Replies to LegCo questions

LCQ11: Illegal extension of business area by restaurants

Following is a question by the Hon Tien Puk-sun and a written reply by the Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council today (June 5):

Question:

The Food and Environmental Hygiene Department (FEHD) received 4 955 complaints against illegal extension of business area by restaurants last year, of which 3 645 cases were substantiated. However, the respective numbers of successful prosecutions instituted by FEHD under sections 31(1)(b) and 34C of the Food Business Regulation (Cap. 132 sub. leg. X) and section 4A of the Summary Offences Ordinance (Cap. 228) were 521, 847 and 894 only. The Office of The Ombudsman, Hong Kong pointed out in its direct investigation report published in March 2013 that FEHD's law enforcement actions had been "superficial and produced little results", and that the three-tier appeal mechanism under the "Demerit Points System" targeting at the acts of contravention of restaurant licensees was "cumbersome", resulting in the persistence of the problem of illegal extension of business area by restaurants. On the other hand, some members of the public have relayed to me that illegal extension of business area by restaurants not only causes obstruction to pavements and deterioration of the street environment, the noises so created also seriously affect the residents in the neighbourhood. In this connection, will the Government inform this Council:

(a) whether the authorities have comprehensively reviewed the law enforcement procedure and efforts on a regular basis to see if such procedure and efforts are sufficient to combat the problem of illegal extension of business area by restaurants;

(b) apart from the aforesaid laws, whether the authorities will consider instituting prosecutions, by invoking other relevant laws, e.g. those relating to cleanliness in public places and noise control, against illegal extension of business area by restaurants, so as to impose heavier penalties on the restaurants concerned, thereby enhancing the deterrent effect of law enforcement actions; and

(c) in respect of restaurant licensees who have been repeatedly convicted of the offence of illegal extension of business area, whether the authorities have considered increasing the penalties imposed on them, so as to enhance the deterrent effect (e.g. requesting the Court to increase the amount of fines, lowering the maximum accumulated demerit points required under the Demerit Points System for suspending or cancelling the licence of the restaurant concerned, as well as extending the duration of licence suspension or cancellation)?

Reply:

President,

The Food and Environmental Hygiene Department (FEHD) is vigilant about illegal extension of business area by restaurants and takes enforcement actions in the light of the actual circumstances. On top of regular inspection, the FEHD also takes blitz prosecution from time to time to combat such irregularities. Depending on the circumstances of individual cases, the FEHD may take enforcement action in accordance with the following statutory provisions:

* in cases where licensed restaurants carry on business beyond the confines of their licensed premises, the 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 under section 4A of the Summary Offences Ordinance (Cap. 228) for obstruction of public places.

* for unlicensed restaurants, the FEHD may institute prosecutions as appropriate against the operators concerned under section 31(1)(b) of the Food Business Regulation (Cap. 132X) for carrying on a food business without a licence or under section 4A of the Summary Offences Ordinance (Cap. 228).

* for licensees of restaurants prosecuted and convicted under section 34C of the Food Business Regulation, the FEHD may also suspend or cancel their licences for illegal extension of business area under the Demerit Points System (DPS) for licensed food premises.

The number of prosecutions taken against illegal extension of business area by restaurants and the number of licences suspended or cancelled under the DPS from 2010 to April 2013 are set out in Table 1 and Table 2 respectively.

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

(a) FEHD keeps under constant review the effectiveness of the regulatory measures and enforcement actions taken against illegal extension of business area by restaurants. Recently, the FEHD has introduced the following targeted measures:

(i) strengthening prosecutions against illegal extension of business area by restaurants in accordance with section 34C of the Food Business Regulation, so that restaurant licensees convicted of the offence would be subject to the penalties under the DPS;

(ii) stepping up inspections and enforcement actions, and expediting the prosecution process;

(iii) providing the court with relevant information, such as conviction records of the restaurants concerned, the number of complaints received and the concerns of District Councils (DCs) for consideration in passing sentences;

