Following is the English translation of the speech by the Secretary for Development, Mrs Carrie Lam, in the debate on the motion proposed by the Hon. Audrey Eu to repeal the Antiquities and Monuments (Withdrawal of Declaration of Proposed Monument) (No.128 Pok Fu Lam Road) Notice in the Legislative Council today (April 9):
Madam President,
A Subcommittee has been formed by the Legislative Council to study the Antiquities and Monuments (Withdrawal of Declaration of Proposed Monument) (No. 128 Pok Fu Lam Road) Notice. Chaired by the Hon Audrey Eu, the Subcommittee has held two meetings to scrutinise materials related to the case. Members of the Sub-committee also listened patiently to the explanations of the Government about the case and raised somewhat different views and comments on it. This shows clearly that Members attach much importance to Government’s efforts in heritage conservation. This is crucial to the future efforts of the Development Bureau in promoting heritage conservation. In respect of the case of No. 128 Pok Fu Lam Road, I cannot agree with the Hon. Audrey Eu’s motion to repeal our Withdrawal Notice on the declaration of the proposed monument. That said, I warmly welcome this opportunity to present the justifications for Government’s decision in this Council again, so as to dispel any worries that the public may have. To understand the case, we must start with the background and therefore let me give you a brief introduction.
On 20 April 2004, in the light of the owners’ application for demolition of that historic building, the Secretary for Home Affairs (SHA) accepted the proposal of the Antiquities and Monuments Office (AMO) and declared, in his capacity as the Antiquities Authority under the Antiquities and Monuments Ordinance, the building and the land together with all structures erected on such land at No. 128 Pok Fu Lam Road (i.e. the Building of Jessville) as a proposed monument. The declaration aims at giving the Building temporary statutory protection from the immediate threat of demolition and also allowing the Antiquities Authority time to consider in a comprehensive manner whether the Building should be declared as a monument. The declaration of a proposed monument is valid for a period of 12 months. Unless withdrawn earlier by the Antiquities Authority, the declaration will expire automatically after 19 April 2008.
Before the declaration of the Building as a proposed monument, AMO had not been able to gain access to the Building nor establish a direct dialogue with its owners. AMO’s initial assessment (i.e. the first assessment) of the heritage value of the Building was based on the information available to AMO at that time as well as the external appearance of the Building as viewed from a distance. Following the declaration of the Building as a proposed monument, AMO had secured the consent of the owners and gained access to the Building to carry out on-site inspections. With the new information gathered, AMO was able to carry out a more detailed and in-depth assessment of the heritage value of the Building than that conducted prior to the proposed monument declaration. It was the AMO’s view after its comprehensive assessment (i.e. the second assessment) of the Building that while the Building possessed some heritage value, it was not up to the required high threshold that justifies its declaration as a monument. As the Secretary for Development and also the Antiquities Authority under the Antiquities and Monuments Ordinance, I decided to withdraw the declaration of the Building as a proposed monument after listening to the professional opinions of AMO and consultation with the Antiquities Advisory Board (AAB). To understand the difference between the two mechanisms on proposed monument and monument, we must examine the law and the legislative intent of the proposed monument mechanism.
In this aspect, in moving the second reading of the 1971 Antiquities and Monuments Bill on 3 November 1971, the then SHA, Mr DCC Luddington, pointed out that naturally this legislation would have to be very selective in its application so as to ensure that necessary developments would not be held up due to the preservation of antiquities of minor importance. Moreover, as emphasised by Mr Denis Bray, the former SHA, when moving the resumption of second reading of the 1982 Antiquities and Monuments (Amendment) Bill on 16 June 1982, the new mechanism of declaring proposed monuments introduced through this amendment bill is a sort of freezing process and any declaration of a proposed monument on private land could only last for a year and could not be extended. To activate the mechanism, consultation with AAB is required while the owner may apply for withdrawal of the proposed monument declaration. Such arrangement provides ample opportunity on all fronts for consultation and consideration in the process. The spirit of declaring proposed monuments under the Antiquities and Monuments Ordinance is to give the Antiquities Authority statutory power to call an immediate halt to any action that may damage a historic building when there is such an urgent need. Apart from providing instant protection, it allows the Antiquities Authority time to ask AMO to conduct a detailed and comprehensive assessment of the heritage value of the building concerned and to consult AAB, so as to give holistic consideration to the future arrangements for the historic building.
