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Following is a question by the Hon Starry Lee Wai-king and a written reply by the Secretary for Home Affairs, Mr Tsang Tak-sing, in the Legislative Council today (November 23):
Question:
It has been reported that since the Mainland's liberalisation of the Individual Visit Scheme, the demand for middle and lower priced guesthouses in the territory has increased drastically. Moreover, I have received complaints from members of the public who indicated that some people had stolen a head start in the operation of guesthouses in residential buildings before obtaining guesthouse licences, and the complainants also expressed their dissatisfaction with the authorities' permission of the operation of guesthouses in residential buildings, which seriously affected the building management, security and even the residents' entry to and exit from the buildings. In this connection, will the Government inform this Council:
(a) of the total number of licensed guesthouses in the territory at present; the respective numbers of licensed guesthouses located in commercial and residential buildings in each of the District Council districts;
(b) of the numbers of applications for guesthouse licences received in each of the past three years; the respective numbers of applications for licences of guesthouses located in commercial and residential buildings in each of the District Council districts;
(c) of the numbers and respective nature of complaint cases involving licensed guesthouses in each of the past three years, as well as the actions taken by the authorities; among such cases, the number of those in which prosecution had been instituted and the penalties imposed; whether the licence of any guesthouse was cancelled, suspended or refused to be renewed by the authorities on the ground of violation of any licensing condition; if so, of the details; in addition, whether the authorities will take the initiative to conduct "snaking" operations to investigate if the licensed guesthouses have violated the licensing conditions; if they will, of the details; if not, the reasons for that;
(d) upon receipt of applications for guesthouse licences, whether the authorities will take the initiative to investigate if the applicants had stolen a head start in guesthouse operation; if so, of the penalties imposed;
(e) when vetting and approving the applications for licences of guesthouses located in residential buildings, whether the authorities will take the initiative in consulting the residents of the buildings concerned; if they will, of the specific procedures, and whether they had refused to issue guesthouse licences on account of fierce opposition from the residents in the past; if not, whether they will consider including consultation with the residents of the buildings concerned as a necessary vetting and approving procedure for the applications for operating guesthouses in residential buildings, and setting a threshold to stipulate that if a certain percentage of the buildings' owners indicate their objection, the authorities will refuse to issue guesthouse licences; if they will, of the details; if not, the reasons for that; and
(f) whether it will consider changing the use of industrial buildings to allow the operation of guesthouses in industrial buildings, with a view to meeting the demand; if it will, of the details; if not, the reasons for that?
Reply:
President,
The operation of hotels and guesthouses in Hong Kong is regulated by the Hotel and Guesthouse Accommodation Ordinance (Cap. 349) (the Ordinance) which stipulates that any premises providing sleeping accommodation at a fee with a tenancy term of less than 28 consecutive days shall obtain a licence before commencing operation. The Office of the Licensing Authority (OLA) under the Home Affairs Department is responsible for the enforcement of the Ordinance. It is tasked with the issue of licences and enforcement work.
Upon receipt of an application for licence, the OLA shall ascertain that the premises concerned comply with the standard of structural and fire safety as provided in the relevant ordinances before issuing a licence, so as to ensure the safety of patrons and other users of the building. Premises intended to be used as a hotel or guesthouse must receive prior approval from the Building Authority for "domestic purposes". Under the Buildings Ordinance (Cap. 123), "domestic" refers to a part that is constructed or intended for habitation whereas "habitation" in relation to the use of a building, or part of a building, includes use of it for hotel, guest-house, boarding-house or similar accommodation. The replies to the questions raised by Hon Starry Lee are as follows:
(a) and (b) As at October 31 this year, the number of hotels and guesthouses licensed under the Ordinance and the respective numbers of applications for licences received in each of the District Council districts in the past three years are at Annex. Since premises intended to be used as a hotel or guesthouse must receive prior approval from the Building Authority for "domestic purposes", we do not have a breakdown of the number of licence applications by commercial and residential buildings.
(c), (d) and (e) Upon receipt of an application for a guesthouse licence, the OLA will first ascertain whether the premises intended to be used as a hotel or guesthouse fall into the category of premises which can be used for such purposes under the Buildings Ordinance (Cap. 123) before processing the licence application in accordance with the Ordinance. The OLA shall issue a licence only after it has ascertained that the premises concerned comply with the standard of structural and fire safety as provided in the Buildings Ordinance and the Fire Services Ordinance (Cap. 95), so as to ensure the safety of patrons and other users of the building.
