1990 — Page 47

Page 47 of 95

88

HONG KONG URBAN COUNCIL

2. MR. B. A. BERNACCHI moved the following motion:-

THAT the Byelaws and Regulations dealing with hawkers under the Municipal Services Ordinance be so amended as to allow a wall stall to be still qualified even if it is just not touching the wall itself.

He said (in English):—Mr. Chairman, I rise to propose the Motion that the Bye-laws and Regulations dealing with hawkers under the Municipal Services Ordinance be so amended as to allow a wall-stall to be still qualified even if it does not touch the wall itself. This is, in effect, an, in principle, Motion. If Members agree, then the Legal Advisors of the Council and the Urban Services Department, would be required to draw up suitable amendments to be discussed and (I hope) approved in the ordinary way by the Markets and Street Traders Select Committee and eventually the Urban Council.

Let me go into the history of these wall-stalls very briefly. For a long time there were stalls, placed along side, usually even attached to, walls (usually of buildings) but selling from the street and yet with no control whatsoever. They were getting larger and larger as each year passed by, both in width and in the degree to which they encroach on the public footpaths. In the 1960s and then again 1970s, the Urban Services Department on behalf of the Urban Council, collected data in respect to these stalls. To cut a long story short, we were eventually given the ability under the Municipal Services Ordinance to license these stalls, but it was and is the intention both of the Government (impliedly) under the Ordinance, and of the Council, that no new stalls should be allowed. It was rather a case of accepting and licensing a position which has gone on unchecked for many years and was getting out of hand. I do therefore emphasize that in accordance with the policy both of the Council and the Government, no wall-stall licences are now being issued to any new stall. It is with this background that I want to describe a situation that has grown up in more recent years.

This situation is as follows. The Walls have landlords, that is to say, the owners of the walls. Many of those owners did not trouble about what was done on the street side, others from the first charged the street side hawker a reasonable rental for his occupation of the wall. However, with licensing and with the present interpretation given to the Laws and Regulations by our Legal Advisors, that the stall, to be classified as a wall-stall must be attached to or at least touching the wall itself, became generally known, some of these wall owners saw that they are in a position virtually, to hold their hawkers at ransom. They have charged, sometimes, ridiculously high rentals for the use of the exterior of the wall. Also, if a hawker does not pay, some owners from time to time, have taken that hawker to court to get an eviction order, which is then carried out by bailiffs, usually of the District Court. Thus, a wall-stall licensee who has been there for years and years, suddenly finds himself unable to qualify as a wall-stall under our regulations (as at present interpreted), because he cannot pay to the owner the high rental demanded for being attached to (or touching) the wall.

HONG KONG URBAN COUNCIL

Page 47 of 95

89

This Motion is aimed to stop that sort of thing from occurring as I am afraid it has and will occur, more and more frequently, by allowing the wall-stall to be still qualified to be licensed as a wall-stall, even if the stall itself is not just touching the wall. If there is merely half an inch or an inch away from the wall with nothing to connect the stall to the wall, the landlord of the wall has no connection with the hawker who owns the stall and therefore will have no legal reason to demand from him, sometimes, an outrageous rental. Any money that the licensees of wall-stalls pay, should go to the Urban Council, not to the landlords of the walls, because these licensees are and have been always occupying Crown land to the back of the public pavements. It is merely that some landlords of these walls are taking advantage of the provision imposed on the wall-stall hawkers to continue to qualify for a licence.

The existing provisions were enacted when we first licensed wall-stalls and, in submission, can now be amended. Remembering always that there are no new wall-stall licences going to be issued to stalls which did not qualify before the date of qualification, when wall-stall licences were first issued. I am of course not unaware that by virtue of Section 2 of the Hawker (Urban Council) Bye-laws 'wall-stall' is at present actually defined as meaning 'a stall which is affixed to or placed against any external part of any building or any similar structure and which faces onto a street'. I submit, purely as an Urban Councillor, but one who happens also to know some law, that those words are already wide enough to include a stall of the type which I have described, ‘de minimus non curat lex' which means the law does not take notice of trifles, and an inch to 1 inch away from the wall is a mere trifle from the Council's point of view. However, for the removal of the doubt which has arisen, the Urban Council is the Authority that can amend these bye-laws.

Mr. Chairman, I therefore move the Motion standing in my name on today's Order-Paper.

MISS CECILIA L. Y. YEUNG seconded the motion (in Cantonese): Mr. Chairman, I second the motion.

MR. PETER C. K. CHAN (in English):—Mr. Chairman, the motion moved by my friend Mr. BERNACCHI, I feel, may have rather more complex operational and legal implications than may be apparent at first sight. Thus I think it is highly desirable to discuss its merits with both our legal adviser and operational staff. In the circumstances I move to refer the subject of debate to the Markets and Street Traders Select Committee in accordance with Standing Order 21(16)(j).

MR. STEPHEN M. L. LAU (in English): Mr. Chairman, I have the pleasure to second the motion moved by Mr. Peter C. K. CHAN.

CHAIRMAN (in English):—The motion will refer the matter to the particular Select Committee in accordance with the Standing Order as pointed out by Mr. Peter CHAN.

Page 47 of 95