LegCo Paper No.CB(2) 312/96-97
(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 3rd Meeting held on Tuesday, 15 October 1996 at 2:30 pm 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 Mrs Miriam LAU, OBE, JP
    Dr Hon Samuel WONG, MBE, FEng, JP
    Hon LEE Kai-ming
    Hon TSANG Kin-shing
Member Absent :
    Hon LEE Cheuk-yan ] other commitments
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 Surveyo/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 with the Administration

(LegCo Paper No. CB(2) 2082/95-96)

(LegCo Paper No. CB(2) 124/96-97)

(LegCo Paper No. CB(2) 154/96-97)

Item (f) of the Administration’s written reply dated 30 August 1996

How can a tenant of a commercial unit in a shopping arcade be held responsible for works such as the provision of means of escape in the arcade? The Administration to provide examples to explain.

Mrs Sarah KWOK advised that under normal circumstances, the Administration would target enforcement action against the landlord. However, the Administration considered it more appropriate to take enforcement action against the tenants in cases which involved :

  1. the provision of minor equipment such as portable fire extinguishers, independent emergency lighting; and
  2. minor changes such as widening of a door opening, upgrading of a door to be fire resisting. For this category of cases, it would be more appropriate for the tenants concerned to comply with the requirements for security reasons.
  3. Mrs Selina CHOW wondered why the Administration’s policy intent as stated above was not reflected in the Bill. She was concerned that with such a wide definition of "owner" provided under clause 3, the enforcement authority could serve fire safety directions on the landlord, the tenants and the occupiers of prescribed commercial premises. But it was not clear as to who should be responsible for carrying out the required improvement works. Mrs CHOW therefore suggested the Administration to define clearly in the Bill the respective responsibilities of landlords and tenants, for example, the landlords to be responsible for major installations involving capital costs and the tenants for minor items, such as portable fire extinguishers.

3. Mrs Miriam LAU supported the approach of defining clearly in the Bill the respective responsibilities of landlords and tenants. She considered that the landlords should be responsible for those improvement works involving structural changes of the premises concerned and the tenants/occupiers for those involving non-structural ones. However, these responsibilities were only relative to the enforcement authority. The landlords might ask the tenants/occupiers to comply with the requirements of a fire safety direction which involved structural changes, if that was specified in the tenancy agreement.

4. Dr Samuel WONG considered that the division of responsibilities between landlords and tenants should be based on whether the required improvement works were related to the central system of the commercial premises concerned, such as central air-conditioning system. He quoted an example in which part of the ground floor of a commercial building was let to a bank. Amongst all the units of the commercial building, only the bank was required to install an automatic sprinkler system. In the circumstances, it should be the responsibility of the bank to comply with the relevant requirement.

5. Mr Edward HO pointed out that the approach of defining clearly in the Bill the respective responsibilities of landlords and tenants might cause practical problems in cases where a fire safety direction had to be served on both the landlords and tenants. He suggested to state explicitly in the Bill that enforcement action would be taken against the landlords who could then comply with the requirements on their own or ask the tenants to comply with the requirements, if that was specified in the tenancy agreement.

6. After discussions, Mrs Sarah KWOK advised that the Administration saw merits in some members’ proposals to define in the Bill the respective responsibilities of landlords and tenants. The Administration would consider members’ proposals and provide proposed division of responsibilities between owners and occupiers.

Item (g) of the Administration’s written reply dated 30 August 1996

Whether the Bill has any retrospective effect and, if so, whether the retrospectivity has Bill of Rights implications?Adm

7. Mrs Sarah KWOK advised that according to the legal advice, legislation operated retrospectively if it made unlawful a past act or omission that was lawful when it was committed or vice versa. However, all the provisions of the Bill would operate prospectively and hence, the question of retrospectivity did not arise.

8. Mr Ronald ARCULLI was not convinced by the Administration’s argument. He quoted the following example :

DateEvent
November 1994 The Building Authority (BA) approved the layout plan of a commercial building according to the standard and requirements of the then prevailing Codes of Practice.
October 1996The Bill was passed in the Legislative Council.
November 1996Construction work of the relevant commercial building completed in accordance with the approved plan. The owner concerned applied for an occupation permit.

Mr ARCULLI was concerned that in this case, the BA would not issue the occupation permit unless the owner had carried out improvement works to meet the requirements of the revised Codes of Practice under the newly passed legislation.

9. Mr LAM Siu-tong advised that basically, the issue of occupation permits was governed by the Buildings Ordinance and was not relevant to this Bill. In the case quoted by Mr Ronald ARCULLI, the BA would issue the occupation permit to the owner concerned as the building was constructed in accordance with the approved plan. The Chairman asked whether the BA could, on the next day of issuing the occupation permit, serve a fire safety direction on the owner concerned requiring him to carry out improvement works to meet the requirements of the revised Codes of Practice under the newly passed legislation. Mr LAM advised that theoretically, the BA could do so. Members considered this unfair to the owner concerned. At the Chairman’s request, Mr LAM agreed to further look into the subject and provide a written reply for members’ reference.

