LegCo Paper No. CB(2) 1139/96-97
(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 9th Meeting
held on Thursday, 19 December 1996 at 8:30 am
in Conference Room A of the Legislative Council Building

Members Present :

    Hon James TO Kun-sun (Chairman)
    Hon Mrs Selina CHOW, OBE, JP
    Dr Hon Samuel WONG, OBE, FEng, JP
    Hon LEE Kai-ming
    Hon TSANG Kin-shing

Members Absent :

    Hon Ronald ARCULLI, OBE, JP *
    Hon Edward S T HO, OBE, JP *
    Hon Mrs Miriam LAU, OBE, JP *
    Hon LEE Cheuk-yan *

Public Officers Attending :

Security Branch
Mrs Sarah KWOK
Principal Assistant Secretary for Security
Miss Agnes TSE
Assistant Secretary for Security

Fire Services Department
Mr LAM Chun-man
Chief Fire Officer (Protection), Fire Protection Bureau
Mr Peter WONG
Senior Engineer (Protection), Fire Protection Bureau

Buildings Department
Mr CHEUNG Hau-wai
Assistant Director/Legal and Management
Mr LAM Siu-tong
Chief Building Surveyor/Legal(Acting)

Legal Department
Mr Duncan BERRY
Consultant, Law Drafting Division

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. Letter tabled by Mrs Selina CHOW

(LegCo Paper No. CB(2) 778/96-97(01))

Mrs Selina CHOW tabled at the meeting a letter dated 18 December 1996 from the Hong Kong Tourist Association to herself, expressing views on the Bill.

(Post-meeting note : After the meeting, the letter was circulated to absent members vide LegCo Paper No. CB(2) 778/96-97(01) for reference and forwarded to the Administration for a written response.)

II. Discussion with the Administration

(LegCo Paper No. CB(2) 491/96-97)

(LegCo Paper No. CB(2) 643/96-97(01))

(LegCo Paper No. CB(2) 750/96-97(01))

Committee stage amendments (2nd draft as at 17 December 1996)

Clause 3(1) - Definition of "owner"

2. Principal Assistant Secretary for Security advised that as agreed at the eighth Bills Committee meeting held on 10 December 1996, the definition of "owner" had been revised as having the same meaning of "owner" under the Buildings Ordinance (Cap.123).

Clause 3(1) - Definition of "occupier"

3. Principal Assistant Secretary for Security explained that the definition of "occupier" had been revised with the deletion/addition of the following expressions:

    Deletion

  1. "whether as owner, sublessee or franchisee or under a licence to occupy"; and

  2. "any person who is managing or otherwise controlling the premises on behalf of the occupier".

Addition

  1. "any person who is carrying on a business activity on the premises"; and

  2. "any person who is acting as the agent of the actual occupier".

4. The Chairman pointed out that at the eighth Bills Committee meeting, some members had raised their concern that the proposed definition of "occupier", which included the expression at para. 3(b) above, might cover managers of banks, supermarkets, jewellery shops etc. Though this expression was deleted, the revised definition of "occupier" with the two new expressions at para. 3(c) and (d) above caused the same concern. The Chairman asked whether it was the Administration’s policy intent to cover this category of persons. Chief Fire Officer (Protection) of the Fire Services Department (FSD) advised that if the manager was the agent of the proprietor, he should be covered by the definition of "occupier".

5. In response to the Chairman’s enquiry, Consultant, Law Drafting Division confirmed that the new expression at para. 3(d) above would cover the previous one at para. 3(b). However, under the general law of agency, there were well-established principles that applied on a particular case to determine whether or not a principal-agent relationship existed. Managers of banks, supermarkets, jewellery shops would be covered by the definition of "occupier" if they had a principal-agent relationship with the occupiers concerned. There were many precedents in other ordinances. For example, the definition of "owner" under the Buildings Ordinance, a well-established definition, also included the concept of agents.

