Replies to LegCo questions

LCQ11: Unauthorised extension of business

Following is a question by the Hon Chan Han-pan and a written reply by the Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council today (November 28):

Question:

Quite a number of members of the public have lodged complaints with me about the unauthorised extension of business area by some restaurants and shops in the vicinity of their residences, which has caused not only noise and environmental hygiene nuisances but also the concern that the arrangements made by some restaurants for their customers to use naked flame for hot pot meals on road sides might pose fire hazards. These residents have also pointed out that although the Government has taken law enforcement actions, the problems have not actually been resolved. In this connection, will the Government inform this Council:

(a) of the details of the measures and law enforcement actions taken by the Food and Environmental Hygiene Department in respect of the aforesaid problems in the past five years (together with the number of prosecutions instituted);

(b) whether the Police had taken any law enforcement actions under section 4 (Nuisances and miscellaneous offences), section 4A (Obstruction of public places) and section 32 (Removal of filth, etc., and recovery of expenses) of the Summary Offences Ordinance (Cap. 228) in respect of the aforesaid problems in the past five years; if so, of the details; if not, the reasons for that;

(c) whether the Fire Services Department had followed up in the past five years the problem of restaurants making arrangements for customers to use naked flame for hot pot meals on road sides; if so, of the details; if not, the reasons for that; and

(d) given that the Office of The Ombudsman issued in this year an investigation report on the complaint against three government departments for failing to curb the unauthorised extension of business area by a hawker stall, of the details of the follow-up actions taken by the said departments in respect of the investigation report?

Reply:

President,

Unauthorised extension of business by shops, being a street management issue, falls within the purview of a number of government departments.

The core function of the Food and Environmental Hygiene Department (FEHD) is to upkeep environmental hygiene. Hence, it accords priority to handling cases causing obstruction to scavenging operations or cases relating to unauthorised extension of restaurants, and takes enforcement action in the light of circumstances on the ground. FEHD also actively participates in joint inter-departmental operations co-ordinated by the Home Affairs Department (HAD), in concert with other relevant departments taking action under their respective mandate to curb such unauthorised activities.

Depending on the circumstances of individual cases, FEHD may take enforcement action in accordance with the following statutory provisions:

* regarding licensed restaurants that carry on business beyond the confines of their licensed premises, FEHD may institute prosecutions as appropriate against the licensees concerned under section 34C of the Food Business Regulation (Cap. 132X) for the offence of carrying on a food business otherwise than at the place delineated on the plan, or institute prosecutions under section 31(1)(b), as applicable to cases involving the conduct of restaurants by a non-licensee beyond the approved confines of the restaurants, as the case may be.

* for restaurants or shops which have extended their business illegally and caused obstruction on the street, FEHD may institute prosecutions under section 4A of the Summary Offences Ordinance (Cap. 228) for obstruction of public places; and

* for shops which have extended their business illegally and thus committed an offence of unlicensed hawking, FEHD may take enforcement action under section 83B of the Public Health and Municipal Services Ordinance (Cap. 132) for unlicensed hawking in the street.

My reply to the four parts of the question is as follows:

(a) FEHD is vigilant about tackling unauthorised extension of business area by restaurants and shops. On top of regular inspection, FEHD takes blitz prosecution action to combat such irregularities.

Table 1 gives the number of prosecutions instituted by FEHD against unauthorised extension of business area by restaurants in the past five years (from 2008 to September 2012).

FEHD keeps under review the effectiveness of measures taken to regulate the unauthorised extension of business area by restaurants, and rolls out targeted measures against repeat offenders in districts where the problem is serious, so as to enhance the effectiveness of our enforcement action. These measures include:

* stepping up inspection and taking targeted enforcement action;

* expediting the prosecution procedures and the execution of orders of licence suspension and cancellation;

* considering not to suspend the execution of orders of licence suspension or cancellation pending the determination of appeals, so as to guard against persistent unauthorised operations during the period of time when such orders are under appeal; and

* imposing in respect of applications for a provisional licence, an added requirement which stipulates that the applicants should not occupy areas beyond the confines of their premises. In case of breach, the provisional licence will not be issued. Should this requirement be breached after the issue of the provisional licence, a warning will be given to the licensee concerned requesting rectification of the irregularities. If the same irregularities are detected again, the provisional licence will be cancelled immediately.

