An Ordinance to regulate homes established for the residential care of persons who have attained the age of 60 years. (Enacted 1994) [The Ordinance other than section 6］ 1 April 1995 L.N. 95 of 1995 Section 6 ［ 1 June 1996 L.N. 121 of 1996] (Originally 90 of 1994) Cap 459 s 1 Short title PART I PRELIMINARY (1) This Ordinance may be cited as the Residential Care Homes (Elderly Persons) Ordinance. (2) (Omitted as spent) (Enacted 1994) Cap 459 s 2 Interpretation In this Ordinance, unless the context otherwise requires- "Appeal Board" (上诉委员会) means the Appeal Board constituted under section 14; "certificate of exemption" (豁免证明书) means a certificate of exemption issued under section 7(2) or renewed under section 7(5); "Chairman" (主席) means the person appointed as Chairman of the Appeal Board under section 13; "Director" (署长) means the Director of Social Welfare; "inspector" (督察) means a person appointed under section 17 to be an inspector of residential care homes; "licence" (牌照、牌) means a licence issued under section 8(2)(a) or renewed under section 9; "premises" (处所) includes any building, enclosure, ground or open air space; "residential care home" (安老院) means any premises at which more than 5 persons who have attained the age of 60 years are habitually received for the purposes of care while resident therein. (Enacted 1994) Cap 459 s 3 Application (1) This Ordinance shall not apply to- (a) any residential care home maintained and controlled by- (i) the Government; (ii) the Housing Authority;(b) any residential care home used or intended for use solely for the purpose of the medical treatment of persons requiring medical treatment; (c) any residential care home or type or description of residential care home excluded by the Director by order published in the Gazette.(2) An order under subsection (1)(c) may- (a) be made subject to such conditions; (b) be made subject to such geographical limitations; (c) have effect for such period; or (d) have such partial application,as may be indicated in the order. (Enacted 1994) Cap 459 s 4 Exercise of Director's powers (1) The Deputy Director of Social Welfare may exercise any function of the Director under any provision of this Ordinance. (2) The Director may authorize any public officer to exercise any function of the Director under any provision of this Ordinance. (Enacted 1994) Cap 459 s 5 Power of Chief Executive to give directions Remarks: Amendments retroactively made - see 17 of 1999 s. 3 (1) The Chief Executive may give to the Director, the Deputy Director of Social Welfare or to any other public officer such directions as he thinks fit with respect to the exercise or performance of their respective functions under this Ordinance, either generally or in any particular case. (2) A person to whom a direction is given by the Chief Executive under subsection (1) shall, in the exercise or performance of his functions under this Ordinance, comply with that direction. (Enacted 1994. Amended 17 of 1999 s. 3) Cap 459 s 6 Restriction on operating residential care homes unless exempted or licensed PART II RESTRICTION ON OPERATION OF RESIDENTIAL CARE HOMES (1) Any person who on any occasion operates, keeps, manages or otherwise has control of a residential care home in respect of which neither of the conditions indicated in subsection (2) has been satisfied commits an offence and is liable to a fine at level 6 and imprisonment for 2 years and to a fine of $10000 for each day during which the offence continues. (2) The conditions referred to in subsection (1) are- (a) that a certificate of exemption has been issued under section 7(2) or renewed under section 7(5) in respect of the residential care home and is for the time being in force; or (b) that a licence has been issued under section 8(2)(a) or renewed under section 9 in respect of the residential care home and is for the time being in force.(3) It shall not be a defence that a person charged with an offence under subsection (1) did not know that neither of the conditions specified in subsection (2) had been satisfied. (Enacted 1994) Cap 459 s 7 Application for and issue of certificate of exemption PART III CERTIFICATES OF EXEMPTION (1) An application by a person for a certificate of exemption in respect of a residential care home shall be- (a) made to the Director in such form and manner as the Director may determine; and (b) accompanied by such information, particulars and plans as the Director may require.(2) The Director may issue a certificate of exemption and impose such conditions, in relation to the operation, keeping, management or other control of a residential care home, as he thinks fit. (3) A certificate of exemption issued under this section shall- (a) be in such form as the Director may determine; (b) be endorsed with the conditions, if any, imposed under subsection (2); and (c) authorize the person in whose name it is issued to operate, keep, manage or otherwise have control of a residential care home of a type prescribed for the purposes of this section, for a period of 36 months or such lesser period as may be indicated therein.