HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1907 OFFICIAL REPORT OF PROCEEDINGS
Wednesday, 8 July 1987
The Council met at half-past Two o’clock
PRESENT
HIS EXCELLENCY THE GOVERNOR (PRESIDENT)
SIR DAVID CLIVE WILSON, K.C.M.G.
THE HONOURABLE THE CHIEF SECRETARY
SIR DAVID ROBERT FORD, L.V.O., O.B.E., J.P.
THE HONOURABLE THE FINANCIAL SECRETARY (Acting)
MR. JOHN FRANCIS YAXLEY, J.P.
THE HONOURABLE THE ATTORNEY GENERAL
MR. MICHAEL DAVID THOMAS, C.M.G., Q.C.
THE HONOURABLE LYDIA DUNN, C.B.E., J.P.
THE HONOURABLE CHEN SHOU-LUM, C.B.E., J.P.
THE HONOURABLE PETER C. WONG, C.B.E., J.P.
DR. THE HONOURABLE HO KAM-FAI, O.B.E., J.P.
THE HONOURABLE ALLEN LEE PENG-FEI, O.B.E., J.P.
THE HONOURABLE HU FA-KUANG, O.B.E., J.P.
THE HONOURABLE WONG PO-YAN, C.B.E., J.P.
THE HONOURABLE CHAN KAM-CHUEN, O.B.E., J.P.
THE HONOURABLE STEPHEN CHEONG KAM-CHUEN, O.B.E., J.P. THE HONOURABLE CHEUNG YAN-LUNG, O.B.E., J.P.
THE HONOURABLE MRS. SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE MARIA TAM WAI-CHU, O.B.E., J.P.
THE HONOURABLE CHAN YING-LUN, J.P.
THE HONOURABLE MRS. RITA FAN HSU LAI-TAI, J.P.
THE HONOURABLE MRS. PAULINE NG CHOW MAY-LIN, J.P.
THE HONOURABLE PETER POON WING-CHEUNG, M.B.E., J.P.
THE HONOURABLE YEUNG PO-KWAN, C.P.M., J.P.
THE HONOURABLE KIM CHAM YAU-SUM, J.P.
THE HONOURABLE JOHN WALTER CHAMBERS, O.B.E., J.P.
SECRETARY FOR HEALTH AND WELFARE
THE HONOURABLE JACKIE CHAN CHAI-KEUNG
THE HONOURABLE CHENG HON-KWAN
THE HONOURABLE HILTON CHEONG-LEEN, C.B.E., J.P.
THE HONOURABLE CHUNG PUI-LAM
THE HONOURABLE THOMAS CLYDESDALE
THE HONOURABLE HO SAI-CHU, M.B.E., J.P.
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THE HONOURABLE HUI YIN-FAT
THE HONOURABLE RICHARD LAI SUNG-LUNG
DR. THE HONOURABLE CONRAD LAM KUI-SHING THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P. THE HONOURABLE DESMOND LEE YU-TAI
THE HONOURABLE DAVID LI KWOK-PO, J.P.
THE HONOURABLE LIU LIT-FOR, J.P.
THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE POON CHI-FAI
PROF. THE HONOURABLE POON CHUNG-KWONG THE HONOURABLE HELMUT SOHMEN
THE HONOURABLE SZETO WAH
THE HONOURABLE TAI CHIN-WAH
THE HONOURABLE MRS. ROSANNA TAM WONG YICK-MING THE HONOURABLE TAM YIU-CHUNG
DR. THE HONOURABLE DANIEL TSE, O.B.E., J.P.
THE HONOURABLE ANDREW WONG WANG-FAT THE HONOURABLE LAU WONG-FAT, M.B.E., J.P.
THE HONOURABLE GRAHAM BARNES, J.P.
