Our Ref: CAB C4/17/7

4 September 1999

Mrs Constance LI
Clerk to Bills Committee
Legislative Council Secretariat
Legislative Council Building
8 Jackson Road

Dear Mrs Li,

Bills Committee on
Provision of Municipal Services (Reorganization) Bill

Follow-up to meetings in July 1999

Thank you for your letters of 28 and 31 July 1999, conveying the Bills Committee's requests for information. Our response to the outstanding requests is set out below.

Meeting of 23 July
To provide a paper to elaborate the division of responsibilities in respect of food and drug hygiene under the Public Health and Municipal Services Ordinance, Cap.132 and other relevant legislation such as the Chinese Medicine Ordinance.

. A paper on the division of responsibilities in respect of food and drug hygiene is at Annex A.

Meeting of 27 July
1. To provide a paper on the procedures for the proposed Food and Environmental Hygiene Department to co-ordinate with the Department of Health and Agriculture and Fisheries Department in the surveillance, investigation, assessment and control of outbreak of food-borne diseases; the comparison of the existing and proposed procedures and workflow for dealing with food and environmental hygiene matters; the existing and proposed arrangements for secondment of health officers from Department of Health; and the authorities for identification, assessment, control and prevention of communicable diseases, including those involving bathing beaches, livestock and seafood.

A paper providing information on the above is at Annex B.

2(a) To clarify the authorities for granting permission to post bills, posters and billboards within the boundaries of the Airport Authority, unleased land, cultural and recreational venues managed by the future Leisure and Cultural Services Department, and land controlled by other public corporations such as MTRC and Land Development Corporation.

In general, the owner, legal occupier or management of a particular building or land is responsible for granting permission for posting of bills, posters and billboards within the boundaries of that area.

The authorities for granting permission to post bills, posters and billboards within the boundaries of the above land and venues are summarized as follows:

(i) airport managed by the Airport Authority
The Airport Authority is a body established under the Airport Authority Ordinance (Cap. 483) to provide, operate, develop and maintain the airport at Chek Lap Kok. Under Section 35 of the Airport Authority Ordinance, the Authority may make bylaws for regulating the use and operation of the airport and the conduct of persons in the concerned areas of the airport. Bylaw 38 of the Airport Authority Bylaw (Cap. 483 sub. leg.) states that no person shall erect any advertisement on any part of the Bylaw area without the permission of the Airport Authority and that the Authority can remove and dispose of any advertisement found in the area.

Section 104E(1)(a) of the Public Health and Municipal Services Ordinance (Cap.132) which designates the Director of Civil Aviation as the authority for the control of bills and posters within the boundaries of the airport as defined in the Hong Kong Airport (Regulations) Ordinance (Cap. 292) has become obsolete as the latter only applies to the former Kai Tak Airport. As Kai Tak has ceased to be used as an airport, Cap. 292 will be repealed in due course. As consequential amendments to repealing Cap. 292, section 104E(1)(a) of Cap. 132 will also be repealed.

(ii) Unleased land
Unleased land is defined in the Lands (Miscellaneous) Ordinance (Cap.28) as land not held under a Government lease nor vested in a person by an Ordinance. It covers Government land used for various purposes such as streets and country parks. Under section 5 of Cap.28, the Director of Lands is responsible for issuing licences to occupy unleased land. The word "occupy" is broadly defined in Cap.28 to include "use, inhabit, be in possession of, enjoy, erect or maintain a structure on or over, and place or maintain anything on, land". Therefore, bills, posters and billboards put up on unleased land require licences from the Director of Lands or any public officer under his delegated authority.

On the other hand, under section 104A and section 104E(1) of Cap.132, the Provisional Urban Council (PUC) and Provisional Regional Council (ProRC) are responsible for granting permission for display of bills and posters in Government land in the urban area and the New Territories respectively, other than those referred to in section 104E(1)(a) to (e) (such as land managed or controlled by the Housing Authority and land within a country park). Under section 104B and 104C, the Councils also have powers to remove bills and posters displayed without permission or not maintained in a clean and tidy condition.

Under the current arrangement, the Lands Department issues licences (in the form of approval letters) for occupation of the unleased land while the PUC/PRC grants permission for the display of banner and billboards thereon. Removal of unauthorized bills, posters and billboards are usually carried out by USD or RSD staff.

