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

I. Meeting with the Administration

A press statement issued by the Buildings Department (BD) regarding the Administration’s position on the Bill, an information sheet from the Administration providing accident statistics in the construction industry and a paper from Dr Samuel WONG commenting on the Administration’s earlier paper on "Liability under Building Control Legislation" (Ref: LP No. HB 483/95-96) were tabled at the meeting.

2. Referring to the press statement, Mrs Helen YU said that there was a misrepresentation on an English newspaper dated 21 January 1996 saying that the BD might back down over the Bill. Mrs Helen YU clarified that the BD stood firm on the Bill and was determined to persuade LegCo to assist in enhancing safety assurance in the manner as proposed in the Bill. Mr Trevor KEEN stated that the Secretary for Planning, Environment and Lands reaffirmed the Administration’s stance on the Bill and that the Administration was not watering down the proposals.

Control over Private Works vis-a-vis Public Works

3. On the question of application of the Bill to private building works only, Mr Trevor KEEN stated that it was a standard practice for a bill to be considered by the Attorney General’s Chambers (AGC) before introduction to LegCo. AGC confirmed that the Bill had no Bill of Rights implications. There had long been a dual mechanism in dealing with private works as opposed to public works. Private works were governed by the Buildings Ordinance (BO) whereas public works were subject to a different control system. The roles of AP/RSE as defined in the BO did not apply to public projects.

4. Mr P J Berry stated that the management systems for public works and for private works were fundamentally different. Although public works were not governed by the BO, Government departments had devised effective in-house procedures for safety and endeavoured to ensure these procedures were being followed. This was evident in the overwhelming differences in accident statistics in Government projects as opposed to private projects. The accident rate in the former was coming down over the years but similar improvement was not witnessed in respect of the latter.

5. Members raised grave concern about the double standards applying to private projects as opposed to public projects. Mr Edward HO stated that irrespective of whether the works were public or private, there should not be any distinction on how construction works should be supervised nor differential treatment among professionals as far as liability for failure to supervise works was concerned. Given that professionals were already liable for negligence that caused an accident and would face serious consequences, the necessity of imposing additional criminal sanction for failure to supervise works was questionable. Mr TSANG Kin-shing took the view that professionals working in the public sector or the private sectors should be subject to the same law. Notwithstanding the good safety record in Government sites, accidents still occurred. A recent accident involving hand-dug caisson works was indicative of the double standards applying to Government projects vis-a-vis private projects. Hang-dug caissons were also used on Housing Authority’s site at Ma Hang. Mr Albert CHAN pointed out that if the procedures for safety adopted by Government departments had been so effective, there should not be any worry about or objection to the idea of applying the BO to public works and public officers. Dr Samuel WONG said that since the safety measures implemented by government departments had achieved good safety record, the Administration should promote these measures to the private sector through education.

6. Regarding hand-dug caisson works, Mr Trevor KEEN said that an ordinance in this regard would be operative on 1 February 1996. Under the ordinance, unless a contractor could demonstrate that there was a specific need and no other safer alternative, the Administration would not approve the use of hand-dug caissons. Although the ordinance would not apply to Government works, Government works would follow the same if not higher standards. Ms Ada FUNG said that Ma Hang was the only project of the Hong Kong Housing Authority (HA) where hand-dug caissons were approved in respect of site formation works because it was found technically not feasible to use other means. The Housing Department (HD) had taken initiatives to encourage contractors to put in place a safe system of work for all HA’s projects. Basically, contractors had to provide safe working conditions and workmen had to establish safe working habits, and these could be influenced by initiatives taken by developers, architects and engineers. Contractors and their project teams were required to follow safety procedures and provide stringent supervision on site. In addition, site safety was an agenda item for monthly site meetings. The HD could suspend works on site when they were liable to become dangerous. Moreover, contractors’ tendering opportunities were linked with site safety performance and the quality of works by means of Performance Assessment Scoring System. Thus, the accident rate in HA’s projects was only one-third of that for the construction industry as a whole in 1994.

7. Mr A H Lamont said that the Architectural Services Department (ASD) had a procedural site manual setting out guidelines on site supervision which included supervision of health and safety requirements. All the contractors engaged in ASD’s projects were required to follow the safety plans for their contracts. There were five levels of responsibility in relation to site supervision for ASD projects. It was the responsibility of ASD to ensure that their works achieved the standards required of general building works under the BO. There were established in-house procedures for site supervision for each individual project. Site supervision teams were structured into a Chief Clerk of Works, Senior Clerk of Works, Clerk of Works, Assistant Clerk of Works and Works Supervisors. At least three staff worked full-time on site for major projects to provide regular and periodic supervision. The concept of continuous site supervision was enshrined in the site manual.