6. Responding to Dr Samuel WONG, Chief Fire Officer (Protection) of the FSD pointed out that the responsibilities of owners and occupiers in complying with the requirements under the Bill were specified in Schedule 2 and Schedule 3 respectively. If the occupier was not in Hong Kong or could not be found, his responsibility in complying with the requirements under the Bill could not be shifted to the owner of the premises concerned. In the circumstances, it was reasonable to require the agent of the occupier to carry out the required improvement works, otherwise public safety would be endangered. The Administration therefore considered it essential to define "occupier" to include "any person who is acting as the agent of the actual occupier" (para. 3(d) above).

7. After balancing the need to ensure that no one would unreasonably be caught by the definition of "occupier" against the enforcement difficulties encountered by the Administration, members agreed to define "occupier" to include the agent of the occupier. However, they would like to make it clear that the term "agent" in this context meant very senior staff in the premises concerned. Consultant, Law Drafting Division proposed to use the previous expression "any person who is managing or otherwise controlling the premises on behalf of the occupier" (para. 3(b) above) because then the definition of "occupier" would be limited to those who were actually in charge of the relevant business activity. Members were concerned that in the absence of the senior staff, the junior staff in the premises concerned might be regarded as "controlling the premises" by the enforcement authorities. To address members’ concern, ALA4 proposed to use "managing and controlling the premises". Members agreed to revise the definition of "occupier" to include this expression. The Administration would look into this proposal.

Adm

8. In response to Mrs Selina CHOW ’s questions, Consultant, Law Drafting Division said that both expressions at para. 3(c) and (d) above should be included in the definition of "occupier" as they referred to two different categories of persons. As it was a proprietor’s business, no court would construe the expression at para. 3(c) above as including a salesgirl employed in the relevant premises.

New clause 3(6)

9. Principal Assistant Secretary for Security advised that the phrase "separate means of access" in the new clause 3(6)(c) had been changed to "separate means of egress". Members accepted this change.

Heading of clause 5, new clause 5(1A), clause 5(2) and clause 5(6)

10. Members accepted the Administration’s proposed amendments to the heading of clause 5, clause 5(2) and clause 5(6) and, to add the new clause 5(1A).

New clause 5(7)

11. Principal Assistant Secretary for Security advised that the new clause 5(7) was added to explain what constituted a "reasonable excuse" under clause 5(6). Referring to the new clause 5(7)(a), the Chairman was concerned that the new provisions might provide the owner/occupier with an excuse not to comply with a fire safety direction by stating that the required improvement works would affect the structural integrity of the premises concerned. Assistant Director/Legal and Management of the Buildings Department (BD) responded that if the required improvement works would affect the structural integrity of the premises concerned, the owner/occupier should take other alternatives to rectify the situation.

12. Mrs Selina CHOW considered that in the first instance, the enforcement authorities should not issue a fire safety direction which would affect the structural integrity of the premises concerned. Assistant Director/Legal and Management of the BD assured members that the enforcement authorities would, in taking enforcement action, consider the actual circumstances of each case. He also pointed out that the new clause 5(7) was introduced to address members’ concern expressed at the first and second Bills Committee meetings that the concept of reasonableness was not clearly spelt out in the Bill. As it was difficult to define "reasonable excuse" in clause 5(6) in detail, the Administration proposed to add the new clause 5(7) to make it clear that the two factors at the new clause 5(7)(a) and (b) would be taken into consideration in determining whether it was not reasonable to expect the owner/occupier to comply with a fire safety direction.

13. After discussions, members considered that the two factors at the new clause 5(7)(a) and (b) would help explain the term "reasonable excuse". They therefore accepted the new clause 5(7).