Judging from the above, the legislative intent of the proposed monument mechanism is not to require all the proposed monuments to become monuments in future automatically or necessarily. A proposed monument and a monument are fundamentally different in nature and the legislative spirit involved. The mechanism of declaring proposed monuments will become totally meaningless and it will be contrary to the original legislative intent if a historical building, once declared as a proposed monument, will in any circumstances automatically be declared as a monument later and the Antiquities Authority, AMO and AAB will not be allowed or do not need to further consider, examine and access the heritage value of the historic building concerned.
During Members’ deliberation on the Withdrawal Notice at a meeting of the Subcommittee of the Legislative Council, some Members queried the authority and independence of AMO in conducting the heritage value assessments. Hon Audrey Eu also made some remarks on this point, suggesting that there was inconsistency between the two assessment reports prepared by AMO; and questioning why AMO did not commission an external independent expert to carry out another assessment during the process. In fact, we have responded to each of these issues in our submissions to the Subcommittee. I wish to explain again here.
AMO, the executive arm of the Antiquities Authority, has the expertise to carry out professional and independent assessments on the heritage value of historic buildings. AMO is headed by its Executive Secretary (a Chief Curator) and comprises professional staff (including 36 curator grade officers). Most of them have acquired relevant post-graduate professional qualifications and training on heritage conservation from local or overseas universities. They are experts in the related fields of heritage conservation. Therefore, I must speak up for my colleagues in AMO. If members of the Institute of Architects were claimed by the Hon Audrey Eu as experts, is it fair to say that the opinions offered by colleagues with good qualifications and experience were not professional advice? Similarly, there are also related experts in the AAB, and one of them is also with us here. Many architects are trained up by Professor Patrick Lau, and isn’t he an expert? When conducting a comprehensive assessment of the heritage value of Jessville in this case, AMO considered that it has sufficient professional knowledge and expertise to conduct a comprehensive assessment of the heritage value of the Building, and there was no need to commission any external consultant or expert to undertake the task.
I noticed from the newspaper today that the Hon Audrey Eu had, in the examination of the estimates, raised questions on why many departments had engaged consultants. This also reminded us that if we could carry out our tasks with professionalism, we should not engage consultants casually.
This case is different from that of King Yin Lei. In the case of King Yin Lei, a Mainland expert was appointed by AMO not to carry out an assessment, but to mainly conduct a study on the restoration works of King Yin Lei. I would like to stress that AMO has all along been carrying out its functions with professionalism, impartiality and objectivity. In discharging its duties, AMO will determine whether it should carry out the assessment by in-house experts and whether it would be necessary to engage outside experts to assist in performing the task, depending on the merits and complexity of each case.
As regards the view of Hon Audrey Eu that there are inconsistencies between the two assessments prepared by AMO on the heritage value of the Building, which was described as a “seasonal price”, I would like to make the following three clarifications. First, the two reports are not exactly the same in terms of background and purpose. In the first assessment report prepared prior to the declaration of the Building as a proposed monument, the purpose was to consider if the heritage value of the Building was high enough to justify our use or exercise of the power of the Antiquities Authority under the law to declare the Building as a proposed monument in order to save it from the then immediate threat of demolition and to allow time for a more comprehensive and in-depth assessment of its heritage value. The second report, however, focused on examining if the heritage value of the Building had reached the high threshold of declaration as a monument with indisputable historical significance. Members may recall the controversy over another heritage item last year. Our stance is very clear, and we maintained throughout the process including the judicial proceedings that in order to be declared as a monument which is protected legally, a building had to meet the requirements of “extremely high threshold” and “indisputable historical significance”. Furthermore, as I pointed out in my discussion on the legislative intent just now, declaration of a historic building as a proposed monument did not necessarily mean that this would be followed by its declaration as a monument, and therefore the two should be treated separately. We have more than 80 monuments now. After the enactment of the ordinance for more than 35 years, we have only over 80 monuments, more than 60 of which are buildings. It can be seen that when exercising this law, the requirements of “extremely high threshold” and “indisputable historical significance” have been applied with consistency.