Under Section 8(3) of the Ordinance, the Hotel and Guesthouse Accommodation Authority (the Authority) may refuse to issue a licence in respect of a hotel or guesthouse only on the ground that the premises intended to be used as a hotel or guesthouse fail to comply with the requirements relating to structural and fire safety, sanitary configuration, guesthouse management, etc. as set out in the Buildings Ordinance and the Fire Services Ordinance. The Ordinance does not empower the Authority to consider refusing the issue of a licence based on reasons other than those stated in Section 8(3) of the Ordinance (e.g. objection from the residents of the buildings concerned) when processing a guesthouse licence application. The OLA must process the application within the powers set out in the Ordinance.
The OLA will deploy staff to conduct multiple on-site inspections when processing applications for guesthouse licences. If any premises are suspected of having "stolen a head start in operation" (i.e. unlicensed operation of a guesthouse), the case will be referred to the Enforcement Team of the OLA for follow up action in accordance with the established procedures. Having regard to the individual circumstances of each case, the Enforcement Team will collect evidence through various means, including conducting inspections during and outside office hours (e.g. at nights and during holidays) and posing as clients (commonly known as "snaking") to collect evidence when necessary. Upon investigation, if it shows that there is sufficient evidence indicating illegal operation in the premises, prosecution shall be instituted. Moreover, the OLA will proactively conduct inter-departmental operations with other departments and law enforcement agencies concerned. The staff of the OLA also read newspapers and browse web pages on a regular basis and conduct proactive district inspections to collate information about suspected promotion of illegal hotels or guesthouses.
Under the Ordinance, any person who operates an unlicensed hotel or guesthouse is liable on conviction to a fine of $200,000 and to imprisonment for two years and to a fine of $20,000 for each day during which the offence continues. As for contravention of any licensing condition, a person is liable on conviction to a fine of $100,000 and to imprisonment for two years and to a fine of $10,000 for each day during which the offence continues.
The numbers of complaints and prosecutions against licensed hotels and guesthouses suspected of illegal operation in the past two years as well as the penalties imposed are as follows (the OLA did not classify complaints about licensed hotels or guesthouses suspected of illegal operation before 2010):
2010 2011
(as at October 31)
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Complaints* 11 23
Prosecutions 7 6
Penalties Fines ranging from Fines ranging from
$2,400 to $14,000 $2,000 to $5,000
were imposed. were imposed.
One defendant was
sentenced to two
weeks' imprisonment
(suspended for one
year); another
defendant was
sentenced to two
months' imprisonment
(suspended for
two years).
(*The complaints mainly involved licensed guesthouse operators suspected of operating unlicensed guesthouses, including those made against the same licensed guesthouse.)
To step up actions against unlicensed guesthouses operation, if a licence holder is convicted of operating an unlicensed guesthouse, the Authority will definitely consider cancelling all the licence(s) being held by the licence holder or refusing to renew the licence(s) by invoking section 10 of the Ordinance. So far, the Authority has cancelled or refused to renew five guesthouse licences for the above reason.
(f) According to the information provided by the Development Bureau, under the package of measures to facilitate change in use of older industrial buildings through wholesale conversion with effect from April 1, 2010, owners of industrial buildings aged 15 or above sitting on "Industrial", "Other Specified Uses" annotated "Business" ("OU(B)") or "Commercial" zones may apply at a nil waiver fee for change of use of the entire existing industrial buildings for the lifetime of the buildings or until expiry of the current lease period, whichever is earlier.
The proposed new uses of the wholly converted buildings should comply with the permitted uses in the relevant zones. "Hotel" use is an always permitted use in most "Commercial" zone; it may also be permitted in "OU(B)" zone subject to planning permission from the Town Planning Board, but it is not permitted in "Industrial" zone. Subject to obtaining the necessary planning permissions, where applicable, and the special waivers for hotel use, building owners may apply for licences to operate hotels and guesthouses in their wholly converted industrial buildings during the validity periods of the special waivers. The owners should also follow the relevant provisions of the Buildings Ordinance and the Ordinance.
By the end of October 2011, Lands Department had received six applications for wholesale conversion of industrial buildings for hotel use. Among them, one had been approved and two were under processing. The remaining three applications were either withdrawn by the applicant or rejected by Lands Department because they did not meet the eligibility criteria for application for the special waiver.
Ends/Wednesday, November 23, 2011
Issued at HKT 12:06
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