuse, he could be convicted of an offence under clause 5(6).
(b) Fire safety compliance orders
Under clause 6(1), a magistrate would be empowered to, on the application of the relevant enforcement authority, make a fire safety compliance order on an owner who was convicted of an offence under clause 5(6) directing him to comply with all or any of the requirements specified in the fire safety direction to which the offence related. Under clause 6(4), a magistrate would be empowered to, on the application of the relevant enforcement authority or the owner of the premises concerned, revoke or vary a fire safety compliance order made in respect of that owner.
(c) Use restriction orders
Under clause 7(1), if an owner failed to comply with the requirements of a fire safety direction or a fire safety compliance order, the relevant enforcement authority would be empowered to apply to the District Court for a use restriction order on the premises concerned. The order would prohibit the use of the premises for any prescribed commercial activity listed in Schedule 1. With the order, the relevant enforcement authority would be able to require the premises to be closed down until such time as the owner of the premises demonstrated that he had complied with all aspects of the improvement works as required by the authority or demonstrated that the premises would be used for a purpose other than those prescribed in Schedule 1 of the Bill. However, the Bill provided for the relevant owner to present his case at a District Court hearing at various stages of the process. The District Court would be empowered to make the order only if it was satisfied that the three criteria set out under clause 7(6) were met. Under clause 8(2)(a), a use restriction order would take effect 28 days after the date on which it was served on the owner of the premises concerned. The Administration recognized that it may be difficult to identify the relevant owner but it would ensure that the order would be posted or delivered to the owner in such a way that he would be well aware of the enforcement action being taken against the premises.
5.Mr Andrew KLUTH advised that the Administration also recognized the need to set up very clearly defined procedures for the issuing, administration or revocation of these orders. In broad terms, these procedures had been developed with regard to the feedback received from the two consultation exercises conducted in 1994 and 1995 respectively. Indeed, very positive feedback had been received from the majority of the industry. Some of the major banks and the Jockey Club had made significant efforts independently with an aim to ensure that their premises would comply with the likely effects of the relevant requirements in the future. However, as stated in para. 15 of the LegCo Brief on the Bill, some associations were concerned about the practical aspects of applying the proposed measures to some major shopping complexes. The Administration would continue to consult the relevant parties and to adopt a flexible approach. It would ensure that after this legislation was brought into effect, reasonable time would be allowed for the industry to get familiar with the legislation and also, to comply with specific directions and orders against individual premises.
Part IV of the Bill - Miscellaneous
6. Mr Andrew KLUTH advised that the actual limitation on the Government was that under clause 21, a person who, without lawful authority, disclosed to another person information obtained while exercising or performing a function conferred by this Ordinance was guilty of an offence.
Fire investigation report
7. Mr Edward HO asked for more information about the fire at the Shek Kip Mei branch of the Hongkong Bank on 10 January 1994 and the relevant fire investigation report. Mr Andrew KLUTH advised that the Administration had actually published the essence of the fire investigation report as the first consultation paper. He undertook to provide members with that consultation paper.
Consultation exercises in 1994 and 1995
8. In response to Mr Edward HOs enquiry, Mr Andrew KLUTH confirmed that the two consultation exercises were conducted before the drafting of the Bill. At Mr HOs request, Mr KLUTH agreed to provide members with lists of parties consulted in the two exercises and the details of their feedback. Mr KLUTH advised that in general, the feedback from the industry was very supportive. Mr Ronald ARCULLI considered that this did not necessarily mean that the industry was supportive of the Bill as there might be variations in the contents of the consultation papers and that of the Bill. Mr KLUTH advised that the content and nature of the 1995 consultation paper were very similar to the essence of the Bill. However, the Administration had not consulted specifically on enforcement proposals and some of the definitions. In fact, the definitions were derived from existing ordinances, such as the Buildings Ordinance.
Application of the proposed legislation
9. Mr Ronald ARCULLI pointed out that under clause 4 of the Bill, the proposed legislation would apply to prescribed commercial premises comprising or forming part of an existing building constructed before or after the commencement of the legislation. As such, the legislation would apply to both existing and new buildings. Mr Andrew KLUTH advised that the object of the Bill was to require improved fire safety measures to be carried out in respect of certain existing commercial premises which fell short of the current safety standards. The Administration therefore would not take action against newly completed buildings which were, in fact, covered under the Buildings Ordinance. The Administration would target its enforcement action in the first three years after the commencement of the legislation on those buildings, mostly constructed before 1973, which did not have sprinkler systems and were most in need of improvement, asking for fire safety improvement works to be carried out in those buildings for the use of the premises for the purposes specified in Schedule 1.
