Cap. 613 - Residential Care Homes (Persons with Disabilities) Ordinance

An Ordinance to regulate residential care homes for persons with disabilities by a licensing system, and to make consequential and related amendments to other Ordinances. [18 November 2011] (Enacting provision omitted—E.R. 1 of 2012) (Format changes—E.R. 1 of 2012) Part 1 Preliminary 1. Short title (1) This Ordinance may be cited as the Residential Care Homes (Persons with Disabilities) Ordinance.(2) (Omitted as spent—E.R. 2 of 2014)(Amended E.R. 2 of 2014) 2. Interpretation (1) In this Ordinance— (Amended 12 of 2023 s. 55)Cap. 459 (《第459章》) means the Residential Care Homes (Elderly Persons) Ordinance (Cap. 459); (Added 12 of 2023 s. 55)Cap. 459A (《第459A章》) means the Residential Care Homes (Elderly Persons) Regulation (Cap. 459 sub. leg. A); (Added 12 of 2023 s. 55)certificate of exemption (豁免證明書) means a certificate of exemption issued under section 11(2)(a) or renewed under section 12(3)(a);Director (署長) means the Director of Social Welfare;existing home (原有院舍) means a residential care home for PWDs that exists immediately before 18 November 2011; (Amended 12 of 2023 s. 55)inspector (督察) means a person appointed under section 15 to be an inspector of residential care homes for PWDs;licence (牌照、牌) means a licence issued under section 7(2)(a) or renewed under section 8(3)(a);management officer (管理人員) means—(a) in relation to a sole proprietorship—an individual who is the sole proprietor or is concerned in the management of the sole proprietorship;(b) in relation to a body corporate—an individual who is a director of the body corporate or is concerned in its management; or(c) in relation to a partnership—an individual who is a partner in the partnership or is concerned in its management; (Added 12 of 2023 s. 55)material date (關鍵日期) means the 1st anniversary of the date on which the Residential Care Homes Legislation (Miscellaneous Amendments) Ordinance 2023 (12 of 2023) is published in the Gazette*; (Added 12 of 2023 s. 55)operator (營辦人), in relation to a residential care home for PWDs, means a person who holds a licence or certificate of exemption issued in respect of the residential care home; (Added 12 of 2023 s. 55) person with disabilities and PWD (殘疾人士) mean a person who suffers from one or more of the following disabilities— (a) total or partial loss of the bodily or mental functions; (b) total or partial loss of a part of the body; (c) the malfunction, malformation or disfigurement of a part of the body; (d) a disorder, illness or disease that affects the thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour; premises (處所) includes any building, enclosure, ground or open air space;resident (住客) means a person who is admitted to reside in any residential care home for PWDs;residential care home for PWDs (殘疾人士院舍) means any premises at which more than 5 PWDs, who have attained the age of 6 years, are habitually received for the purpose of residential accommodation with the provision of care; (Amended 12 of 2023 s. 55)residential care home for the elderly (安老院) means a residential care home as defined by section 2(1) of Cap. 459; (Added 12 of 2023 s. 55)responsible person (負責人), in relation to a residential care home for PWDs, means a person who—(a) has become the responsible person of the residential care home under section 10A(2), 10B(2) or 10I(4); and(b) has not ceased to be such a responsible person under section 10F(5), 10G(1) or 10H(4). (Added 12 of 2023 s. 55)(2) To avoid doubt, in this Ordinance, a reference to this Ordinance includes any subsidiary legislation made under this Ordinance. (Added 12 of 2023 s. 55) Editorial Note: * Date of publication in the Gazette: 16 June 2023. 3. Application (1) This Ordinance does not apply to—(a) any premises used or intended for use solely for the purpose of the medical treatment of persons requiring medical treatment;(b) (Repealed 34 of 2018 s. 193)(c) a boarding school within the meaning of the Education Regulations (Cap. 279 sub. leg. A);(d) a treatment centre within the meaning of the Drug Dependent Persons Treatment and Rehabilitation Centres (Licensing) Ordinance (Cap. 566); or(e) a residential care home for PWDs, or type or description of residential care home for PWDs, excluded by the Director by order published in the Gazette.(2) An order under subsection (1)(e) may specify that the relevant exclusion is—(a) subject to any condition as indicated in the order;(b) subject to any geographical limitation as indicated in the order;(c) to have effect for the period as indicated in the order; or(d) to have partial application as indicated in the order.(3) An order under subsection (1)(e) is subsidiary legislation. Part 2 Restriction and Exception Relating to Operation of Residential Care Homes for Persons with Disabilities 4. Offence of operating residential care homes for PWDs without licence (1) Subject to sections 5, 6 and 6A, a person must not operate, keep, manage or in any other way have control of a residential care home for PWDs otherwise than under a licence for the time being in force. (Amended 34 of 2018 s. 194)(2) It is not a defence for a person charged with an offence under subsection (1) to show that—(a) the person did not know that at the relevant time no licence was in force in respect of the residential care home for PWDs;(b) if the residential care home for PWDs is an existing home—the person did not know that at the relevant time no certificate of exemption was in force in respect of the residential care home; or (Replaced 12 of 2023 s. 56)(c) if the residential care home for PWDs is also a residential care home for the elderly—the person did not know that at the relevant time no licence issued under Cap. 459 was in force in respect of the residential care home. (Replaced 12 of 2023 s. 56)(3) A person who contravenes subsection (1) commits an offence and is liable—(a) to a fine of $1,000,000 and to imprisonment for 2 years; and(b) in the case of a continuing offence, to a further fine of $10,000 for each day during which the offence continues.(Amended 12 of 2023 s. 56) 5. Certain existing homes excepted from application of section 4 Section 4 does not apply to a residential care home for PWDs that is an existing home in respect of which a certificate of exemption is for the time being in force. 6. Certain residential care homes for the elderly excepted from application of section 4 (Amended 12 of 2023 s. 57)Section 4 does not apply to a residential care home for PWDs that is also a residential care home for the elderly if a licence issued under Cap. 459 is in force in respect of the residential care home.(Amended 12 of 2023 s. 57) 6A. Certain nursing homes excepted from application of section 4 Section 4 does not apply to a residential care home for PWDs that is also a scheduled nursing home (as defined by section 124 of the Private Healthcare Facilities Ordinance (Cap. 633)) if an exemption granted under section 128 of that Ordinance is in force in respect of the residential care home for PWDs.(Added 34 of 2018 s. 195 and E.R. 5 of 2018) Part 3 Licences Division 1 Licence Applications (Added 12 of 2023 s. 58) 7. Application for and issue of licence (1) An application by a person for the issue of a licence in respect of a residential care home for PWDs must be—(a) made to the Director in the form and manner determined by the Director; and(b) accompanied by the information, particulars and plans required by the Director.