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Following is a question by the Hon Starry Lee and a written reply by the Secretary for Home Affairs, Mr Tsang Tak-sing, in the Legislative Council today (January 22):
Question:
Earlier, a fire broke out at Continental Mansion, North Point, causing injuries to a number of residents and guesthouse guests of that commercial/residential building. It is learnt that despite the Deed of Mutual Covenant (DMC) of the building stipulates that operation of guesthouses above the third floor is prohibited, a number of guesthouses in the building have still been issued licences to operate in contravention of the DMC. On the other hand, there are also a number of guesthouses operating without licences in the building. The Secretary for Home Affairs has indicated earlier that the Government is considering conducting a review on the Hotel and Guesthouse Accommodation Ordinance (Cap. 349) (the Ordinance) which regulates guesthouses, and is examining issues in this regard, including more effective ways to enforce the law and combat unlicensed guesthouses, as well as the need to tighten up the requirements for issuing licences for guesthouses to operate in commercial/residential buildings. In this connection, will the Government inform this Council:
(1) of the timetable and details of the review of the Ordinance;
(2) whether it will consider setting up a guesthouse licensing committee with reference to the existing model adopted by the Liquor Licensing Board in handling new applications for liquor licences, and requiring applicants to place advertisements in local newspapers to give residents of the affected buildings an opportunity to give their views on the applications concerned to such a committee, so as to ensure that the interests of the residents will be taken into account when the authorities vet and approve applications for guesthouse licences;
(3) whether it knows, apart from Continental Mansion, the current number of commercial/residential buildings with DMCs containing provisions restricting the establishment of guesthouses, and the distribution of such buildings in the territory;
(4) of the number of inspections conducted by the Office of the Licensing Authority (the Office) under the Home Affairs Department for combating unlicensed guesthouses, and the respective numbers of subsequent prosecutions instituted and convictions, in each of the past three years, broken down by District Council district; and
(5) of the respective numbers of cases of unlicensed guesthouses uncovered by the Office through proactive inspections, posing as clients (commonly known as "snaking") and surfing web sites for booking hotels and accommodations for visitors, in each of the past three years?
Reply:
President,
Operation of guesthouses in Hong Kong is regulated by the Hotel and Guesthouse Accommodation Ordinance (the Ordinance) (Cap. 349). Under the Ordinance, any premises providing sleeping accommodation at a fee shall obtain a licence before operation unless all accommodation in the premises is provided with a tenancy period of 28 consecutive days or more for each letting. The Office of the Licensing Authority (OLA) under the Home Affairs Department (HAD) is responsible for the implementation of the Ordinance, including issuing licences and performing relevant enforcement duties.
My reply to Hon Lee's question is as follows:
(1) & (2) HAD has already kick-started a review on guesthouse licensing procedures and the Ordinance with a view to enhancing the effectiveness of OLA's enforcement action against unlicensed guesthouses, while striking a balance between maintaining room for the survival of licensed guesthouses and minimising the safety hazards or nuisances posed to other residents. HAD is actively exploring viable and detailed options and will widely gauge public views in the consultation exercise scheduled for mid-2014.
To let residents know as early as possible that a guesthouse licence application involving a premises of their building is submitted, OLA will put in place a new arrangement under which it will, upon receipt of an application for a guesthouse licence (including a renewal application) and before the issuance of a licence, take the initiative to inform the owners' corporation (OC), residents' organisation or property management company of the building concerned, etc., and upload such information onto its website. The OC and the owners will therefore have sufficient time to examine the relevant provisions in the deed of mutual covenant (DMC) and consider exercising the power conferred by the DMC to take appropriate action.
(3) A DMC is a private covenant among the owners, the property manager and the developer of a building. Whether or not a DMC contains provisions that restrict the establishment of guesthouses involves interpretation of the provisions of a private covenant. In accordance with the Building Management Ordinance, interpretation of a DMC is under the jurisdiction of the Lands Tribunal. The Government is not the authority to interpret DMC provisions. OLA does not have the information as requested.
(4) & (5) When suspected unlicensed guesthouse operation is identified or such a report is received from the public, OLA will conduct an inspection within eight working days, and will, having regard to the circumstances of individual cases, adopt the most appropriate and effective means for follow-up and investigation. Targeted actions, such as conducting surprise inspections at different times (including non-working hours), launching large-scale and targeted inter-departmental operations, or posing as clients (commonly known as "snaking"), will be taken to collect evidence. Prosecution will be instituted by OLA immediately if there is sufficient evidence that the premises concerned are involved in unlicensed guesthouse operation.
Noting the recent trend that some unlicensed guesthouses publicise and let out rooms through the Internet, OLA has set up a dedicated Internet enforcement team to browse webpages, discussion forums and blogs in a bid to search information and intelligence on suspected unlicensed guesthouses on the one hand, and appeal to tourists to choose patronising licensed guesthouses on the other. Upon discovery of any information on unlicensed guesthouses, law enforcement officers from OLA will follow up and investigate into the case, including requiring the web hosts to remove such information from their websites. Moreover, OLA makes it very clear to the websites concerned in writing from time to time that a licence is required for guesthouse operation in accordance with the laws of Hong Kong.
Figures of enforcement actions taken and prosecutions instituted by OLA against suspected unlicensed guesthouse operation for the past three years, broken down by district corresponding to District Councils, are at the Annex. For successful prosecution against an unlicensed guesthouse, OLA's law enforcement officers shall employ various means in a flexible manner in order to gather intelligence and collect sufficient evidence. In this connection, we are not able to provide individual figures of successful prosecution under different categories such as proactive inspections, operations with officers posing as clients (commonly known as "snaking") and browsing of webpages for hotel and accommodation bookings.
Ends/Wednesday, January 22, 2014
Issued at HKT 13:00
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