Minutes of Meeting of the Bills Committee to study
the Buildings (Amendment) (No. 3) Bill 1995

I. Confirmation of Minutes of Previous Meeting

The minutes of meeting held on 25 January 1996 (Ref: LP No. HB 735/95-96) were confirmed.

Action

II. Meeting with the HKIA, HKIE, HKIS, REDA, HKCA and the Administration

2. The meeting discussed the revised proposals put forth by the Administration (Ref: LP No. HB 783/95-96).

3. As an initial response to the revised proposals, Mr LAM Wo-hei of the HKIA said that the HKIA considered it objectionable to require the submission of a coordinated outline supervision plan by the AP under item (a). The alternative proposal suggested that the AP, RSE and RC should prepare their own supervision plans which would tie to condition of consent. The HKIA was agreeable to item (c)(i) and (ii) but had strong reservations about (c)(iii) and considered that it could be substituted by item (d). In HKIA’s views, section 40 of the Buildings Ordinance (BO) had already provided for criminal sanction for permitting the carrying out of works in such manner as to cause or likely to cause injury to any person or damage to property. Item (c)(iii) was a duplication of section 40. The alternative proposal would empower the BA to issue cease works orders and revoke the consent for non-compliance with supervision plans. The Disciplinary Boards established under the BO would consider disciplinary action against professionals for failure to supervise. Professionals who wilfully allowed the carrying out of works in the absence of technically competent persons (TCPs) would be subject to criminal sanction. Hence, there would be sufficient deterrence under the alternative proposal. On item (e), the HKIA was worried that the Administration would require the details of supervision to be written in the supervision plan. In HKIA’s views, there should be a standard format of supervision plan and the details should be set out in the practice note.

4. Mr Barry Stubbings of the HKIE endorsed the HKIA’s views. Mr Stubbings added that at an early stage of works, only an outline supervision plan could be prepared and it was impracticable to expect a detailed supervision plan to cover every aspect of works.

5. Mr Kent LEE of REDA concurred with HKIA’s views. Mr LEE said that REDA was not comfortable with the proposed criminal sanction.

6. Mr Patrick CHAN of the HKCA stated that RC would be ready to accept their share of responsibility in preparing the supervision plan. The expected involvement on the part of RC must be clear to enable RC to price the tender. In response to Mr Patrick CHAN’s enquiry, Mr Trevor KEEN confirmed that the submission of RC’s supervision plan would be a condition for granting consent to commence works.

7. Mr C K LAU of the HKIS considered it necessary to clarify the differences between a coordinated outline supervision plan and a detailed supervision plan. Mr LAU expressed concern about the possible delay caused by the requirement to submit a coordinated supervision plan, the meaning of "material deviation" and the authority/person to determine the degree of deviation. Mr C K LAU pointed out that it would only be possible to provide the qualifications of TCPs but not the nominations at the stage of applying for consent.

8. In elaborating the revised proposals, Mr Trevor KEEN said that they were devised in response to the professional institutions’ earlier submissions. Whilst the AP, RSE and RC would draw up their own supervision plans, the Administration would want to see one plan from the AP and in any case there need to be a person responsible for the overall charge. The AP was expected to be the coordinator of works and to ensure different supervision plans or parts of the plans prepared by AP, RSE and RC would work together. The Administration would consider it acceptable that additional or phased supervision plans would be submitted in applying for consent for a particular stage of works. The Administration was concerned that TCPs should possess the right qualifications and it did not matter that the nominations would only be given after the submission of supervision plans.

9. Dr Y L CHOI stated that the Administration was prepared to accept the submission of staged supervision plans in accordance with the progress of works. A coordinated supervision plan would set out the broad framework of supervision. Dr CHOI reaffirmed the Administration’s concern about the presence of TCPs who should possess the required qualifications on site rather than the nominations.

10. Mr Dennis LAU said that the coordinating role of the AP would only be confined to assurance of preparation of supervision plans by RSE and RC. The AP could not and should not be expected to coordinate the activities of different parties. Mr Robert Kennard added that the AP could not ensure the compliance with the submitted supervision plans by the various parties.

11. Mr Trevor KEEN reassured Members that the submission of supervision plans through the AP was intended to ensure that the supervisions plans prepared by the different parties fitted in the overall plan. The AP was expected to make adjustments should any clash between the plans be identified. Mr Trevor KEEN confirmed that the AP would not be held responsible for every deviation from the plan. Only the person identified in the supervision plan at a particular stage of work would be held liable for deviation from the plan or failure to supervise.

12. Mr Patrick CHAN expressed concern about the possible delay if the RC was required to submit a supervision plan as a condition of consent. Mr CHAN was of the view that this additional responsibility on the RC would increase uncertainty.

13. The Chairman stated that the standardised framework of supervision plans would be spelt out in the practice note, subject to variations in specific site and works. The Chairman agreed that there would be delay and an increase in costs but hopefully the delay would be tolerable and the increase in costs acceptable and containable. In the Chairman’s view, costs had to be balanced against safety.