Clauses 6, 7, 8 (1)(b), 8(2) and (3) , 10(1), 12, 13(1), 16, 16(1) and 22

14. Members accepted the Administration’s proposed CSAs to the above clauses.

New clause 25 - Effect of substituted or amended codes of practice

15. Referring to the new clause 25(2) where it read "If the Legislative Council has passed a resolution declaring that a substituted or amended code of practice is to apply for the purposes of this Ordinance, the Secretary for Security may, by order published in the Gazette, amend the relevant Schedule .........", ALA4 asked why "may", instead of "shall" was used after "the Secretary for Security". Consultant, Law Drafting Division considered it not necessary to make it mandatory as the Administration would want this to come into force. The word "may" would allow more flexibility so that the Administration could bring the substituted or amended code of practice into force when it was appropriate, after approval by the Legislative Council.

16. Members accepted the new clause 25.

Sections 1(c) and 2 of Schedule 1

17. Principal Assistant Secretary for Security advised that the CSAs to sections 1(c) and 2 of Schedule 1 were proposed to make it clear that in respect of jewellery or goldsmith’s business, only those premises which had a security area would be covered by the Bill. Members accepted the proposed CSAs.

Revised Schedule 2 - Prescribed fire safety measures to be complied with by owners

18. Principal Assistant Secretary for Security pointed out that there was a typing error in the proposed CSAs, i.e. the provisions under section 2(3) and (4) of the revised Schedule 2 should be grouped into one item as section 1(e) of the same schedule.

19. Members accepted the revised Schedule 2.

New Schedule 3 - Prescribed fire safety measures to be complied with by occupiers

20. In response to the Chairman’s enquiry, Senior Engineer (Protection) of the FSD advised that the requirement under section 1(1) (a) of the new Schedule 3 was the standard requirement which had been widely adopted by the industry.

21. Regarding section 1(1)(b), Mrs Selina CHOW considered the meaning of "in the case of premises comprising a shopping arcade" not clear and that it might better be revised to "in the case of a shopping arcade".

Adm

22. In response to the Chairman’s enquiry, Chief Fire Officer (Protection) of the FSD said that the requirement under section 1(1)(d) was the standard requirement.

23. Members accepted the new Schedule 3.

The Administration’s written reply dated 6 December 1996

Item (a) and Annex - Similar overseas legislation on fire safety

24. At the eighth Bills Committee meeting, Consultant, Law Drafting Division undertook to look into the relevant provisions of the Fire Prevention Act 1971 (the Act) in the UK.

25. Consultant, Law Drafting Division advised that under the Act, it was unlawful to use premises for a designated purpose unless either a fire certificate was in force in respect of the premises or the premises were exempt. After the fire certificate had been issued, the person occupying the premises must notify the fire authority of any material change of the premises. The fire authority would inspect the premises to find out whether the change had rendered the requirements of the existing certificate inadequate. It could impose additional fire safety measures if necessary. After the additional requirements had been complied with, the fire authority would issue a fire certificate replacing the existing one. The Chairman asked whether the owners/occupiers concerned would be required to upgrade fire safety standard of their premises to meet the requirements of the most up-to-date standard. Consultant, Law Drafting Division advised that the fire authority could impose additional requirements which it considered necessary to make the premises safe in terms of changes made to the premises.

26. With the information provided by the Administration, members did not consider the Act comparable to the Bill. The Chairman remarked that unless the Administration could provide further examples, the Bills Committee would state in its report to the House Committee that the Administration had provided some provisions of overseas legislation but it was not very clear that any of them had a similar mechanism to upgrade fire safety standard of commercial premises as proposed under the Bill. Chief Fire Officer (Protection) of the FSD considered the Dorothy Mae Ordinance in Los Angeles, USA, comparable to the Bill in the sense that it required the provision of additional fire service installations and equipment in certain residential premises. However, members noted that the Ordinance only applied to some pre-1943 residential premises and not to newly completed buildings.

Clerk

The Administration’s written reply dated 20 November 1996

Item (a) - Guidelines on issuing fire safety direction

27. In response to the Chairman’s enquiry, Chief Fire Officer (Protection) of the FSD advised that the BD and the FSD would issue guidelines in the form of practice notes and circular letters respectively. At the Chairman’s request, the Administration agreed to provide samples of similar practice notes and circular letters issued before for members’ reference.

