To many customers, the desserts sold in Hong Kong's tradition- al herbal tea shops are a special treat..
However, shops selling these treats may face prosecution from the Urban Services Department for breaching licensing conditions.
The legitimacy of selling desserts in herb tea shops has come under public scrutiny ever since Urban Councillor Wong Kwok Tung raised the issue in a general meeting of the Urban Council last August.
Said Mr. Wong: "I raised this issue as I noticed that many herbal tea shops are selling desserts, which can by no means be classified as herb tea. Their practices are illegal for not having the appropriate General Restaurant Licences.
"Many of them even operate on the upper floors of residential buildings. This poses many safety and loading problems.
"Yet, unlike general restaurants, herbal tea shops are seldom inspected by the council," added Mr. Wong.
At present, Chinese herbal tea shops with a Chinese Herb Tea Permit are allowed to sell only 12 specified kinds of herbal tea. The sale of other non-bottled drinks requires a Non-bottled Drinks Permit allowting the sales of eight kinds of non-bottled drinks.
Should these herbal tea shops also sell desserts, they must apply for the General Restaurant Licence, which is commonly known as the "big licence".
According to the Urban Services Department, there are now 252 licensed Chinese herbal tea shops, of which 26 were found selling non-approved food items. Also, seven of them are operating as two different franchised chained operations.
Mr. Wong regarded the current illegal sales as rampant and serious. He accused the Urban Services Department for not controlling the situation.
Said he: "The problem is not due to ambiguity in the law. In fact, it has already specified clearly what can be sold. Rather, it is the lax law enforcement of the Urban Services Department that enables the illegal sales to persist.
"The department has failed to fulfil its legal responsibilities."
Professor Leung Ping Chung, chairman of the Public Health Department said, "With the limited human resources, the Urban Services Department could not allocate too much workforce to cope with this issue.
"Apart from checking licences, Urban Council has to deal with other serious problems, like heaped garbage and misplaced posters. They would certainly manage these licensings, but there's a matter of priorities."
Nevertheless, Urban Services Department's spokeswoman Fanny Hui said that actions against such illegal sales had already been under way before it was discussed by the councillors.
Said she: "It was not until 1994 that the illegal operations flourished. So, prosecutions and the issue of warning letters only started last year."
According to the Urban Services Department, their enforcement included 45 summonses for running unlicensed restaurant businesses, 27 warnings for breaches of licence conditions, and recommendations to suspend two Chinese Tea Shop Permits for two days.
Besides the Urban Services Department, the food operators violating the laws were imputed as well.
Said Urban Councillor Ma Lee Woo: "Some operators may be ignorant on the conventional legislation. Yet, this is an unacceptable reason for engaging in illegal practices. Once you have started a business, you have the duty to understand the laws concerned."
According to Managing Director Leung Kin Chee of Hui Lau Shan Holdings Co. Ltd., his firm is a franchised chained operation that has been selling Chinese herbal tea for more than 50 years. Two years ago it started to sell food items - mainly fruit and sago, a starchy pudding that is made from the heart of a species of palm.
He said the company was prosecuted last September by the Urban Services Department. It required the shop to obtain a General Restaurant Licence for the sales of desserts. The company is now making an appeal to the court.
Responding to the accusation from the Urban Councillors, he said, "In some occasions, the Urban Services Department isn't working in the public interest and has made decisions arbitrarily. Whether we have violated the laws depends on the final judgment of court.
"We believe that if a law cannot be enforced fairly and reliably, it becomes unreasonable. The conventional law is unfair in the sense that it is outdated and cannot meet changing needs of society.
"For instance, we have invented a new product which does not involve any heating process. It resembles the making of cold cuts, which is listed under the Light Refreshment Restaurant Licence.
"However, we are required to obtain a General Restaurant Licence just because our product is a discovery that has not been covered by any of the licenses yet.
"In this sense, the Urban Services Department is irresponsible," he added.
At present, licenced general restaurants are required to have larger kitchens and toilet areas. Besides, the fire safety requirements are more stringent.
Hence, herbal tea shops which are now required to apply for the "big licence" may have to fork up a big sum of money to re-decorate their premises to meet the licensing requirements.
"Requiring us to obtain the General Restaurant Licence might drive us out of business. It is also unfair to us," said Mr. Leung.
The problems faced by Hui Lau Shan Holdings Co. also worked their way to Saint's Alp International Co. Ltd., a shop selling beverages but not herbal tea.
Mr. Young Tong Yan, the shop's manager, said, "We are now operating under the Chinese Herbal Tea Permit. About two months ago, the Urban Services Department came and asked us to apply for a Light Refreshment Restaurant Licence.
"I thought this was very strange because we don't sell any food items at all. Our drink preparing processes are also very simple, and the required cooking area is unnecessary.
"The officer even said he has never seen such a kind of tea shop before. He asked us to install some utilities to make herbal tea, as this can make our operation under the Chinese Herb Tea Permit more appropriate in the short run.
"The existing legislation is not flexible enough. It has only classified foods into several major categories. And any uncovered item would come under the General Restaurant Licence. If there were hundreds of licences to choose from, I am sure that people would not violate the laws, but apply for the appropriate ones."
Urban Councillors have different views to whether the conventional legislation should be amended.
Mr. Ma suggested only the Light Refreshment Restaurant Licence be applied for the sale of desserts in herbal tea shops.
Added Mr. Lee: "It is illogical to put the sale of desserts under the General Restaurant Licence, as preparing desserts does not need large kitchens. Amending the laws is just a move to cope with the fast social developments and prevalent trends."