SECRETARY FOR LANDS AND WORKS
THE HONOURABLE DAVID GREGORY JEAFFRESON, C.B.E., J.P. SECRETARY FOR SECURITY
THE HONOURABLE MICHAEL LEUNG MAN-KIN, J.P. SECRETARY FOR TRANSPORT
THE HONOURABLE MICHELANGELO PAGLIARI, J.P. SECRETARY FOR EDUCATION AND MANPOWER (Acting) THE HONOURABLE CHAU TAK-HAY, J.P.
SECRETARY FOR DISTRICT ADMINISTRATION (Acting) THE HONOURABLE YEUNG KAI-YIN, J.P.
SECRETARY FOR TRADE AND INDUSTRY (Acting) ABSENT
THE HONOURABLE JOHN JOSEPH SWAINE, C.B.E., Q.C., J.P. DR. THE HONOURABLE HENRIETTA IP MAN-HING, O.B.E., J.P. DR. THE HONOURABLE CHIU HIN-KWONG
THE HONOURABLE PANG CHUN-HOI, M.B.E.
IN ATTENDANCE
THE CLERK TO THE LEGISLATIVE COUNCIL
MR. LAW KAM-SANG
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1909 Papers
The following papers were laid on the table pursuant to Standing Order 14(2): Subject L.N. No. Subsidiary Legislation:
Metrication Ordinance
Metrication (Amendment of Schedules) Order 1987 ..................................... 189/87
Companies Ordinance
Companies (Interest on Investments) (No.4) Notice 1987 ............................. 190/87 Sessional Papers 1986-87:
No. 63—Annual Report of the School Medical Service Board for
the Year ended 31 March 1987
Oral answers to questions
Undergraduate curricula in institutions funded by UPGC
1. MR. CHEUNG (in Cantonese): Will Government inform this Council whether it has a comprehensive policy regarding undergraduate curricula in universities and those institutions funded by the University and Polytechnic Grants Committee; and if so, to what extent such policy will be affected by the recent restructuring proposals by the Senate of the University of Hong Kong?
SECRETARY FOR EDUCATION AND MANPOWER: Sir, the Government, as a matter of policy, does not seek to determine or to influence the contents of curricula in institutions funded by the University and Polytechnic Grants Committee. It does, however, have a comprehensive policy on the provision of degree and sub-degree places at our institutions of tertiary education which seeks to meet the aspirations of our young people for higher education and also to provide trained manpower in specific areas to meet the needs of our community.
The UPGC-funded institutions make their academic proposals to the UPGC on a triennial basis and the UPGC scrutinises these to ensure that they are consistent with the student target numbers set by the Government, with the needs of the community and with the planned expansion of facilities at the institutions. The UPGC also assesses the funding requirement of these academic proposals and seeks to ensure that programmes are provided in the most economical manner and that duplication is avoided.
In its interim report for the 1985-88 triennium, which was laid before this Council on 25 March this year, the UPGC stated that it had been notified by the
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Vice-Chancellor of the University of Hong Kong of the recent proposal by the Senate of the University to extend the curriculum for degree courses at the institution from three years to four years and of the subsequent establishment of a senate working party to ascertain the academic and financial implications of this proposal. It went on to say that when formal proposals were submitted, the committee would examine them carefully, with due regard for the impact on the university, on the other institutions of higher education and on the Hong Kong community, and that the committee’s consideration would include the consequences for funding and for student number targets in the tertiary sector, bearing in mind competing demands for limited resources.
Academic proposals for the 1988-91 triennium were considered in depth by the UPGC earlier this year and block grant proposals based on them are in the final stages of completion. The effect of any restructuring proposals from the Senate of the University of Hong Kong, when and if they are made, would therefore not be felt until the academic year 1991-92 at the earliest.
Before any such changes took place, however, the UPGC would, as it stated in its interim report, examine them in detail to consider, in particular, their effects on funding and on student number targets and whether those effects could be justified. Members may be aware that the Education Commission is currently embarked on a study of the structure of the tertiary sector in the light of its recommendations on sixth form education. The UPGC will no doubt take account of the commission’s recommendations when coming to its conclusions. The Board of Education will also require to be consulted should the UPGC’s conclusions have implications for the structure of secondary education.