10. Members were concerned that as this policy intent was not expressly stated in the Bill, the Administration could, legally speaking, issue a fire safety direction even to a new building. Moreover, the prescribed fire safety measures specified in Schedule 2, including the provision of additional fire service installations and equipment and, construction requirements provided in the Codes of Practice, were subject to change from time to time. In the circumstances, new buildings or buildings completed only a few years ago which were constructed in accordance with the existing fire safety measures and Codes of Practice might be required to implement improvement works once there was a change in standard. Mr Andrew KLUTHs responses to members points of concern were summarized as follows :
(a) Reasonable requirements
Clauses 5, 6 and 7 provided that the requirements of the enforcement authority must be reasonable. It would not be reasonable for the Administration to require fire safety improvement works to be carried out in new buildings constructed in accordance with the existing Codes of Practice. Moreover, under Part II of the Bill, there were several opportunities for the relevant owners to examine, in a legal context, the authoritys requirements at various stages of the enforcement process, from a fire safety direction to a fire safety compliance order and then to a use restriction order, for considering whether or not the requirements were reasonable.
(b) The Codes of Practice
The Codes of Practice in Schedule 2 had been developed in consultation with the industry. They would not be constantly changing. The Codes of Practice would act as baseline references for the actual fire safety improvement works to be carried out and would not be used as absolute standards. The Administration would not require the implementation of the Codes of Practice in all aspects because some of the measures might not be applicable to certain premises.
(c) Flexible approach
In view of the fact that existing buildings were built with different standards and layouts, the Administration would adopt a flexible approach to ensure that the enforcement actions taken were reasonable. All parties involved in the consultation process were aware that the nature and extent of improvement works would depend on the existing fire safety standards in specific buildings, the potential for improvement and the aim of achieving a reasonable level of fire safety.
(d) Specification of a cut-off date in the legislation
The Administration had considered setting a cut-off date in the legislation but anticipated a number of problems in doing so. For example, it might result in a situation where the fire safety measures of those buildings constructed before the cut-off date were in many cases up to the acceptable standard while those constructed after the cut-off date were not. The Administration had therefore identified 500 buildings, which were mostly constructed before 1973 and did not have sprinkler systems, for the focus of enforcement action to be taken in the first phase. When the relevant enforcement action came to an end, the Administration would consider the next stage of action.
11. Regarding para. 10(a) above, members were of the view that the concept of reasonableness was not clearly spelt out in the Bill. Mr Andrew KLUTH advised that "reasonableness" should be considered both in terms of measures required to be carried out and the time taken to implement those measures. There were references to "reasonable" and associated concepts in clauses 5(6), 6(2) and 7(6). The Chairman considered that the reference to reasonableness needed to be spelt out in a more consistent manner, in particular, to clarify what would be a reasonable requirement of the authority. He therefore suggested the Administration to look at the application of the test of reasonableness in the Bill generally. Mr KLUTH agreed to look into this point and see if the concept could be brought out more clearly in the Bill.
12. Regarding para. 10(b) above, Mr Andrew KLUTH responded to ALA4s enquiry that the Codes of Practice in Schedule 2 were exhaustive. The Administration would not require any improvement works that were not specified in the Codes of Practice. ALA4 considered this point not clearly reflected in the drafting of Schedule 2. The Chairman concluded that this point would be further discussed in the clause-by-clause examination of the Bill.
13. Regarding para. 10(c) above, Mr Edward HO considered it very dangerous for the Administration to adopt a flexible approach which would leave much discretionary power to the authority. Moreover, such discretionary power might be exercised by different officers in different ways. Mr Andrew KLUTH advised that as pointed out earlier, the Administration could not take a blanket approach because existing buildings were constructed with different standards and layouts. Moreover, the situation changed over time. Changes in fire safety standards and the actual uses of the premises concerned would require changes in fire safety measures. It was therefore inevitable for the Administration to adopt a flexible approach to ensure that, from the legal point of view, the enforcement action taken was reasonable, having regard to the circumstances of different cases.
14. Regarding para. 10(d) above, some members were not convinced by the Administrations explanations and still considered that if no cut-off date was specified in the legislation, the Administration would have the power to take enforcement action against owners of all existing and new buildings. They considered such power too wide.
Retrospective effect of the legislation and Bill of Rights implications
15. In response to Mr Ronald ARCULLIs enquiry, Mr Andrew KLUTH advised that according to the legal advice sought by the Administration, the legislation had no retrospective effect and did not contravene the provisions of the Hong Kong Bill of Rights (BOR) Ordinance.
