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An independent statutory supervisory body said the Food and Environmental Health Department (FEHD) of the Hong Kong government failed to curb street obstruction and hygienic problems caused by restaurants.
The Office of Ombudsman issued its first report for the year of 2013/14 on Thursday, revealing the investigation into regulatory measures and enforcement actions against illegal extension of business area by restaurants.
According to the report residents in various areas , especially in Yuen Long and Tsuen Wan, have been complaining about the restaurants putting tables and chairs on the pedestrian ways, leading to obstruction of the streets. Noise and hygienic problems were also reported.
The FEHD, as the licensing authority of the restaurants, has the statutory right to suspend or cancel the restaurant license once violation is proved under the Demerit Points System.
Offenders may also be prosecuted under S. 34C of the Food Business Regulation for "operating a restaurant otherwise than at the place delineated in the plan." If the articles of the restaurants are placed in public areas causing obstruction, FEHD can prosecute the licensee (the restaurant) for street obstruction pursuant to S. 4A of the Summary Offence Ordinance. The maximum penalties are 10,000 Hong Kong dollars fine and three months' imprisonment, and a fine a 5000 Hong Kong dollars plus three months' imprisonment respectively.
However, the Ombudsman Alan Lai accused the FEHD for not fully utilizing its resources.
"It only deploys its Health Inspectors to prosecute the restaurants, whose normal working hours are 8:30am to 6pm from Monday to Friday, whilst most of the restaurants open in the evening only," said Lai.
Even though the Health Inspectors institute prosecutions to the restaurants, they have never ever invoke the "trump cards" of issuing a closure order, arresting the offenders or seizing the articles as evidence on the spot. All the prosecuted persons dismissed their charges simply by paying fines.
In 2011 and 2012, there were 833 and 847 successful prosecutions instituted for "operating a restaurant otherwise than at the place delineated in the plan" respectively. The average fine were 2,852 Hong Kong dollars in 2011, and 2,743 Hong Kong dollars in 2012.
The FEHD also made 521 successful prosecutions in 2012 for "operating an unlicensed restaurant" under S.31(1)(b) of the Food Business Regulation. The maximum penalty is a fine of 5,000 Hong Kong dollars and three months' imprisonment. But again, all of the prosecuted persons were just fined 4,224 Hong Kong dollars.
"The offenders simply regard the fines as part of their costs of business running," said Lai. "Only concern about frequency of inspections and number of prosecution is nowhere near being enough."
Moreover, any restaurant licensee dissatisfied with a decision of license suspension or cancellation are free to appeal to the FEHD. They have to go through three tiers of the appeal mechanism, which could be as long as 336 days. Taking advantage of the lengthy appeal process and FEHD's discretion to suspend the implementation of the decision, the licensee can defer the effective date of license suspension or cancellation.
Lai suggested that the FEHD should deploy more manpower to deal with irregularities, and refrain from withholding the suspension or cancellation of licenses, if not arresting the culprits to cease the problematic restaurants from running in entirety. It should also exercise more stringent control on the unlicensed restaurants, such as applying for closure orders from the court and publicize information about those restaurants. The appeal mechanism of license cancellation should also be simplified.
