LegCo Paper No. CB(2) 164/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/43/95/S2
Bills Committee on the
Fire Safety (Commercial Premises) Bill
Minutes of the 2nd Meeting held on Tuesday, 1 October 1996 at 10:45 a.m. in Conference Room B of the Legislative Council Building
Members Present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon Edward S T HO, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Hon LEE Cheuk-yan
Hon LEE Kai-ming
Hon TSANG Kin-shing
Members Absent :
Hon Mrs Miriam LAU, OBE, JP*
Dr Hon Samuel WONG, MBE, FEng, JP*
Public Officers Attending :
- Mrs Sarah KWOK
- Principal Assistant Secretary for Security
Security Branch
- Mr LAM Chun-man
- Chief Fire Officer (Protection), Fire Protection Bureau
Fire Services Department
- Mr Peter WONG
- Senior Engineer (Protection), Fire Protection Bureau
Fire Services Department
- Mr LAM Siu-tong
- Chief Building Surveyor/Legal (Acting)
Buildings Department
- Mr CHENG Kim-fung
- Senior Assistant Law Draftsman (Acting)
Legal Department
Clerk in Attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in Attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Miss Salumi CHAN
- Senior Assistant Secretary (2)1
I. Discussion on the Administration's written replies dated 30 August and 20 September 1996
(LegCo Paper No. CB(2) 2082/95-96)
(Appendix to LegCo Paper No. CB(2) 2169/95-96)
(LegCo Paper No. CB(2) 2207/95-96)
Item (a) of the Administration's written reply dated 30 August 1996
Will the Bill apply to banks which are not located at street level ?
Mrs Sarah KWOK advised that the proposed legislation would only apply to those commercial premises with a total floor area exceeding 230 m(, being used for the prescribed commercial activities listed at Schedule 1 of the Bill. The prescribed commercial activities were mainly those retail activities which attracted significant number of customers to the premises concerned, such as retail banking but not merchant banking. Hence, the proposed legislation would apply to retail banks with a total floor area exceeding 230 m(, irrespective of their location.
2. Members queried why the Administration's policy intent as stated above was not reflected in the Bill. They considered that the drafting of Schedule 1 was too wide and that the term commercial activities was not well defined, thus causing much ambiguities in the scope of the Bill. For example, it was common for retail banks/supermarkets/department stores located at street level to have their own offices on the same floor or on the upper floors of the same building and, for a jewelry or goldsmith's business to have its own work places. Under Schedule 1 of the Bill, it seemed that commercial activities referred not only to those activities in retail banks/supermarkets/department stores/jewelry shops but also to those in their offices/work places. As such offices/work places did not have a significant customer flow, it was unjustified to cover them under the Bill.
3. Mr LAM Chun-man advised that as the proposed legislation was targeted at those commercial premises where members of the public were likely to be present in significant numbers, the offices/work places mentioned at para. 2 above would normally not be covered under the Bill unless :
- the offices/work places were located next to the retail banks/supermarkets/department stores/jewelry shops within the same fire compartment; or
- the offices/work places were located on the upper floor of the retail banks/supermarkets/department stores/jewelry shops with an internal staircase linking up the two but without fire resisting separation.
| 4. Members considered that Schedule 1 of the Bill should be redrafted to reflect the Administration's policy intent stated at para. 1 above and to clearly define commercial activities, such as by including the concept of fire compartment stated at para. 3 above. The Chairman requested the law draftsman and ALA4 to review the drafting. | law draftsman
ALA4 |
Item (b) and Annex A of the Administration's written reply dated 30 August 1996
Differences between the Fire Service Installation requirements in 1973 for commercial buildings, and the current standards
5. Mr LAM Chun-man briefed members on Part (A) of Annex A of the Administration's written reply dated 30 August 1996. He pointed out that there had been no significant changes in the standard of fire service installations and equipment (FSI&E) for commercial buildings since 1987. In response to some members' enquiry, Mr LAM advised that the Administration aimed at bringing the FSI&E standard of all commercial buildings up to the 1987 standard, by requiring the owners concerned to provide the five items listed at para. 1(1) of Schedule 2 of the Bill, in particular, an automatic sprinkler system listed at para. 1(1)(a). Based on the results of the two surveys conducted by the Fire Services Department (FSD) in 1994 and 1995, the Administration had identified 500 buildings, mostly constructed before 1973, each of which had a total floor area exceeding 230 m( and did not have a sprinkler system, as the focus of enforcement action to be taken in the first phase.