8. Mr P J Berry said that all contracts of the Works Branch required safety plans which included, inter alia, regular monthly meetings with contractors and sub-contractors and formation of safety management committees. Safety initiatives originated from questions raised by a few LegCo Members in respect of airport projects and were applied initially only to Airport Core Program (ACP) projects. The Airport Safety Manual was put in place in July 1992, followed by the Safety Manual in respect of non-ACP public works and publication of safety related specifications. These safety requirements were then applied across the board to all Works Branch’s projects.

9. On Members’ queries as to why public works and public officers should be exempted from the control of the BO, Mr Trevor KEEN stated that while the Administration was not complacent over the safety record of Government works, the record was indeed improving. This was attributed to better safety measures implemented in Government sites. The safety management systems for public projects paralleled with the proposed supervision plan under the Bill. The public sector was already on the right track. Given that the Government had more direct control over public works, the Administration did not see the need to apply the BO to Government works. Should Members wish to examine this issue further, this should be looked at separately outside the context of the Bill.

10. Mr P J Berry agreed that the Government was doing the right thing demonstrably and there was no need to change a good practice. It was not a case of fear that public officers should not be governed by the BO. Were public works subject to the control of the BO, it would change the legal status and structure of the relevant departments which were not operating like a private company. Public officers, like professionals in private practice, were also liable to negligence under common law obligations.

11. Mrs Helen YU said that the issue had significant resources and practical implications for the BD.

12. Responding to Members’ views that the safety management systems for Government works should be promoted to the private sector through education, Mr Trevor KEEN said that the importance of education was well taken. Indeed the Administration had been working on this area for some years but the private sector was not making comparable improvements on accident statistics as the Government. Mr P J Berry stated that although the Government had set good examples in safety management, they were not followed suit by the private sector. The only way to get the private sector implement safety management systems similar to those for Government works was by legislation.

13. The Chairman said that a marked difference between the proposed prescribed supervision plan for private works and the supervision plans for public works was that the latter were voluntary and non-statutory. In fact, some of the deputations received by the Bills Committee accepted the concept of supervision plan, they opposed that it be in a prescribed form and that any deviation from it be subject to criminal sanction irrespective of whether or not there was an accident. A prescribed supervision plan was criticised as being impractical and inflexible.

14. In reply, Mr Trevor KEEN said that although the supervision plans for Government works were non-statutory, they were not voluntary in that they had to be followed. To ensure that a supervision plan for private works would be followed, it had to be statutory and criminal sanction for non-compliance had to be imposed.

15. The Chairman said that there were usually significant differences in the scale and site conditions between public works and private works. The same amount of money spent on safety might be immaterial to the overall costs of a large public project but not so for private works of a small scale. Dr Samuel WONG said that developers for Government works were usually more resourceful.

16. In response, Mr Trevor KEEN reckoned that developers for Government works might be in a better financial position. However, it was iniquitous to depend on the financial resources of developers in respect of safety. A small site might have more inherent difficulties in ensuring safety and would require greater vigilance. Mr P J Berry said that site conditions per se should make no difference in terms of safety. The only difference was in the amount of money put into the site to keep it safe. Mrs Helen YU said that the Administration recognized that a supervision plan should vary with the scale, nature and complexity of a project. Safety was also a question of attitude of the persons on site.

17. At Members’ request, the Administration would provide accident statistics in public works and private works of comparable site conditions.

Adm

Differences between the UK CDM Regulations and the Bill

18. Referring to Dr Samuel WONG’s paper tabled at the meeting, Mr CHENG Wei-dart said that it was a matter of different interpretations between Dr WONG and the Administration on the UK Construction (Design and Management) (CDM) Regulations 1994. An AP in the UK was only responsible for the design of a project whereas an AP in Hong Kong was a designer, a planning supervisor and the coordinator of works. Under the CDM Regulations, a client was required to employ competent professionals; to allow reasonable time for the professionals to complete the works; and to make financial provision for the project. Should any queries arise on a client’s responsibility in meeting the requirements in relation to appointment of competent persons, the client would have to show that he had exercised due care and diligence in such appointments and ultimately it would be for the court to decide. Mr A N Watson-Brown said that if a client had acted on professional advice in making certain appointments, it would constitute a defence in court.

