LCQ9: Sale of commodities in public places for raising funds
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Question:
Under the current mechanism, individual organisations wishing to raise funds by selling goods in public places are required to apply to the Food and Environmental Hygiene Department (FEHD) for Temporary Hawker Licences (THLs). Upon receipt of such applications, FEHD will consult relevant departments. A THL will be issued provided the relevant departments do not object. Over the years, there have been quite a number of organisations which set up fund-raising booths along the route of the procession held on July 1 of each year (July 1 procession). It is learnt that since 2015, FEHD has turned down a certain number of such applications each year on the ground that the relevant departments did not give support to those applications. In this connection, will the Government inform this Council:
(1) as FEHD indicated in 2015 that nine applications in that year for setting up street booths had been refused on the ground that a relevant department held the view that the proposed locations for setting up booths were situated at the relatively narrow road sections along the route of the procession and thus setting up booths there would cause obstruction to the participants of the procession, of the specific criteria adopted by FEHD for assessing whether a particular location is situated at a relatively narrow road section;
(2) whether the authorities will provide a list of locations suitable for setting up street booths along the route of last year's July 1 procession for reference by organisations planning to apply for setting up street booths along the route of this year’s July 1 procession; if not, of the reasons for that;
(3) of the details of the division of labour among, and the respective responsibilities of, FEHD, Lands Department and the Police in respect of the vetting and approval of applications for setting up street booths;
(4) as the Police have indicated that they will, after considering whether the setting up of street booths at the proposed locations will cause obstruction to the procession of the participants or obstruction to public spaces, decide on whether they will support the applications, (i) of the criteria adopted by the Police for making such decisions, (ii) the ranks of the police officers who are responsible for making such decisions and the relevant procedure, and (iii) whether FEHD has the power to approve an application despite the Police's objection;
(5) whether FEHD turned down, during the period from 2003 to 2014, any of the applications for setting up street booths at locations along the routes of the July 1 processions, on the ground that the locations under application were narrow road sections; if so, of the number of such applications; if not, the reasons for FEHD turning down certain applications on such ground from 2015 onwards, and whether any change in policy was involved;
(6) whether a mechanism is in place for organisations to lodge appeals against refusals of their applications for setting up street booths; and
(7) as FEHD requires that organisations applying for setting up street booths must submit their latest annual returns, and yet quite a number of organisations are unable to provide such a document, of the authorities' justifications for setting that requirement, and whether they will consider abolishing it?
Reply:
President,
The Public Health and Municipal Services Ordinance (PHMSO) (Cap 132) provides for regulatory regimes covering public health and municipal services of different portfolios. The Hawker Regulation (Cap 132, subsidiary legislation AI) empowers the Food and Environmental Hygiene Department (FEHD) to issue temporary hawker licence (THL), for the main purpose of regulating the sale of commodities in public places requiring compliance with requirements on environmental hygiene and ensuring that the hawking activities will not cause nuisances such as obstruction to public places.
Under the existing policy, on the sale of commodities in public places for raising funds, FEHD will only consider applications from non-profit-making organisations (Note) but not applications for commercial or profit-making purposes. Upon receipt of an application, FEHD will consult relevant departments having regard to the nature of the activity (details to be set out in Part (3)). In exercising its power to approve an application, FEHD will consider all relevant factors (including but not limited to the advice of the relevant departments) and make a reasonable and proportionate decision.
As stated in the Points to Note for Application for THL, the Government strives to provide a friendly environment with administrative procedures kept to a minimum to facilitate organisations to mobilise community resources for their fund-raising activities. Nevertheless, the community is concerned if these activities are properly arranged and the donations are properly used. Hence, fund-raising activities involve public interest. The community expects the Government to exercise adequate control over such activities.
In Chapter 2 (Monitoring of charitable fund-raising activities) of the Audit Report No. 68 released by the Director of Audit on April 26, 2017, the Audit Commission recommended FEHD to actively look into incorporating additional measures into the licence conditions and/or administrative measures for THLs, with a view to enhancing the transparency and accountability of fund-raising activities involving on-street sale of commodities.
My reply to the various parts of the question raised by the Hon Kwong Chun-yu is as follows:
(1), (2) and (4) For the public procession held on July 1, 2015 on Hong Kong Island, the Wan Chai District Environmental Hygiene Office of the FEHD received a total of 47 THL applications for on-street sale of commodities for fund-raising purpose. The advice of the Police regarding nine of the applications indicated that according to past experience, the locations concerned were situated at narrow road sections along the procession route. When a large number of participants gathered and waited to join the procession at these road sections, the setting up of temporary stalls at those locations would cause serious obstruction to procession participants and other road users, and hence those locations were considered undesirable. The Police suggested that those stalls be set up at other locations which would ensure smooth movement of the procession and which would not cause unreasonable obstruction or dangers to other road users. FEHD notified the applicants in writing of the suggestion made by the Police. Among these applicants, more than half of them had taken follow-up actions and were subsequently granted THLs, while the remaining applicants either decided not to proceed with their applications or was not granted THL due to time constraint.
