Replies to LegCo questions

LCQ20: Unlicensed restaurant operations and illegal extension of business area by restaurants

Following is a question by Dr Hon Helena Wong Pik-wan and a written reply by the Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council today (November 27):

Question:

Some District Council members have relayed to me that many restaurants (including quite a number of unlicensed restaurants) in Yuen Long Town and Tin Shui Wai extend their business area illegally at night. They occupy the walkways with more than a thousand dining tables, creating obstruction, noise and environmental hygiene problems, etc., as well as blocking the emergency accesses. As a result, the daily lives of the residents nearby are seriously disturbed. In addition, in its Direct Investigation Report published in May this year on illegal extension of business area by restaurants, the Office of The Ombudsman put forth to the Food and Environmental Hygiene Department (FEHD) and Lands Department 17 recommendations for improvement, including exercising more stringent control on the unlicensed restaurants concerned. In this connection, will the Government inform this Council:

(a) whether the authorities have compiled statistics on the number of unlicensed restaurants; if they have, of the number of unlicensed restaurants in the past three years, and among them, the number of restaurants which had continued to operate without a licence despite their licences having been suspended after their accumulated demerit points had exceeded the limit under FEHD's Demerit Points System for restaurants; of the number of prosecutions instituted against the unlicensed restaurants by the authorities in the past three years;

(b) whether the authorities will make public the list of unlicensed restaurants so that consumers can identify them; if they will, of the time to do so; if not, the reasons for that;

(c) whether the Director of FEHD is authorised to order unlicensed restaurants to cease operation immediately; if so, of the details; if not, the relevant restrictions;

(d) whether, in the past three years, there were cases of food poisoning of members of public allegedly caused by their dining in unlicensed restaurants; if so, of the details, and whether it knows if the punishment imposed by the court on unlicensed restaurants convicted for selling food unfit for human consumption is heavier than that imposed on licensed restaurants;

(e) of the short-term and long-term measures put in place to address the problem caused by extension of business area to walkways by restaurants in Yuen Long Town and Tin Shui Wai; and

(f) regarding the 17 recommendations for improvement put forth by The Ombudsman, of the recommendations which have been implemented, are planned to be implemented and will not be implemented respectively; of the implementation details of the recommendations which have been implemented, as well as the time to implement the to-be-implemented ones?

Reply:

President,

The Food and Environmental Hygiene Department (FEHD) has been vigilant in combating unlicensed restaurant operations and the illegal extension of business area by restaurants. Stringent enforcement actions are taken by the FEHD against unlicensed restaurants, including those operating without a licence issued by the FEHD and those which carry on with their business after their licences have been cancelled. Apart from conducting regular inspections and enforcement actions against these premises, the FEHD would consider, where necessary, enhancing the frequency of instituting prosecutions, arresting the offenders and seizing the articles used, as well as applying for a closure order from the court to close the premises.

In recent years, the FEHD has adopted a multi-pronged approach and implemented targeted measures to strengthen its actions against illegal extension of business area by restaurants. The measures include stepping up inspections and enforcement actions, speeding up the prosecution process and providing additional information to the court for consideration when passing sentences. These measures are pursued to enhance deterrence and the effectiveness of enforcement actions taken to curb the irregularities.

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

(a) The number of unlicensed restaurants, the number of restaurants which continued to operate after their licences had been suspended under the FEHD's Demerit Points System, and the number of prosecutions instituted against unlicensed restaurants by the FEHD in the past three years (between 2011 and the end of September 2013) are set out in Table 1.

(b) The FEHD keeps a list of licensed restaurants (including those with provisional and full licences) on its website and updates the information on a daily basis so as to provide the public with accurate information. Licensed restaurants are also required to display their licences and a sign indicating that the premises are licensed at a conspicuous place on the premises. With these measures in place, members of the public will be able to tell whether a food establishment is licenced. The Administration does not intend to prepare a separate list of unlicensed restaurants, as it may cause confusion including possible misunderstanding that all restaurants not on the list are licensed.

(c) Any person operating an unlicensed restaurant may be prosecuted by the FEHD under section 31(1)(b) of the Food Business Regulation (Cap. 132X). The FEHD may also apply to the court for a closure order under section 128B of the Public Health and Municipal Services Ordinance (Cap. 132) (the Ordinance) to close an unlicensed restaurant. In addition, if the Director of Food and Environmental Hygiene has sufficient reasons to believe that an unlicensed restaurant poses a serious threat to public health, he may order the immediate closure of the unlicensed restaurant under section 128C of the Ordinance. The closure will enable necessary investigations and cleansing, disinfestation, deratting, disinfection and other rectification measures to be taken immediately.

(d) In 2011, four unlicensed restaurants were involved in suspected food poisoning incidents. The corresponding numbers in 2012 and 2013 (up to September) were three and nine respectively. After investigation, the FEHD found that these 16 suspected food poisoning cases were mainly caused by bacteria. There is no material difference in the cause of poisoning between these cases and those involving licensed restaurants.