Second, the depth of the information available to AMO for the two reports differs. In conducting the first report, AMO had to rely on the limited information in hand and view the Building from a distance as it had not been able to obtain the co-operation of the owners. It was only after the Building had been declared as a proposed monument that AMO colleagues were able to gain access to the Building with the consent of its owners to carry out detailed inspections.
Third, there is no contradiction between the contents, analyses and conclusions of the first and the second reports. The assessments of the heritage value of the Building in various aspects in both reports (such as its authenticity, rarity and integrity) are more or less the same. In respect of historical value, although AMO did not repeat in the second report the historical facts stated in the first report about Mr Thomas Tam, the previous owner of the Building, AMO had already taken into account such historical facts in analysing Mr Tam’s historical influence in the Hong Kong society, and we had not denied such facts. When Hon Audrey Eu quoted the second report about the description using the term “short-lived”, the description was not referring to the length of public service of Mr Tam, but was referring to the continuity of historical value in the society and the importance in the memory of the public after the death of Mr Tam. After all, we are dealing with a subject of heritage. As regards the architectural value of the Building, AMO’s views in the second report had included the new information which was only available from on-site inspections. As to the social value of the Building, AMO had compared in the second report the social value of the Building with that of other historic buildings already declared as monuments. Such comparison was precisely aimed to demonstrate whether the requirements of extremely high threshold and indisputable historical significance had been reached. Owing to the urgency of the declaration of the Building as a proposed monument, such a comparison could not be made in the first report. In all, AMO has not withdrawn its earlier comments on the historical value of the Building. Instead, it had conducted a comprehensive and in-depth assessment and considered that the Building was not up to the required high threshold that justified its declaration as a monument.
Now I would turn to the role of AAB. Throughout the process of handling this case, we have consulted AAB. SHA had consulted AAB as required by section 2A of the Antiquities and Monuments Ordinance before making the proposed monument declaration in April 2007 in his capacity as the Antiquities Authority. Moreover, even though it is not required under the Antiquities and Monuments Ordinance, we had taken the initiative to consult AAB before I withdrew the proposed monument declaration in February this year as I believe that it is a reasonable and appropriate approach that offers greater transparency.
AAB has given valuable views on this case. AMO arranged a site visit to the Building for AAB members on 16 November 2007. On completion of a comprehensive assessment, AMO submitted a paper to AAB for discussion before its meeting on 25 January 2008. At that meeting, AAB accorded the Building a Grade III status under its internal administrative grading system, the lowest grade under its grading system. At the meeting, AAB members unanimously supported the decision of the Antiquities Authority to withdraw the declaration of the Building as a proposed monument. AAB has performed its duties impartially and followed established procedures in making the above decision after in-depth discussion of the heritage value of the Building.
Any Member who proposes or supports the repeal of the Withdrawal Notice fully recognises the lack of legal effect of such action. Hon Audrey Eu also agreed with this point. I have heard that the motion is to express dissatisfaction with the way the Government has handled the case. Here I would like to point out that, in my capacity as the Antiquities Authority, I choose to withdraw the Declaration Notice in February 2008 with a narrower political safety margin rather than sit back, do nothing and let the Declaration Notice to expire automatically in a silent manner at the end of the 12-month validity period on 19 April 2008. This is to demonstrate what a responsible, open and highly transparent government should do. We have sought legal advice on this case. It supported our approach and indicated that the owners would face uncertainty as long as the Declaration Notice was in force and made them feel that their property might be declared as a monument. It would be unreasonable and unfair to the owners and the public if the Antiquities Authority did not take action actively to withdraw the declaration of a proposed monument after deciding not to declare that historic building as a monument. Once the Antiquities Authority had made the decision not to declare the Building as a monument, a Withdrawal Notice should be issued as soon as possible. This is in principle in line with many Members’ persistent request for the timely announcement and implementation of policy decisions by Government with reasonable and lawful steps. As such, I hope Members will appreciate and support the way Government has handled this case.