If organisers would like to set up street stations during public processions and apply to the FEHD for THL, upon receiving FEHD's requests to provide comments, the Police will make considerations in accordance with the actual circumstances along the procession routes. In general, street stations during public processions would attract participants to stay there for a while, thus causing different degrees of obstruction as well as constituting safety concern in a congested environment. The Police will make assessment on each application. The main considerations include whether the proposed locations of temporary stalls would cause unreasonable obstruction to the movement of processions and constitute danger to participants or other road users. While providing comments on the above applications, the Police seek to strike a balance between various aspects, including respecting the freedom and rights of expression of the public, minimising the impact on members of the public and road users, as well as ensuring public safety and public order etc.
FEHD will only issue a THL provided that the relevant departments make no objection (for example, no objection to the location, time and arrangements under application, or no objection after amendments have been made to the details or after additional licensing conditions have been imposed on the applicant). This practice is considered not unreasonable.
The approval of a THL application will take into account the specific circumstances of individual cases, including the proposed procession route, estimated number of participants and actual circumstances of each proposed location. Therefore, each application will be dealt with on its own merits under the current system. Details of the activity under THL and its proposed location should be stated clearly by the applicant in the application form so that FEHD can process and consider the application after consulting the relevant departments. The Government does not keep any list of pre-determined locations along the route of the July 1 procession for THL applications.
(3) Upon receipt of a THL application, FEHD will consult the Police, Lands Department (LandsD), Home Affairs Department (if applicable) and Social Welfare Department (SWD) (if applicable). Only after considering their comments and other relevant factors will FEHD make a final decision.
In general, the Police will consider factors such as public safety and public order, while LandsD will verify whether the location concerned is situated on unleased government land and if that is the case, whether an approval letter for temporary occupation of government land has been granted to another organisation.
FEHD will verify the documents submitted by an applicant to determine whether the organising body is a charitable institution of a public character or a registered non-charitable body, and whether the sale or fund-raising activity is non-commercial or non-profit-making in nature, and confirm that the applicant has been officially authorised to conduct the activity concerned.
After verifying the above information, FEHD will notify SWD of the application if the applicant is a charitable institution conducting charitable sale activities. If the applicant is neither a charitable institution nor a non-profit-making organisation conducting non-charitable sale activities, FEHD will check with HAD to find out whether the applicant has also applied for a Public Fund-raising Permit for Non-charitable Purposes.
(5) According to its records, from 2004 to 2014, FEHD did not receive any objection to any THL applications from relevant departments on the ground that the locations under application were situated at narrow road sections. In 2015, FEHD received comments from the Police on nine applications that the locations under application were undesirable as they were situated at narrow road sections along the public procession route (please refer to Parts (1), (2) and (4) above). FEHD has all along adopted the above policies and procedures in handling THL applications involving on-street sale of commodities for raising funds. This has been the practice for many years.
(6) If anyone is dissatisfied with FEHD's decision in refusing a licence application, he/she may appeal to Licensing Appeals Board (LIAB) under section 125(9) of the PHMSO (Cap 132).
If the appellant is dissatisfied with the LIAB's decision, he/she may appeal to the Municipal Services Appeals Board under section 125B(4) of the PHMSO (Cap 132).
(7) In processing a THL application, FEHD will verify if the applicant is authorised by the organising body to make the application. The applicant is required to submit a copy of the memorandum of association of the board of directors of the registered company, or the membership list of the trade union or the list of office-bearers of the registered society.
The aim of the measures taken by FEHD is to enhance the transparency and accountability of fund-raising activities, safeguarding and ensuring the proper use of donations received through on-street sale activities, preventing abuse of THLs and ensuring a fair allocation of public resources among fund-raising organisations. There are voices in the community in support of the measures.
Note: (a) Charitable institutions which are exempted from tax under section 88 of the Inland Revenue Ordinance (Cap 112); or (b)Non-profit-making organisations, societies or trade unions registered or enrolled under the Companies Ordinance (Cap 622) or the former Companies Ordinance (Cap 32), the Societies Ordinance (Cap 151) or the Trade Unions Ordinance (Cap 332).
Ends/Wednesday, May 10, 2017
Issued at HKT 18:31
Issued at HKT 18:31
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