LCQ18: Law enforcement against subdivided units with irregularities
14.12.2022

Following is a question by the Hon Vincent Cheng and a written reply by the Secretary for Development, Ms Bernadette Linn, in the Legislative Council today (December 14): Question: Currently, there is legislation in Hong Kong regulating the building structural safety and fire safety of subdivided units (SDUs), the installation of environmental hygiene facilities in SDUs, as well as the arrangements for SDUs' landlords to recover water charges from the occupants of their premises (usually their tenants). Regarding law enforcement against SDUs with irregularities, will the Government inform this Council: (1) of the respective numbers of applications for building works regulated by the Buildings Ordinance (Cap. 123) and associated with SDUs which were received and approved, as well as the respective numbers of notices of commencement of works and certificates of completion submitted under the Minor Works Control System which were received, in each of the past three years; (2) whether the Buildings Department, in accordance with building safety regulations relating to buildings, conducted inspections on and followed up the situation of unauthorised alterations in SDUs, in the past three years; if so, of the details and, among such inspections and follow-up cases, the respective numbers of prosecutions and convictions in each of those years; (3) as the Government indicated at the meeting of the Subcommittee on Issues Relating to the Improvement of Living Conditions of the Grass-roots Tenants of this Council on October 28 this year that in the past five years, a total of 8 412 SDUs had been inspected and 2 293 removal orders had been issued, among the unauthorised structures involved, of the number of those which have been removed or dealt with; (4) given that legislation relating to fire safety stipulates fire safety standards for residential buildings, whether the authorities inspected SDUs in Hong Kong in the past three years to see if they complied with the relevant standards and, among such inspections, of the respective numbers of prosecutions and convictions; (5) given that regulations relating to buildings set out the requirements on the installation of drains and sanitary fitments in buildings (including SDUs), whether the authorities inspected SDUs in Hong Kong in the past three years to see if they complied with the relevant requirements; if so, of the details and, among such inspections, the respective numbers of prosecutions and convictions; if not, the reasons for that; and (6) as it is learnt that recently two landlords of SDUs have been convicted of overcharging water charges in contravention of regulation 47 of the Waterworks Regulations (Cap. 102A), whether the authorities will study enhancing the relevant penalties to achieve a deterrent effect? Reply: President, Sub-divided units (SDUs) generally refer to the subdivision of a flat in a building, as shown on the original approved building plan, into multiple individual residential units for rental. If the subdivision works involve alteration or addition to the structure of a building, the owner must first submit a building plan to the Buildings Department (BD) and obtain approval and consent before commencement of works. If the subdivision works are designated minor works, they may be carried out according to the simplified procedures of the Minor Works Control System (MWCS) under the Building (Minor Works) Regulation (Cap. 123N). In such cases, the BD must be notified before commencement and after completion of works, but no prior approval is required. (1) Among the 187 items of minor works regulated under the MWCS, some may be related to SDU works, e.g. erection of non-load bearing block walls, laying of solid floor screeding, and erection or alteration of drainage in a flat. Documents submitted to the BD may not specify that the works are related to the subdivision of a flat into individual rental units. However, if a residential flat is subdivided into three or more rooms, at least three of which are provided with lavatories or other sanitary fitments, and the resulting number of such rooms in the flat is greater than that shown on the approved plan, the works fall under item 1.41 of the MWCS. The number of submissions involving minor works item 1.41 received by the BD in the past three years is tabulated as follows: Year Number of Notices of Commencement (Note 1) Number of Certificates of Completion (Notes 1 and 2) 2019 93 96 2020 50 48 2021 42 41 Total 185 185 Note 1: Each submission may involve more than one minor works item or one flat. Note 2: The number of certificates of completion received may not correspond to the number of notices of commencement received in the same year. Regarding alteration and addition works for which prior submission of building plans to the BD is required, the BD does not require applicants to state in their submissions whether the works involve subdivision of flats, and hence does not maintain statistics specifically on SDUs. (2), (4) and (5) The BD carries out enforcement and regulatory work in accordance with the Buildings Ordinance (BO) (Cap.123). The department annually selects domestic and composite buildings as well as industrial buildings for large-scale inspections, and also follows up on reports from the public and referrals from government departments. Furthermore, the BD and the Fire Services Department conduct joint inspections at target domestic and composite buildings in accordance with the Fire Safety (Buildings) Ordinance (Cap. 572). Where SDUs are found to have contraventions requiring removal, including defects in building structures (e.g. structural defects or overloading caused by erection of partition walls and/or excessive thickening of floor slabs by laying solid screeding), fire safety contraventions (e.g. erection of partitions causing obstruction to means of escape, or partitions with inadequate fire resistance) and defects in drainage systems and sanitary fitments (e.g. drainage misconnection), the BD will issue removal orders in accordance with section 24 of the BO to the concerned owners demanding rectification. The BD may instigate prosecution against owners who fail to comply with the removal orders. Statistics on enforcement actions related to SDUs in the past three years are tabulated below: Year 2019 2020 2021 Number of flats inspected by BD (Note 3) 1 612 1 045 1 727 Number of flats with SDUs with irregularities (Notes 3 and 4) 420 311 588 Number of removal orders issued (Note 4) 438 321 475 Number of flats with irregularities rectified (Notes 3 and 5) 275 167 315 Number of prosecutions instigated (Note 5) 112 68 (Note 7) 117 Number of convictions (Notes 5 and 6) 94 34 (Note 7) 41 Note 3: For statistical purposes, number of flats is defined as the number as shown on an approved building plan. Note 4: The figures may not correspond to the flats inspected in the same period. Note 5: The figures may not correspond to the removal orders issued in the same period. Note 6: The figures may not correspond to the prosecutions instigated in the same period. Note 7: Prosecution and conviction figures in 2020 dropped due to the special work arrangements for government employees and adjournment of court proceedings respectively in view of the COVID-19 epidemic. The BD does not maintain separate statistics in respect of the types of irregularities found in SDUs (e.g. contraventions of building structural safety, fire safety and drainage and sanitary fitments requirements). (3) From 2017 to 2021, the BD inspected 8 412 flats suspected to involve SDUs and issued 2 293 removal orders. As at November 2022, 1 344 removal orders have been complied with. The BD is actively following up on the outstanding cases. (6) Part IVA of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) took effect on January 22 this year to regulate tenancies of SDUs. It requires that when a landlord of a regulated tenancy requests the tenant to pay for the reimbursement of charges for any of the specified utilities and services (including water and electricity charges) as a separate payment from the rent, the landlord must produce to the tenant copies of the relevant bills and provide an account in writing showing how the charges in the bills are apportioned, and that the aggregate of the apportioned amounts must not exceed the billed amounts. Failure to comply with such obligations is an offence. The first conviction for breaching the above requirement since the Ordinance came into effect was handed down in early December this year. In addition, section 47 of the Waterworks Regulations (Cap. 102A) was amended in 2021 stipulating that owners may only recover from tenants water charges paid to the Water Supplies Department (WSD). Since the amendment, there have been two conviction cases involving violation of the Regulations, conveying a clear message that overcharging for water is forbidden. The WSD has stepped up joint inspections with the Rating and Valuation Department to detect cases of landlords overcharging their tenants for water, and strengthened the exercise of statutory powers to obtain information from landlords for investigation and follow-up action. The WSD will closely monitor the situation and explore different options in a timely manner, including evaluating the effectiveness and deterrent effect of the penalties provided for by waterworks-related legislation.