FEHD will continue to closely monitor the situation and review the effectiveness of its enforcement action, and introduce new measures where necessary. It will also take targeted enforcement action with reference to seasonal changes. For example, the department will step up, during the winter months, inspection of and enforcement action against restaurants providing food in season (e.g. hot pots).

Unauthorised extension of business by shops, being a street management issue, falls within the purview of a number of government departments. FEHD has actively participated in joint inter-departmental operations co-ordinated by HAD, in concert with other relevant departments taking action under their respective mandate to curb such unauthorised activities.

Over the past five years (from 2008 to September 2012), FEHD has instituted a total of 93 318 prosecutions against unauthorised extension of business by shops. Breakdown by year is set out in Table 2.

(b) According to the information provided by the Security Bureau, the Police will, in general, take joint enforcement action where necessary with the relevant government departments on request against restaurants and shops extending their business without authorisation, upon receipt of complaints about unauthorised extension of business of restaurants and shops. If the cases involve criminal activities, or may lead to a breach of public peace, pose immediate danger to the public or cause serious obstruction to traffic or road users, the Police will intervene proactively and take enforcement action. Generally speaking, restaurants or shops will be prosecuted for obstruction caused by unauthorised extension of business under section 4A of Cap. 228 (obstruction of public places). From January 2010 to June 2012, a total of 3 527 prosecutions were instituted by the Police under section 4A of Cap. 228. As for the number of prosecutions for unauthorised extension of restaurants and shops before 2010, the Police does not have the relevant statistics.

(c) For hot pot activities outside restaurants, if such activities cause obstruction to the means of escape or emergency vehicular access, or affect the normal operation of fire service installations and equipment, the Fire Services Department (FSD) will take enforcement action as appropriate in accordance with the Fire Services Ordinance (Cap. 95). Any unauthorised extension of business by restaurants identified during FSD inspection will be referred to FEHD for follow-up action.

(d) The Office of the Ombudsman issued this year an investigation report on a case of unauthorised extension of business area by a licensed stall in Kowloon, giving recommendations to the three relevant government departments which in its view had not resolved the problem in a timely manner. The departments concerned, including FEHD, the Buildings Department (BD) and the Lands Department (LandsD), have accepted the Ombudsman's recommendations and taken the following follow-up actions:

(i) In response to the recommendations of the Ombudsman, FEHD has stepped up enforcement action against the stall concerned. A total of 12 prosecutions were initiated by FEHD against the licensee of the stall from October 2011 to November 2012. In early April 2012, the licensee removed the hawking paraphernalia in the unauthorised structures adjacent to the stall and ceased the unauthorised hawking activities. The illegal structures were also subsequently demolished;

(ii) BD has reviewed the case in response to the views of the Ombudsman. As the stall extending its business without authorisation was on unleased Government land, BD considered that it did not have the power to take enforcement action under the Buildings Ordinance (Cap. 123) against the stall. Nevertheless, BD has agreed that it should work closely with LandsD to tackle the issue of unauthorised building works on Government land. With regard to this case, BD and LandsD have come to a consensus that LandsD would handle the unauthorised structures on public pavement whilst BD would provide expertise advice on the demolition work; and

(iii) the relevant District Lands Office (DLO) under LandsD posted a notice under section 6(1) of the Land (Miscellaneous Provisions) Ordinance (Cap. 28) on the unauthorised structures in March 2012, demanding the occupant to cease occupation of the Government land on or before the specified date. DLO's site inspection in June 2012 revealed that all the unauthorised structures on the Government land concerned had been demolished and that the clearance work had also been completed.


Ends/Wednesday, November 28, 2012
Issued at HKT 15:49

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Table 1 and 2