(2) The Director must, on receipt of an application under subsection (1), determine the application—(a) by issuing to, and in the name of, the applicant a licence subject to any conditions that the Director thinks fit to impose in relation to the operation, keeping, management or other control of the residential care home; or (Amended 12 of 2023 s. 59)(b) by refusing to issue a licence to the applicant.(3) Without limiting subsection (2)(b), the Director may refuse to issue a licence to the applicant if it appears to the Director that—(a) the applicant or any person the applicant proposes to employ at the residential care home is not a fit and proper person to operate, take part in the management of or be employed at the residential care home; (Amended 12 of 2023 s. 59)(ab) the applicant does not comply with section 10A(1); (Added 12 of 2023 s. 59)(ac) the person proposed to be the responsible person of the residential care home under section 10A(1) is not a fit and proper person to perform the duties mentioned in section 10D; (Added 12 of 2023 s. 59)(b) the premises used or intended to be used for the residential care home are not fit to be used for the purposes of a residential care home for PWDs for reasons connected with the situation, means of ingress and egress, design, construction, size, type of building, staffing or equipment;(c) the premises used or intended to be used for the residential care home do not comply with any requirements relating to design, construction, fire precautions, health, sanitation and safety set out in—(i) any regulation made by the Secretary for Development under section 38 of the Buildings Ordinance (Cap. 123);(ii) any Code of Practice published by the Director of Fire Services and referred to in section 16(1)(b) of the Buildings Ordinance (Cap. 123);(iii) any Code of Practice issued by the Director under section 23; or(iv) any regulation made by the Secretary for Labour and Welfare under section 24; or(d) the proposed name of the residential care home is unsuitable or is the same as or similar to—(i) the name of an existing home in respect of which a certificate of exemption is for the time being in force;(ii) the name of a residential care home for PWDs in respect of which a licence is in force or has been suspended, surrendered or cancelled; or (Replaced 12 of 2023 s. 59)(iii) the name of a residential care home for the elderly in respect of which a licence issued under Cap. 459 is in force or has been suspended, surrendered or cancelled. (Replaced 12 of 2023 s. 59)(iv)-(v) (Repealed 12 of 2023 s. 59)(4) A licence issued under this section must—(a) be in the form determined by the Director;(b) specify the conditions, if any, imposed under subsection (2)(a);(c) include an endorsement authorizing the person to whom it is issued to operate, keep, manage or otherwise have control of a residential care home for PWDs of a type prescribed for the purposes of this section; and(d) specify the validity period of the licence, not being a period of more than 36 months.(5) If a licence issued under Cap. 459 is for the time being in force in respect of the residential care home, the applicant must, after being advised by the Director that the application under subsection (1) is successful, surrender the first-mentioned licence to the Director on the issue of a licence under this section. (Amended 12 of 2023 s. 59)(6) A licence or a copy of it purporting to be signed by the Director—(a) is evidence of the facts stated in it as at the date of the licence or the copy; and(b) is to be received in evidence without further proof.(7) A certificate purporting to be signed by the Director that a residential care home for PWDs is licensed or is not licensed—(a) is evidence of the facts stated in it as at the date of the certificate; and(b) is to be received in evidence without further proof. 7A. Fit and proper requirement for licence applicant For section 7(3)(a), in considering whether an applicant is a fit and proper person to operate a residential care home for PWDs, the Director must have regard to all relevant matters, including—(a) if the applicant is a sole proprietor—the matters set out in section 1 of Schedule 1;(b) if the applicant is a body corporate—the matters set out in section 2 of Schedule 1; or(c) if the applicant is a partnership—the matters set out in section 3 of Schedule 1.(Added 12 of 2023 s. 60) 8. Renewal of licence (1) The operator of a residential care home for PWDs may, before the licence expires, apply for the licence to be renewed for a period of not more than 36 months. (Amended 12 of 2023 s. 61)(2) An application for the renewal of a licence must be made to the Director—(a) not more than 4 months and not less than 2 months before the licence expires or within any other period before its expiry as permitted by the Director in writing; and(b) in the form and manner determined by the Director.(3) The Director may, on receipt of an application under subsection (1)—(a) renew the licence and impose any conditions in relation to the operation, keeping, management or other control of the residential care home in respect of the renewed licence, in addition to or instead of any conditions previously imposed under section 7(2)(a); or(b) refuse to renew the licence.(4) Without limiting subsection (3)(b), the Director may refuse to renew the licence in respect of a residential care home for PWDs—(a) on any ground specified in section 7(3)(a), (b) or (c) that would have entitled the Director to refuse an application for the licensing of the residential care home;(ab) on the ground that the operator of the residential care home fails to comply with section 10B(1), 10F(4), 10G(2), 10H or 10J; (Added 12 of 2023 s. 61)(ac) on the ground that the Director is not satisfied that the person proposed to be the responsible person of the residential care home under section 10B(1), 10F(4), 10G(2) or 10H(3) is a fit and proper person to perform the duties mentioned in section 10D; (Added 12 of 2023 s. 61)(b) on the ground that—(i) the operator 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 the residential care home;(c) on the ground that, in respect of the residential care home or its residents—(i) this Ordinance has been or is being contravened; or(ii) any requirement, order or direction made or given under this Ordinance has not been complied with by the operator;(d) on the ground that any condition of the licence has not been or is not being complied with by the operator; or(e) on the ground that it appears to the Director that— (Amended 12 of 2023 s. 61)(i) the residential care home has ceased to be operated or to exist;(ii) the operator has ceased to operate, keep, manage or otherwise have control of the residential care home; or(iii) the residential care home has, on any occasion since the date on which the licence is issued in respect of it, been operated in a manner contrary to the public interest. (Amended 12 of 2023 s. 61)(5) A renewal of a licence under this section before the expiry of the licence takes effect on the day following the day of its expiry.