Replies to LegCo questions

LCQ20: Operation of unlicensed food businesses

Following is a question by the Hon James To and a written reply by the Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council today (July 8):

Question:

Some members of the public have complained to me that quite a number of barbecue sites currently located on the podiums or rooftops of residential, industrial and commercial buildings are allegedly operating in contravention of the law (e.g. carrying on a food business and selling liquor without a licence) and in breach of the conditions of the relevant land leases (unauthorised barbecue sites). In this connection, will the Government inform this Council:

(1) of the respective numbers of (i) prosecutions instituted and (ii) verbal advice issued by the authorities against operators of unauthorised barbecue sites in the past five years, as well as (iii) the number of barbecue sites involved in such prosecution cases, with a breakdown by type of buildings where such barbecue sites are situated and offence (i.e. (a) carrying on a food business without a licence, (b) selling liquor without a licence, (c) contravention of the Fire Services Ordinance (Cap. 95) and (d) contravention of the Buildings Ordinance (Cap. 123)) in the table below:

(2) given that last year, the authorities put forward proposals to amend the relevant legislation in order to empower the Hotel and Guesthouse Accommodation Authority to refuse issuance of licence when handling guesthouse licence applications on the grounds that the Deed of Mutual Covenant of the building concerned contains restrictive provisions, and to introduce deeming provisions, so as to strengthen law enforcement against unlicensed guesthouses, whether the authorities will conduct studies on the introduction of a similar licensing and law enforcement regime for stepping up the regulation of barbecue sites; if they will, of the details; if not, the reasons for that;

(3) as there are views that the penalties currently applicable to unauthorised barbecue sites are too lenient and therefore lack deterrent effect, whether the authorities will conduct studies on (i) amending the legislation to increase the penalties and implement a progressive system of fines, (ii) applying to the Court for issuance of closure orders against the relevant premises, and (iii) resuming the premises in breach of conditions of land leases, with a view to combating unauthorised barbecue sites;

(4) as the regulation of such barbecue sites involves a number of legislation and government departments, whether there is at present any exchange of prosecution information among the various departments; if there is not, whether the authorities will consider establishing an inter-departmental group to enhance coordination in law enforcement; and

(5) of the number of complaints received by the authorities in the past five years about noises generated from barbecue sites, and the largest number of complaints about the same barbecue site in the same business period; the details of the law enforcement actions currently taken by the authorities against noises generated from barbecue sites, and whether they have reviewed the effectiveness of the law enforcement actions?

Reply:

President,

The Food and Environmental Hygiene Department (FEHD) has been paying attention to the operation of unlicensed food businesses at barbecue sites. Apart from carrying out routine inspections and enforcement actions, FEHD also takes blitz prosecution actions from time to time against these premises. Where necessary, the department would increase the frequency of prosecutions and consider arresting the offenders and seizing the articles involved. According to the Food Business Regulation, any person who operates a food business without a licence shall be guilty of an offence and liable on conviction to a maximum fine of $50,000 and imprisonment for up to six months and, in the case of a continuing offence, to an additional fine of $900 for each day of the period during which the offence continues. FEHD may also consider applying to the court for a closure order under section 128B of the Public Health and Municipal Services Ordinance to close the premises on which a food business has been carrying on without a licence.

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

(1) According to FEHD's records, for the past five years from 2010 to 2014, FEHD took enforcement actions against 24 barbecue sites that had carried on a food business without a licence. Such actions included instituting over 280 prosecutions against the operators of the barbecue sites for carrying on a food business before obtaining a food business licence, and taking seizure actions in more than 60 cases. Of the prosecutions taken out, 23 involved eight barbecue sites operating on the podium or rooftop of buildings. For the enforcement actions in question, FEHD does not keep breakdowns showing the type of buildings where the barbecue sites carrying on a food business without a licence are situated.

The Hong Kong Police Force, Fire Services Department (FSD) and Buildings Department (BD) do not keep separate statistics on the enforcement actions taken against barbecue sites for selling liquor without a licence, contravening the Fire Services Ordinance and contravening the Buildings Ordinance respectively. Generally speaking, if any contravention of the Buildings Ordinance is found, such as carrying out unauthorised building works (UBWs) or making material change to the use of buildings without approval, BD will take appropriate enforcement actions. These actions include issuing advisory letters to building owners or occupiers, or issuing statutory orders for removal of UBWs or prohibition/discontinuance of specific use of the buildings. BD will consider instituting prosecution against anyone who fails to comply with the statutory orders.