(iii) cultural and recreational venues managed by the future Leisure and Cultural Services Department (LCSD)
Staff of the LCSD will be responsible for the proper management of the cultural and recreational venues. Under section 13(1)(a) of the proposed Museums Regulation (Cap.132 sub. leg.), no person is allowed to erect any structure or bring or allow to remain any materials for such a structure, or any display material, except with the written permission of a Head of Museum. There is similar provision under section 10(1)(a) of the proposed Civic Centres Regulation where the power to grant permission is vested in a manager appointed by the Director of Leisure and Cultural Services to manage or assist in the management of a civic centre.

Similarly, the Director or staff of the LCSD will have powers to control bills, placards and notices affixed, erected or exhibited in recreational venues under the relevant subsidiary legislation made under Cap.132. Examples are section 8 of the proposed Bathing Beach Regulation, section 15 of the Pleasure Grounds Regulation, and section 13 of the Stadium Regulation.

(iv) land controlled by the MTRC
Section 21 and the Schedule to the Mass Transit Railway Corporation (MTRC) Ordinance (Cap.270) expressly provide that Part IX of Cap. 132 governing advertisements, decorations and signs shall not apply to any sign or advertisement erected by or on behalf of the MTRC in the railway area. Bylaw 32 of the Mass Transit Railway By-laws (Cap. 270 sub. leg.) further specifies that no person shall put up any bills, posters, etc. on any part of the railway premises unless authorized by the MTRC.

(v) land controlled by the Land Development Corporation (LDC)
Section 5(2) of the Land Development Corporation Ordinance (Cap. 15) empowers the Corporation to lease, purchase or otherwise acquire and hold land and to manage any buildings, premises or structures which it has acquired, purchased, acquired or otherwise holds and any common parts thereof including any ancillary land, having regard to the interests, welfare and comfort of the tenants, owners or occupiers thereof. Although there are no specific provisions concerning the control of bills, posters and billboards in the land and property managed or controlled by the LDC in Cap.15, as the manager, the LDC should have power to grant permission for posting of bills, posters and billboards within the boundaries of those buildings and land concerned.

2(b) To explain the policy and arrangements for the display of art collections in places other than the museums; the recovery of losses arising from damage of these items on loan for display in the official residence of CE/CS/FS and other places.

Museums are purpose-built institutions most suitable for the storage and display in appropriate environment works of art for the appreciation of the general public. Nevertheless, the Urban Council/PUC has a policy to lend selected original works for display at the former Government House and other official residence since 1977. These works are inspected by museum conservation experts twice a year and will be withdrawn for conservation treatment or museum exhibition when required. The loaned items are covered by an all-risks insurance policy raised by the PUC for museum collections to take care of loss or damages of the items while on loan in Hong Kong.

In April 1997, the Urban Council approved a new policy for the loan of museum collection items for display at territory-wide significant buildings. At present there are 25 items on display at the VIP Rooms of the Hong Kong International Airport. These items are also covered by the insurance policy.

In addition to these loan displays, the PUC has installed 23 open-air sculptures in various Council venues for public display. A PUC Working Group is also studying extending the display of works of art in more Council venues.

2(c) To assess the need for retaining the word "organized" in reference to games and sports in clause 50 of Schedule 3 to the Bill.

The intention of section 107(2) of Cap.132 aims to differentiate the games organized by bona-fide organizations/associations from bookings made by individuals. There is no intention to discriminate any bookings for non-organized games. To avoid any misunderstanding, we have no objection to deleting the word "organized" in clause 50 and will propose a Committee Stage Amendment accordingly.

2(d)To consider whether it is more appropriate to transfer the control and management of public cemeteries to another department such as the Home Affairs Department.

The Provisional Municipal Councils (PMCs) have been responsible for overseeing a whole range of services concerning disposal of the dead on public health and environmental hygiene grounds, including cemeteries, crematoria, funeral parlours and undertakers of burial, burials and exhumations and removal of unclaimed dead bodies. It would be appropriate for health inspectorate staff in the proposed Food and Environmental Hygiene Department to continue to oversee the management of both public and private cemeteries.

2(e) To consider whether it is more appropriate to transfer the responsibilities for exhumations to another department such as the Department of Health.

Exhumations are controlled mainly on environmental hygiene grounds and closely tie in with the overall management of cemeteries. It would be appropriate for the health inspectorate staff in the proposed Food and Environmental Hygiene Department to continue to oversee exhumations.

Meeting of 30 July
(a) To explain the existing mechanism for determining the market stall rentals, the existing appeal systems; the proposed mechanism for LegCo Panel to monitor the fee revisions.

A paper providing more information on the management of public markets and determination of market stall rentals is at Annex C.