(6) Subject to subsection (7), any licence in respect of which an application for renewal is made under this section and which, but for this subsection, would expire before the determination of the application remains in force until the determination by the Director of the application.(7) Subsection (6) does not apply if—(a) the application is withdrawn; or(b) the licence is cancelled or suspended under section 9.(8) A renewal of a licence under this section takes effect on the day following the day on which the licence would have expired but for subsection (6), for the period (not being more than 36 months) indicated by the Director at the time of renewal.(9) If a decision to refuse to renew a licence under subsection (3)(b) is appealed against under section 14(d) and the licence would, but for this subsection, expire before the determination of the appeal, the licence remains in force until the appeal is disposed of, withdrawn or abandoned unless—(a) it would, in the opinion of the Director, be contrary to the public interest for the licence to remain in force; and(b) the order on the decision contains a statement to that effect. 9. Cancellation or suspension; amendment or variation of conditions of licence (1) The Director may cancel or suspend the licence in respect of a residential care home for PWDs, or amend or vary any condition of the licence, on any ground specified in section 8(4) that would have entitled the Director to refuse an application for the renewal of a licence.(2) A decision under subsection (1) that is appealed against under section 14(e) is suspended in its operation as from the day on which the appeal is made until the appeal is disposed of, withdrawn or abandoned unless—(a) the suspension would, in the opinion of the Director, be contrary to the public interest; and(b) the order on the decision contains a statement to that effect.(3) If a licence is for the time being in force in respect of a residential care home for PWDs and an application for the issue of a licence in respect of the same residential care home premises is successful under Cap. 459, the Director must cancel the licence issued under this Ordinance immediately before issuing a licence under section 8 of that Ordinance. (Amended 12 of 2023 s. 62) 10. Notice of refusal to issue or renew licence and of cancellation or suspension, etc. (Amended 12 of 2023 s. 63)(1) The Director must, before refusing an application for a licence or for the renewal of a licence, or before exercising the power under section 9(1), give notice to the applicant or the operator of a residential care home for PWDs of the intention to do so— (Amended 12 of 2023 s. 63)(a) stating the grounds on which the Director intends to refuse the application or exercise the power under that section; and(b) stating that the applicant or the operator may make written representations to the Director.(2) If the Director decides to refuse an application for a licence or for the renewal of a licence, or if the Director decides to exercise the power under section 9(1), the Director must make a written order, properly dated and signed, to that effect.(3) The Director must send a copy of the written order under subsection (2) to the applicant or the operator by delivering it personally or by registered post to the applicant or the operator, at the address last known to the Director.(Amended 12 of 2023 s. 63) Division 2 Responsible Persons (Division 2 added 12 of 2023 s. 64) 10A. Licence applicant to propose responsible person (1) For an application for a licence in respect of a residential care home for PWDs under section 7, the applicant must propose a management officer of the applicant (proposed responsible person) to be the responsible person of the residential care home.(2) If, on the application, the Director issues a licence in respect of the residential care home, the proposed responsible person becomes the responsible person of the residential care home on the day on which the licence takes effect.(3) On issuing the licence, the Director must—(a) by a written notice, inform the applicant of the effect of subsection (2); and(b) send a copy of the notice to the proposed responsible person—(i) by delivering it personally to the person; or(ii) by registered post to the person at the person’s correspondence address mentioned in section 10C(a). 10B. Certain operators to propose responsible person on renewal application (1) For an application for the renewal of a licence in respect of a residential care home for PWDs under section 8, the operator of the residential care home must propose a management officer of the operator (proposed responsible person) to be the responsible person of the residential care home if—(a) the application is the first application for the renewal of the licence made on or after the material date; and(b) the licence—(i) was in force immediately before the material date; or(ii) is issued on or after the material date on an application made before that date.(2) If, on the application, the Director renews the licence, the proposed responsible person becomes the responsible person of the residential care home—(a) if section 8(5) applies—on the day on which the renewal takes effect; or(b) if section 8(6) applies—on the day after the date on which the application is determined.(3) On renewing the licence, the Director must—(a) by a written notice, inform the operator of the effect of subsection (2); and(b) send a copy of the notice to the proposed responsible person—(i) by delivering it personally to the person; or(ii) by registered post to the person at the person’s correspondence address mentioned in section 10C(a). 10C. How to propose responsible person If an applicant or operator is required under this Division to propose a management officer of the applicant or operator (proposed responsible person) to be the responsible person of a residential care home for PWDs, the proposal must—(a) contain the name and correspondence address of the proposed responsible person;(b) contain a statement made by the proposed responsible person indicating his or her consent to be the responsible person of the residential care home;(c) contain any other information specified by the Director; and(d) be made in the form and manner specified by the Director. 10D. Duties of responsible person The duties of a responsible person of a residential care home for PWDs are—(a) to ensure adequate supervision of the operation, keeping, management and control of the residential care home for protecting the interest and safety of the residents of the residential care home; and(b) to ensure that the residential care home is operated in compliance with this Ordinance. 10E. Fit and proper requirement for responsible person For sections 7(3)(ac), 8(4)(ac), 10F(1) and 10I(1)(b), in considering whether a person is a fit and proper person to perform the duties mentioned in section 10D, the Director must have regard to all relevant matters, including the matters set out in Schedule 2. 10F. Change of responsible person as required by Director (1) The Director may, by a written notice given to the operator of a residential care home for PWDs, direct that the responsible person of the residential care home (outgoing responsible person) cease to be such a responsible person if satisfied that the person—(a) is no longer a fit and proper person to perform the duties mentioned in section 10D; or(b) has failed to perform any of the duties.