Replies to LegCo questions

LCQ14: Private Columbaria Bill

Following is a question by the Hon Chan Hak-kan and a written reply by the Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council today (October 22):

Question:

Earlier on, the Government introduced the Private Columbaria Bill (the Bill) to the Legislative Council, proposing to establish a licensing regime to regulate private columbaria. The Government also points out that it cannot guarantee consumers that any private columbaria may be licensed in future upon passage of the Bill. It is learnt that some consumers feel that they are not being protected in this respect. With regard to the arrangements before passage of the Bill, will the Government inform this Council:

(1) whether the Government will provide more public temporary niches for the people in need to store interred ashes temporarily;

(2) since the Government has indicated that it would step up public education to remind members of the public of the need to exercise extra caution when buying niches before passage of the Bill, of the progress of the related publicity work;

(3) whether it will step up law enforcement actions under the Trade Descriptions Ordinance (Cap. 362) against private columbarium operators making false trade descriptions during the sale process;

(4) whether it has plans to provide assistance to members of the public who have bought niches in private columbaria that are eventually not licensed; if it has such plans, of the details;

(5) since the authorities regularly update the list of private columbaria which are compliant with user restrictions in the land leases and statutory town planning requirements, and are not illegally occupying Government land, of the circumstances under which the columbaria on the list will not be licensed; when the authorities will issue licences to such columbaria, so that members of the public can have an additional legitimate choice; and

(6) since I have learnt that there are still some operators of private columbaria not on the list mentioned in (5) seeking to sell all the niches before passage of the Bill by adopting a "low-cost with high commission" marketing strategy, in order to facilitate their bargaining with the Government in future, how the authorities deal with such a situation, so as to safeguard the rights and interests of members of the public?

Reply:

President,

The Government introduced the Private Columbaria Bill (the Bill) into the Legislative Council on June 25, 2014, proposing to put in place a licensing scheme to regulate private columbaria. In implementing the licensing scheme, we must ensure that it is taken forward in a manner that strikes an appropriate balance among the different concerns of residents, the deceased's relatives and other stakeholders. Regarding those dated private columbaria which have yet to comply fully with the relevant statutory and government requirements, we propose handling this issue in a pragmatic manner.

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

(1) At present, ashes may be stored temporarily in the relevant crematoria free of charge in the first two months following cremation of the deceased. If necessary, ashes may also be stored temporarily at the temporary storage facilities provided by the Food and Environmental Hygiene Department (FEHD) at a monthly fee of $80. It is anticipated that within the coming two years, FEHD will increase the capacity of these temporary storage facilities to hold about 47 000 urns, including the existing temporary storage facilities in Wo Hop Shek Cemetery and Kwai Chung Crematorium, which can accommodate about 8 000 urns altogether.

(2) In the past few years, the Government has been making efforts to enhance consumer education through various means, including broadcasting Announcements in the Public Interest (APIs) on television and radio, publishing and updating in a timely manner a pamphlet providing useful advice for consumers, and distributing the pamphlet through various channels (including Government websites, the six crematoria, two cremation booking offices and two cemeteries and crematoria offices of FEHD, the 16 hospitals under the Hospital Authority, residential care homes for the elderly and the Senior Fairs held at the Hong Kong Convention and Exhibition Centre), reminding consumers of various points that they should pay attention to when purchasing or renting niches.

After the announcement of the Bill, we have launched a new round of publicity to further enhance consumer education. We have set up a hotline, broadcast APIs on radio, issued press releases and placed advertisements in newspapers. Through these, we have introduced the provisions of the Bill to the public, reiterated our earlier advice for consumers and, in the light of latest development on the ground, reminded consumers of the importance to exercise due care.

After the announcement of the Bill, the Consumer Council, through its Choice Magazine, expresses support for the direction taken by the Government and conveys similar messages for the protection of consumer interests. We will continue to liaise with the Consumer Council, monitor the market situation closely and make further efforts to enhance consumer education where necessary.

(3) On top of our efforts to enhance consumer education, we also appeal to operators of private columbaria through the various channels described in Part (2) above, reminding them of the need to comply with the provisions of the Trade Descriptions Ordinance in the course of any trade or business, including the requirements of not applying any false or misleading trade description to any goods or services and not providing consumers with any goods or services to which such a trade description is applied. It is incumbent upon operators of private columbaria selling or letting out niches to provide consumers with trade description information that is accurate, true and relevant.

The Customs and Excise Department attaches great importance to the protection of consumer interests and takes appropriate action, including instituting prosecution, against anyone found violating the Trade Descriptions Ordinance. Violating the relevant provisions of the Trade Descriptions Ordinance is a serious offence. One is liable on conviction on indictment to a fine of $500,000 and imprisonment for five years, and on summary conviction to a fine at level 6 and imprisonment for two years.