Under the Ordinance and the relevant subsidiary legislation, all food that is sold for human consumption must be fit for human consumption and meet the requirements relating to food safety standards. Section 54 of the Ordinance provides that any person selling food unfit for human consumption commits an offence and is liable on conviction to a maximum fine of $50,000 and imprisonment for six months. The FEHD will submit to the court information about the background of the offender as well as the circumstances of the case, including the hygiene condition, licensing status and prosecution records of the premises selling the food in question. It is for the court to take such information into account as it deems fit when considering whether a heavier sentence should be imposed. The FEHD does not keep information on whether or not the court has as a result imposed heavier punishment on unlicensed restaurants.

(e) The FEHD is mindful that some restaurants in Yuen Long Town and Tin Shui Wai occupy public areas and operate beyond the designated areas of their licences. To combat illegal extension of business area by restaurants, the FEHD conducts regular as well as surprise inspections and institutes prosecution on the spot from time to time in various districts (including Yuen Long). In addition, the FEHD may suspend or cancel a licence for illegal extension of business area under the Demerit Points System or for breach of licensing conditions under the Warning Letter System, as appropriate. The number of prosecutions instituted against restaurants in Yuen Long District for illegal extension of business area and the number of licences suspended or cancelled in the past three years are set out in Table 2.

To enhance the effectiveness of enforcement actions and deterrence, the FEHD will, along the lines stated in item (f) below, implement the recommendations made by the Office of the Ombudsman in its direct investigation report, as measures to combat the problem of persistent illegal extension of business area by restaurants in various districts (including Yuen Long), with a view to enhancing compliance.

(f) Among the 17 recommendations put forth in the Ombudsman's direct investigation report, 14 are related to the FEHD. The FEHD has by and large implemented eight of the recommendations as follows:

(i) In May 2013, the FEHD set up, on a pilot basis, a task force comprising health inspectors to pursue enhanced enforcement action in a selected district, namely Tsuen Wan. The task force monitors the restaurants for irregularities throughout the peak business hours during weekdays and holidays, and takes stringent prosecution actions against persistent illegal extension of business area by restaurants. With the work of the task force in Tsuen Wan bearing fruit, the situation has improved significantly. The FEHD is considering setting up similar task forces in other districts fraught with illegal extension of business area by restaurants, with a view to taking forceful actions against such irregularities.

(ii) Subject to the availability of resources, the FEHD will consider increasing the frequency of prosecuting recalcitrant restaurants, arresting the offenders and seizing the articles used as well as providing the court with conviction records so that the court may consider a heavier sentence.

(iii) The FEHD will apply for a closure order from the court against food premises which persistently operate without a licence. After a closure order is made by the court, the FEHD will close the premises in question and publicise, through the media, details of the unlicensed restaurant thus closed.

(iv) The FEHD has extended the observation period prior to the issue of a provisional licence. A licence will be issued only after the Department is satisfied that the food premises concerned have all along complied with the relevant requirements without being prosecuted for illegal encroachment of common passageway outside the premises.

(v) In respect of an applicant whose restaurant licence has previously been cancelled due to repeated illegal extension of business area, his/her application, or an application made by his/her representative/business partner, for any licence in relation to the same premises will not be processed within 12 months from the date of cancellation of the licence.

(vi) In 13 districts where the problem of illegal extension of business area by restaurants exists, the FEHD has consulted the district councils concerned on enhanced enforcement measures and proposals to designate spots for al fresco dining in suitable areas. Whilst all these district councils support the FEHD's enhanced enforcement measures, most of them have indicated that there are no suitable spots for al fresco dining in their districts.

A summary of the follow-up actions that are being pursued by the FEHD in respect of the remaining six recommendations is given below. The Department is:

(i) reviewing the effectiveness of the existing measures and, based on the situation of each district, would set objectives and formulate strategies for tackling illegal extension of business area by restaurants;

(ii) considering the case for applying the non-standard licensing requirement which prohibits encroachment on Government land or common passageways to all premises for which a restaurant licence is being sought, including putting restrictions on applications from recalcitrant offenders for restaurant or related licences in relation to other premises;

(iii) considering the case for legislative amendments to delayer the mechanism for appeal against suspension or cancellation of licences from three to two tiers as well as the case for refraining from withholding the suspension or cancellation of licences pending the appeal results, except under very special circumstances; and

(iv) deliberating with the Home Affairs Department on how to balance stakeholders' interests when consulting the public on applications from restaurants for setting up outside seating accommodation.

The other three recommendations mentioned in the Ombudsman's direct investigation report are being followed up by the Lands Department (Lands D). They are namely Recommendation (15) (i.e. "Study with the Department of Justice how to more effectively exercise statutory powers to deal with illegal occupation of Government land by restaurants, in fulfilment of its responsibility as land administrator"); Recommendation (16) (i.e. "Subject to the outcome of their study, actively support the FEHD in taking rigorous actions against recalcitrant offenders"); and Recommendation (17) (i.e. "Subject to the outcome of the study, review with the Steering Committee on District Administration the arrangement whereby the Lands D only deals with illegal occupation of Government land involving structures of a "more permanent nature"). For the relevant Recommendations, the Lands D and the Department of Justice have agreed to set up a working group to review the existing procedures for land control action under the Land (Miscellaneous Provisions) Ordinance (Cap. 28) with a view to more effectively addressing the problem of prolonged or repeated unlawful occupation of Government land. Subject to the findings of the review, the Lands D will take follow-up actions as appropriate.

Ends/Wednesday, November 27, 2013
Issued at HKT 18:05

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LCQ20 annex