(2) The notice must—(a) state that—(i) the Director is satisfied of the matter mentioned in subsection (1)(a) or (b); and(ii) the outgoing responsible person ceases to be the responsible person of the residential care home on the date of the notice; and(b) require the operator to propose another management officer of the operator to be the responsible person of the residential care home.(3) The Director must also send a copy of the notice to the outgoing responsible person.(4) The operator must, within 7 days after the date of the notice or a longer period that the Director permits, propose another management officer of the operator to be the responsible person of the residential care home.(5) The outgoing responsible person ceases to be the responsible person of the residential care home on the date of the notice. 10G. Change of responsible person because of death, incapacity, etc. (1) The responsible person of a residential care home for PWDs ceases to be such a responsible person when he or she—(a) dies;(b) becomes incapable of managing and administering his or her property and affairs because of mental or physical incapacity;(c) ceases to be a management officer of the operator of the residential care home; or(d) gives a written notice to the operator of the residential care home and the Director to withdraw his or her consent to be the responsible person of the residential care home.(2) If an event described in subsection (1)(a), (b), (c) or (d) (relevant event) occurs, the operator of the residential care home must, within the period specified in subsection (3)—(a) inform the Director of the relevant event in the form specified by the Director; and(b) propose another management officer of the operator to be the responsible person of the residential care home.(3) The period specified for subsection (2) is—(a) 7 days after the date on which the operator becomes aware of the relevant event; or(b) a longer period that the Director permits. 10H. Change of responsible person in other circumstances (1) The operator of a residential care home for PWDs may change the responsible person of the residential care home in circumstances other than those set out in sections 10F and 10G by giving a written notice to the Director.(2) The notice must—(a) state—(i) the operator’s intention to change the responsible person of the residential care home; and(ii) the date on which the responsible person of the residential care home (outgoing responsible person) will cease to be such a responsible person (cessation date);(b) be given at least 14 days before the cessation date; and(c) be given in the form and manner specified by the Director.(3) When giving the notice, the operator must also propose another management officer of the operator to be the responsible person of the residential care home.(4) The outgoing responsible person ceases to be the responsible person of the residential care home on the cessation date. 10I. Director to specify date of becoming responsible person (1) This section applies if—(a) the operator of a residential care home for PWDs proposes a management officer of the operator (proposed responsible person) to be the responsible person of the residential care home under section 10F(4), 10G(2) or 10H(3); and(b) the Director is satisfied that the proposed responsible person is a fit and proper person to perform the duties mentioned in section 10D.(2) The Director must, by a written notice—(a) inform the operator that the Director is satisfied of the matter mentioned in subsection (1)(b); and(b) specify a date (being one after the date of the notice) on which the proposed responsible person becomes the responsible person of the residential care home (specified date).(3) The Director must also send a copy of the notice to the proposed responsible person—(a) by delivering it personally to the person; or(b) by registered post to the person at the person’s correspondence address mentioned in section 10C(a).(4) The proposed responsible person becomes the responsible person of the residential care home on the specified date. Division 3 Reporting Requirements (Division 3 added 12 of 2023 s. 64) 10J. Operator to report certain events (1) The operator of a residential care home for PWDs must report to the Director if any of the events specified in subsection (3) occurs.(2) The report must—(a) be given in writing within 7 days after the date on which the operator becomes aware of the event or a longer period that the Director permits; and(b) contain the information specified by the Director.(3) The following events are specified for subsection (1)—(a) for an operator that is a sole proprietor—(i) a prosecution is started against the operator or the responsible person of the residential care home for an indictable offence in Hong Kong;(ii) a prosecution is started against the operator or the responsible person for an offence punishable with imprisonment (however described) in a place outside Hong Kong;(iii) the operator or the responsible person is convicted of an indictable offence in Hong Kong;(iv) the operator or the responsible person is sentenced to imprisonment (however described) in a place outside Hong Kong, whether or not the sentence is suspended;(v) the operator or the responsible person becomes an undischarged bankrupt;(vi) the operator or the responsible person enters into a composition or scheme of arrangement with their creditors;(vii) a body corporate of which the operator or the responsible person is a director goes into liquidation or becomes the subject of a winding-up order;(viii) there is a change in the name or correspondence address of the responsible person;(b) for an operator that is a body corporate—(i) a prosecution is started against the operator or the responsible person of the residential care home for an indictable offence in Hong Kong;(ii) a prosecution is started against the operator or the responsible person for an offence punishable with imprisonment (however described) in a place outside Hong Kong;(iii) the operator or the responsible person is convicted of an indictable offence in Hong Kong;(iv) the operator is convicted of an offence punishable with imprisonment (however described) in a place outside Hong Kong;(v) the responsible person is sentenced to imprisonment (however described) in a place outside Hong Kong, whether or not the sentence is suspended;(vi) the operator goes into liquidation or becomes the subject of a winding-up order;(vii) the operator or the responsible person enters into a composition or scheme of arrangement with their creditors;(viii) a body corporate of which the operator or the responsible person is a director goes into liquidation or becomes the subject of a winding-up order;(ix) the responsible person becomes an undischarged bankrupt;(x) there is a change in the name or correspondence address of the responsible person; or(c) for an operator that is a partnership—(i) a prosecution is started against any partner in the partnership (partner) or the responsible person of the residential care home for an indictable offence in