(b) To provide information on the role of the proposed Advisory Council on Food and Environmental Hygiene in dealing with food and hygiene matters, the Administration's initial views on the Consultant report on streamlining food business licensing.

We have accepted the Consultant's recommendation to set up an Advisory Council on Food and Environmental Hygiene to advise the Government on major policy issues concerning food safety and environmental hygiene and to monitor the delivery of these services on a territory-wide basis. We are still considering the terms of reference of the Advisory Council and will brief Members on our thinking when details are available.

The consultancy report on restaurant licensing completed in early August 1999 is being considered by the departments concerned in detail. An executive summary of the report is at Annex D. The Consultant's main proposal to streamline the restaurant licensing process is to entrust the recognised professionals (including the authorised person, registered structural engineer, registered fire services installation contractor and registered ventilation contractor, etc.) with the responsibility to verify and to certify that the premises are safe in every respect for the issuance of a restaurant licence. Under the proposed new licensing system, the time taken to get a licence would depend on the applicants and the licensing authority will issue restaurant licences upon receiving the relevant certificates from the recognized professionals appointed by the applicants. All the departments which have a role to play in restaurant licensing, i.e. Building Department, Fire Services Department, and Urban Services Department, are generally in support of the thrust of the proposal. The trade has also indicated their acceptance of the proposal during the consultation process.

(c) To explain the rationale of the proposed appeals mechanism, the proposed tenure of members and whether there will be overlapping membership in these appeals boards.

Following the reorganization, we propose to:

(i) establish a new Licensing Appeals Board (LAB) to hear appeals against licensing decisions made by Director of Food and Environmental Hygiene and Director of Leisure and Cultural Services under Cap.132. This replaces the existing review committees of the PMCs set up under section 125(9) of Cap.132 to review licensing decisions made by the municipal services departments on behalf of the PMCs; and

(ii) merge the two existing Municipal Services Appeals Boards (MSABs) be into a single Board chaired by a legally qualified person to deal with appeals against decisions of the LAB, the Liquor Licensing Board (LLB) and other decisions made under Cap. 132 and the Places of Public entertainment Ordinance (Cap. 172).

The establishment of the LAB as a first tier appeal mechanism will preserve the existing right of access to a less formal first tier review/appeal mechanism under Cap.132 and avoid the future MSAB being inundated with too many appeal cases. As the new LLB will be consisted entirely of non-officials, there is little justification for appeals against decisions of the LLB to be heard by the LAB comprising non-officials of similar background before being considered by the MSAB.

The tenure of appointment to the MSAB as provided under the Municipal Services Appeals Board Ordinance (Cap. 220) is three years. For the new LAB, our intention is to make the appointments for 2 or 3 years, renewable upon expiry. In making appointment of members, care will be taken not to appoint the same person to be a member of LAB and MSAB.

(d) To explain the rationale of having two systems for regulating public and private swimming pools, the differences in existing standards (e.g. water quality), and the feasibility of providing uniform standards for public and private swimming pools.

Private swimming pools (except for those serving not more than 20 residential units and to which the public have no access) are subject to licensing control by the PMCs under the Swimming Pools (Urban Council) Bylaws and (Regional Council) Bylaws (Cap.132 sub. leg.). The primary objectives of control is to protect public health and safety. The Bylaws mainly provide for the water quality and standards, proper design and hygiene and safety standards of the swimming pools. The health inspectorate staff are responsible for licensing in consultation with other relevant departments such as Buildings Department (on structural safety) and Fire Services Department (on chlorination plant). Health inspectors are also responsible for periodic inspection of licensed private swimming pools and sampling of the pool water for bacteriological examination and chemical analysis.

Public swimming pools are provided and managed by the PUC and the ProRC for public recreation. The PUC and ProRC respectively operate 16 and 18 public swimming pools. They are governed by the Public Swimming Pools (Urban Council) Bylaws and (Regional Council) Bylaws (Cap.132 sub. leg.), which mainly provide for the proper management and control of the swimming pools and the conduct of users. Although public swimming pools are exempted from licensing under the Swimming Pools Bylaws, they generally follow the standards applicable to private pools. A broad comparison of the standards applicable to private and public swimming pools are set out in Annex E. There are only minor differences in terms of operational standards and daily routine. Public pools are under slightly more stringent control because the capacity and number of users of a public pool are generally greater than those of a private pool.

(e) To explain the rationale of applying different regulatory requirements to public markets in Government and Housing Authority premises and markets in private premises.

Please refer to the paper at Annex C.

Yours sincerely,

(John C. Y. Leung)
for Secretary for Constitutional Affairs