(4) The Director may revoke a certificate of exemption issued under this section by notice in writing served either personally or by registered post on the person to whom it was issued. (5) The Director may, upon application made to him in such form and manner as he may determine, renew a certificate of exemption. (6) A certificate of exemption or a copy thereof purporting to be certified under the hand of the Director shall be evidence of the facts stated therein as at the date of such certificate of exemption or such copy thereof and shall be received in evidence without further proof. (7) A certificate purporting to be certified under the hand of the Director that a certificate of exemption has or has not been issued in respect of a residential care home shall be evidence of the facts stated therein as at the date of such certificate and shall be received in evidence without further proof. (Enacted 1994) Cap 459 s 8 Application for and issue of licence PART IV LICENCES (1) An application by a person for a licence in respect of a residential care home shall be- (a) made to the Director in such form and manner as the Director may determine; and (b) accompanied by such information, particulars and plans as the Director may require.(2) The Director shall, on receipt of an application under subsection (1), determine the application- (a) by issuing to and in the name of the applicant, a licence imposing such conditions, in relation to the operation, keeping, management or other control of the residential care home, as he thinks fit; or (b) by refusing to issue a licence to the applicant.(3) The Director may refuse to issue a licence to the applicant if it appears to him- (a) that the applicant or any person he proposes to employ at the residential care home is not a fit person, whether by reason of age or otherwise, to operate, take part in the management of or be employed at the residential care home; (b) that for reasons connected with the situation, means of ingress and egress, design, construction, size, type of building, staffing or equipment, the premises to be used for the residential care home are not fit to be used for the purposes of a residential care home; (c) that such premises do not comply with any requirements relating to design, structure, fire precautions, health, sanitation and safety set out in- (i) any regulation made under section 38 of the Buildings Ordinance (Cap 123); (ii) any Code of Practice published by the Director of Fire Services under section 16(1)(b) of the Buildings Ordinance (Cap 123); (iii) any Code of Practice issued by the Director under section 22; or (iv) any regulation made under section 23;(d) that the proposed name of the residential care home is unsuitable or is the same as or similar to- (i) the name of any residential care home in respect of which a certificate of exemption has been issued under section 7(2) and is for the time being in force; (ii) the name of any other residential care home; or (iii) the name of a residential care home in respect of which the licence has been cancelled.(4) A licence issued under this section shall- (a) be in such form as the Director may determine; (b) be endorsed with the conditions, if any, imposed under subsection (2)(a); and (c) authorize the person in whose name it is issued to operate, keep, manage or otherwise have control of a residential care home of a type prescribed for the purposes of this section, for a period of 36 months or such lesser period as may be indicated therein.(5) A licence or a copy thereof purporting to be certified under the hand of the Director shall be evidence of the facts stated therein as at the date of such licence or such copy thereof and shall be received in evidence without further proof. (6) A certificate purporting to be certified under the hand of the Director that a residential care home is licensed or is not licensed shall be evidence of the facts stated therein as at the date of such certificate and shall be received in evidence without further proof. (Enacted 1994) Cap 459 s 9 Renewal of licence (1) A person holding a licence in respect of a residential care home may, before the expiration of the licence, apply for the licence to be renewed for a period of not more than 36 months. (2) An application for renewal of a licence shall be made to the Director- (a) not more than 4 months and not less than 2 months prior to the expiration of the licence or within such other period prior to the expiration thereof as the Director may in writing permit; (b) in such form and manner as the Director may determine.(3) The Director may in respect of the renewed licence impose any condition, in relation to the operation, keeping, management or other control of the residential care home, in addition to or instead of any condition previously imposed by him under section 8(2)(a). (4) A renewal of a licence under this section before the expiration of the licence shall take effect on the day following the day of its expiration. (5) Any licence in respect of which an application for renewal is made under this section and which expires prior to the determination of such application shall, unless such application is withdrawn or the licence is cancelled or suspended under section 10, remain in effect until the determination by the Director of such application. (6) A renewal of a licence granted under this section shall have effect on the day following the day upon which the licence would have expired but