In short, Sir, the very serious implications of any restructuring proposal by the Senate of the University of Hong Kong for student numbers, for tertiary educational opportunities in Hong Kong, for the financing of education and for the structure and quality of secondary education, should not be underestimated.
MR. DESMOND LEE: Sir, I refer to paragraph 1 of the answer which says, ‘The Government, as a matter of policy, does not seek to determine or to influence the contents of curricula in institutions funded by the University and Polytechnic Grants Committee.’ May I ask why the Green Paper and the White Paper on senior, secondary and tertiary education, published in November 1977 and October 1978 respectively, proposed that the Chinese University of Hong Kong should change to a three-year curriculum and that post-secondary colleges, namely: Baptist, Shu Yan and Lingnan, should adopt a 2-2-1 system?
SECRETARY FOR EDUCATION AND MANPOWER: Sir, in all these matters the Government has taken professional advice. But, as I am sure the questioner is well aware, the Chinese University of Hong Kong has not altered its programmes to three-year degree programmes but indeed, continues to operate four-year programmes as it always has.
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MR. CHEUNG (in Cantonese): Sir, on what basis would the Government accept or refuse proposals to restructure the curriculum of universities?
SECRETARY FOR EDUCATION AND MANPOWER: Sir, I presume Mr. CHEUNG is referring to the length of the curriculum rather than the academic content of the curriculum. The Government does not, as I said in my main answer, deal directly with matters of academic content of the curriculum. Proposals for any variation of academic content have to be made to the University and Polytechnic Grants Committee which is Government’s expert adviser in this matter. They, in determining their recommendations, consider the financial implications, the effect on the student target numbers which have been laid down by the Government, and whether indeed these proposals are justified.
The Government will listen carefully to any recommendation that the University and Polytechnic Grants Committee may make on any proposal involving any switch in the length of the curricula of the university.
MR. DESMOND LEE: Sir, I would like to follow up and ask whether or not the professional advice would overrule Government’s policy of not giving directions to tertiary institutions?
SECRETARY FOR EDUCATION AND MANPOWER: Sir, there is clearly a confusion as to what is meant by ‘institutional autonomy’. ‘Institutional autonomy’ in my book means that the tertiary institutions are free to teach what subjects they want without Government interference. It does not mean that they have financial autonomy because they are funded entirely by the tax-payer. The Government is responsible to the tax-payer for the levying of those funds, and therefore has a duty to ensure that those funds are expended in the most efficient manner possible. To this end, it has the advice of the University and Polytechnic Grants Committee, who are experts in what is and is not required academically, to mount any specific course at a tertiary institution.
Courtesy campaign
2. MR. CHEONG-LEEN asked: Will Government consider having an annual territory-wide courtesy campaign as part of the Government’s effort to build up civic-consciousness and community identity?
SECRETARY FOR DISTRICT ADMINISTRATION: Yes, Sir, the Government will certainly consider having a territory-wide courtesy campaign. Apart from the community involvement and civic education aspects of such a campaign, I think there is a great deal to be said for promoting courtesy as an end in itself.
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In saying this, I do not mean to pass any judgment on the courteousness of the Hong Kong people. The point is rather that, however courteous we may already be, there must always be room for improvement.
Sir, the Government’s publicity campaigns are organised and funded annually on a financial year basis. Funds for the 1987-88 programme of campaigns have all been allocated and we shall only be able to give consideration to a courtesy campaign as a part of the 1988- 89 programme. As regards Mr. CHEONG-LEEN’s reference to an annual campaign, I would suggest that we wait until we have had the first one before considering whether there should be subsequent ones.
MR. CHEONG-LEEN: Sir, can we make the campaign, when it takes place, a really big and sustained one and not something that will fizzle out halfway, like a deflated balloon?
SECRETARY FOR DISTRICT ADMINISTRATION: Sir, first of all we would have to get agreement within the Government to include such a campaign in next year’s programme, and to provide sufficient funds for it. Assuming that that can be done, we will of course, try and have a good campaign.
