Panel on Home Affairs
Meeting on 27 July 1998
Information Paper on Hotel Accommodation
(Miscellaneous Provisions) Bill 1998
The purpose of this Paper is to brief Members on the Hotel Accommodation (Miscellaneous Provisions) Bill 1998 (the Bill) (Annex).
2. In the course of implementing the Hotel and Guesthouse Accommodation Ordinance (Cap. 349) (the Ordinance) since 1991, several deficiencies have been identified. They need to be rectified in order to improve the operation of the licensing scheme under the Ordinance. On 29.5.96, the Secretary for Home Affairs introduced the Bill into the Legislative Council. The Resumption of Second Reading debate, however, did not take place. Government will re-introduce the Bill into the Legislative Council on 16.9.98.
Hotel and Guesthouse Accommodation Ordinance (Cap. 349)
3. The Ordinance was enacted in May 1991 to provide for the regulation, control and safety of hotel and guesthouse accommodation. It empowers the Secretary for Home Affairs to establish a licensing scheme for such accommodation to ensure that the establishments comply with requirements on fire and building safety, health and hygiene.
4. The licensing scheme is implemented by the Office of the Licensing Authority of the Home Affairs Department. Over the past years, several deficiencies in the Ordinance have been identified -
- the definition of "hotel" and "guesthouse" has allowed establishments which offer accommodation to limited categories of persons, e.g. to persons of a particular nationality or clients of one tourist agency, to operate outside the ambit of the Ordinance because these premises are not offering accommodation to "any person". These establishments are in substance hotels and guesthouses and should be licensed so that their safety is under control;
- in the judgement on the case of The Queen V Triview Limited (Mag. Appeal No. 1176 of 1995) delivered by Judge J M Duffy in the High Court on 1 March 1996, the interpretation of the term "any person presenting himself" in the definition of "hotel" and "guesthouse" restricts the scope of application of the Ordinance. The case was an appeal by Triview Limited, owner of Hong Kong Parkview Club & Suite. Judge Duffy ruled that hotels which accepted guests with prior reservations were not within the purview of the Ordinance. From an enforcement angle, this Judgement has created a loophole whereby hotels could claim that they let rooms in response to prior reservations (e.g. telephone booking) and should not be subject to licensing. This loophole should be plugged expeditiously;
- most hotels have been issued licences with schedules containing major safety works and timetables for completion. The Licensing Authority is prepared to consider, on a case by case basis, issuing to hotels which have completed the scheduled works licences valid for up to three years in order to obviate the need for annual licence renewal. The Licensing Authority's approval of three-year licences will be considered on a case by case basis. In principle, such approval will be granted only for establishments that have shown integrity of continuing to fulfil the fire and building safety standards and that would not abuse the licensing control. Guesthouses may also be considered for the issue of three-year licences provided that the above conditions are fulfilled. However, three-year licences cannot be issued without amending the Ordinance as it only provides for the issue and renewal of licences for validity of not more than 12 months;
- notices may be served to the responsible person of a hotel or guesthouse personally or by registered post to direct remedial works under Section 19 and to notify the Administration's intention to apply from the District Court for closure order under Section 20. Serving of these notices would be difficult where the whereabouts or identity of the responsible persons are not known. It would facilitate enforcement of the Ordinance if these notices could be served by posting them in a conspicuous part of the premises without the need to state the name of the addressee;
- Section 20 which provides for closure order and cessation of use of the premises as a hotel or guesthouse is flawed in that the premises, once closed by order, may not be re-entered for carrying out remedial works. Without these works, the premises cannot be made safe and cannot be reopened as a hotel or guesthouse; and
- under Section 26 of the Magistrates Ordinance (Cap. 227), the Licensing Authority is time-barred from prosecution if an offence (e.g. breach of licence conditions) has been committed more than six months before the Authority issues the summons. This is unsatisfactory because an offence may occur immediately after an inspection of the premises by the Licensing Authority at the time of renewal of the licence and in these circumstances the offence will not be discovered promptly. Many offences may be time-barred from prosecution.
5. We propose that the Ordinance should be amended to address the deficiencies, as follows -
Hotel Accommodation Tax Ordinance (Cap. 348)
- the definition of "hotel" and "guesthouse" be amended so that its scope includes establishments which offer accommodation to limited categories of persons; and that a person can present himself in person or through an agent or a representative, with or without prior booking;
- licences of up to three years' validity may be issued under Section 8 or renewed under Section 9;
- notices under Sections 19 and 20 can be served by posting them in a conspicuous part of the premises without stating the name of the addressee;
- under Section 20, any person authorized in writing by the Secretary for Home Affairs may enter into a hotel or guesthouse to execute remedial works while a closure order is in force; and
- a new Section be included in the Ordinance to specify that the time bar for prosecution of offences shall be either six months of the commission of the offence or six months of the offence being discovered by or coming to the notice of the Licensing Authority, whichever is the later.
6. As "hotel" is similarly defined in the Hotel Accommodation Tax Ordinance, the loophole described in paragraphs 4(a) and (b) has also presented problems on the charging of Hotel Accommodation Tax on such establishments which are in substance hotels. There are currently three such establishments and they are not subject to Hotel Accommodation Tax. There would be serious revenue implications if other hotels follow their mode of operation and accept only guests of certain categories or guests with prior booking. We propose to make similar amendments to the Hotel Accommodation Tax Ordinance to include establishments as described in paragraph 5(a) and plug the loophole. The three establishments in question will be covered by the Hotel Accommodation Tax Ordinance after the amendment.
Hotel Proprietors Ordinance (Cap. 158)
7. The definition of "hotel" also appears in the Hotel Proprietors Ordinance. In order to ensure consistency in the definition of "hotel" in various ordinances and to plug the same loophole mentioned in paragraphs 4(a) and 4(b), we propose to amend the definition of "hotel" in the Hotel Proprietors Ordinance.
8. Members are requested to note the content of this Paper. Members' views are welcome.
Home Affairs Bureau
Ref: HAB/CR/8/10/6 Pt. 15