*********************************
Following is a question by the Hon Kam Nai-wai and a reply by the Secretary for Food and Health, Dr York Chow in the Legislative Council today (December 9):
Question:
As there is keen public demand for columbarium niches, some temples such as Sai Lam Temple, Memorial Park, Yan Hau Ancestral Hall and Chuk Lam Sim Yuen operate columbarium facilities in their premises. It has been reported that the Lands Department has recently issued warning letters to the persons in charge of such premises, pointing out that they are in breach of the terms of land leases and demanding them to stop operating the facilities, and it is estimated that nearly 10 000 people who bought columbarium niches are affected. In this connection, will the Government inform this Council:
(a) of the current total number of public columbarium niches in Hong Kong, and list out by district (Hong Kong Island, Kowloon and the New Territories) the respective locations of the churches, temples and Taoist monasteries where columbarium niches are provided, whether the premises concerned are providing such services legally, the current shortfall in the supply of columbarium niches, as well as the estimated shortfall in this regard for the next 10 years;
(b) of the name list of the premises where the operation of private columbarium facilities has been substantiated to have breached the terms of the land leases concerned, details of the breaches, the number of columbarium niches provided by them and the number of those affected; whether it has assessed if the keeping of the ashes of their deceased relatives by members of the public in coffin shops and stone factories as well as at home is in breach of the land leases and the deeds of mutual covenant of the residential buildings concerned and against the law; if such an assessment has been made, of the results; and whether the various policy bureaux and government departments (including the Lands Department and the Food and Health Bureau) will standardise the legal definition of "human remains" for compliance by members of the public and the trade; and
(c) of the options to address the problem and assist the aforesaid affected members of the public; the Government's plan to assist private bodies and organisations (both profit-making and non-profit making) in providing columbarium niches legally, and how the Government deals with the objections raised by local residents to the construction of columbarium facilities in their districts?
Reply:
President,
The operation of various trades in Hong Kong, including that of private columbaria, must be in compliance with statutory requirements, including the requirement for business premises to comply with land use zoning. In addition, the use of the land must not be in breach of the terms of the land lease. Apart from this, as human ashes do not give rise to public health and environmental hygiene concerns, the Government does not impose any specific regulation on the operation of private columbaria, nor do we have complete statistics or data regarding them. Our reply to three parts of the question is as follows:
(a) There are about 167,900 public columbarium niches in the territory, all of which have been allotted. Out of the some 341,700 columbarium niches provided in cemeteries managed by the Board of Management of the Chinese Permanent Cemeteries (BMCPC) and various religious bodies, about 39,000 niches are not yet allotted. In July 2009, funding approval was obtained from the Finance Committee of the Legislative Council for construction of a new public columbarium within the Wo Hop Shek Cemetery. The project will provide some 41,000 new columbarium niches, which can accommodate about 82,000 urns, for use in 2012. Apart from public niches, about 21,000 newly-built niches will be provided in cemeteries managed by the BMCPC and Catholic, Protestant, Buddhist and other religious bodies in the next two years as projected at the present stage.
The Government does not have complete statistics on the number of niches provided on premises managed by private entities including temples and Taoist monasteries.
Based on past data, the annual total numbers of deaths and cremations in the next 10 years (i.e. from 2010 to 2019) are estimated to be about 47,700 and 43,900 respectively. As the demand for public columbarium niches hinges on a number of different factors, such as public acceptance of scattering cremains in Gardens of Remembrance or in designated waters, public demand for private columbarium facilities, etc., projecting the shortfall presents some real difficulties.
However, it should be pointed that the public can make better use of the exiting public niches, which, depending on their types, can accommodate two to four urns for holding the ashes of deceased persons with kinship.
(b) The Government does not have complete statistics or data on private columbaria, nor do we have a list of private columbaria the operation of which has been substantiated to be in breach of requirements. The land leases referred to in the question were made between the Government and the landowners, who are required to ensure that the use of their land is in compliance with all the requirements in the land leases. As advised by the Development Bureau (DEVB), the formulation of a land lease is targeted at the land use and not for the purpose of imposing regulation on any individual trade. As a matter of fact, given that there are an enormous number of land leases, and the areas and uses of the land involved are extensive, it is not possible for the government departments concerned to conduct regular inspection of all private land. However, upon receipt of a complaint about a breach of land use requirements stated in land leases, the Lands Department will deploy its staff to carry out inspection on the site concerned. Legal advice will be sought in light of the actual circumstances and follow-up action taken as appropriate. Such arrangements are applicable to all land leases, including those involving private columbaria.
On the definition of "human remains", the subsidiary legislations relating to cremation and Gardens of Remembrance, public cemeteries and public funeral halls under the Public Health and Municipal Services Ordinance state that "human remains" does not include ashes resulting from the cremation of dead bodies. However, such a definition is laid down for the purpose of the relevant legislation only and is not applicable to the interpretation of "human remains" in the terms of private contracts. As a matter of fact, tenancy leases, land leases or deeds of mutual covenant are private contracts and the interpretation of "human remains" under private contracts should be made in accordance with the rules of interpreting private contracts and must not be treated regardless of the context.
(c) The Government fully understands the concern of the public about private columbaria and will handle the issue carefully.
As regards the purchase of private columbarium niches, under normal circumstances, members of the public can pursue their claims under the Law of Contract if they consider that providers of private columbarium niches are in breach of the sale and purchase contracts. We call on the public to ask the sellers of columbarium niches to provide them with full and complete information to ensure that the columbarium niches are in compliance with the relevant legislation and land lease requirements before buying the columbarium niches. They should also seek professional advice where necessary. Those who already bought columbarium niches should contact the providers of columbarium niches direct to find out how they would, in the event that there is a breach of the relevant legislation or land lease requirements, deal with the hirers or buyers of the columbarium niches, such as whether they would make a refund of the fees paid to the hirers or buyers of columbarium niches. To enhance the public's confidence, the Government will look into ways to increase the transparency in this regard in joint efforts with the trade by, for instance, setting up a voluntary registration system to make the information more transparent with a view to enhancing consumer protection.
As advised by DEVB, at present, where an application is made to the Town Planning Board (TPB) for planning permission or change of land use in connection with the provision of a private columbarium, the TPB will conduct public consultation on the case in accordance with the statutory procedures laid down in the Town Planning Ordinance upon receipt of the application. Where landowners apply for regularising a breach of land lease requirements, the Lands Department will normally seek the views of the relevant policy bureaux/government departments and then consider each application in light of the actual circumstances of each individual case.
Thank you, President.
Ends/Wednesday, December 9, 2009
Issued at HKT 13:09
NNNN
