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

I. Meeting with the Real Estate Developers Association of Hong Kong (REDA)

The submission of REDA was at Appendix I to LP No. HB 195/95-96.

2. The salient points raised by representatives of REDA and their response to Members’ questions are summarised below.

1. REDA accepted the concept of a supervision plan for building works but it had reservations about the timing for the submission of such a plan to the Buildings Authority (BA). In the building industry, the process of Design-Tender-Contract-Build had long been established. To require the submission of a supervision plan at the design stage as a prerequisite for approval for the commencement of works would upset this normal process. A rigid supervision plan would leave no room for deviation as and when site circumstances warranted it. This would hamper effective building operation and the consequences of which would be a loss to the community at large.
2. The necessity for a supervision plan for any building project irrespective of its scale and nature was questionable. REDA considered that the requirement for preparation of a prescribed supervision plan should only be imposed on high-risk construction projects, e.g. demolition works.
3. REDA objected to the proposed criminal sanction on AP/RSE for failure to supervise in accordance with an approved supervision plan. Under the existing Buildings Ordinance, AP/RSE would be held liable criminally for professional negligence that caused an accident. The present proposal would subject AP/RSE to criminal sanction for mere non-compliance with the supervision plan irrespective of whether or not an accident happened. This proposal not only failed to enhance site safety but might also have adverse effects. In practice, it was not viable for AP/RSE to discharge the duty of monitoring the day-to-day performance of workers on site. In order not to attract criminal penalty, renowned and responsible architects would be reluctant to act as AP for building projects. This would allow irresponsible professionals to capitalize on the situation.
4. Whether the imposition of criminal sanction by legislation was an effective means to improve safety of building works should be examined. In REDA’s views, education and training of the workforce would be the right way to enhance safety of building works.
5. The Bill proposed the appointment of technically competent persons to supervise the works but did not specify the qualifications for such persons. REDA called for clarification of it.

3. The brief response of the Administration is set out below.

1. It had not been the Administration’s thinking that a supervision plan should be submitted at the design stage of a building project before invitation of tender for construction. In fact, the Administration expected that a supervision plan would be prepared jointly by AP/RSE and RC. The Administration noted Members’ concern about the drafting of the proposed section 16(1)(ca) which would have the unintended effect of requiring the submission of a supervision plan before the BA would approve any plans of building works. This point would be considered again when the Bills Committee examined the Bill clause by clause.

Clerk to note

2. A supervision plan would set out the different responsibilities of parties involved in a building project. Should every party follow an approved supervision plan to the letter but an accident occurred as a result of negligence of the workers, the Administration did not see why the AP/RSE or the RC’s supervisory team should be held liable for the accident. The decision as to whether or not to institute prosecution against any person in an accident did not rest solely with the BA. The BA had to seek the Attorney General’s consent before prosecution could be taken. The Court would consider all relevant evidence before passing a judgement. Responsible professionals should not have any worry about the proposed criminal sanction which was targetted at irresponsible professionals.
3. The concept of a supervision plan was not an academic approach to address the issue of site safety. It was at the request of the building industry to clarify the meaning of "adequate and proper supervision" as proposed in the Buildings (Amendment) (No. 2) Bill 1995 that the Administration came up with such an idea.