Hong Kong;(ii) a prosecution is started against any partner or the responsible person for an offence punishable with imprisonment (however described) in a place outside Hong Kong;(iii) any partner or the responsible person is convicted of an indictable offence in Hong Kong;(iv) any partner (being an individual) or the responsible person is sentenced to imprisonment (however described) in a place outside Hong Kong, whether or not the sentence is suspended;(v) any partner (being a body corporate) is convicted of an offence punishable with imprisonment (however described) in a place outside Hong Kong;(vi) any partner or the responsible person becomes an undischarged bankrupt;(vii) any partner goes into liquidation or becomes the subject of a winding-up order;(viii) any partner or the responsible person enters into a composition or scheme of arrangement with their creditors;(ix) a body corporate of which any partner or the responsible person is a director goes into liquidation or becomes the subject of a winding-up order;(x) there is a change in the name or correspondence address of the responsible person. Part 4 Certificates of Exemption 11. Application for and issue of certificate of exemption (1) An application by a person for the issue of a certificate of exemption in respect of an existing home must be—(a) made to the Director in the form and manner determined by the Director; and(b) accompanied by the information, particulars and plans required by the Director.(2) The Director may, on receipt of an application under subsection (1), determine the application—(a) by issuing to, and in the name of, the applicant a certificate of exemption subject to any conditions that the Director thinks fit to impose in relation to the operation, keeping, management or other control of the existing home; or (Amended 12 of 2023 s. 65)(b) by refusing to issue a certificate of exemption to the applicant.(3) A certificate of exemption issued under this section must—(a) be in the form determined by the Director;(b) specify the conditions, if any, imposed under subsection (2)(a);(c) include an endorsement authorizing the person to whom it is issued to operate, keep, manage or otherwise have control of an existing home of a type prescribed for the purposes of this section; and(d) specify the validity period of the certificate, not being a period of more than 36 months.(4) The Director may revoke a certificate of exemption.(5) A certificate of exemption or a copy of it purporting to be signed by the Director—(a) is evidence of the facts stated in it as at the date of the certificate or the copy; and(b) is to be received in evidence without further proof.(6) A certificate purporting to be signed by the Director that a certificate of exemption has or has not been issued in respect of an existing home—(a) is evidence of the facts stated in it as at the date of the first-mentioned certificate; and(b) is to be received in evidence without further proof. 12. Renewal of certificate of exemption (1) The operator of an existing home may, before the certificate of exemption expires, apply for the certificate to be renewed for a period of not more than 36 months. (Amended 12 of 2023 s. 66)(2) An application for the renewal of a certificate of exemption must be made to the Director—(a) not more than 4 months and not less than 2 months before the certificate expires or within any other period before its expiry as permitted by the Director in writing; and(b) in the form and manner determined by the Director.(3) The Director may, on receipt of an application under subsection (1)—(a) renew the certificate and impose any conditions in relation to the operation, keeping, management or other control of the existing home in respect of the renewed certificate of exemption, in addition to or instead of any conditions previously imposed under section 11(2)(a); or(b) refuse to renew the certificate.(4) A renewal of a certificate of exemption under this section before the expiry of the certificate takes effect on the day following the day of its expiry.(5) Subject to subsection (6), any certificate of exemption in respect of which an application for renewal is made under this section and which, but for this subsection, would expire before the determination of the application remains in force until the determination by the Director of the application.(6) Subsection (5) does not apply if—(a) the application is withdrawn; or(b) the certificate is revoked under section 11(4).(7) A renewal of a certificate of exemption under this section takes effect on the day following the day on which the certificate would have expired but for subsection (5), for the period (not being more than 36 months) indicated by the Director at the time of renewal. 13. Notice of refusal to issue or renew certificate of exemption and of revocation, etc. (Amended 12 of 2023 s. 67)(1) If the Director decides to refuse an application for a certificate of exemption under section 11(2)(b), the Director must give notice of the decision to the applicant stating the grounds for the refusal.(2) If the Director decides to revoke a certificate of exemption under section 11(4), the Director must give notice of the decision to the operator of the existing home stating the grounds for the revocation.(3) If the Director decides to refuse an application for the renewal of a certificate of exemption under section 12(3)(b), or to grant an application subject to conditions imposed in respect of the renewed certificate of exemption under section 12(3)(a), the Director must give notice of the decision to the applicant or the operator of the existing home stating the grounds for the refusal or conditions.(4) A notice given under this section must be in writing and be sent to the applicant or the operator referred to in subsection (1), (2) or (3) respectively by delivering it personally or by registered post to the applicant or the operator, at the address last known to the Director.(Amended 12 of 2023 s. 67) Part 5 Appeals 14. Appeals against decisions A person who is aggrieved by any of the following decisions made in respect of the person may appeal to the Administrative Appeals Board—(a) a decision of the Director to impose any condition under section 7;(b) a decision of the Director to refuse to issue a licence under section 7;(c) a decision of the Director to impose any condition under section 8;(d) a decision of the Director to refuse to renew a licence under section 8;(e) a decision of the Director to cancel or suspend, or to amend or vary any condition of, a licence under section 9(1);(f) a decision of the Director to impose any condition under section 11;(g) a decision of the Director to refuse to issue a certificate of exemption under section 11;(h) a decision of the Director to revoke a certificate of exemption under section 11;(i) a decision of the Director to impose any condition under section 12;(j) a decision of the Director to refuse to renew a certificate of exemption under section 12. Part 6 Supervision of Residential Care Homes for Persons with Disabilities 15. Appointment of inspectors The Director may by notice in writing appoint the following persons to be an inspector of residential care homes for PWDs—(a) an officer of the Social Welfare Department;(b) an officer of the Buildings Department;(c) a person who is registered as a medical practitioner under the Medical Registration Ordinance (Cap. 161);(d) a person with full registration within the meaning of the Nurses Registration Ordinance (Cap. 164). (Amended 24 of 2024 s. 94) 16. Inspection of residential care homes for PWDs (1) In this section, specified person (指明人士) means—(a) the Director;(b) an officer of the Fire Services Department; or(c) an inspector.