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 16 January 1996 (Ref: LP No. HB 690/95-96) were confirmed.

Action

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

2. The meeting resumed discussion on the hierarchy of sanctions under the alternative proposal put forth by the four organisations (Ref: LP No. HB 711 and 777/95-96).

3. Mr LAM Wo-hei stated that the measures under the alternative proposal would achieve the objective of the Bill to improve site safety. The proposal would strengthen site supervision by the AP/RSE as they would be required to station technically competent persons (TCPs) on site to supervise works. By requiring the submission of supervision plans as a condition of consent to commence works, the parties involved in a building operation would map out the appropriate level of supervision in different stages of works. The proposed power of the BA to issue cease works orders or to revoke the consent would ensure the following of the supervision plans. This power per se would have sufficient deterrence. The four organisations would have no objection to extend the power of the Disciplinary Board established under the Buildings Ordinance (BO) to consider disciplinary action against building professionals for failure to carry out supervisory duties provided that it would be administered in a fair manner. Since the Disciplinary Board had the power to suspend or even revoke a professional licence, this would be a further assurance that AP/RSE would perform supervisory duties.

4. Mr Edward HO said that at present when a professional was found negligent in performing their professional duties to supervise, disciplinary action would be instituted against the person concerned under the Architects Registration Ordinance (Cap. 408) or the Engineers Registration Ordinance (Cap. 409) as appropriate to the case. This course of action was not available under the existing BO. The alternative proposal would confer such power to the Disciplinary Board under the BO. Mr Barry Stubbings said that it was a current practice for the Engineers Registration Board to take disciplinary action against engineers for not performing their duties under the construction hoist and safety related ordinances.

5. Mr Kent LEE said that the financial implications of a cease works order and revocation of consent were severe enough to ensure the compliance of supervisions plan by the parties concerned. The costs to the developer for not completing pre-sale developments within a specified time were great. The AP in question would have little chance of getting a contract from the same client again. The RC concerned would claim an extension of time for completion of the project delayed by the cease works order or revocation of consent. Mr Kent LEE considered that under the alternative proposal, the Administration would be equipped with sufficient and effective tools to enforce the safety requirements.

6. Given that the building professionals would be subject to disciplinary action for failure to supervise and the Administration could issue cease works orders or revoke the consent for not following the supervision plans, the Chairman questioned the necessity of imposing criminal sanction for failure to supervise which had not resulted in any accident. Mr Albert CHAN, however, was of the view that criminal sanction would have a deterrent effect to ensure the following of the supervision plan by the parties concerned.

7. Mr Trevor KEEN responded that the Administration welcomed the proposal put forward by the four organisations to improve site safety. A graduated sanction system for failure to supervise was acceptable. In the Administration’s view, it might be sheer luck that nobody was hurt in an accident caused by failure to supervise. The Administration would therefore prefer a firmer type of sanction to prevent the arising of danger.

8. The Chairman opined that building operations were intrinsically hazardous. Even if everybody followed the supervision plan to the letter, accidents might still occur. The Administration had not given any undertaking that prosecution would not be contemplated if the supervision plans were adhered to but an accident happened nevertheless.

9. Mr Barry Stubbings said that professionals were obliged to cease works if danger was detected. Mr LAM Wo-hei said that it was already a criminal offence under section 40 of the BO if the AP, RSE or RC permitted the carrying out of any works which caused or likely to cause injury to any person or damage to any property.

10. Mr CHENG Wei-dart clarified that whilst the Administration could prosecute the AP, RSE or RC for permitting the carrying out of dangerous works under section 40, failure to supervise resulting in danger did not fall within the ambit of this section and was not prosecutable. Mr A N Watson-Brown stated that section 40 made it an offence for the commission of a certain act. It would be difficult to argue that omission, i.e. failure to supervise, could be interpreted as committing an act.

11. Mr Edward HO pointed out that the measures proposed by the four organisations were already adequate to achieve the objective of enhancing site safety. Professionals would have to shoulder civil and criminal liabilities for negligence that caused an accident. Notwithstanding that, the four organisations took a further step to making it an offence where the AP, RSE or RC wilfully allowed building works to proceed in the absence of TCPs.

12. Mr Albert CHAN agreed that the Administration’s proposal regarding criminal sanction was too stringent; he, on the other hand, considered the alternative proposal too loose. In Mr CHAN’s view, it would be difficult to prove that an act was done wilfully. As an alternative, he suggested that if the parties concerned failed to take reasonable and practical steps in respect of site supervision stipulated in the supervision plans, they should be guilty of an offence.

13. The Chairman said that the word ‘wilfully’ was not a new concept in criminal law. Whether an act was done with intent could be assessed in the circumstances of the case. Since the existing legislation already provided for the taking of prosecution action against professionals for negligence that caused an accident, the Chairman remained of the view that it would be excessively tough to impose criminal sanction for failure to supervise without the occurrence of accidents.

14. Mr Trevor KEEN raised for discussion the viability of linking failure to supervise with danger under a graduated sanction system. Where non-compliance of the supervision plans did not result in any danger, the persons concerned would be subject to disciplinary action. The professional disciplinary boards would be relied upon to exercise their power for minor deviations from the supervision plans. Where failure to follow the supervision plans in a material way as to cause danger, albeit no injury to any person, prosecution would be contemplated against the persons concerned. In non-emergency situations, any amendments to the supervision plans should be considered by the Administration beforehand. There should be provisions to cover emergency changes to the supervision plans.

15. Mr Edward HO and Mr Dennis LAU were of the view that it was not entirely fair to subject the AP and RSE to criminal sanction for lack of supervision even though it was linked with danger. Other professionals, e.g. doctors who were directly responsible for patients’ health, were not criminally liable for lack of supervision.

16. Regarding contemplation of prosecution against the parties concerned for permitting building works to proceed in the absence of TCPs for a specified period of time, Mr LAM Wo-hei said that it was not appropriate for the professional institutions to decide for the Administration whether and when prosecution should be taken.

17. Mr Patrick CHAN stated that the proposed measures to issue cease works orders and to revoke the consent would be effective to assure compliance of supervision plans. To this end, commercial pressure would be more effective than legal pressure. Mr CHAN agreed that different parties should be responsible for different spheres of site supervision. But how the responsibilities should be delineated would have to be worked out.

18. The Chairman advised the parties concerned to give further thought on the issue of criminal sanction. Mr Trevor KEEN said that the Administration might need to consult the Executive Council if any revised proposal turned out to be significantly different from the Administration’s original one and any amendments to the Bill would be dealt with in the Committee Stage Amendments.

III. Date of Next Meeting

19. Mr Edward HO proposed and Members agreed to visit a construction site(s) on 7 March 1996 (Thur) afternoon. The meeting agreed that the site visit should be arranged by the HKIA together with the Administration.

HKIA &

Adm

20. The next meeting was scheduled for 4 March 1996 (Mon) at 3:00 p.m.

21. The meeting ended at 12:20 p.m.

LegCo Secretariat
22 March 1996