II. Meeting with a Group of Structural Engineering Firms

4. The deputation represented eleven structural engineering firms. Their submission was at LP No. HB 188/95-96.

5. The salient points of the deputation and their response to Members’ questions are summarised below.

1. The deputation objected to clauses 12 and 13 which required the submission of a supervision plan by AP/RSE to ensure the safety of building works. The main contractor always sub-contracted the construction works to various sub-contractors. It was practically impossible for AP/RSE to supervise the day-to-day performance of sub-contractors. The duties of AP/RSE were to carry out periodical supervision of the works; clarify his design; report to the BA on any observed contravention of the law; and take action on a works site where public safety was at risk.
2. The deputation were against clause 17 which imposed criminal sanction on AP/RSE for failure to comply with a prescribed supervision plan. AP/RSE assisted the BA in enforcing the Buildings Ordinance. AP/RSE did not carry out the building works themselves. It was unfair to AP/RSE if they were to be held criminally liable for not taking up this enforcement role zealously on BA’s behalf. There was no criminal intent on the part of AP/RSE in any accident.
3. The enactment of the proposals about criminal sanction and supervision plan would demoralize the building professionals. The proposals would hinder the exercise of professional judgement and creativity. The Bill, if passed, would encourage the Government to further transfer its responsibilities for enforcing the Buildings Ordinance to AP/RSE. It also set an undesirable precedent for criminalisation of the conduct of professionals in other fields should the Government be under public pressure to tighten control over a certain issue.
4. It was difficult to compare the safety record in works sites of private building projects with that of public projects. Demolition works undertaken by the Government were few and the size of a demolition site in a public project was relatively large. There were usually more full-time staff stationed at a public construction site to supervise the carrying out of works. Comparatively speaking, the ratio of occurrence of accidents at the sites of housing projects undertaken by the Hong Kong Housing Authority was low. As far as the deputation were aware, no prescribed supervision plan was prepared for such projects but sufficient site safety measures were taken.
5. Since the Buildings Ordinance did not apply to professionals working in the public sector, the implementation of the proposals in the Bill might increase the wastage rate of building professionals in the private sector, which would adversely affect the quality of building works in the long run.
6. The deputation requested for deletion of clauses 12, 13 and 17. In their views, safety of building works could be improved by -
   1. requiring AP/RSE to employ full-time qualified staff to inspect the works on site;
   2. upgrading the qualifications of site managers and agents of the main contractors;
   3. conducting research on procedures and machinery with a view to improving the technology in demolition works; and
   4. providing training to construction workers to strengthen their knowledge of site safety.

6. The response of the Administration is set out below.

1. The Bill contained a package of proposals which addressed the deputation’s suggested ways to improve site safety. Clause 13 required the appointment of technically competent persons to supervise the works. One of the objectives of the Bill was to formalise the registration and improve the qualifications of contractors. The Administration had issued guidelines concerning site safety and would continue to do so. In fact, the Administration was in the process of commissioning a consultant to devise a code of practice for safe demolition works, specifically to cater for local conditions. After the enactment of the Bill, the Administration would introduce amendments to the Building (Demolition Works) (Amendment) Regulation 1995 and among other things, would require special demolition works be undertaken by workers who had undergone relevant training.
2. As explained in earlier meetings, the Buildings Ordinance provided for criminal sanction for relatively lighter offences. However, the default of duty of AP/RSE to carry out periodical supervision of works, which was in the law since 1955, carried no sanction. According to the Attorney General’s advice, under the present law, the failure of AP/RSE to supervise works did not necessarily constitute grounds for instituting disciplinary proceedings, under section 7 of the Buildings Ordinance, on misconduct or negligence.
3. The proposal on criminal sanction had been carefully considered on the basis of experience over years. The concept of a supervision plan was the result of consultation with the professions and would remove the ambiguity on the meaning of "periodical supervision", which might differ greatly from one AP/RSE to another. Given the complexity of building projects nowadays and the dynamic site circumstances, the law should be amended correspondingly.

7. The Chairman remarked that if failure to supervise works by AP/RSE did not fall within the meaning of "misconduct" or "negligence" under section 7 of the Buildings Ordinance for the purpose of disciplinary proceedings, the Administration should clarify the provision to cover such failure. The enactment of the proposal on criminal sanction would not make such failure actionable under disciplinary proceedings. Mrs Selina CHOW emphasised that if failure to supervise works did not even amount to misconduct or negligence, the proposed criminal sanction was out of the question.