19. Mr Trevor KEEN said that the Administration had considered the UK system under which a Health and Safety Plan for works was not required to be approved by the authority and felt that it was not appropriate for Hong Kong. In the Administration’s views, a supervision plan should be agreed by the BA. In fact, compared with the Bill, the UK Regulations were tougher and to a certain extent unfair in that the safety plan was not agreed by the authority in advance. A supervision plan would only identify the critical stages of works where a certain level of supervision would be necessary. Such a plan was not intended to interfere with professional discretion. If the parties concerned had acted in accordance with the plan, there would be small grounds for prosecution for the ocurrence of an accident. Mr A N Watson-Brown said that if the persons were prosecuted, they could rely on the plan as a defence.

20. The Chairman said that the crux of the matter was that the parties concerned might still be prosecuted even if they followed the plan to the letter and they would then have to prove their innocence in court.

21. Mrs Helen YU reiterated that a supervision plan was not meant to be produced solely by AP/RSE. It would be prepared by AP/RSE in close consultation with RC. The Administration had never intended for AP/RSE to take over the role of RC in site supervision nor that the building professionals had to be present in every corner of the site every day. Mrs Helen YU reassured Members that the BD would not operate in an extreme way. The BA would process a supervision plan with common sense and professional judgement would be the key. The professionals should have no fear. Mrs Helen YU said that since the Bill contained a whole package of proposals, the sooner Members examined the Bill in detail the better.

22. Mr A H Lamont clarified that ASD’s site manual was not a safety plan nor a supervision plan as referred to in the Bill. It was a procedural guide on how ASD organised and carried out its site supervision. ASD had eighteen manuals on different functional disciplines.

23. At Members’ request, the Administration agreed to provide :

Adm

1. a copy of the CDM Regulations;
2. information on site safety measures for HA’s projects; and
3. an extract of ASD’s manuals with examples on the number of site supervisory staff required for a typical Government project.

Appointment of Technically Competent Persons

24. Members shared the concern raised earlier by the deputations about the appointment of technically competent persons stipulated in clause 13. The clause was unclear on the qualifications of these persons and on whose responsibility to appoint them. The present drafting placed a collective responsibility on the owner, AP/RSE and RC in appointing technically competent persons.

25. Mr CHENG Wei-dart said that the nomination of technically competent persons would be left entirely to the parties involved in a building project. At this stage the Administration did not intend to keep a register of technically competent persons nor to specify their qualifications and experience. Different building projects would require persons of different qualifications and experience to be appointed as such. The party who nominated such a person would have to be satisfied that the appointee was competent for the job. In due course, the Administration would have a list of persons who had proven to be negligent or incompetent. Such a list would facilitate the BA to assess whether the nomination of a particular person as a technically competent person should be approved. Mrs Helen YU said that whilst it was not the Government intention to enshrine the qualifications of technically competent persons in the law, the BA would issue guidelines or practice notes on the interpretation of clause 13.

26. Regarding the question as to whose responsibility to appoint technically competent persons to supervise the building works, Mr CHENG Wei-dart said that clause 13 was intended to empower the BA to impose conditions in approving building plans or giving consent to the commencement of works. The BA would take account of the scale, nature and complexity of a building project and then specify whether it should be the building owner, AP/RSE or RC’s responsibility to appoint technically competent persons. Mr A N Watson-Brown said that the clause would give the BA a discretionary power. Since the BA would issue guidelines on the matter, the persons concerned could refer to the guidelines for qualifications of such persons. Many local laws operated in the same way in that the persons to whom the discretion applied were grouped.

27. The Chairman and Mr Edward HO considered it necessary to delineate the responsibility amongst the building owner, AP/RSE and RC, and that the drafting of clause 13 should be more definite in whose responsibility to appoint technically competent persons to supervise works.

28. Mr Trevor KEEN said that the Administration agreed that there was scope for tightening up the provision. The drafting might be improved, e.g. by adding the phrase "as the case may be". The Administration would review the drafting when the Bill was scrutinised by the Bills Committee clause by clause.

29. The Chairman advised the Clerk to forward to the Administration the paper setting out the views of the deputations and the position of the Administration on the proposed provisions. Mrs Helen YU said that the Administration would advise whether there were any points to add to the summary and respond in writing.

Clerk

Adm

II. Date of next meeting

30. The Chairman reminded Members that the next meeting was scheduled for 6 February 1996 (Tue) at 10:45 a.m.

31. The meeting ended at 10:20 a.m.

LegCo Secretariat
26 February 1996