for subsection (5), for a period of 36 months or such lesser period as may be indicated by the Director at the time of renewal. (Enacted 1994) Cap 459 s 10 Cancellation and suspension of licence or refusal to renew and amendment or variation of conditions The Director may at any time by notice in writing served on the person holding a licence in respect of a residential care home cancel or suspend the licence or refuse to renew the licence or amend or vary any condition of the licence- (a) on any ground specified in section 8(3)(a), (b) or (c) which would have entitled him to refuse an application for the licensing of that residential care home; (b) on the ground that- (i) that person has been convicted of an offence against this Ordinance or an indictable offence; or (ii) any other person has been convicted of an offence against this Ordinance or an indictable offence in respect of that residential care home;(c) on the ground that, in respect of that residential care home or the residents thereof- (i) any of the provisions of this Ordinance have been or are being contravened; or (ii) any requirement, order or direction made or given under this Ordinance has not been complied with by the person holding the licence in respect of the residential care home;(d) on the ground that any condition of the licence has not been or is not being complied with by the person holding the licence in respect of the residential care home; (e) if it appears to him that- (i) that residential care home has ceased to be operated as such or to exist; (ii) that such persons has ceased to operate, keep, manage or otherwise control, that residential care home; or (iii) that residential care home has, on any occasion since the date on which it was licensed, been operated in a manner contrary to the public interest. (Enacted 1994) Cap 459 s 11 Notice of refusal of licence or renewal and of cancellation or suspension (1) The Director shall, before refusing an application for a licence or serving notice under section 10, give to the applicant or the person holding the licence, as the case may be, notice of his intention to do so, stating the grounds on which he intends to refuse the application or serve a notice under section 10 and containing an intimation that such applicant or such person may make written representations to him. (2) If the Director decides to refuse an application for a licence or serve a notice under section 10, he shall make a written order, properly dated and signed, to that effect and shall send a copy thereof by registered post to the applicant or the person holding the licence, at the address last known to the Director. (Enacted 1994) Cap 459 s 12 Appeals against decisions of Director PART V APPEALS (1) Any person aggrieved by a decision of the Director made in respect of him under section 7, 8, 9 or 10 may appeal to the Appeal Board. (2) A decision under section 10 that is appealed against under subsection (1) shall be suspended in its operation as from the day on which the appeal is made until such appeal is disposed of, withdrawn or abandoned unless such suspension would, in the opinion of the Director, be contrary to the public interest and the notice of the decision contains a statement to that effect. (3) Any person who wishes to appeal under this section shall lodge a notice of appeal in the prescribed form and manner within 28 days after receiving notice of the decision to which the appeal relates. (Enacted 1994) Cap 459 s 13 Appeal Board Remarks: Amendments retroactively made - see 17 of 1999 s. 3 (1) Every appeal shall be determined by the Appeal Board constituted under section 14. (2) The Chief Executive shall appoint as Chairman of the Appeal Board a person who is qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap 336). (Amended 17 of 1999 s. 3) (3) Subject to subsection (6), the Chairman shall be appointed for a term of 2 years but may be reappointed. (4) The Chief Executive shall appoint a panel of persons whom he considers suitable for appointment under section 14 as members of the Appeal Board to hear any appeal. (Amended 17 of 1999 s. 3) (5) An appointment under subsection (2) or (4) shall be notified in the Gazette. (6) The Chairman and any person appointed under subsection (4) may at any time resign by notice in writing to the Chief Executive. (Amended 17 of 1999 s. 3) (Enacted 1994) Cap 459 s 14 Constitution of Appeal Board Remarks: Amendments retroactively made - see 25 of 1998 s. 2; 17 of 1999 s. 3 (1) The Appeal Board shall consist of the Chairman and not less than 2 of the persons from the panel referred to in section 13(4) as the Chairman may appoint to be members thereof to hear any appeal. (2) In hearing an appeal the Appeal Board may, in relation to such appeal, give directions to the Director with respect to the exercise by the Director of such of the functions of the Director under this Ordinance as are relevant to the appeal and the Director shall comply with any such direction. (3) In relation to the hearing of appeals every question before the Appeal Board shall be determined by the opinion of the majority of the members hearing the appeal except a question of law which shall be determined by the Chairman. In the case of an equality of votes the Chairman shall have a casting vote. (4) In hearing an appeal the Appeal Board may- (a) receive evidence on oath; (b) admit or take into account any statement, document, information or matter whether or not it would be admissible in a court of law; (c) by notice in writing summon any person to appear before it to produce any document or to give evidence; (d) confirm, vary or reverse the decision that is appealed against or substitute therefor such other decision or make such other order as it may think fit; and (e) make an award of such sum, if any, in respect of the costs involved in the appeal as is just and equitable in all the circumstances of the case.