(Post-meeting note: Samples of practice notes and circular letters provided by the Administration after the meeting were circulated to members under LegCo Paper No. CB(2) 904/96-97.)

III. Clause-by-Clause Examination of the Bill

Clause 1 - Short title and commencement

28. Members raised no questions on this clause.

Clause 2 - Purpose of Ordinance

Clause 24 - Secretary for Security may amend Schedule 1

29. The Chairman pointed out that under clause 24, the Secretary for Security might amend Schedule 1 "only if the amendment promotes the purposes of this Ordinance". He therefore considered the drafting of clause 2 very important.

30. The Chairman was of the view that the present drafting of clause 2 with the phrase "certain kinds of commercial premises, such as banks and department stores" implied that only those kinds of commercial premises which had similar characteristics as those of banks and department stores would be covered by the Bill. Both of these two kinds of commercial premises had significant customer flow and security measures. It seemed that these two characteristics would become the hidden criteria which limited the Secretary for Security’s power to amend Schedule 1, i.e. those commercial activities without such characteristics would not be included in Schedule 1. As such, the Secretary for Security could not add commercial activities like "general office use of commercial buildings" to Schedule 1.

31. Principal Assistant Secretary for Security clarified that the phrase "such as banks and department stores" was put in clause 2 as examples of "certain kinds of commercial premises" covered by the Bill. It was not the Administration’s policy intent to use the phrase to limit the types of commercial premises to be covered by the Bill. Consultant, Law Drafting Division considered that the phrase was limiting in the sense that only certain specific kinds of commercial premises were covered by the Bill. However, the phrase "certain kinds of commercial premises" did not only refer to premises having characteristics similar to banks and department stores. The Secretary for Security might amend Schedule 1 by adding specific kinds of commercial activities but not an activity such as "general office use of commercial buildings" which was not specific.

32. In response to the Chairman’s enquiry, ALA4 advised that the court might apply the "ejusdem generis rule"  1in interpreting the phrase "certain kinds of commercial premises, such as banks and department stores". In that case, the application of the Bill would be limited to those commercial premises which had similar characteristics as those of banks and department stores. However, it was up to the court to decide whether to apply this rule. In order to avoid ambiguity, ALA4 suggested the Administration to state more clearly in the Bill its policy intent, e.g. the application of the Bill to those commercial premises which had significant customer flow. In response to the Chairman’s enquiry, Principal Assistant Secretary for Security confirmed that this was the Administration’s policy intent. Mrs Selina CHOW and Mr TSANG Kin-shing supported to state this policy intent clearly in the Bill and to delete "such as banks and department stores" from clause 2.

33. The Chairman did not consider it appropriate to state one or two criteria, such as "significant customer flow", to limit the application of the Bill as the criteria stated could not be exhaustive. He suggested to amend clauses 2 and 24 as follows:

    (a) Clause 2

      To delete ", such as banks and department stores".

    (b) Clause 24

      To state that the Secretary for Security, in amending Schedule 1, must consider "those factors which were related to fire safety".

34. Principal Assistant Secretary for Security supported the Chairman’s suggestion. She undertook to review the drafting of clauses 2 and 24 along this line.

Adm

 Black’s Law Dictionary, Sixth Edition, 1990, P. 517

In the construction of laws, wills, and other instruments, the "ejusdem generis rule" is, that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.

IV. Date of Next Meeting

35. The next meeting would be held on Monday, 13 January 1997 at 4:30 pm in Conference Room B of the Legislative Council Building.

V. Close of Meeting

36. The meeting ended at 10:40 am.

LegCo Secretariat
28 January 1997

* -- Other Commitments
1 -- Black's Law Dictionary, Sixth Edition, 1990, P.517
In the construction of laws, wills and other instrucments, the "ejusdem generis rule" is, that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.

Last Updated on 14 December 1998