10. In response to Mr Ronald ARCULLI’s enquiry on the existing practices in Hong Kong and overseas countries, Mr LAM Siu-tong advised that in Hong Kong, it had all along been unnecessary for owners of existing buildings to upgrade fire safety standards of the buildings to meet the new requirements of a revised Code of Practice. However, following the fire at the Shek Kip Mei branch of the Hongkong Bank on 10 January 1994, the Administration saw the need to upgrade fire safety standards in certain types of existing commercial premises which had significant customer flow. As such, the Bill would only apply to prescribed, but not all, commercial premises. Regarding the existing practice in overseas countries, Mr LAM undertook to look into it.Adm

11. Mr Ronald ARCULLI asked for the Fire Services Department’s advice on whether the overseas fire services authorities would, as a result of an incident similar to the Shek Kip Mei incident, introduce similar legislative amendments requiring improvement works to be carried out in existing buildings. Mr LAM Chun-man advised that as far as he knew, certain overseas countries had introduced legislation requiring the installation of smoke detectors in domestic premises and that those existing premises which did not have smoke detectors were required to comply with the new requirement.Adm

12. Some members considered that the installation of smoke detectors was far less complicated than carrying out structural improvement works in existing buildings. Mr LAM Siu-tong advised 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. As pointed out in the last meeting, the Administration accepted fire engineering approach as an alternative to the prescriptive approach to fire safety. For example, if the owner considered it not feasible to provide additional staircases in the commercial premises as required by the enforcement authority, it might propose pressurization of existing staircases or any other enhanced fire safety measures as an alternative. The Buildings Department (BD) would, before the "Code of Practice for the Provision of Means of Escape in Case of Fire 1996" came into effect on 1 December 1996, issue a guideline to introduce the concept and content of fire engineering approach so that building professionals and the general public would have a better understanding of the subject.

13. Some members were concerned that if improvement works were required in a shopping arcade, owners of small units in the arcade might not have the financial resources to appoint an authorized person to propose an alternative. It might also be difficult for them to reach a consensus on which alternative to be adopted. Mr Ronald ARCULLI said assuming that there were 100 small units in a shopping arcade and the enforcement authority served fire safety directions on all owners concerned requiring them to provide additional staircases in the arcade. It might result in a situation where 99 out of the 100 owners agreed to widen the staircase next to the unit of the remaining owner who, as a minority, would have no option but to comply with the majority view, though knowing that the improvement works would reduce the floor area of his unit by half. Mr LAM Siu-tong advised that to avoid such disputes, the BD would offer professional advice and issue guidelines to owners of small units. The Chairman pointed out that not all the owners would follow the BD’s advice.

14. ALA4 advised that from the legal point of view, the Bill itself was not retrospective and therefore did not contravene the Hong Kong Bill of Rights Ordinance. However, it would be a policy consideration for members to see whether it was necessary to enforce the legislation by phase or to set a cut-off date in the Bill, stating that the Bill would not be applicable to those commercial buildings with occupation permits issued before a certain date. In this connection, the Chairman proposed to provide temporary exemption from the legislation those commercial buildings completed in the recent years. For example, temporary exemption might be granted to those with layout plans approved within the 10-year-period before the commencement of the legislation or, approved in 1986 or 1989 because one of the three Codes of Practice had been revised in 1986 and two in 1989.

The drafting of para. 2 of Schedule 2 of the Bill

15. Members noted that under para. 2(1) of Schedule 2, owners of prescribed commercial premises might be required to take fire safety measures to provide adequate means of escape, means of access and fire resisting materials. In response to Mrs Selina CHOW’s enquiry on the definition of "adequate", Mr LAM Siu-tong advised that the relevant requirements were in fact provided in the three Codes of Practice listed in para. 2(2) of Schedule 2. Members therefore queried the need to retain para. 2(1). After discussions, Mr LAM agreed that para. 2(1) of Schedule 2 might not be needed and would redraft para. 2 to state clearly the construction requirements for prescribed commercial premises.

16. At the request of Mrs Selina CHOW, Mr LAM Siu-tong agreed to provide the three Codes of Practice for members’ reference.

[Post-meeting note : The three Codes of Practice, as provided by the BD after the meeting, were circulated to members under LegCo Paper No. CB(2) 194/96-97.]

Adm

Annex to the Administration’s written reply dated 11October 1996

17. Members noted the summary table on the 22 commercial premises inspected by the BD and the relevant layout plans tabled at the meeting.

[Post-meeting note : The relevant layout plans were issued to the absent member after the meeting under LegCo Paper No. CB(2) 154/96-97.]

Banks (Total No. : 9)

18. Mr LAM Siu-tong briefed members on the first case listed in the summary table (FSD Ref.#151) and the relevant layout plan. He concluded that there should be no great practical difficulties for the 9 banks in question to carry out the required improvement works.

Shopping arcades (Total No. : 4)

19. Mr LAM Siu-tong briefed members on the first case in page 4 of the summary table and the relevant layout plan. He advised that the 4-storey shopping arcade in question had only three smoke vents which were considered inadequate. The situation could be rectified by the provision of conventional type of smoke vents (not "dynamic smoke extraction system" as stated in the summary table).

20. Mr Ronald ARCULLI asked why the BD considered it inadequate to have three smoke vents in the shopping arcade. He queried whether the BD was applying the 1989 or 1996 version of the "Code of Practice for Fire Resisting Construction" on this case and, whether there were any differences in the requirements of these two versions on the provision of smoke vents. Mr LAM Siu-tong undertook to look into it.

II. Date of Next and Further Meetings

21. Members noted that the following organizations had requested to present their views on the Bill to the Bills Committee :Adm
  1. Retail Management Association Limited; and
  2. Joint presentation of Real Estate Developers Association of Hong Kong, Hong Kong Institute of Architects and Hong Kong Institute of Surveyors.

22. After discussions, members agreed to the meeting schedule as follows :


DateTimePurpose
4th meeting 31.10.96 8:30-9:30 am To receive the
(Thur) organizations stated at para. 21 above		para. 21 above
5th meeting 4.11.96 4:30-6:30 pm To continue discussion

(Mon) with the Administration


[Post-meeting note : As instructed by the Chairman, the 6th meeting was scheduled to be held on Tuesday, 12 November 1996 from 2:30 to 6:30 pm.]

III. Close of Meeting

23. The meeting ended at 4:35 pm.D

LegCo Secretariat

31 October 1996

Last Updated on 14 December 1998