Employment of illegal immigrants
3. DR. HO asked: Will Government inform this Council how many illegal immigrants have been caught working and how many employers have been prosecuted for employing illegal immigrants for each of the last three years; and whether the effectiveness of the existing measures to curb employment of illegal immigrants will be reviewed?
SECRETARY FOR SECURITY: Sir, from 1 January 1985 to 30 June 1987 a total of 251 illegal immigrants were caught by the Immigration Department working in Hong Kong. Of these, 55 were intercepted in 1985, 122 in 1986 and 74 in the first six months of 1987. Many more have been caught by the police in raids on construction sites and other premises, often in the course of other investigations. The police have not been keeping consolidated records until this year but since 1 January 1987 they have found 309 illegal immigrants on construction sites as a result of 93 raids up to 6 July.
Seventy-nine local employers were prosecuted for employing illegal immigrants. Of these, 15 were prosecuted in 1985, 33 in 1986 and 31 in the first six months of 1987.
During the same period the Labour Department, which is mainly responsible for inspecting records kept by employers, initiated a total of 57 prosecutions against employers who failed to produce or properly to maintain such records. Fifty-three employers were convicted.
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We are having another look at the effectiveness of the measures aimed at curbing the employment of illegal immigrants. Proposals are currently being formulated to improve the existing controls. These will probably include refinements to police procedures for dealing with such cases and amendments to the Immigration Ordinance to tighten up the requirements for employers to keep proper records and to check the validity of identity documents presented by new employees. I must say, Sir, that I take a very serious view of employers who employ illegal immigrants. They are doing so to the detriment of our own labour force.
DR. HO: Sir, what lines of work are the illegal immigrants usually engaged other than in construction sites? Have sufficient staff resources been allocated to the Legal Department and police to check out on a regular basis those places in which illegals are known to have been found working and finally, what measures will be taken to ensure that the employers are sufficiently warned not to continue to hire illegal immigrants?
SECRETARY FOR SECURITY: Sir, the other areas in which we tend to find illegal immigrants being employed are in restaurants and other forms of simple manual labour, for example, some are found on the streets helping hawkers. My hon. Friend’s second question was whether the police and the Legal Department were allocating sufficient resources to get on with the job. The answer in the case of the police is, I think, yes; do not forget that with the police beat radio system, it is very easy for the police to check people to see if they have got any identity cards at all and if they have not, there is immediately a very strong case that a person is here illegally. As to the Legal Department, I am afraid I do not know the answer.
As regards the third part of Dr. HO’s question, in my opinion, Sir, employers know only too well that they are not allowed to employ illegal immigrants, but certainly when we have completed our current review of the legal provisions, it might not at all be a bad idea if we instituted a publicity campaign.
MR. YEUNG: Sir, will the Secretary for Security state, as a result of the 93 raids carried out in the first six months, how many local employers have been successfully prosecuted in court?
SECRETARY FOR SECURITY: Sir, I am afraid I will have to give my hon. Friend an answer in writing; that is one of the statistics I have not got. (Annex I)
MISS DUNN: Sir, are employers allowed to employ Chinese visitors here in Hong Kong on two-way visas and is the Government aware that there are allegations that there is widespread employment of this kind?
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SECRETARY FOR SECURITY: No, they are not allowed to employ people who come here on two-way permits. We have heard no stories ourselves that illegal employment of this sort is going on. We will certainly now keep our eyes open for it.
MR. DESMOND LEE: Sir, is Government aware of a rumour that vast numbers of illegal immigrants work on construction sites and, if so, have investigations been conducted?
SECRETARY FOR SECURITY: Investigations have, of course, been conducted into the employment of illegal immigrants on construction sites.
MR. ALLEN LEE: Sir, what is the average fine for the employers who are convicted by the courts?
SECRETARY FOR SECURITY: Sir, it is in my view far too low. It is around $1,000 to $2,000 for each conviction.