(5) The Appeal Board shall have the powers which are vested in the Court of First Instance in the exercise of its powers under subsection (4). (Amended 25 of 1998 s. 2) (6) If any person- (a) on being duly summoned as a witness before the Appeal Board makes default in attending; (b) being in attendance as a witness refuses to take an oath legally required by the Appeal Board to be taken, or to produce any document in his power or control legally required by the Appeal Board to be produced by him, or to answer any question to which the Appeal Board may legally require an answer; or (c) does any other thing which would, if the Appeal Board had been a court of law having power to commit for contempt, have been contempt of that court,the Chairman may certify the contempt of that person under his hand to the Court of First Instance and the Court of First Instance may thereupon inquire into the alleged contempt and after hearing any witnesses who may be produced against or on behalf of the person charged with the contempt and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court. (Amended 25 of 1998 s. 2) (7) A witness before the Appeal Board shall be entitled to the same immunities and privileges as if he were a witness in civil proceedings before the Court of First Instance. (Amended 25 of 1998 s. 2) (8) Any sum awarded to the Director under subsection (4)(e) shall be a debt due to the Government and recoverable in the District Court and any sum payable by the Director under such an award shall be charged on the general revenue. (Amended 17 of 1999 s. 3) (9) The Chairman may determine any form or matter of practice or procedure for which no provision is made in this Ordinance. (Enacted 1994) Cap 459 s 15 Supplementary provisions relating to appeals Remarks: Amendments retroactively made - see 17 of 1999 s. 3 (1) If the Chairman is precluded by illness, absence from Hong Kong or any other cause from exercising his functions, the Chief Executive may appoint any person qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap 336) to act as Chairman and as such to exercise and perform all the functions of the Chairman during the period of his appointment. (Amended 17 of 1999 s. 3) (2) If a person appointed by the Chairman under section 14(1) to hear an appeal is precluded by illness, absence from Hong Kong or any other cause from exercising his functions, the Chairman may appoint any other person from the panel referred to in section 13(4) to act in his place. (3) The hearing of an appeal may be continued notwithstanding a change in the membership of the Appeal Board. (Enacted 1994) Cap 459 s 16 Case may be stated for Court of Appeal (1) The Appeal Board may, before an appeal is determined, refer any question of law arising in the appeal to the Court of Appeal for determination by way of case stated. (2) On the hearing of the case the Court of Appeal may amend the case or order it to be sent back to the Appeal Board for amendment. (Enacted 1994) Cap 459 s 17 Appointment of inspectors PART VI SUPERVISION OF RESIDENTIAL CARE HOMES The Director may by notice in writing appoint- (a) any officer of the Social Welfare Department; (b) any officer of the Buildings Department; (c) any person who is registered as a medical practitioner, or who is deemed to be so registered under section 29 of the Medical Registration Ordinance (Cap 161); and (d) any person whose name appears on the register of nurses maintained under section 5 of the Nurses Registration Ordinance (Cap 164),to be an inspector of residential care homes. (Enacted 1994) Cap 459 s 18 Inspection of residential care homes The Director, any officer of the Fire Services Department or any inspector may, without warrant and on production, if so required, of proof of his identity as the Director, officer of the Fire Services Department or inspector as the case may be, and of his identity card issued under the Registration of Persons Ordinance (Cap 177)- (a) at all reasonable times enter and inspect any residential care home or any premises which he has reason to suspect are used as or for the purposes of a residential care home; (b) require any person taking part in the operation or management of a residential care home to produce any book, document or other article relating to the operation or management of the residential care home or to any other activity in respect of the residential care home, or to furnish any information relating to such management or activity; (c) remove for further examination any book, document or other article which he has reason to suspect is evidence of the commission of an offence against this Ordinance, or is evidence of a ground