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Following is a question by the Hon Mrs Sophie Leung and a written reply by the Secretary for Food and Health, Dr York Chow, in the Legislative Council today (June 23):
Question:
It has been reported that the problem of illegal shop extensions in public places has becoming more and more serious in recent years, which has affected the cityscape and environmental hygiene and also posed danger to other road users. Besides, it has also been reported that the enforcement efforts of the Food and Environmental Hygiene Department are lax, and despite repeated complaints from members of the public, no improvement has yet been made. The persons who were prosecuted and convicted were often fined a few hundred dollars only, and thus deterrent effect was not created. Some persons-in-charge of the shops have already included the fines in the recurrent operating costs of their shops and some have even instructed others to "stand in" for them. In this connection, will the Government inform this Council:
(a) of the total number of black spots of illegal shop extensions in public places of Hong Kong at present, with a breakdown by District Council district;
(b) of the number of prosecutions last year which involved illegal shop extensions in public places, and among such cases, whether there was any person-in-charge of the shop prosecuted for more than once; of the number of cases in which the persons-in-charge of the shops were sentenced to imprisonment; of the number of cases in which the persons-in-charge were fined, the ratio of such persons-in-charge who were fined and the amount of fines;
(c) whether the authorities will amend the legislation to impose heavier penalty on repeated offenders; and
(d) whether the authorities had, in the past three years, considered conducting a comprehensive review on how to handle the aforesaid problem, as well as examining the relevant enforcement practices, prosecution procedure and legislation, with a view to eradicating illegal shop extensions in public places and preventing the aforesaid "stand in" cases from happening again?
Reply:
President,
Illegal shop extension in public places is one of the street management problems which fall within the ambits of various government departments. For the Food and Environmental Hygiene Department (FEHD), it will, depending on the circumstances of obstruction, take enforcement actions in accordance with the most appropriate statutory provisions among the following three provisions: For shops which have extended its business without authorisation and caused obstruction of public places, the FEHD may institute prosecutions under Section 4A of the Summary Offences Ordinance (Cap. 228). If the shops have obstructed scavenging services by extending its business without authorisation, the FEHD may institute prosecutions under Section 22 of the Public Health and Municipal Services Ordinance (Cap. 132). Regarding those licensed food premises that carry on business illegally outside the confines of their premises, the FEHD may take enforcement actions under Section 34C of the Food Business Regulation (Cap. 132X). If the situation involves illegal structures, causes traffic congestion or threatens the safety of pedestrians, the FEHD may refer the case to relevant departments such as the Lands Department, Buildings Department or Hong Kong Police Force. Apart from regular enforcement and cleansing operations, District Officers will coordinate joint departmental operations to resolve the problem in locations with serious obstruction through concerted efforts. Our reply to the four parts of the questions is as follows:
(a) The major black spots in the joint departmental operations of various districts are at Annex.
(b) and (c) In the past year up to May 31, 2010, the FEHD has instituted 21,311 prosecutions against illegal shop extension in public places under the above legislations, inclusive of repeated cases. The FEHD, however, does not keep statistics specifically on the number of repeated cases.
Offenders in breach of Section 4A of the Summary Offences Ordinance are liable to a maximum fine of $5,000 or imprisonment of three months. Those who obstruct scavenging services in breach of Section 22 of the Public Health and Municipal Services Ordinance are liable to a maximum fine of $5,000. Food premises which carry out business illegally outside the confines of their premises in breach of Section 34C of the Food Business Regulation are liable to a maximum fine of $10,000 and imprisonment of three months.
Offenders in all of the 16,914 cases convicted by the court in the past year were sentenced to a fine. For the majority of cases which contravened the Summary Offences Ordinance and the Public Health and Municipal Services Ordinance, the fine ranged from $400 to $600, while the fine of most cases in contravention of the Food Business Regulation ranged from $4,000 to $5,000, with sporadic cases reaching $10,000. None of the offenders was sentenced to imprisonment, and there does not appear to be a need to increase the maximum penalties. The court as the judiciary body is responsible for awarding sentences. As the court will determine the level of penalty and the amount of fine by reference to the circumstances of the cases, the FEHD will provide relevant information, such as the previous record of offence, the area of obstruction, the number of complaints received and the amount of fine in respect of the repeated offenders or offenders in more serious obstruction cases to the court immediately after conviction as a reference in sentencing. If the FEHD considers that the sentence imposed in a particular case is too lenient, it will consider lodging an appeal after consulting the Department of Justice.
Besides, if a food premises carries out business illegally outside the confines of their premises, the FEHD will take actions under the Demerit Point System (DPS). Under the DPS, a licensee is subject to demerit points registered against his/her food premises in addition to a fine upon conviction. When the demerit points have accumulated to a prescribed level within a specified period, the food business licence of the premises will be suspended temporarily or cancelled. In 2009, the numbers of food premises with their licence suspended temporarily or cancelled due to unauthorised extension of business outside the confines of their premises were 104 and 7 respectively.
(d) It is the top priority of the FEHD to keep the environment clean. The FEHD staff will continue to handle street obstruction problems in accordance with the above legislations. The FEHD has laid down clear guidelines on the enforcement actions and prosecution procedures relating to illegal shop extension in public places for compliance by law enforcement officers. "Stand in" cases will definitely not be allowed, and such cases also involve perverting the course of justice. If suspected "stand in" cases are detected, the FEHD will refer them to the relevant law enforcement departments for follow up.
Ends/Wednesday, June 23, 2010
Issued at HKT 16:18
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