MR. CHUNG: Will the Secretary inform this Council whether amendments to the Immigration Ordinance will include certain measures to try to enable the prosecution to prove the case more easily?
SECRETARY FOR SECURITY: Yes, Sir, that is our hope. The object of the review is to make prosecution more effective. I hope we will be able to bring some amendments to the Immigration Ordinance before this Council fairly early in the next session.
MR. CHEONG: Sir, the Secretary says that the fine is far too low. Is it that the maximum allowable under the Ordinance is set too low or is it because that is the general average fines imposed by the court?
SECRETARY FOR SECURITY: Yes, Sir, The fine under the Ordinance is $50,000. I think the latter is the correct surmise.
Prosecutions under section 27 of the Public Order Ordinance
4. MR. MARTIN LEE asked: With regard to
(a) the recent publication by the Overseas edition of Outlook Magazine of a statement attributed to Mr. LI Hou, the Secretary General of the Basic Law Drafting Committee, that the introduction of direct elections in 1988 will be a breach of the spirit of the Joint Declaration, which statement was distributed by the Xinhua News Agency to a number of journalists in Hong Kong and, which statement was subsequently denied by Mr. LI Hou as having been made by him; and
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(b) the publication of an article in the Hong Kong Standard on 20 June 1987 entitled ‘Keep your nose out, Britain tells China’, in which certain statements were attributed to ‘a Foreign Office spokesman’ which statements were later denied by the Foreign and Commonwealth Office as having been made by them;
will the Administration inform this Council as to the following:
(1) whether any prosecutions will be instituted under section 27 of the Public Order Ordinance in relation to the publication of each of the said statements with regard to:
(a) the falsity of the news;
(b) the publication thereof; and
(c) the likelihood to cause alarm to the public or a section thereof;
(2) whether any investigation has been conducted or is being conducted by the law enforcement agencies in relation to the said publications?
ATTORNEY GENERAL: Sir, no investigation has been, or is being instituted, in relation to these publications. Nor can I see any prospect of a prosecution under section 27 of the Public Order Ordinance in the light of the facts disclosed by the question. When the Bill was debated last March, this Council supported this section on the basis that it was directed at the irresponsible publication of blatant falsehoods and would be used only as a measure of last resort. There is nothing in the question to suggest that these cases come anywhere near the intended scope of this offence. Indeed, I am rather surprised that Mr. LEE should be suggesting that consideration should be given to using section 27 in such cases.
MR. DESMOND LEE: Sir, would the Administration kindly confirm or indicate otherwise if section 27 of the Public Order Ordinance is necessary to protect the community from rumour mongering, which might undermine confidence in this Territory and accordingly confirm, or to indicate otherwise, that offending rumourmongers ought therefore to be prosecuted under the section, particularly in the light of the fact that no defence has been put forward to bolster the truth of these rumours?
ATTORNEY GENERAL: Sir, as to the first part of the question, yes; as to the second part of the question, I do not know what case Mr. LEE is referring to. If it is a hypothetical case, I could not comment on it.
MR. MARTIN LEE: Sir, will the Attorney General please elaborate his brief oral answer which has been deliberately withheld from Members of this Council, contrary to convention, which asks that written answers be supplied to Members of this Council prior to the commencement of a sitting, by informing this Council whether his decision not to prosecute anybody has been the result of consideration that we are dealing with a pro-Peking publication?
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ATTORNEY GENERAL: Sir, as to the first part of that question, I understood that this was a question that was put down for oral reply and indeed I have given Members of this Council my oral reply. As to the second, the answer is that, as I have indicated already—indeed, when I answered a previous question in this Council, public interest considerations are taken into account when prosecution decisions are taken and they may well be relevant at the investigation stage as well. But, Sir, I have already indicated that in this two particular cases that Mr. LEE has referred to, the primary consideration is that which I have indicated.
MR. JACKIE CHAN (in Cantonese): Could the mass media take this as a precedent in order to decide how they should report news and if this is the case, will it defeat the original purpose of the Public Order Ordinance?