for the cancellation of the licence issued in respect of a residential care home; and (d) do such other things as are necessary for the inspection of a residential care home or for the inspection or testing of any equipment, works or system used for or in connection with the operation, keeping, management or other control of a residential care home. (Enacted 1994) Cap 459 s 19 Director may direct remedial measures (1) The Director may, in respect of any residential care home, by notice in writing, give such directions as appear to him to be required to secure that- (a) it is operated and managed satisfactorily; (b) the welfare of its residents is promoted in a proper manner; (c) adequate apparatus and equipment required as safeguards against fire or other hazard likely to endanger the lives or health of residents are provided in the residential care home; and (d) the provisions of this Ordinance are complied with.(2) A notice under subsection (1)- (a) shall be served personally or by registered post on the person being the operator, keeper, manager or otherwise having control of the residential care home; and (b) shall indicate a period within which the directions shall be complied with. (Enacted 1994) Cap 459 s 20 Director may order cessation of use of premises as a residential care home (1) The Director may- (a) if it appears to him that there is any danger or risk of danger to persons in residence in a residential care home; or (b) if, in respect of any such residential care home, the requirements of a direction given under section 19(1) are not complied with within the period indicated in the notice served under that section,by order in writing direct that the premises used as a residential care home shall cease to be used as a residential care home for such period as he thinks fit or until further notice. (2) An order under this section shall be served on the person being the operator, keeper, manager or otherwise having control of the residential care home concerned and shall take effect from the date of service. (3) It shall be sufficient service of an order under this section if- (a) it is delivered personally to the person on whom it is to be served; (b) it is sent by registered post to the last known address of that person; or (c) a copy thereof is posted in a conspicuous place upon or in the premises to which it relates. (Enacted 1994) Cap 459 s 21 Offences in relation to certificates of exemption and licences PART VII MISCELLANEOUS (1) Any person who on any occasion operates, keeps, manages or otherwise has control of a residential care home in respect of which a certificate of exemption has been issued- (a) in contravention of any condition of the certificate of exemption so issued; (b) in any premises other than the residential care home premises indicated in the certificate of exemption so issued; or (c) under any name other than the name of the residential care home indicated in the certificate of exemption so issued,commits an offence. (2) Where any condition of a certificate of exemption is contravened, the person in whose name the certificate of exemption was issued commits an offence unless he proves that- (a) he did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention; and (b) he could not, by the exercise of reasonable supervision and reasonable diligence, have prevented those circumstances arising.(3) Any person who on any occasion operates, keeps, manages or otherwise has control of a residential care home in respect of which a licence has been issued- (a) in contravention of any condition of the licence so issued; (b) in any premises other than premises indicated in the licence so issued; or (c) under any name other than the name indicated in the licence so issued,commits an offence. (4) Where any condition of a licence is contravened, the person holding the licence in respect of the residential care home commits an offence unless he proves that- (a) he did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention; and (b) he could not, by the exercise of reasonable supervision and reasonable diligence, have prevented those circumstances arising.(5) Where an offence under subsection (1) or (3) is alleged to have been committed, proof that a defendant did any act in connection with the operation, keeping, management or other control of a residential care home is, in the absence of evidence to the contrary, proof that the defendant operated, kept, managed or otherwise had control of a residential care home. (6) Any person who- (a) in or in connection with any application under this Ordinance makes any statement or furnishes any information, whether such statement be oral or written, which is false in any material particular and which he knows or reasonably ought to know is false in such particular; (b) obstructs the Director, any officer of the Fire Services Department or any inspector in the exercise of any of his powers under this Ordinance; (c) refuses to produce any book, document or other article upon being so required under section 18 or furnishes any information which is false in a material particular and which he knows or reasonably ought to know is false in such particular; (d) fails to comply with the requirements of a direction given under section 19 within the period indicated