(4) As in the case of other trades and industries, consumers who have suffered loss as a result of the non-compliant operation of private columbaria or their cessation of business may, should they feel aggrieved by the arrangements of their operators, seek remedies under the general consumer protection regime or through civil legal proceedings (such as seeking remedies in accordance with the contractual provisions).

To protect their own interests, consumers who choose to purchase or rent private niches before the commencement of the Bill should seek, from the columbarium operators, details of how their interests as consumers would be protected, such as where the private columbaria cease operation due to unsuccessful applications for regularisation/licence/licence renewal or other reasons, how the operators would ensure that the interred ashes are properly disposed of, the interests of consumers affected are protected and other relevant arrangements are made, including whether and if so how a refund or compensation would be made. Consumers should pay attention and ascertain if contract terms are in place to protect their interests in this respect. They should refrain from making rash decision to avoid possible loss in the event that the columbaria concerned fail to get a licence in the future. Prior to obtaining sufficient information, members of the public should consider renting a niche on a short-term basis. They should also seek independent legal advice where necessary.

As an added measure to enhance consumer protection, the Bill provides that it is the responsibility of the operators of private columbaria to dispose of the ashes interred in their columbaria properly before the cessation of their business. Failure to do so will render the operators criminally liable. One is liable on summary conviction to a fine of $2 million and imprisonment for three years, and on conviction on indictment to a fine of $5 million and imprisonment for seven years. We believe such penalties should carry sufficient deterrence.

(5) According to the Development Bureau (DEVB), the Information on Private Columbaria published by DEVB (the Information) provides the land/lease (user restrictions) and town planning information in relation to premises that are made known to the Lands Department and/or Planning Department and which these departments have reasons to believe are operating as columbaria. The Information is for general reference only. It is not exhaustive in listing out all private columbaria within the territory and would be updated every three months. Part A of the Information sets out the private columbaria compliant with the user restrictions in the land leases as well as the statutory town planning requirements and not illegally occupying Government land, but it does not mean that they are also compliant with other lease conditions and/or other statutory requirements. Part B of the Information sets out other private columbaria made known to the Lands Department and/or Planning Department but do not fall under Part A of the Information.

Whether or not an individual columbarium could obtain a licence, exemption or temporary suspension of liability (specified instrument) after the commencement of the Bill will be subject to the columbarium's fulfilment of the eligibility criteria and conditions for the specified instrument under the Bill. As regards timing, in the first three months after the commencement of the Bill, the Licensing Board will carry out preparatory work, including drawing up guidelines in respect of applications for specified instruments. Pre-Bill columbaria will have to submit applications for specified instruments within the following three months. After receiving the applications for specified instruments, the Licensing Board will, in accordance with the provisions of the Bill, consider each application on its own merits and complete the processing as soon as possible.

(6) We must reiterate that it remains uncertain today whether an individual private columbarium could obtain a licence or not. Even if a licence is granted eventually, operators of private columbaria and consumers cannot foretell at this stage the maximum ash interment capacity that may be allowed in the licence. It is unacceptable for operators to go about marketing the niches in their private columbaria in the manner described in the question if the columbaria concerned are yet to comply fully with the existing statutory and government requirements (including those relating to town planning, land instruments and building safety). We will continue to enhance public education and remind consumers of the need to pay attention to various points pertaining to their interest (please see Parts (2) and (4) for details).

As mentioned in Part (3) above, in the course of trade or business, it is incumbent upon operators of private columbaria to comply with the provisions of the Trade Descriptions Ordinance in relation to the requirements of not applying any false or misleading trade description to any goods or services and not providing consumers with any goods or services to which such a trade description is applied. In this connection, operators of private columbaria selling or letting out niches should provide consumers with trade description information that is accurate, true and relevant, or else they might be in breach of the Trade Descriptions Ordinance.

All operators of private columbaria are required under the Bill to dispose of the ashes interred in their columbaria properly before their cessation of business. Any operator who fails to do so commits a criminal offence. Please see Part (4) above for the penalty levels.

Lastly, we would like to take this opportunity to remind consumers again of the need to exercise due care to protect their own interests if they are considering patronising private columbaria before the commencement of the Bill. In this respect, consumers should:

(a) obtain comprehensive information from the operator of a private columbarium and check whether the columbarium is in compliance with the relevant statutory and government requirements (including those relating to town planning, land instruments and building safety);

(b) consider renting a niche on a short-term basis if less than sufficient information can be obtained; and

(c) pay attention to their contracts to ascertain if contract terms are in place to protect their interests in this respect. Consumers should approach the operators of private columbaria to confirm how they would, in the event that their private columbaria for various reasons cease operation, ensure that the ashes interred in their columbaria are properly disposed of, the interests of consumers affected are protected and other relevant arrangements are made, including whether and how a refund or compensation would be made.

When necessary, consumers should seek independent legal advice.

Ends/Wednesday, October 22, 2014
Issued at HKT 16:04

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