(iv) for food premises situated at black spots where illegal extension of business area is rampant and with records of repeated prosecutions, FEHD will not issue a provisional licence if the licensee was prosecuted for occupying areas beyond the confines of their premises during the time during the application for a provisional licence;

(v) if the holder of a provisional licence is found in breach of the requirement to not occupy areas beyond the confines of their premises, FEHD will cancel the provisional licence if the irregularity is not rectified within a specified period;

(vi) when imposing penalties on food premises under the DPS, the FEHD will expedite suspension and cancellation of the licences; and

(vii) when the suspension or cancellation of a licence is pending appeal by a recalcitrant offender, the FEHD will consider not suspending the execution of such a decision so as to prevent the licensee concerned from abusing the appeal mechanism for a delay in the execution of penalties.

After implementation of the above strengthened measures to tackle illegal extension of business area by restaurants, the number of prosecutions instituted by the FEHD against licensed restaurants under section 34C of the Food Business Regulation increased from 639 in 2010 to 1 123 in 2012. 369 prosecutions were instituted in the first four months of this year. The number of restaurants which had their licences suspended or cancelled due to illegal extension of business area also increased from 99 in 2010 to 182 in 2012. There were 70 such cases in the first four months of this year. Complaints related to illegal extension of business area by restaurants dropped from 6 223 in 2011 to 4 955 in 2012, indicating that the regulatory efforts are paying off.

The Ombudsman released a direct investigation report in May on regulatory measures and enforcement actions against illegal extension of business area by restaurants. He recommended that the FEHD should consider taking measures to enhance the effectiveness of enforcement actions and the deterrent effect. The FEHD will proactively follow up on the recommendations made in the report by continuing to implement practicable measures, and carefully considering some of the new recommendations. It will also mobilise its existing resources to introduce the following new measures in phases at locations of serious non-compliance with a view to further combating such irregularities:

(i) in cases where a restaurant is prosecuted for illegal extension of business area after it has submitted a licence application, the FEHD will extend the observation period and only consider issuing the licence if no further offence of the same kind was committed in the period;

(ii) after a provisional licence is granted, the FEHD will immediately cancel a provisional licence without warning if premises are found to have breached the licensing requirement to not occupy areas beyond the confines of the premises;

(iii) in the situations mentioned in paragraphs (i) and (ii) above, the FEHD will take prosecution actions and consider applying for court orders under section 128B of the Public Health and Municipal Services Ordinance (Cap. 132) to close the premises if business continues on the premises without a licence.

To strengthen support for districts, the FEHD has also set up a task force on pilot basis with existing resources. Tsuen Wan has been selected as a pilot spot where the task force will take enhanced enforcement actions by increasing the number of prosecutions as appropriate and effecting arrest and seizure of paraphernalia subject to availability of resources.

The FEHD will continue to closely review the effectiveness of various measures and will roll out new ones as and when necessary to combat illegal extension of business area by restaurants more effectively.

(b) The FEHD is empowered by the Public Health and Municipal Services Ordinance and its subsidiary legislation to regulate food premises. To enhance the deterrent effect and efficiency in law enforcement, the FEHD will actively follow up on the recommendations put forth by the Ombudsman and adopt more targeted measures to enhance enforcement effectiveness. If FEHD officers in discharging their enforcement duties detect any noise problem and other irregularities in connection with illegal extension of business areas by restaurants, the cases will be referred to the relevant departments for follow-up action.

(c) Licensees of restaurants in breach of the requirement under section 34C of the Food Business Regulation will be liable to a maximum fine of $10,000 and imprisonment for three months with an additional daily fine of $300 upon conviction. The FEHD will continue to provide the court with additional information such as conviction records, number of complaints received and the concerns of DCs for consideration in passing sentences, with a view to enhancing the deterrent effect and the effectiveness of enforcement actions for curbing illegal extension of business area by restaurants. Under the DPS, the prescribed demerit points for a particular offence will be doubled and trebled respectively if the same offence is committed for the second and the third time within a period of 12 months. The existing penalty level should be sufficient as an effective deterrent.


Ends/Wednesday, June 5, 2013
Issued at HKT 15:46

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LCQ11 Annex