Following is a question by the Hon Starry Lee and a written reply by the Secretary for Food and Health, Dr Ko Wing-man, in the Legislative Council today (April 26):

Question:

     Since the relevant amendments to the Fixed Penalty (Public Cleanliness Offences) (Amendment) Ordinance 2016 (Ordinance No. 4 of 2016) came into operation on September 24 last year, law enforcement officers may issue fixed penalty notices (FPNs) to persons who cause obstruction of public places (street obstruction). It has been reported that some shop operators have adopted new tactics to avoid being fined for obstructing the streets with their goods. For example, goods are placed for a long period of time (i) on trucks parked on roadside which are used as mobile storage or (ii) in styrofoam boxes or on pallets on roadside disguised as mobile goods. However, the personnel of the Food and Environmental Hygiene Department (FEHD) have not intervened in such behaviours when they carry out inspections. Some members of the public have relayed to me that such new tactics of street obstruction have not only caused inconvenience to pedestrians and vehicles, but have also posed hazards to road safety. The styrofoam boxes discarded on roadside have also affected environmental hygiene. Some members of the legal profession have pointed out that to combat such new tactics of street obstruction, law enforcement officers may institute prosecutions, by way of summons under section 4A of the Summary Offences Ordinance (Cap 228), against persons who cause street obstruction, and those convicted are liable to a fine of $5,000 or imprisonment for three months. Nevertheless, according to my observations, the Police have not stepped up their law enforcement actions against such new tactics of street obstruction. Regarding the combat of street obstruction by shops, will the Government inform this Council:

(1) of the numbers of (i) FPNs issued by the authorities against street obstruction by shops (with a breakdown by District Council district), (ii) shops whose operators have received street-obstruction FPNs for more than once, (iii) street-obstruction FPNs which have been disputed by the shop operators concerned, and (iv) street-obstruction FPNs the disputes involved in which have been allowed, since the aforesaid amendments have come into operation;

(2) of the number of complaints about shop operators storing goods on roadside trucks received by the authorities since the aforesaid amendments came into operation (with a breakdown by District Council district); and

(3) whether the authorities have explored ways to combat the aforesaid new tactics of street obstruction by shops; if not, of the reasons for that; if so, the outcome; whether the authorities will step up law enforcement actions by invoking other relevant legislation, and clarify the responsibilities assumed respectively by FEHD and the Police in respect of street obstruction by shops?

Reply:

President,

     The Steering Committee on District Administration (the Committee) chaired by the Permanent Secretary for Home Affairs and comprising representatives from relevant departments, including law enforcement departments, has provided a platform for interdepartmental discussion and consultation to enable the departments to make concerted efforts to address district issues such as street management. To address the problem of shop front extensions (SFEs), the Home Affairs Department (HAD), in collaboration with the Food and Environmental Hygiene Department (FEHD), Hong Kong Police Force (HKPF), Lands Department and Buildings Department, prepared a consultation document on "Enhanced Measures against Shop Front Extensions" and launched a consultation exercise from March to July 2014 to consult the public on the ways to tackle problems associated with SFEs more effectively. The results of the consultation were reported to the Legislative Council Panel on Home Affairs (the Panel) on January 9, 2015.

     The Government has been tackling the problem of SFEs through a four-pronged approach, namely:

(a) law enforcement by individual departments using powers vested by the relevant Ordinances;

(b) interdepartmental joint operations (including small-scale joint operations conducted by individual enforcement departments with enhanced interdepartmental co-operation among themselves; and large-scale joint operations co-ordinated by District Officers (DOs) for more complicated cases involving several departments);

(c) collaboration with the District Councils (DCs); and

(d) public education and publicity.

     Having regard to the submissions received during the public consultation, the Committee agreed that a fixed penalty system should be introduced to tackle the problem of SFEs in a more efficient and effective manner. To this end, the HAD, through the Committee and its interdepartmental working group (comprising representatives from the above departments and the Department of Justice), co-ordinated the relevant legislative amendment exercise, while the Home Affairs Bureau (HAB) introduced, on behalf of the Committee, the Fixed Penalty (Public Cleanliness Offences) (Amendment) Bill 2015 into the Legislative Council for the implementation of a fixed penalty system as an additional enforcement tool against SFEs. Upon the gazettal of the Amendment Ordinance on March 24, 2015, the Fixed Penalty (Public Cleanliness and Obstruction) Ordinance (Cap 570) (the Ordinance) came into operation on September 24, 2016.

     The fixed penalty system is an additional enforcement tool, which will not replace the existing ones. Upon implementation of the Ordinance, FEHD and HKPF are empowered to take enforcement actions by issuing fixed penalty notices (FPNs) of $1,500 to offenders, on top of instituting prosecutions by employing the existing enforcement tools (e.g. the summons system). The fixed penalty system is mainly targeted at cases which are straightforward, clear-cut and capable of being easily established, so that problems associated with SFEs are tackled in a quicker and more effective manner. Where a case is less straightforward and/or more serious or complicated (e.g. involving repeated offenders), the law enforcement officers concerned may consider continuing to employ the existing legal tools under section 4A of Summary Offences Ordinance (Cap 228), such as issuing summonses and/or taking arrest actions. Law enforcement officers will take appropriate actions depending on the situation at the scene. Specifically, FEHD will issue FPNs as part of their routine enforcement duties, while HKPF will take part in joint operations to offer assistance as required to other departments, and issue FPNs, if necessary, in pre-planned interdepartmental operations.

     My reply to the various parts of the question is as follows:

(1) The number of FPNs issued by FEHD against SFEs upon the implementation of the fixed penalty system as at March 31, 2017, with a breakdown by DC district, is set out at Annex I. Records show that operators of 557 shops have received street-obstruction FPNs more than once. Furthermore, no shop operator has disputed the issuance of any FPN by FEHD.

(2) The number of complaints received by FEHD concerning shop operators storing goods on roadside trucks as at March 31, 2017, with a breakdown by DC district, is set out at Annex II. According to their nature, FEHD referred the complaints to relevant departments for follow-up actions.

(3) As pointed out by the Government in the document submitted to the Panel in 2015, SFEs broadly refer to the occupation of public places by shops or food premises in front of or adjacent to their premises for the purpose of conducting or facilitating business activities. Such extensions are very often at the expense of road access, pedestrian safety, environmental hygiene, townscape and quality of city life. These SFE cases usually involve "illegal hawking", which can be tackled by the enforcement actions taken under the existing summons system and fixed penalty system.

     As for SFEs not relating to "illegal hawking", such as shop operators storing goods on roadside trucks, recycling shops placing recyclable waste or metal at shop front, and engineering workshops occupying the shop front area, the enforcement departments will, in the light of individual circumstances, take appropriate actions against irregularities according to their jurisdiction and the powers vested by the relevant Ordinances. Regarding cases involving more than one enforcement department, the departments concerned will enhance collaboration and mount small-scale joint actions more frequently. For more complicated obstruction cases which cannot be dealt with by any single department using their respective statutory powers, or where SFEs causing serious nuisance to the community and arousing public concern cannot be tackled by a single department, the DO concerned will co‑ordinate interdepartmental joint enforcement operations of larger-scale under the District Management Committee mechanism where necessary.

Ends/Wednesday, April 26, 2017
Issued at HKT 18:55

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