III. Meeting with the Hong Kong Institute of Surveyors (HKIS)

8. The submission of HKIS was at LP No. HB 205/95-96.

9. The main points of the representatives and their response to Members’ questions are summarised below.

1. HKIS supported the spirit of the Bill to improve site safety. It objected to clauses 12, 13 and 17 and requested that these clauses be deleted.
2. The approach taken by the Administration to tackle the problem of accidents on construction sites was wrong. The Bill was an overkill to the problem. The belief that the preparation of a supervision plan and the criminal sanction for non-compliance with the plan would drive AP/RSE and RC to do their best in site supervision was unfounded. Given the complexity of building projects nowadays, it would be difficult to compile a supervision plan approved by the BA. The whole process would be a waste of resources on both the construction industry and the Administration.
3. Even before the enactment of the Bill, AP/RSE had been worrying about its effect. It was known that renowned architectural firms had refused to sign building plans. The representatives’ personal experience showed that the building industry was facing a recruitment problem as experienced and qualified professionals were unwilling to accept an employment which required them to sign log books on construction sites.
4. The right way ahead should be to strengthen safety awareness. The employment of safety officers and the use of ISO 9000 were geared towards this direction. In HKIS’s views, the Administration should take a more active role to improve the quality of construction workers by education and training and to consider appointing professionally qualified managers to supervise works on construction sites. A comprehensive review of the Buildings Ordinance rather than one or two particular provisions was necessary.

IV. Brief response from the Administration

10. Since all the professional institutions received by the Bills Committee so far had raised strong objection to the proposed criminal sanction for failure to supervise works, Members were concerned if the Bill did change the responsibilities of AP/RSE in relation to site supervision which they could not discharge. Mr Albert CHAN enquired if criminal sanction was imposed on professionals in other fields for professional negligence, for example, lawyers, accountants and doctors. Mr Edward HO and Mrs Selina CHOW pointed out that the Administration had not been able to cite a proven case where an accident was caused by the failure of AP/RSE to supervise.

11. The response of the Administration is set out below.

1. The legal and the accountancy professions did not have direct involvement in public safety. Although the conduct of doctors affected the personal safety of patients, there was a crucial difference between the situation of an AP/RSE and that of a doctor. An AP/RSE had an opportunity to design a work plan in advance before the commencement of works whereas a doctor who received a patient from his clinic or from an ambulance did not have an opportunity to prepare a plan beforehand.
2. It had never been the intention of the Bill to hold AP/RSE liable for the actions over which they could not reasonably control. The Bill did not create vicarious liability. The Bill required the building professionals to create an agreed plan before the commencement of works which identified critical stages in the process where a particular level of supervision was necessary and the persons responsible for that. The Bill did not require every AP/RSE to be everywhere on a construction site all the time. Whilst RC had a major role in site supervision, AP/RSE also had a role.
3. The Administration did not consider it unreasonable for people who undertook serious responsibilities which had seen recent tragic incidents and literally had life-and-death consequences to do so knowing they might be held accountable when something went wrong. The criminal liability proposal was not that AP/RSE would be held liable if an accident happened. It was about a very specific offence for failure to stick to a plan on which they had agreed before the works started, irrespective of whether anything happened. A person who drove a car exceeding the speed limit committed an offence whether or not an accident occurred. The Administration did not consider it going too far nor an overkill to impose criminal liability.
4. Under the existing Buildings Ordinance, prosecution could be taken against building professionals for deviation from an approved building plan but failure to supervise works on the part of professionals could not be prosecuted. There were accidents which were caused by negligence of professionals to carry out supervisory duties and these cases were pending court proceedings. Whether or not there had been such cases, if there was a supervision plan in place agreed by the professionals before works started, there was a better chance of knowing whose failure for supervision had led to an accident. Far from trying to blur the responsibilities of the professionals involved in construction and demolition works, the Administration was trying to identify in advance exactly where these responsibilities lay in the aspect of supervision only.

12. Mr TSANG Kin-shing was of the view that irresponsible professionals should be subject to criminal sanction. Mrs Selina CHOW opined that the analogy with drivers was inappropriate as a driver was in control of his car while AP/RSE could not control the conduct of workers. Mr Trevor KEEN responded that he stood by his analogy. The Administration was not trying to prosecute or make people criminally liable for the action of others which they could not reasonably control.

13. Mrs Helen YU reiterated that the Bill contained a package of proposals and not just the proposal on criminal sanction. Whilst the views of professional institutions should certainly be considered, the views of construction workers and of the general public should not be overlooked.

V. Date of next meeting

14. Mr Edward HO said that the HKIA requested for another meeting with the Bills Committee.

Clerk

15. The next meeting was scheduled for 7 December 1995 (Thur) at 10:45 a.m.

16. The meeting ended at 4:45 p.m.

[Post-meeting note: On the instruction of the Chairman, the next meeting was rescheduled for 12 December 1995 (Tue) at 10:45 a.m.]

LegCo Secretariat
15 December 1995