Fixed Penalty (Public Cleanliness Offences) (Amendment) Bill 2015（2016/03/17）

Deputy President, I rise to speak in support of the Fixed Penalty (Public Cleanliness Offences) (Amendment) Bill 2015 (the Bill), which seeks to introduce a fixed penalty system against illegal shop front extensions (SFEs). Hong Kong is a small place with a large population and high rentals, and many shops will seek to enlarge their business areas by occupying public places for displaying goods. Generally speaking, if the situation is not serious and the SFEs concerned do not affect surrounding areas, enforcement officers will take a stand of greater tolerance. However, SFEs have turned increasingly serious in recent years. Capitalizing on the loophole of lenient law enforcement and court sentences, some shops simply occupy public places for prolonged periods, ignoring pedestrian safety, the hygiene of adjacent areas and narrow street space, and causing inconvenience to residents and pedestrians. They still refuse to make improvement even after being prosecuted.

A hotel once complained to my office, saying that a shop nearby had put many objects outside the hotel, causing great inconvenience to guest access and poor hygiene. The situation did not improve even after repeated advice, and the image and business of the hotel were affected to a considerable extent. In areas with rampant parallel trading activities, scenes of shops occupying pavements and sorting good in the streets are common. Residents have complained about this over and over again to no avail, and this shows that it is necessary to improve the legislation for prosecuting SFEs lest the problem may get out of control.

Deputy President, at present, summonses are issued by the authorities under section 4A of the Summary Offences Ordinance (the Ordinance) to prosecute SFEs. The maximum penalty for the offence is a fine of $5,000 or imprisonment for three months. However, prosecution involves lengthy procedures and court sentences are lenient, so the deterrent effect is not strong enough.

First, the law states that there is a notice period. Shop operators do not need to remove the goods that cause obstruction until they receive a written warning. They have ample time for preparation. Since such shops know that they will not be prosecuted immediately, they will continue to put their goods on pavements in defiance of the advice, thus causing continuous obstruction.

Second, prosecution takes a long time. Currently, enforcement departments must institute prosecution in the form of summonses. Normally, after an SFE is detected, law-enforcement officers need one or two months to gather sufficient evidence before they can issue summons, and there is another one or two months between the issuance of a summons and a court hearing. The time required will be prolonged if the defendant denies the charge in the first hearing. As at June last year, two to four months' preparation time is required on average before prosecution.

Third, sentences are very light. The Ordinance provides for a maximum fine of $5,000, the average fine handed down by the Court for the offence of obstructing public places was just $661 in the first half of last year. The fine is already regarded by those causing street obstruction as part of the operating costs. They actually regard the fine as a kind of rent payment. After all, the fine is much lower than the rent.

The Bill proposes a fixed penalty system as an additional enforcement tool to make up for the above shortcomings. When SFEs are detected, apart from issuing summonses to offenders under section 4A of the Summary Offences Ordinance, enforcement departments can also issue a fixed penalty notice, and the fine will be $1,500, the amount under discussion now. This can resolve the problems of prolonged prosecution and light penalty, thus enhancing the efficiency of dealing with SFEs and increasing the deterrent effect. I think the public will probably support the proposal. From the fact that no Bills Committee was set up for the Bill, it can be seen that Members generally agree to the practice.

Deputy President, although I welcome the arrangement proposed under the Bill, I am of the view that the law should not be enforced mechanically without any allowance lest this may obliterate the uniqueness of local communities, affect the livelihood of shop operators and intensify social conflicts. We all know that many street-side stores are just small businesses. Owing to high rentals and space constraint, they have no alternative but to display their goods outside their shops. Therefore, the authorities should exercise discretion as long as no obstruction is caused to adjacent areas and no resident in the locality is affected. In particular, in the case of street areas highly popular among local people and tourists, such as the flower market in Mong Kok, we must make sure that they will not lose their uniqueness as a result of excessive enforcement against street obstruction. The authorities should focus on stepping up enforcement in black spots where inconsiderate street obstruction that affects the streetscape persists despite repeated advice.

During the discussion of the Panel on Home Affairs, I advised the authorities to ask District Councils to assist in drawing up lists of spots with SFEs based on the severity of the problem for the consideration of the enforcement departments. District Councils should be asked to recommend discretionary treatment or stronger enforcement actions for different spots. As District Council members are more familiar with their respective districts, their opinions can serve to enhance the effectiveness of enforcement against SFEs and strike a balance between the fairness of law enforcement and the protection of local uniqueness. I am thankful to the Home Affairs Bureau for their response to my recommendation in the subsequent document submitted to the Legislative Council. Seven places throughout the territory are identified as tolerated areas at present, including the flower market in Mong Kok. I hope the authorities can maintain communication with District Councils after the legislation comes into effect and update the lists of street obstruction black spots and tolerated areas at appropriate times, so as to dovetail with the fixed penalty system and effectively combat SFEs.

During the discussion of the Panel on Home Affairs, some members questioned if the level of the fine was high enough to achieve a deterrent effect. The Bill proposes a fine of $1,500, which is the same as the penalty for littering. Large corporations and major retailers can of course afford the fine, and they may even find the amount much smaller than rentals. But big businesses are generally more concerned about corporate image and legal responsibility, so they are less likely to commit the same offence again. However, $1,500 is no small amount to small shops, and the penalty is already high enough to achieve a deterrent effect. As for those shop operators who keep committing the offence of street obstruction despite repeated advice, the authorities can of course take the further action of giving them a court summons, so as to strengthen law enforcement and prosecution. It is expected that the commencement of the new legislation can ease the problem of SFEs.

Deputy President, I so submit.