(2) If a specified person produces, if so required, proof of identity as the specified person, and the specified person’s identity card issued under the Registration of Persons Ordinance (Cap. 177), the specified person may—(a) at all reasonable times enter and inspect any residential care home for PWDs or any premises which the specified person has reason to suspect are used as or for the purposes of a residential care home for PWDs (suspected premises);(b) require any person taking part in the operation or management of the residential care home or suspected premises to—(i) produce any book, document or other article relating to the operation or management of the residential care home or suspected premises, or to any other activity in respect of the residential care home or suspected premises; or(ii) give any information relating to the operation, management or activity mentioned in subparagraph (i);(c) remove for further examination from the residential care home or suspected premises any book, document or other article which the specified person has reason to suspect is evidence of the commission of an offence against this Ordinance;(d) remove for further examination from the residential care home any book, document or other article which the specified person has reason to suspect is evidence of a ground for the cancellation of the licence issued in respect of it; and(e) do any other things that are necessary for—(i) the inspection of the residential care home; or(ii) the inspection or testing of any equipment, works or system used for or in connection with the operation, keeping, management or other control of the residential care home. 17. Protection of specified persons from liability for certain acts and omissions (1) A specified person under section 16 is not personally liable for any civil liability in respect of anything done or omitted to be done by the specified person in good faith in the exercise of a function or purported exercise of a function under this Ordinance.(2) The protection conferred by subsection (1) does not affect any liability of the Government for the act or omission. 18. Director may direct remedial measures (1) The Director may, in respect of any residential care home for PWDs, by notice in writing, give any directions that appear to the Director to be required to ensure that—(a) the residential care home is operated and managed satisfactorily;(b) the welfare of the residents is promoted in a proper manner;(c) it is provided with adequate apparatus and equipment to safeguard the residential care home against fire or other hazards likely to endanger the lives or health of residents; and(d) this Ordinance is complied with.(2) A notice under subsection (1)—(a) must be sent to a person who operates, keeps, manages or otherwise has control of the residential care home by delivering it personally or by registered post to that person at the address last known to the Director; and (Amended 12 of 2023 s. 68)(b) must indicate a period within which the directions are to be complied with. 19. Director may order cessation of use of premises as residential care home for PWDs (1) The Director may by a written order direct that the premises used as a residential care home for PWDs cease to be used as a residential care home for PWDs for the period that the Director thinks fit or until further notice—(a) if it appears to the Director that there is any danger or risk of danger to the residents in the residential care home; or(b) if, in respect of the residential care home, the requirements of a direction given under section 18(1) are not complied with within the period indicated in the notice sent under section 18(2).(2) An order under this section—(a) must be sent to a person who operates, keeps, manages or otherwise has control of the residential care home concerned; and (Amended 12 of 2023 s. 69)(b) takes effect at the following time—(i) if it is delivered personally to the person to whom it is to be sent, when it is so delivered;(ii) if it is sent by registered post to the last known address of the person, when it would in the ordinary course of post be delivered to that address; or(iii) if it is posted in a conspicuous place inside or outside the premises to which it relates, when it is so posted. 20. Exercise of Director’s functions (1) A Deputy Director of Social Welfare may exercise any function of the Director under this Ordinance.(2) The Director may authorize any public officer to exercise any function of the Director under this Ordinance.(3) A person to whom this subsection applies is not personally liable for any civil liability in respect of anything done or omitted to be done by the person in good faith in the exercise of a function or purported exercise of a function under this Ordinance.(4) Subsection (3) applies to—(a) the Director;(b) any Deputy Director of Social Welfare; and(c) any public officer authorized under subsection (2).(5) The protection conferred by subsection (3) does not affect any liability of the Government for the act or omission. 21. Power of Chief Executive to give directions (1) The Chief Executive may give to the Director, any Deputy Director of Social Welfare or to any other public officer any directions that the Chief Executive thinks fit with respect to the exercise of the person’s 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) must, in the exercise of the person’s functions under this Ordinance, comply with that direction. Part 7 Miscellaneous 22. Offences in relation to licences and certificates of exemption (1) A person commits an offence if the person operates, keeps, manages or otherwise has control of a residential care home for PWDs in respect of which a licence is for the time being in force— (Amended 12 of 2023 s. 70)(a) in contravention of any condition of the licence;(b) in any premises other than the residential care home premises indicated in the licence; or(c) under any name other than the name of the residential care home indicated in the licence.(2) If a condition of a licence issued in respect of a residential care home for PWDs is contravened, the operator of the residential care home commits an offence unless the operator proves that— (Amended 12 of 2023 s. 70)(a) the operator did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention; and(b) the operator could not have prevented those circumstances arising by the exercise of reasonable supervision and reasonable diligence. (Amended 12 of 2023 s. 70)(3) A person commits an offence if the person operates, keeps, manages or otherwise has control of an existing home in respect of which a certificate of exemption is for the time being in force— (Amended 12 of 2023 s. 70)(a) in contravention of any condition of the certificate of exemption;(b) in any premises other than the existing home premises indicated in the certificate of exemption; or(c) under any name other than the name of the existing home indicated in the certificate of exemption.