14. The representatives of the professional institutions then raised whether it was feasible for the BA, as in the case of geotechnical works, to indicate the level of supervision required at the time when the building plans were approved. This would facilitate the parties concerned to make professional judgement on the level of supervision and manpower, hence avoiding any delay caused by rejection by the BA of supervision plans considered not attaining a required standard of supervision. The representatives were concerned that whilst the practice note would provide guidelines on supervision for general building works, it would not possibly cover specific works.

15. Mr CHENG Wei-dart said that the Administration would expect the AP, RSE and RC to make proposals on supervision. The Administration did not want to impose the level of supervision and manpower necessary for a building project. Mr Trevor KEEN said that the practice note would provide as much guidance as possible on the preparation of supervision plan. Professionals would then have a good idea of what to be expected. This would facilitate the RC in pricing a tender. The revised proposals had built-in flexibility. The idea of staged submission of supervision plans was aimed at minimising delay in construction works. Mr CHENG Wei-dart assured that there would be early and continued dialogue between the BA and the parties concerned on the preparation of supervision plans in respect of a building project. Mr CHENG agreed that the BA would indicate the class of supervision required for a particular type of works, subject to inputs by the professionals.

16. At Members’ suggestion, the Administration agreed, in consultation with the professional institutions, to prepare a flow-chart to explain the submission of a coordinated supervision plan by the AP and detailed supervision plans by the different parties at different stages of a typical building works and the framework of supervision which would be set out in the practice note.

Adm

Hierarchy of Sanctions

17. The meeting discussed the three levels of sanctions under item (c) in the revised proposals.

18. On whether material deviations from a supervision plan would constitute a ground for criminal sanction under section 40(2B) of the BO, Mr A N Watson-Brown said that this section was drafted when there was no such concept of a supervision plan. Section 40(2B) referred to a positive act of the AP, RSE or RC and did not cover omission of an act, i.e. failure to supervise.

19. The Chairman sought the professional institutions’ views on the viability of expanding the scope of section 40 to include material deviations from supervision plans or failure to supervise. Mr LAM Wo-hei considered the idea unacceptable on the grounds that section 40 already imposed criminal sanction on the AP, RSE or RC who authorized or permitted the carrying out of works in such manner as to cause or likely to cause injury to any person or damage to any property. Mr LAM considered that the occurrence of accidents did not necessarily relate to non-supervision permitted by the AP, RSE or RC. Mr Kent LEE was worried that the AP might be held liable for a slight deviation from the supervision plan in the event that an accident occurred. There would be operational difficulties if the AP was prosecuted for any deviation from the supervision plan and as a result the site had to cease works. Mr Robert Kennard stated that whether it was appropriate in the site circumstances to necessitate deviations from the supervision plan was a professional judgement and the matter should therefore be decided by the professionals in the context of professional discipline.

20. Mrs Selina CHOW expressed worries that the proposal to impose criminal sanction on deviations from supervision plans would unduly restrain the exercise of professional judgement in the course of works.

21. Mr Trevor KEEN said that the alternative proposal was vague on imposition of criminal sanction. The Administration’s revised proposal would give more certainty as to when criminal sanction would apply. The Administration had already taken into account the professional institutions’ views in proposing to link deviations from supervision plans with injury or damage or risk of danger. The Administration would want to apply criminal sanction for material deviations causing injury/damage or a risk of injury/damage from the supervision plans which were prepared by the professionals themselves. Mr KEEN reassured that only the person identified under the plan to discharge the supervisory responsibility would be held liable for failure to do so. The revised proposals would not take away the professionals’ ability to exercise professional judgement in the light of site circumstances. In the past, only in rare cases had the AP been prosecuted for the occurrence of an accident. Where it was considered necessary to freeze the site for an investigation of the accident, it lasted normally for a very short period of time.

22. Mr A N Watson-Brown said that item (e) of the Administration’s revised proposals addressed the professionals’ worries under which the AP, RSE or RC would be allowed to deviate from the supervision plan in urgent situation or where in the professional opinion, such deviation was necessary to reduce risk. Even if an accident did occur, the person authorizing such change would not be held liable provided the decision to deviate had been made correctly. Any charge under item (c)(iii) would be heard in the District Court and the judgement of which was reviewable.

23. The Administration acknowledged Members’ views that items (c)(iii) and (e) should tie together. To facilitate further discussion on criminal sanction, the Administration would prepare the drafting of these two items in legislative terms. Mr Trevor KEEN reiterated that any substantial amendments to the Administration’s original proposal would be subject to the endorsement of the Executive Council.

Adm

III. Date of Next Meeting

24. The next meeting was scheduled for 25 March 1996 (Mon) at 10:45 a.m.

25. The meeting ended at 4:50 p.m.

LegCo Secretariat
19 April 1996