CONFIDENTIAL
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MDHOAN 3026
(H). WE SEE DIFFICULTIES WITH AN EXHAUSTIVE DEFINITION OF ''PUBLIC BODY' SINCE IT IS LIKELY TO BE TOO NARROW (AS IN THIS CASE) AND INFLEXIBLE. WE NOTE YOUR CONCERN THAT A FLEXIBLE DEFINITION MAY GIVE RISE TO UNCERTAINTY BUT ANY APPROACH IS PREY TO THIS EXCEPT OPTION 1 (WHICH YOU HAVE RULED OUT, WE THINK RIGHTLY).
L.
'MEANS ' ΤΟ
4 ASSUMING THAT SUB-SECTION (2) IS CHANGED FROM
INCLUDES'', WE STILL CONSIDER THAT YOU SHOULD LIST THE PRINCIPAL ORGANS OF STATE AS EXPLICITLY AS POSSIBLE. IN THIS CONNECTION, WE HAVE THE FOLLOWING COMMENTS:
(A) SHOULD NOT THE COURTS AND OTHER JUDICIAL BODIES BE INCLUDED?
(B) ARE THE RHK POLICE FORCE, RHK AUXILIARY AIR FORCE, AUXILIARY POLICE FORCE ETC INCLUDED? WOULD THESE BE CONSIDERED PART OF ''GOVERNMENT'' UNDER SECURITY BRANCH? EVEN IF THEY ARE, OUGHT THEY NOT TO BE LISTED SEPARATELY?
(C) IS THE ICAC INCLUDED?
(D) ALL OTHER LAW ENFORCEMENT AGENCIES AND THE ARMED FORCES (OF THE CROWN AND LATER OF THE PRC) SHOULD BE COVERED. THE LATTER WOULD NEED TO BE COVERED WITHOUT EXPLICIT REFERENCE FOR POLITICAL REASONS.
(E) IS THE HEUNG YEE KUK COVERED BY (F)?
(F) WHAT IS THE INTENDED EXTENT OF (H)? DOES
''UNDERTAKING'' COVER AN INDUSTRIAL OR COMMERCIAL CONCERN ONLY? COULD IT COVER BODIES SUCH AS HEALTH AUTHORITIES, PUBLIC EXAMINATION BOARDS ETC.
5.
WE ACCEPT THAT SUB-CLAUSE (1)(C) MIGHT COVER SOME OF THE ABOVE AND THERE WILL INEVITABLY BE SOME DEGREE OF OVERLAP BETWEEN (A) AND (C). BUT (C) OUGHT TO DEAL PRIMARILY WITH BODIES WHICH ARE ESSENTIALLY PRIVATE BUT WHICH EXERCISE SOME PUBLIC FUNCTIONS. THOSE WHICH ARE ENTIRELY PUBLIC SHOULD COME SQUARELY WITHIN (A).
6.
FINALLY, YOU MAY WISH TO BE AWARE OF RECENT EUROPEAN COMMUNITY CASE LAW ON THE MEANING OF ''STATE'', WHICH MAKES CLEAR THAT IT INCLUDES SUCH BODIES AS HEALTH AUTHORITIES AND GOVERNMENT CONTROLLED COMMERCIAL ENTERPRISES. WE ARE
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