(4) If a condition of a certificate of exemption issued in respect of an existing home is contravened, the operator of the existing home commits an offence unless the operator proves that— (Amended 12 of 2023 s. 70)(a) the operator did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention; and(b) the operator could not have prevented those circumstances arising by the exercise of reasonable supervision and reasonable diligence. (Amended 12 of 2023 s. 70)(5) If 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 for PWDs is, in the absence of evidence to the contrary, proof that the defendant operated, kept, managed or otherwise had control of the residential care home.(6) A person commits an offence if the person—(a) in or in connection with any application under this Ordinance makes any statement or gives any information, whether in oral or written form, which is false in any material particular and which the person knows or reasonably ought to know is false in the material particular;(b) obstructs the Director, any officer of the Fire Services Department or any inspector in the exercise of any functions under this Ordinance;(c) refuses to produce any book, document or other article when so required under section 16 or gives any information which is false in a material particular and which the person knows or reasonably ought to know is false in the material particular;(d) fails to comply with the requirements of a direction given under section 18 within the period indicated in the notice sent under it; or(e) fails to comply with the requirements of an order sent to the person under section 19.(7) A person who commits an offence under this section is liable—(a) to a fine at level 6 and to imprisonment for 2 years; and(b) in the case of a continuing offence, to a further fine of $10,000 for each day during which the offence continues. 22A. Liability of responsible person If the operator of a residential care home for PWDs commits an offence under this Ordinance, and it is proved that the offence—(a) was committed with the consent or connivance of the responsible person of the residential care home; or(b) was attributable to any neglect on the part of the responsible person of the residential care home in performing the duties mentioned in section 10D,the responsible person also commits the offence.(Added 12 of 2023 s. 71) 22B. Liability of directors, partners, etc. (1) If—(a) a sole proprietor commits an offence under this Ordinance; and(b) it is proved that the offence was committed with the consent or connivance of a person concerned in the management of the sole proprietorship,the person also commits the offence.(2) If—(a) a body corporate commits an offence under this Ordinance; and(b) it is proved that the offence was committed with the consent or connivance of a director of the body corporate, or of a person concerned in the management of the body corporate,the director or the person, as the case requires, also commits the offence.(3) If—(a) a partner in a partnership commits an offence under this Ordinance; and(b) it is proved that the offence was committed with the consent or connivance of another partner in the partnership, or of a person concerned in the management of the partnership,the other partner or the person, as the case requires, also commits the offence.(Added 12 of 2023 s. 71) 22C.

Prosecution deadline for offences (1) A prosecution for an offence under this Ordinance may only be started before the end of 12 months after the date on which the offence is discovered by the Director. Note— This replaces the time limit under section 26 of the Magistrates Ordinance (Cap. 227). (2) Subsection (1) does not apply in relation to an offence committed before the material date.(Added 12 of 2023 s. 71) 23. Code of Practice relating to operation of residential care homes for PWDs (1) The Director may issue from time to time any Code of Practice setting out principles, procedures, guidelines and standards for the operation, keeping, management or other control of residential care homes for PWDs.(2) A copy of every Code of Practice issued from time to time under subsection (1) is to be made available during business hours by the Director for inspection by the public, free of charge, at the offices of the Government directed by the Director. 24. Regulation (1) The Secretary for Labour and Welfare may by regulation provide for or in relation to residential care homes for PWDs for—(a) their operation, management, supervision and inspection;(b) their classes or description;(c) the duties and responsibilities of operators and responsible persons of residential care homes for PWDs; (Amended 12 of 2023 s. 72)(d) the qualifications, experience, appointment, duties, responsibilities and discipline of persons employed for the purposes of the operation, management and supervision of residential care homes for PWDs, including the number of persons to be so employed in relation to the number of residents and the registration of their employment by the Director;(e) the admission of residents having regard to the age of residents who may be admitted to any class or description of residential care homes for PWDs;(f) the medical examination of the residents and the persons employed;(g) the exclusion from residential care homes for PWDs of any resident or employee and measures to preserve the health and well-being of residents or employees;(h) the discharge of residents from residential care homes for PWDs and the procedure to be adopted for the discharge, including the period of notice to be given for the discharge of any resident;(i) the control and supervision of activities in residential care homes for PWDs;(j) the adequacy, suitability and use of equipment in residential care homes for PWDs;(k) the keeping of records, timetables, menus and books of account;(l) the reports and information to be supplied to the Director;(m) the design, construction, hygiene and sanitation of residential care homes for PWDs;(n) the precautions to be taken against fire or other hazards likely to endanger the lives or health of residents;(o) the provision of and control of entrances to and exits from residential care homes for PWDs;(p) the disclosure 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 or otherwise on account of the care of residents;(q) subject to section 25, the fees to be charged for any matter prescribed or permitted by this Ordinance;(r) the promotion, including the advertising or marketing, of residential care homes for PWDs by specifying whether licences or certificates of exemption are for the time being in force in respect of the residential care homes;(s) generally, carrying into effect 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 the Director.(3) The Director may, by notice in writing sent to a person who operates, keeps, manages or otherwise has control of a residential care home for PWDs— (Amended 12 of 2023 s. 72)(a) waive wholly, partly or conditionally the requirements of any regulation made under this section in respect of the residential care home; and(b) amend or withdraw the notice.