Item (d) and Annex C of the Administration's written reply dated 30 August 1996
Analysis of the 500 pre-1973 commercial buildings to be targeted
6. Mr LAM Chun-man briefed members on Annex C of the Administration's written reply dated 30 August 1996. Mrs Selina CHOW and Mr Ronald ARCULLI considered the figure - 500 buildings identified by the Administration, on a low side. Mr LAM reassured members that the number of buildings identified was the result of a full survey on commercial premises in Hong Kong. He pointed out that the figure did not include those commercial premises with a total floor area not exceeding 230 m(, such as some small retail banks. Moreover, most of the shopping arcades located at major commercial premises had sprinkler systems and were therefore not included.
Item (c) and Annex B of the Administration's written reply dated 30 August 1996
Historical, chronological summary of changes in Codes of Practice or other construction requirements relevant to the Bill
7. Mr LAM Siu-tong briefed members on Annex B of the Administration's written reply dated 30 August 1996. In brief, the Building Authority had published and revised three Codes of Practice as follows :
| Codes of Practice | First Published | Revised
|
|---|
| (a) | For Fire Resisting
Construction
(FRC Code) | 1989 | 1996
|
| (b) | On Means of
Access for
Firefighting and
Rescue | 1989 | 1995
|
| (c) | On Means of
Escape (MOE
Code) | 1959 | 1968
1976
1986
1996 |
8. Mr LAM Siu-tong advised that the revision of the MOE Code in 1996 was based on a comprehensive review, taking into account overseas experience and views of the local industry. One of the changes made was the transfer of those paragraphs on the requirements concerning fire resisting construction to the FRC Code. This gave rise to the minor revision of the FRC Code in 1996.
Implications of Para. 2(2) of Schedule 2 of the Bill
9. Members noted that under para. 2(2) of Schedule 2, the owners of prescribed commercial premises may be directed to comply with all or any of the provisions of the three Codes of Practice mentioned at para. 7 above. They were concerned about the implications of such requirements, for example :
- the number of commercial premises to be affected;
- the types of improvement works required for complying with the provisions of the three Codes of Practice;
- the costs of the improvement works;
- the feasibility in carrying out the improvement works in certain commercial premises; and
- the implications of the improvement works on individual owners. For example, the widening of a staircase in a shopping arcade might reduce the floor area of the shop adjacent to the staircase and therefore affect the owner concerned.
10. Mr LAM Siu-tong advised that the Buildings Department (BD) had surveyed 20 commercial premises (out of the 500 identified by the Administration) and concluded that they should be able to comply with most of the provisions of the three revised Codes of Practice. Out of the 20 commercial premises, the BD had selected one 4-storey shopping arcade for a detailed analysis and found that there should not be major difficulties for the individual owners concerned to comply with the provisions.
11. Mr Edward HO considered it insufficient to survey only 20 commercial premises. He requested the BD to conduct a full survey, as that conducted by the FSD, for a better understanding of the implications of para. 2(2) of Schedule 2. Mr LAM Siu-tong responded that due to limitation of resources, such a full survey would not be feasible.
| 12. At members' request, Mr LAM Siu-tong agreed to provide a detailed analysis on the 20 commercial premises surveyed by the BD, showing, as far as possible : | Adm |
- the types of ownership of the 20 commercial premises, e.g. owned by one corporate owner or sold out to individual owners;
- whether there were any tenants involved; and
- the required information listed at para. 9(b) to (e) above.
| The Chairman also requested the Administration to provide floor plans of the relevant commercial premises for illustration purposes. | Adm |
Flexible approach and the test of reasonableness
13. In response to Mr LEE Cheuk-yan's enquiry, Mr LAM Siu-tong advised that flexibility had been allowed for in the three Codes of Practice and that the Administration would adopt a flexible approach in enforcing the legislation. For example, new provision advising the acceptance of fire safety engineering as an alternative to the prescriptive approach to fire safety was included in the FRC Code 1996. This meant that after the enforcement authority had served on the relevant owner a fire safety direction directing that certain improvement works be completed within a specified period, the owner might propose to the authority an alternative which could achieve the same result. He might do so by himself or through an authorized person. Mr LEE Cheuk-yan pointed out that this would result in a situation where the enforcement authority had to negotiate with the relevant owners on a case basis.
