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

I. Election of Chairman

Mr Ronald ARCULLI was elected Chairman of the Bills Committee.

II. Meeting with the Administration

2. Mrs Helen YU referred to the LegCo Brief presented to Members on 4 October 1995 and then briefly explained the background leading to the introduction of the Bill. Following two building collapses in August and September 1994, the community and the Administration were concerned to strengthen safety assurance on site and in interface with the public. At a meeting held on 14 September 1994, Members urged the Administration to tighten control of building works, increase penalty and review the Buildings Ordinance with a view to enhancing safety at construction sites. The then Secretary for Planning, Environment and Lands (SPEL) announced Government’s comprehensive action plans including the setting up of a special taskforce to monitor safety at building sites and the urgent review of the Buildings Ordinance. The Bill, which was intended to enhance safety assurance and to tighten control of building works, was the result of the review exercise. To address Members’ request for transparency, the drafts of three Amendment Regulations (to be made by SPEL after the enactment of the Bill) were also attached to the LegCo Brief. The Amendment Regulations set out in detail the implementation of the proposals in the Bill. Mrs Helen YU highlighted, inter alia, the requirement to submit a supervision plan to be coordinated by the authorized person (AP) and the registered structural engineer (RSE) responsible for a building project in close consultation with the registered contractor. The objective was to clarify the responsibilities among the parties concerned for better accountability. Mrs Helen YU emphasized that the supervision plans annexed were samples only which could be revised flexibly depending on scale, nature and complexity of individual projects.

Imposition of criminal liability

3. Whilst Members agreed with the objective of the Bill to improve safety at construction sites, some expressed grave concern on the proposed criminalisation of AP/RSE and registered contractors who failed to provide proper site supervision. Members expressed the following points :

1. The Administration had taken prosecution action against the persons concerned in respect of the collapses. This reflected that the existing legislation was sufficient for the Building Authority (BA) to take legal action against those persons who were considered liable for the occurrence of an accident. Given that the case was still pending in court and the liability of defendants had yet to be established, it did not seem appropriate at this stage to propose criminalisation of AP/RSE and registered contractors for failure to provide proper site supervision.
2. Many professions served the public in one way or another. Yet professionals in many fields would not be held liable criminally should they fail to provide professional supervision. Members questioned whether it was justified to impose such a sanction on AP/RSE and registered contractors.
3. Under the common law, an AP, a RSE or a contractor, if found to be negligent, would be liable as a professional person or otherwise. The professionals would face serious consequences for professional negligence that caused an accident. It was thus doubtful as to how the proposal about criminalisation would help to enhance safety standards at construction sites.
4. The proposal was in effect delinking site supervision from the result of any incident caused by or as a result of inadequate supervision. Under the proposal, even if no accident occurred, the AP/RSE and the registered contractor responsible for a building project would still be penalised for failure to supervise in accordance with an approved plan. On the other hand, should they follow the approved supervision plan, they might not be held liable in the event of an accident. Furthermore, even if they followed the approved supervision plan to the letter they could still be liable unless the law clearly stated they would not be liable.

4. In response, the Administration made the following comments :

1. Although the review of the Buildings Ordinance was triggered off by the two building collapses, the scope of review was not confined to those aspects pertinent to the two incidents. Whether or not the court case was concluded should not affect consideration of the Bill. As a matter of fact, the rider given by the Coroner’s Court on 5 May 1995 suggested, inter alia, a need to increase penalty. Past experience indicated that there were deficiencies in the existing Buildings Ordinance. These included insufficient powers of the BA to direct building professionals and contractors to provide proper protective measures and supervision for building or demolition works; ambiguity as to the responsibilities of various parties in ensuring the safety of building works; and a lack of control of the competence and experience of registered building contractors. The Bill aimed at plugging these identified loopholes.
2. A supervision plan was to be prepared by the AP/RSE and other relevant parties according to the nature, scale and complexity of a building project prior to the commencement of works. However, a plan could not possibly be worked out beforehand, by, say, (being the example cited by Members), doctors. The Bill was never intended to pick on a particular profession or any party. Criminal liability had already applied to breaches of many other provisions of the Buildings Ordinance such as obliterating notices issued by the BA and refusing Buildings Department staff to enter premises for inspection. Comparing with failure to provide proper supervision of building works where safety was at stake, these offences were relatively petty but they attracted fine and imprisonment.
3. Section 4(3)(a) and (b) of the Buildings Ordinance respectively required any AP and RSE to supervise building/street works in the prescribed manner and to notify the BA of any contravention of the regulations which would result from carrying out of any work approved by the BA. Under section 40(2AA), any AP or RSE who contravened section 4(3)(b) would be liable on conviction to a fine of $250,000 and to imprisonment for 3 years. The Bill proposed to bring the sanction for contravention of section 4(3)(a) in line with that for breach of section 4(3)(b).
4. The Administration had not prosecuted any case related to a lack of proper supervision by AP/RSE or registered contractor because the existing provisions did not empower the BA to take such a course of action. Where the Administration did prosecute, it was due to the fact that the person concerned was found to have breached other provisions of the Buildings Ordinance such as using defective material, deviating from the approved building plans or being reckless as regards safety measures.
5. Although section 7 of the Buildings Ordinance provided for the removal of an AP or a RSE from the AP’s or RSE’s register should he be found guilty of negligence and misconduct, the Attorney General’s Chambers advised that failure to supervise a work site did not necessarily amount to misconduct or negligence. There was in fact no effective sanction to deter failure to supervise. It should be appreciated that danger was not necessarily caused by using defective material. Failure to provide proper site supervision or carrying out demolition works not in accordance with the method statement could be hazardous.
6. Undoubtedly the Administration’s aim was to achieve a record of perfect safety. It was hoped that the proposed criminalisation would achieve a deterrent effect in the way that persons in the profession would exercise self-discipline and take a serious view of supervision. Given that the AP/RSE was required to certify upon completion of building works that the works had been done in accordance with the approved building plans, they would not be in a position to do so should they fail to carry out their duties to provide proper site supervision.
7. The Administration said that the Hong Kong Construction Association (HKCA), at meetings of the relevant advisory committees and consultations with the Administration, had accepted the need for the proposal about criminal liability.