(4) Regulations made under this section may provide that any contravention of the regulations is an offence punishable by—(a) a fine not exceeding level 6 and a term of imprisonment not exceeding 2 years; and(b) a fine not exceeding $10,000 for each day during which the offence continues.(5) The amount of fees provided for under subsection (1)(q) 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 exercise of the Director’s functions under this Ordinance.(6) Without affecting subsection (5), any regulation made under subsection (1)(q) may provide for—(a) a different fee to be payable having regard to—(i) the type or description of any residential care home for PWDs or of any matter prescribed or permitted by this Ordinance; or(ii) the period indicated in the licence or the certificate of exemption; and(b) the waiver, remission, reduction or refund of any fee. 25. No fee payable in respect of licence or certificate of exemption No fee is payable—(a) on an application for the issue or renewal of a licence;(b) on an application for the issue or renewal of a certificate of exemption;(c) for the issue or renewal of a licence; or(d) for the issue or renewal of a certificate of exemption. Part 8 (Repealed 12 of 2023 s. 73) 26. (Omitted as spent—E.R. 1 of 2012) 27. (Omitted as spent—E.R. 1 of 2012) 28. (Omitted as spent—E.R. 1 of 2012) 29. (Omitted as spent—E.R. 1 of 2012) 30. (Omitted as spent—E.R. 1 of 2012) 31. (Omitted as spent—E.R. 1 of 2012) 32. (Omitted as spent—E.R. 1 of 2012) 33. (Omitted as spent—E.R. 1 of 2012) 34. (Omitted as spent—E.R. 1 of 2012) 35. (Omitted as spent—E.R. 1 of 2012) 36. (Omitted as spent—E.R. 1 of 2012) 37. (Omitted as spent—E.R. 1 of 2012) 38. (Omitted as spent—E.R. 1 of 2012) 39. (Omitted as spent—E.R. 1 of 2012) 40. (Omitted as spent—E.R. 1 of 2012) 41. (Omitted as spent—E.R. 1 of 2012) 42. (Omitted as spent—E.R. 1 of 2012) 43. (Omitted as spent—E.R. 1 of 2012) 44. (Omitted as spent—E.R. 1 of 2012) 45. (Omitted as spent—E.R. 1 of 2012) 46. (Omitted as spent—E.R. 1 of 2012) 47. (Omitted as spent—E.R. 1 of 2012) 48. (Omitted as spent—E.R. 1 of 2012) 49. (Omitted as spent—E.R. 1 of 2012) Schedule 1 [s. 7A]Fit and Proper Requirement for Licence Applicant (Schedule 1 added 12 of 2023 s. 74) 1. Matters for sole proprietor For section 7A(a), the matters are—(a) whether the sole proprietor has been—(i) convicted of an offence involving fraud or dishonesty in any place;(ii) convicted of an indictable offence in Hong Kong;(iii) sentenced to imprisonment (however described) in a place outside Hong Kong, whether or not the sentence is suspended; or(iv) convicted of an offence under this Ordinance, Cap. 459 or Cap. 459A;(b) the record of the following matters in connection with the sole proprietor—(i) any application for—(A) a licence within the meaning of this Ordinance;(B) a licence as defined by section 2(1) of Cap. 459; or(C) a certificate of exemption;(ii) any application for the renewal of a licence or certificate of exemption mentioned in subparagraph (i);(iii) compliance with the conditions of a licence or certificate of exemption mentioned in subparagraph (i); and(iv) compliance with this Ordinance, Cap. 459 or Cap. 459A; and(c) whether the sole proprietor—(i) is an undischarged bankrupt;(ii) has entered into a composition or scheme of arrangement with the sole proprietor’s creditors; or(iii) is a director of any body corporate that is in liquidation or is the subject of a winding-up order. 2. Matters for body corporate For section 7A(b), the matters are—(a) whether the body corporate has been convicted of—(i) an offence involving fraud or dishonesty in any place;(ii) an indictable offence in Hong Kong;(iii) an offence in a place outside Hong Kong; or(iv) an offence under this Ordinance, Cap. 459 or Cap. 459A;(b) the record of the following matters in connection with the body corporate—(i) any application for—(A) a licence within the meaning of this Ordinance;(B) a licence as defined by section 2(1) of Cap. 459; or(C) a certificate of exemption;(ii) any application for the renewal of a licence or certificate of exemption mentioned in subparagraph (i);(iii) compliance with the conditions of a licence or certificate of exemption mentioned in subparagraph (i); and(iv) compliance with this Ordinance, Cap. 459 or Cap. 459A; and(c) whether the body corporate—(i) is in liquidation or is the subject of a winding-up order;(ii) has entered into a composition or scheme of arrangement with the body corporate’s creditors; or(iii) is a director of any body corporate that is in liquidation or is the subject of a winding-up order. 3. Matters for partnership For section 7A(c), the matters are—(a) whether any partner in the partnership has been—(i) convicted of an offence involving fraud or dishonesty in any place;(ii) convicted of an indictable offence in Hong Kong;(iii) if the partner is an individual—sentenced to imprisonment (however described) in a place outside Hong Kong, whether or not the sentence is suspended;(iv) if the partner is a body corporate—convicted of an offence in a place outside Hong Kong; or(v) convicted of an offence under this Ordinance, Cap. 459 or Cap. 459A;(b) the record of the following matters in connection with any partner in the partnership—(i) any application for—(A) a licence within the meaning of this Ordinance;(B) a licence as defined by section 2(1) of Cap. 459; or(C) a certificate of exemption;(ii) any application for the renewal of a licence or certificate of exemption mentioned in subparagraph (i);(iii) compliance with the conditions of a licence or certificate of exemption mentioned in subparagraph (i); and(iv) compliance with this Ordinance, Cap. 459 or Cap. 459A; and(c) whether any partner in the partnership—(i) is an undischarged bankrupt;(ii) is in liquidation or is the subject of a winding-up order;(iii) has entered into a composition or scheme of arrangement with the partner’s creditors; or(iv) is a director of any body corporate that is in liquidation or is the subject of a winding-up order. Schedule 2 [s. 10E]Fit and Proper Requirement for Responsible Person (Schedule 2 added 12 of 2023 s. 74) For section 10E, the matters are—(a) whether the person has been—(i) convicted of an offence involving fraud or dishonesty in any place;(ii) convicted of an indictable offence in Hong Kong;(iii) sentenced to imprisonment (however described) in a place outside Hong Kong, whether or not the sentence is suspended; or(iv) convicted of an offence under this Ordinance, Cap. 459 or Cap. 459A;(b) the record of the following matters in connection with the person—(i) any application for—(A) a licence within the meaning of this Ordinance;(B) a licence as defined by section 2(1) of Cap. 459; or(C) a certificate of exemption;(ii) any application for the renewal of a licence or certificate of exemption mentioned in subparagraph (i);(iii) compliance with the conditions of a licence or certificate of exemption mentioned in subparagraph (i); and(iv) compliance with this Ordinance, Cap. 459 or Cap. 459A; and(c) whether the person—(i) is an undischarged bankrupt;(ii) has entered into a composition or scheme of arrangement with the person’s creditors; or(iii) is a director of any body corporate that is in liquidation or is the subject of a winding-up order.