(2) Depending on the mode of operation, generally there are three types of food business licence that the operator of a barbeque site may apply for under the Food Business Regulation:

(a) if food is sold to customers for consumption on the premises, a general restaurant licence should be obtained;
(b) if food is prepared for sale for consumption off the premises, a food factory licence should be obtained; and
(c) if fresh, chilled or frozen meat is sold, a fresh provision shop licence should be obtained.

As the licensing authority for food businesses, FEHD issues food business licences in accordance with the Food Business Regulation. Factors for consideration in issuing food business licences include public and food hygiene, building safety requirements and fire safety. Besides, the premises concerned should be in compliance with the Government lease conditions and statutory plan restrictions, and must not involve UBWs. FEHD will only grant a licence if the premises concerned meet the licencing conditions imposed by FEHD and the relevant departments (such as FSD and BD).

A deed of mutual covenant (DMC) is a private contract between the owners of a building. Under the department's licensing mechanism, FEHD will not take the restrictive provisions of DMCs into account in processing food business licence applications. An applicant, however, is required to submit a declaration to FEHD declaring that the operation of the food business on the premises is in compliance with Government lease conditions. If the applicant's declaration is found to be fraudulent or false after a licence is issued, FEHD will consider revoking the licence. It is the responsibility of the applicant to ensure that the food premises comply with the lease conditions, provisions of the DMC and other legislation of Hong Kong. We do not have any plans to introduce DMC-related requirements into our consideration of food business licence applications.

(3) At present, any person operating an unlicensed food business may be prosecuted by FEHD under the Food Business Regulation. The department will step up enforcement actions, including arresting offenders and seizing the articles involved, against food premises which persistently operate without a licence.

FEHD may also apply to the court for a closure order under section 128B of the Public Health and Municipal Services Ordinance to close an unlicensed restaurant. After a closure order is made by the court, FEHD will close the premises in question and publicise, through the media, details of the unlicensed food premises thus closed. Moreover, when taking enforcement actions in any cases involving contravention of the Buildings Ordinance, BD may consider applying for a closure order from the court under the Ordinance if in its opinion the buildings concerned are dangerous or there is a need for removal of illegal structure by government contractors and the removal works may pose a danger to the occupiers of the building and the public.

If land lease conditions are breached, the Lands Department (LandsD) will issue a warning letter to the owner concerned, requesting rectification. If the owner does not rectify the breach by the deadline, the warning letter will be registered at the Land Registry, commonly known as "imposing an encumbrance", so that the breach will be known to the public and the creditors of the owner (if applicable). If the use involved in the breach poses a significant potential safety risk and the breach is not rectified, LandsD will proceed to re-enter the building unit. As a land lease is a form of private contract and such actions are taken by LandsD as the landlord and a party to the contract, they do not involve prosecution.

Currently, adequate power has been conferred on FEHD by the law to deal with the operation of unlicensed food business at barbeque sites. The maximum penalty for contravention of the legislation concerned bears sufficient deterrence. When the court hears a case where a barbeque site has been repeatedly involved in the operation of an unlicensed food business, FEHD will present to the court information about the offender's previous related convictions and the number of relevant complaints to help the court impose an appropriate sentence. FEHD will continue to closely monitor the problems associated with the operation of unlicensed food business at barbeque sites, and step up enforcement as required to combat illegal activities.

(4) Apart from carrying out routine inspections and enforcement actions, FEHD officers will also inform relevant departments of any irregularities found on the barbecue sites that are under their respective purview for them to consider taking appropriate follow-up action.

(5) For the past five years, the Environmental Protection Department (EPD) received a total of 16 complaints about the noise of barbecue sites. Of these, 11 involve the same barbecue site while the remaining five involve three other sites.

Section 13 of the Noise Control Ordinance regulates noise emanating from industrial/commercial premises (including barbecue sites). After receiving a complaint, EPD will contact the complainant to assess the noise level in his residence. If the noise level is found to have exceeded the statutory limits, EPD will issue a noise abatement notice to the owner of the premises from which the noise emanates or the noise producer, requesting measures or actions to be taken to abate the noise within a reasonable period. Any person who fails to comply with the requirements set out in the noise abatement notice will be prosecuted.

Regarding the 16 noise complaints, EPD's investigation showed that none of the cases involved noise level exceeding the statutory limits. Nevertheless, EPD has advised the persons-in-charge of the premises concerned to take appropriate measures to minimise the noise level for the sake of their neighbours by, for example, advancing the closing time of the premises to 11pm and requesting customers to keep their voices down. Follow-up inspections indicated that the noise level of most of the premises involved in the complaints had been reduced. As for the barbecue site which is the subject of 11 complaints, EPD will keep the situation in view and take enforcement actions if the statutory limits are exceeded.

Ends/Wednesday, July 8, 2015
Issued at HKT 19:44

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