5. The Chairman did not agree that the HKCA had accepted the need for criminalization as proposed in the Bill. The misunderstanding arose from possible views expressed by members sitting on the advisory committees who were appointed on ad personam basis and they did not represent the HKCA. Despite the Administration’s explanations, the majority of Members had reservations over the proposal. Mr TSANG Kin-shing considered the proposal reasonable and that persons who defaulted the duties of site supervision should be held liable criminally. At Members’ request, the Administration would advise in writing whether there were any overseas jurisdictions where failure to provide proper site supervision by professionals was a criminal offence.

Adm

Submission of supervision plans

6. Mr Edward HO considered that the Bills Committee should scrutinize the Bill together with the Amendment Regulations to ensure that the amendments to the Regulations were acceptable. As an AP and RSE would exercise their professional judgement and supervise work sites as deemed necessary, Members queried the necessity of requiring the submission of a supervision plan for the approval of the BA prior to the commencement of building/demolition works. Since the supervision plan had to be approved by the BA, the BA’s professional judgement would prevail over that of the concerned AP and RSE. Some Members were unsure as to how and whether an AP/RSE would be held responsible if the supervision work was properly delegated to another who failed to carry out his stated duties or whether anyone on the "supervision" team would be held responsible.

7. The Administration provided the following response :

1. The Administration was aware of the professions’ concern on the proposed requirement. It welcomed Members’ comments on proposed amendments to the Regulations, in the course of scrutiny of the Bill, where safety would not be compromised.
2. Section 4(3)(a) of the Buildings Ordinance provided that any AP and RSE appointed as the coordinator of building works or street works should carry out supervision of such works in the prescribed manner. The Administration considered that "in the prescribed manner" meant "periodical supervision as may be necessary" under regulation 37 of the Building (Administration) Regulations. In the Buildings (Amendment) (No. 2) Bill 1995, the Administration had proposed that AP, RSE and registered contractors should provide "adequate and proper supervision". In the consultations with the professions and the trade, the Administration came up with the proposal for AP/RSE to submit a "supervision plan" for BA’s approval prior to the commencement of building and demolition works. This concept was akin to the practice of AP submitting "method statement" to BA for approval prior to demolition works.
3. Formalisation of supervision plans would clarify the existing ambiguities as to the meaning of "periodical supervision as may be necessary". The supervision plan would be prepared jointly by the AP, RSE, contractors and other relevant persons and approved by the BA. In the plan, the duties of different parties in site supervision would be clearly set out. There should be no difficulties in identifying which party was responsible should any breaches of the supervision occur. The Administration emphasized that it had never intended for AP or RSE to take over the responsibilities of contractors. The proposal would improve the regime of control without affecting the viability of the construction industry.
4. If the persons concerned had acted in accordance with the approved supervision plan and yet an accident occurred, the Administration would investigate the case and establish the facts. Should it be proved that the accident was attributed to other causes, they would not be held liable for it. Although compliance with the approved supervision plan would not absolve the persons from common law liability, they would have a strong case to argue in court should they be sued for professional negligence.
5. The requirement to submit a supervision plan was not unique to Hong Kong. A similar requirement existed in the United States, albeit under a different name. The HKCA accepted this proposal. The Administration would, in consultation with the trade, draw up detailed guidelines on approval of supervision plans acceptable to both sides.

8. The Administration would provide information papers on the responsibilities of different parties and procedures involved in building and demolition works.

Adm

III. Papers for the meeting

9. The meeting agreed that in the event of shortage of time, e.g. only an English or a Chinese submission was received from deputations shortly before the meeting, the original copy should be circulated to Members first and the translated version would be forwarded as soon as practicable.

IV. Date of next meeting

10. Members agreed that a press release should be issued to invite views on the Bill and interested organisations to meet the Bills Committee. The next meetings were scheduled for 15 (Wed) and 23 November (Thur) 1995 at 8:30 a.m. and 2:30 p.m. respectively to receive deputations.

Clerk

11. The meeting closed at 11:30 a.m.

LegCo Secretariat
10 November 1995