Replies to LegCo questions
LCQ8: Illegal shop extension
Following is a question by the Hon Mrs Sophie Leung and a written reply by the
Secretary for Food and Health, Dr York Chow, in the Legislative Council today
(June 23):
Question:
It has been reported that the problem of illegal shop extensions in public
places has becoming more and more serious in recent years, which has affected
the cityscape and environmental hygiene and also posed danger to other road
users. Besides, it has also been reported that the enforcement efforts of the
Food and Environmental Hygiene Department are lax, and despite repeated
complaints from members of the public, no improvement has yet been made. The
persons who were prosecuted and convicted were often fined a few hundred dollars
only, and thus deterrent effect was not created. Some persons-in-charge of the
shops have already included the fines in the recurrent operating costs of their
shops and some have even instructed others to "stand in" for them. In this
connection, will the Government inform this Council:
(a) of the total number of black spots of illegal shop extensions in public
places of Hong Kong at present, with a breakdown by District Council district;
(b) of the number of prosecutions last year which involved illegal shop
extensions in public places, and among such cases, whether there was any
person-in-charge of the shop prosecuted for more than once; of the number of
cases in which the persons-in-charge of the shops were sentenced to
imprisonment; of the number of cases in which the persons-in-charge were fined,
the ratio of such persons-in-charge who were fined and the amount of fines;
(c) whether the authorities will amend the legislation to impose heavier penalty
on repeated offenders; and
(d) whether the authorities had, in the past three years, considered conducting
a comprehensive review on how to handle the aforesaid problem, as well as
examining the relevant enforcement practices, prosecution procedure and
legislation, with a view to eradicating illegal shop extensions in public places
and preventing the aforesaid "stand in" cases from happening again?
Reply:
President,
Illegal shop extension in public places is one of the street management problems
which fall within the ambits of various government departments. For the Food and
Environmental Hygiene Department (FEHD), it will, depending on the circumstances
of obstruction, take enforcement actions in accordance with the most appropriate
statutory provisions among the following three provisions: For shops which have
extended its business without authorisation and caused obstruction of public
places, the FEHD may institute prosecutions under Section 4A of the Summary
Offences Ordinance (Cap. 228). If the shops have obstructed scavenging services
by extending its business without authorisation, the FEHD may institute
prosecutions under Section 22 of the Public Health and Municipal Services
Ordinance (Cap. 132). Regarding those licensed food premises that carry on
business illegally outside the confines of their premises, the FEHD may take
enforcement actions under Section 34C of the Food Business Regulation (Cap.
132X). If the situation involves illegal structures, causes traffic congestion
or threatens the safety of pedestrians, the FEHD may refer the case to relevant
departments such as the Lands Department, Buildings Department or Hong Kong
Police Force. Apart from regular enforcement and cleansing operations, District
Officers will coordinate joint departmental operations to resolve the problem in
locations with serious obstruction through concerted efforts. Our reply to the
four parts of the questions is as follows:
(a) The major black spots in the joint departmental operations of various
districts are at Annex.
(b) and (c) In the past year up to May 31, 2010, the FEHD has instituted 21,311
prosecutions against illegal shop extension in public places under the above
legislations, inclusive of repeated cases. The FEHD, however, does not keep
statistics specifically on the number of repeated cases.
Offenders in breach of Section 4A of the Summary Offences Ordinance are liable
to a maximum fine of $5,000 or imprisonment of three months. Those who obstruct
scavenging services in breach of Section 22 of the Public Health and Municipal
Services Ordinance are liable to a maximum fine of $5,000. Food premises which
carry out business illegally outside the confines of their premises in breach of
Section 34C of the Food Business Regulation are liable to a maximum fine of
$10,000 and imprisonment of three months.
Offenders in all of the 16,914 cases convicted by the court in the past year
were sentenced to a fine. For the majority of cases which contravened the
Summary Offences Ordinance and the Public Health and Municipal Services
Ordinance, the fine ranged from $400 to $600, while the fine of most cases in
contravention of the Food Business Regulation ranged from $4,000 to $5,000, with
sporadic cases reaching $10,000. None of the offenders was sentenced to
imprisonment, and there does not appear to be a need to increase the maximum
penalties. The court as the judiciary body is responsible for awarding
sentences. As the court will determine the level of penalty and the amount of
fine by reference to the circumstances of the cases, the FEHD will provide
relevant information, such as the previous record of offence, the area of
obstruction, the number of complaints received and the amount of fine in respect
of the repeated offenders or offenders in more serious obstruction cases to the
court immediately after conviction as a reference in sentencing. If the FEHD
considers that the sentence imposed in a particular case is too lenient, it will
consider lodging an appeal after consulting the Department of Justice.
Besides, if a food premises carries out business illegally outside the confines
of their premises, the FEHD will take actions under the Demerit Point System (DPS).
Under the DPS, a licensee is subject to demerit points registered against
his/her food premises in addition to a fine upon conviction. When the demerit
points have accumulated to a prescribed level within a specified period, the
food business licence of the premises will be suspended temporarily or
cancelled. In 2009, the numbers of food premises with their licence suspended
temporarily or cancelled due to unauthorised extension of business outside the
confines of their premises were 104 and 7 respectively.
(d) It is the top priority of the FEHD to keep the environment clean. The FEHD
staff will continue to handle street obstruction problems in accordance with the
above legislations. The FEHD has laid down clear guidelines on the enforcement
actions and prosecution procedures relating to illegal shop extension in public
places for compliance by law enforcement officers. "Stand in" cases will
definitely not be allowed, and such cases also involve perverting the course of
justice. If suspected "stand in" cases are detected, the FEHD will refer them to
the relevant law enforcement departments for follow up.
Ends/Wednesday, June 23, 2010
Issued at HKT 16:18
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Annex to LegCo Q8