At the meetings of the Subcommittee, some Members queried the need for the Withdrawal Notice taking immediate effect upon its publication in the Gazette. Member has also mentioned this point. In fact, it is not common for the Antiquities Authority to issue a Withdrawal Notice to withdraw his previous declaration of a proposed monument. Actually, such incident had only happened once before, and we have made reference to that last case of withdrawal when handling the present case. We have made reference to the last instance in 1987 concerning a Jewish Synagogue on Robinson Road. The Antiquities Authority did issue a Withdrawal Notice following a previous Declaration Notice for the proposed monument and both Notices took immediate effect upon publication in the Gazette. Hence, the immediate commencement of the Withdrawal Notice had followed the precedent case, and was also in line with the legal advice obtained by us. Nevertheless, we are aware that some Members hold some opinions on the Withdrawal Notice for the Building taking immediate effect upon its publication in the Gazette. As there is no such immediate threat or urgency in issuing the Withdrawal Notice as in the case of Declaration Notice, which is to protect the Building from demolition, I agree in principle that more detailed consideration should be given to the commencement date of a legal notice if we need to issue Withdrawal Notices on proposed monuments in future to allow more opportunity for participation by the Legislative Council.
As for the options of preserving the Jessville, we understand that the owners have submitted a rezoning application to the Town Planning Board. However, I must emphasis here that I had not reached any agreement with the owners of the building of Jessville in this case, and I also had not made any promise that the building would not be a monument was premised on their consent to preserve the building. I had not done such thing, and if I had done so it would have been an unprofessional act. Whether a building possesses historic significance or not should not depend on the negotiation between the Government and the owners. The matter should be assessed in an objective, highly transparency and professional manner. However, in this case the owners had voluntarily put forward four redevelopment options. Three of them are those which can give consideration to both preservation and development, i.e. the Building will be preserved as a clubhouse for residents with limited public access. Only one out of four options involves the demolition of the Building for redevelopment. After the withdrawal of the proposed monument declaration, the Building is no longer protected under the Antiquities and Monuments Ordinance. The Grade III status accorded to the Building by AAB is only administrative in nature. Therefore, we actually cannot entirely rule out the possibility of the eventual demolition of the Building. Since the heritage value of the Building per se is not high enough to be classified as a monument, we should not declare it as a monument “reluctantly” and make an unprofessional decision. Nevertheless, we will continue to liaise with the owners, hoping to implement an option which can give consideration to both preservation and development eventually.
Lastly, I would like to respond to the reference of the Hon Audrey Eu to the doubt of some organisations. Perhaps this doubt might lead to the doubt of the Hon Audrey Eu as well as other Members. The doubt is whether the purpose of my decision to withdraw the proposed monument declaration is to collect land premium through the development of the site. I must say in absolutely clear terms here that this is not our factor of consideration. It is clear to see that after the Chief Executive’s Policy Address in October last year, we may slightly reduce our development density to foster a quality living environment. After this, we have undertaken a lot of work to revise some Outline Zoning Plans to reduce the density. We are reviewing the projects at Nam Cheong and Yuen Long Stations along the railway line, and we have taken out the Police Quarter site at Hollywood Road from the List of Sites for Sale by Application. The revenue foregone in these cases are larger than the revenue from the Jessville case by many times. It is exactly because the Chief Executive had mentioned that if we could foster a better living environment for the community, it would be worthwhile even if we have to forgo some revenue. Hence, if I had included land revenue as a factor when considering whether to declare a monument or not, I would have been politically very incorrect.
President and Members, the Antiquities Authority, AMO and AAB have handled the case of No. 128 Pok Fu Lam Road, Hong Kong under normal and established procedures in a professional, serious and impartial manner. The decision on the withdrawal of the declaration of the Building as a proposed monument was made after detailed examination and careful consideration. This is a reasonable, rational and lawful decision. We do not consider that it has highlighted any inappropriateness in any party’s handling of the case, nor do we feel that there are any loopholes in the system. I therefore hope that Members will object to the motion proposed by the Hon Audrey Eu to repeal the Withdrawal Notice on the declaration of the Building as a proposed monument.
Ends/Wednesday, April 9, 2008
Issued at HKT 21:47
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