Replies to LegCo questions
LCQ9: Sale of commodities in public places for raising funds
Following is a question by the Hon Kwong Chun-yu and a written reply by the
Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council today
(May 10):
Question:
Under the current mechanism, individual organisations wishing to raise funds by
selling goods in public places are required to apply to the Food and
Environmental Hygiene Department (FEHD) for Temporary Hawker Licences (THLs).
Upon receipt of such applications, FEHD will consult relevant departments. A THL
will be issued provided the relevant departments do not object. Over the years,
there have been quite a number of organisations which set up fund-raising booths
along the route of the procession held on July 1 of each year (July 1
procession). It is learnt that since 2015, FEHD has turned down a certain number
of such applications each year on the ground that the relevant departments did
not give support to those applications. In this connection, will the Government
inform this Council:
(1) as FEHD indicated in 2015 that nine applications in that year for setting up
street booths had been refused on the ground that a relevant department held the
view that the proposed locations for setting up booths were situated at the
relatively narrow road sections along the route of the procession and thus
setting up booths there would cause obstruction to the participants of the
procession, of the specific criteria adopted by FEHD for assessing whether a
particular location is situated at a relatively narrow road section;
(2) whether the authorities will provide a list of locations suitable for
setting up street booths along the route of last year's July 1 procession for
reference by organisations planning to apply for setting up street booths along
the route of this year’s July 1 procession; if not, of the reasons for that;
(3) of the details of the division of labour among, and the respective
responsibilities of, FEHD, Lands Department and the Police in respect of the
vetting and approval of applications for setting up street booths;
(4) as the Police have indicated that they will, after considering whether the
setting up of street booths at the proposed locations will cause obstruction to
the procession of the participants or obstruction to public spaces, decide on
whether they will support the applications, (i) of the criteria adopted by the
Police for making such decisions, (ii) the ranks of the police officers who are
responsible for making such decisions and the relevant procedure, and (iii)
whether FEHD has the power to approve an application despite the Police's
objection;
(5) whether FEHD turned down, during the period from 2003 to 2014, any of the
applications for setting up street booths at locations along the routes of the
July 1 processions, on the ground that the locations under application were
narrow road sections; if so, of the number of such applications; if not, the
reasons for FEHD turning down certain applications on such ground from 2015
onwards, and whether any change in policy was involved;
(6) whether a mechanism is in place for organisations to lodge appeals against
refusals of their applications for setting up street booths; and
(7) as FEHD requires that organisations applying for setting up street booths
must submit their latest annual returns, and yet quite a number of organisations
are unable to provide such a document, of the authorities' justifications for
setting that requirement, and whether they will consider abolishing it?
Reply:
President,
The Public Health and Municipal Services Ordinance (PHMSO) (Cap 132) provides
for regulatory regimes covering public health and municipal services of
different portfolios. The Hawker Regulation (Cap 132, subsidiary legislation AI)
empowers the Food and Environmental Hygiene Department (FEHD) to issue temporary
hawker licence (THL), for the main purpose of regulating the sale of commodities
in public places requiring compliance with requirements on environmental hygiene
and ensuring that the hawking activities will not cause nuisances such as
obstruction to public places.
Under the existing policy, on the sale of commodities in public places for
raising funds, FEHD will only consider applications from non-profit-making
organisations (Note) but not applications for commercial or profit-making
purposes. Upon receipt of an application, FEHD will consult relevant departments
having regard to the nature of the activity (details to be set out in Part (3)).
In exercising its power to approve an application, FEHD will consider all
relevant factors (including but not limited to the advice of the relevant
departments) and make a reasonable and proportionate decision.
As stated in the Points to Note for Application for THL, the Government strives
to provide a friendly environment with administrative procedures kept to a
minimum to facilitate organisations to mobilise community resources for their
fund-raising activities. Nevertheless, the community is concerned if these
activities are properly arranged and the donations are properly used. Hence,
fund-raising activities involve public interest. The community expects the
Government to exercise adequate control over such activities.
In Chapter 2 (Monitoring of charitable fund-raising activities) of the Audit
Report No. 68 released by the Director of Audit on April 26, 2017, the Audit
Commission recommended FEHD to actively look into incorporating additional
measures into the licence conditions and/or administrative measures for THLs,
with a view to enhancing the transparency and accountability of fund-raising
activities involving on-street sale of commodities.