14. Mrs Selina CHOW was concerned that this flexible approach would leave much discretionary power to the enforcement authority and give rise to uncertainty. She therefore considered it essential to apply the test of reasonableness in the Bill. Mr LAM Siu-tong assured members that before serving a fire safety direction on the relevant owner, the BD would ensure that it was reasonable to do so, having regard to the relevant building structure and availability of technology. Mr CHENG kim-fung also advised that in order to address members' concern expressed at the first Bills Committee meeting, the Administration was considering to define clearly reasonable excuse in clause 5(6) by stating the two criteria, building structure and availability of technology.
15. Mrs Selina CHOW noted that under clause 5(6), An owner of prescribed commercial premises who, without reasonable excuse, fails to comply with a fire safety direction is guilty of an offence ...... She considered that instead of requiring the owner to prove that he had reasonable excuse not to comply with a fire safety direction, the enforcement authority should, in the first place, prove that it had satisfied the test of reasonableness before serving the fire safety direction. The onus of proof should rest with the enforcement authority. She suggested the Administration to state this explicitly in the Bill. In this connection, ALA4 suggested that a provision might be added to the effect that the enforcement authority must have satisfied a number of criteria before it could issue a fire safety direction. The Chairman proposed to add a sentence at the end of clause 5(2) of the Bill such as, The direction or the requirement must be a reasonable one taking into account the relevant building structure and availability of technology. Mrs Selina CHOW considered it insufficient to include only these two criteria. Mr LAM Siu-tong advised that apart from these two criteria, the enforcement authority would also consider some internal criteria such as legal implications and contractual implications of a fire safety direction before serving it on the owner. However, the Administration did not favour stating the internal criteria in the Bill.
16. Members agreed to defer discussion on this subject to the next meeting, when the analysis on the 20 commercial premises stated at para. 12 above was available from the Administration.
Item (e) of the Administration's written reply dated 30 August 1996
Item (b) of the Administration's written reply dated 20 September 1996
Liability of the owner if the business of a tenant was affected by the works commissioned by the owner in compliance with the requirements of the Bill
17. Mr Ronald ARCULLI was not satisfied with the Administration's written reply. He was of the view that it had not seriously considered the practical implications of the Bill on the relationship between the relevant landlords and tenants. For example :
- According to the legal advice obtained by the Administration, the owner would not be liable to the tenant for loss of business arising from execution of works by the owner in compliance with the requirements of the Bill provided that this was allowed under the terms of the tenancy agreement and that there was no negligence involved in carrying out the works. How about if there was no tenancy agreement?
- If there was no tenancy agreement, who should be responsible for carrying out the improvement works and the costs involved? The landlord or the tenant?
- If the floor area of a small shop was reduced from 100 m( to 50 m( after completion of the improvement works, should the tenant pay the rent for 100 m( or 50 m(?
- If the improvement works were to be conducted in common area affecting different landlords, who should be responsible for the improvement works? How about if some of them did not favour improvement works to be done?
18. As a whole, members were concerned that the ambiguous provisions of the Bill might give rise to disputes between landlords and tenants, and grievances from both parties. The Chairman suggested the Administration to state explicitly in the Bill that enforcement action would be taken against the landlords who should then comply with the requirements on their own or by contractual means. Mr LAM Chun-man considered this proposal not practicable because a fire safety direction might have to be served on a tenant in certain circumstances.
19. Mrs Selina CHOW suggested the Administration to state explicitly in the Bill that the landlords should be responsible for major installations involving capital costs while the tenants for minor items, such as some movable items. Mr LAM Chun-man pointed out that it might be unfair to require the landlord to pay for the improvement works required after internal alterations initiated by the tenant. Mrs Selina CHOW considered that under those circumstances, the landlord could ask the tenant to pay for the improvement works.
II. Next Step
20. The Chairman remarked that a press release inviting the public to submit their views on the Bill and/or to meet the Bills Committee had been issued on 23 July 1996 but with no response so far. Some members said they were aware that certain professional associations and interested groups had views on the Bill. They would ask them to approach the Clerk to the Bills Committee.
III. Date of Next Meeting
21. The next meeting would be held on Tuesday, 15 October 1996 at 2:30 pm in Conference Room B of the Legislative Council Building.
IV. Close of Meeting
22. The meeting ended at 12:50 p.m.
LegCo Secretariat
12 October 1996
* other commitments
Last Updated on 14 December 1998