in the notice served thereunder; (e) fails to comply with the requirements of an order served on him under section 20,commits an offence. (7) Any person who commits an offence under this section is liable to a fine at level 6 and to imprisonment for 2 years and to a fine of $10000 for each day during which the offence continues. (Enacted 1994) Cap 459 s 22 Codes of Practice relating to operation of residential care homes (1) The Director may issue from time to time Codes of Practice setting out principles, procedures, guidelines and standards for the operation, keeping, management or other control of residential care homes. (2) A copy of every Code of Practice issued from time to time under subsection (1) shall be made available during the hours of business by the Director for inspection by the public free of charge at such offices of the Government as the Director may direct. (Enacted 1994) Cap 459 s 23 Regulation Remarks: Amendments retroactively made - see 17 of 1999 s. 3 (1) The Chief Executive in Council may by regulation provide for or in relation to residential care homes for- (Amended 17 of 1999 s. 3) (a) the operation, management, supervision and inspection thereof; (b) the classes or description thereof; (c) the duties and responsibilities of persons holding the licences in respect thereof; (d) the qualifications, experience, appointment, duties, responsibilities and discipline of persons employed for the purposes of the operation, management and supervision, including the number of persons to be so employed in relation to the number of residents cared for therein and the registration by the Director of any such person for the purposes of that employment; (e) the admission of residents thereto having regard to the age of residents who may be admitted to any class or description thereof; (f) the medical examination of the residents cared for and the persons employed therein; (g) the exclusion therefrom of any resident or employee and measures to preserve the health and well-being of residents or employees; (h) the discharge of residents therefrom and the procedure to be adopted for the discharge, including the period of notice to be given for the discharge of any resident cared for therein; (i) the control and supervision of activities therein; (j) the adequacy, suitability and use of equipment therein; (k) the keeping, in respect thereof, of records, time-tables, menus and books of account; (l) the reports and information to be supplied to the Director in respect thereof; (m) the design, structure, hygiene and sanitation thereof; (n) the precautions to be taken against fire or other peril likely to endanger the lives or health of residents cared for therein; (o) the provision of and control of entrances to and exits therefrom; (p) the disclosure of and provision of information relating to the level or amount of fees and other charges that may be charged or imposed in respect of the services provided therein or otherwise on account of the care of residents thereat; (q) the lodging of appeals under section 12(3) and the practice and procedure of the Appeal Board; (r) subject to section 24, the fees to be charged for any matter prescribed or permitted by this Ordinance; (s) generally, carrying into effect the provisions of this Ordinance.(2) Any regulation made under this section may- (a) prohibit the performance of particular acts without the consent of the Director; (b) authorize the Director to require or prohibit the performance of particular acts; and (c) require particular acts to be performed to the satisfaction of Director.(3) The Director may, by notice in writing to the person being the operator, keeper, manager or otherwise having control of a residential care home, waive wholly, partly or conditionally the requirements of any regulation in respect of that residential care home and may amend or withdraw any such notice. (4) Regulations made under this section may provide that a contravention thereof shall be an offence punishable by a fine not exceeding level 6 and a term of imprisonment not exceeding 2 years and punishable by a fine not exceeding $10000 for each day during which the offence continues. (5) The amount of fees provided for under subsection (1)(r) need not be limited by reference to the amount of administrative or other costs incurred or likely to be incurred by the Director in the discharge of his functions under this Ordinance. (6) Without affecting the generality of subsection (5), any regulation made under subsection (1)(r) may provide for- (a) a different fee to be payable having regard to- (i) type or description of any residential care home or of any matter prescribed or permitted under this Ordinance; (ii) the period indicated in the certificate of exemption or the licence, as the case may be; and(b) the waiver, remission, reduction or refund of any fee. (Enacted 1994) Cap 459 s 24 No fee payable in respect of certificate of exemption or licence No fee shall be payable- (a) on an application for the issue or renewal of a certificate of exemption; (b) on an application for the issue or renewal of a licence; (c) for the issue or renewal of a certificate of exemption; or (d) for the issue or renewal of a licence. (Enacted 1994)
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