My reply to the various parts of the question raised by the Hon Kwong Chun-yu is
as follows:
(1), (2) and (4) For the public procession held on July 1, 2015 on Hong Kong
Island, the Wan Chai District Environmental Hygiene Office of the FEHD received
a total of 47 THL applications for on-street sale of commodities for
fund-raising purpose. The advice of the Police regarding nine of the
applications indicated that according to past experience, the locations
concerned were situated at narrow road sections along the procession route. When
a large number of participants gathered and waited to join the procession at
these road sections, the setting up of temporary stalls at those locations would
cause serious obstruction to procession participants and other road users, and
hence those locations were considered undesirable. The Police suggested that
those stalls be set up at other locations which would ensure smooth movement of
the procession and which would not cause unreasonable obstruction or dangers to
other road users. FEHD notified the applicants in writing of the suggestion made
by the Police. Among these applicants, more than half of them had taken
follow-up actions and were subsequently granted THLs, while the remaining
applicants either decided not to proceed with their applications or was not
granted THL due to time constraint.
If organisers would like to set up street stations during public processions and
apply to the FEHD for THL, upon receiving FEHD's requests to provide comments,
the Police will make considerations in accordance with the actual circumstances
along the procession routes. In general, street stations during public
processions would attract participants to stay there for a while, thus causing
different degrees of obstruction as well as constituting safety concern in a
congested environment. The Police will make assessment on each application. The
main considerations include whether the proposed locations of temporary stalls
would cause unreasonable obstruction to the movement of processions and
constitute danger to participants or other road users. While providing comments
on the above applications, the Police seek to strike a balance between various
aspects, including respecting the freedom and rights of expression of the
public, minimising the impact on members of the public and road users, as well
as ensuring public safety and public order etc.
FEHD will only issue a THL provided that the relevant departments make no
objection (for example, no objection to the location, time and arrangements
under application, or no objection after amendments have been made to the
details or after additional licensing conditions have been imposed on the
applicant). This practice is considered not unreasonable.
The approval of a THL application will take into account the specific
circumstances of individual cases, including the proposed procession route,
estimated number of participants and actual circumstances of each proposed
location. Therefore, each application will be dealt with on its own merits under
the current system. Details of the activity under THL and its proposed location
should be stated clearly by the applicant in the application form so that FEHD
can process and consider the application after consulting the relevant
departments. The Government does not keep any list of pre-determined locations
along the route of the July 1 procession for THL applications.
(3) Upon receipt of a THL application, FEHD will consult the Police, Lands
Department (LandsD), Home Affairs Department (if applicable) and Social Welfare
Department (SWD) (if applicable). Only after considering their comments and
other relevant factors will FEHD make a final decision.
In general, the Police will consider factors such as public safety and public
order, while LandsD will verify whether the location concerned is situated on
unleased government land and if that is the case, whether an approval letter for
temporary occupation of government land has been granted to another organisation.
FEHD will verify the documents submitted by an applicant to determine whether
the organising body is a charitable institution of a public character or a
registered non-charitable body, and whether the sale or fund-raising activity is
non-commercial or non-profit-making in nature, and confirm that the applicant
has been officially authorised to conduct the activity concerned.
After verifying the above information, FEHD will notify SWD of the application
if the applicant is a charitable institution conducting charitable sale
activities. If the applicant is neither a charitable institution nor a
non-profit-making organisation conducting non-charitable sale activities, FEHD
will check with HAD to find out whether the applicant has also applied for a
Public Fund-raising Permit for Non-charitable Purposes.
(5) According to its records, from 2004 to 2014, FEHD did not receive any
objection to any THL applications from relevant departments on the ground that
the locations under application were situated at narrow road sections. In 2015,
FEHD received comments from the Police on nine applications that the locations
under application were undesirable as they were situated at narrow road sections
along the public procession route (please refer to Parts (1), (2) and (4)
above). FEHD has all along adopted the above policies and procedures in handling
THL applications involving on-street sale of commodities for raising funds. This
has been the practice for many years.
(6) If anyone is dissatisfied with FEHD's decision in refusing a licence
application, he/she may appeal to Licensing Appeals Board (LIAB) under section
125(9) of the PHMSO (Cap 132).
If the appellant is dissatisfied with the LIAB's decision, he/she may appeal to
the Municipal Services Appeals Board under section 125B(4) of the PHMSO (Cap
132).
(7) In processing a THL application, FEHD will verify if the applicant is
authorised by the organising body to make the application. The applicant is
required to submit a copy of the memorandum of association of the board of
directors of the registered company, or the membership list of the trade union
or the list of office-bearers of the registered society.
The aim of the measures taken by FEHD is to enhance the transparency and
accountability of fund-raising activities, safeguarding and ensuring the proper
use of donations received through on-street sale activities, preventing abuse of
THLs and ensuring a fair allocation of public resources among fund-raising
organisations. There are voices in the community in support of the measures.
Note: (a) Charitable institutions which are exempted from tax under section 88
of the Inland Revenue Ordinance (Cap 112); or (b)Non-profit-making organisations,
societies or trade unions registered or enrolled under the Companies Ordinance
(Cap 622) or the former Companies Ordinance (Cap 32), the Societies Ordinance
(Cap 151) or the Trade Unions Ordinance (Cap 332).
Ends/Wednesday, May 10, 2017
Issued at HKT 18:31
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