Enforcement of the legislation
16. Mr Ronald ARCULLI was concerned that with such a wide definition of "owner" provided under clause 3 (para. 3 above), a notice to be given under the legislation could be served on the owner, the sublessee and the occupants of the premises concerned. However, it was not clear as to who should be responsible for carrying out the required improvement works. Mr Andrew KLUTH reiterated that the Administration recognized that there would be difficulties in serving the notice on the person who was in the best position to carry out the improvement works. It therefore intended to let the persons within the premises concerned aware of the fact that improvement works were required for the premises. Basically, the person who had the responsibility for the fabric of the premises should be responsible for the improvement works. The Administration would only take enforcement action against the sublessee/occupant if he had the authority to carry out the improvement works. However, if the term "owner" was not defined in such a way to include the sublessee and occupants of the premises, it would be impossible in some cases to include within the ambit of the legislation persons who should be responsible for the improvement works.
17. Mr Ronald ARCULLI considered that the legislative intent was not clear at all. He quoted an example in which various units of a shopping arcade were sold to various persons by the original developer. He wondered whether enforcement action would be taken against every owner concerned or the owners association. He was also concerned how the Administration would handle a situation in which only one out of a hundred individual owners complied with the requirements. Mr Andrew KLUTH advised that shopping arcades might be owned in a number of ways. In cases where there was a corporate owner who sublet the various units, enforcement action would be taken against the owner of the whole arcade. In cases where individual units of a shopping arcade had been sold off, enforcement action would be taken against the individual owners concerned. Mr KLUTH recognized that the issue was a particular difficult one to address. He assured members that the Administration would continue to be careful on how to enforce the legislation.
Prescribed commercial activities in Schedule 1
18. Dr Samuel WONG suggested to include amusement games centres and mah-jong centres in Schedule 1. Mr Andrew KLUTH advised that the list in Schedule 1 covered those activities which the Administration considered it necessary to target its enforcement action at this stage. The Administration would consider including other categories in due course and amend Schedule 1 accordingly.
Further action/information to be taken/provided by the Administration
19. The Chairman requested the Administration to address members concern on whether it was really necessary for the Administration to have such extensive power as provided under the Bill and also, to have such a wide application of the legislation.
20. Members requested the Administration to provide further information as follows :
(a) Schedule 1
whether those banks not locating and operating at the street level with not many customers were covered by the banking activity prescribed in Schedule 1 and if so, whether it was logical to cover those banks but not some karaokes which had a large flow of customers.
(b) Para. 1 of Schedule 2
the difference between the requirements on the provision of fire service installations and equipment in 1973 and those listed in para. 1 of Schedule 2.
(c) Para. 2 of Schedule 2
a summary on the chronological changes in construction requirements for prescribed commercial premises over the years, including those changes involved in the Codes of Practice.
(d) Enforcement action by stages
information about the statistical survey on those 500 buildings which had been identified by the Administration as the target of enforcement action in the initial stage (e.g. the nature, the age and the number of owners of each building) and what enforcement action had been planned for the subsequent stages.
(e) Effect on the relationship between the owner and the tenants concerned
whether the legislation would have any legal effect on the relationship between the owner and the tenants of the premises concerned. For example, who was to be held responsible for compensating the loss of a tenant being affected by the improvements works carried out by the owner of the premises over a period of several months?
(f) Responsibility for carrying out the improvement works
relevant examples to show that sublessee/occupants had the authority to carry out improvement works for the premises (para. 16 above).
(g) Retrospective effect of the legislation and BOR implications
legal basis to justify the Administrations claim that the legislation had no retrospective effect and did not contravene the provisions of the BOR Ordinance (para. 15 above).
(h) Overseas references
relevant legislation/practices in overseas countries, such as the United Kingdom.
21. Mr Andrew KLUTH agreed to further look into the points raised at para. 19 above and to provide the information as requested at para. 20 above.
III. Next Step
22. Dr Samuel WONG suggested the Administration to invite a Chief Building Services Engineer to attend the next meeting.
23. Members agreed to issue a press release to invite the public to submit their views on the Bill.
(Post-meeting note : The press release was issued on 23 July 1996.)
IV. Date of Next Meeting
24. The next meeting would be held on Tuesday, 1 October 1996 at 10:45 a.m. in Conference Room B of the Legislative Council Building.
V. Close of Meeting
25. The meeting ended at 12:30 p.m.
21 August 1996
* -- Other Commitments
Last Updated on 14 December 1998