ATTORNEY GENERAL: Sir, I have already indicated what I conceive to be the purpose of this legislation. If cases arise in which there appear to be no more than disputes about what was said in the course of an interview to a reporter, I do not think that that is ordinarily the business of the criminal law.
DR. LAM: Sir, would the Attorney General kindly confirm that none of the publishers of Mr. LI Hou’s statement including in this particular case the New China News Agency, have sought to contend after Mr. LI’s denial that he had in fact made the statement?
ATTORNEY GENERAL: Sir, it is a question which deals with particular matters of fact and I believe the answer is no, but I will certainly check again by reference to the cuttings to see if I can give a more accurate answer. (Annex II)
MR. DESMOND LEE: Sir, in my earlier question to the Attorney General, the rumours referred to are statements that direct elections in 1988 are contrary to the Joint Declaration, which statement has subsequently been refuted by a Hong Kong Government announcement.
ATTORNEY GENERAL: Sir, the Standing Orders make it clear that no question can be asked in relation to hypothetical propositions. Is Mr. LEE putting a hypothetical case to me? Because he is not entitled to an answer if he is, or is he not, in which case he ought to give full particulars of the matter which he wishes me to deal with.
HIS EXCELLENCY THE PRESIDENT: Mr. Desmond LEE, was what you were saying a question?
MR. DESMOND LEE: I don’t think what I said was a hypothetical case. There were such statements reported in the local press.
HIS EXCELLENCY THE PRESIDENT: What exactly is your question, Mr. LEE? Could you put it into a question?
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MR. DESMOND LEE: My question is, the rumours I referred to are statements that direct elections in 1988 would be contrary to the Joint Declaration and these statements were published in many news media. I was asking the Attorney General whether or not these rumours constitute rumour-mongering in my earlier question.
ATTORNEY GENERAL: The question of whether or not direct elections are consistent with the Joint Declaration is a question of opinion. It is not a question of fact at all. My guidelines have made it perfectly clear that we are not concerned with matters of opinion. Everyone is entitled to express their opinion.
MR. MARTIN LEE: Sir, what were the considerations which led the learned Attorney General to the conclusion that there was no prospect of securing a conviction under section 27 in relation to these matters? Is it because he takes the view that there was no false news published? Or was he of the view that there was no sufficient publication or was he of the view that there was no likelihood of causing alarm to a section of the public?
ATTORNEY GENERAL: Sir, it was none of those alternatives so conveniently offered by Mr. LEE. My answer is that I do not believe that anything in the cases as described in the question comes anywhere near the intended scope of this offence. That is the reason I have given to this Council.
MR. JACKIE CHAN: Sir, would the Administration kindly confirm that a statement of a politically sensitive nature would not be falsely attributed to persons holding official rank in the People’s Republic of China, the British or the Hong Kong Government, bearing in mind in particular the psyche of this community at a time of constitutional reform in the run-up to 1997?
HIS EXCELLENCY THE PRESIDENT: Mr. CHAN, that question doesn’t seem to relate to the original question. Could you rephrase it in a form that relates to the original question?
MR. JACKIE CHAN: I just would like to know about the false attribution of a statement of a political nature to persons in Hong Kong.
HIS EXCELLENCY THE PRESIDENT: I think, Mr. CHAN, that is a separate question and if you wish to pursue it as a separate question, it ought to be put down as a separate question.
MR. MARTIN LEE: Sir, does the Attorney General not think that instead of trying so hard to defend the offenders of section 27 of the Public Order Ordinance, he should instead defend the public of Hong Kong by removing section 27 from our statute book?
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ATTORNEY GENERAL: Sir, I have not defended what Mr. LEE is pleased to call an ‘offender.’ That is in itself an imputation of criminality which I think he should withdraw. The question of repealing this Ordinance does not arise from these facts; I have made it perfectly clear that because this matter which he has drawn to my attention does not seem to fall within the scope of the offence, it does not follow in any way that the Bill or the Public Order Ordinance is defective in this way. It remains to fulfill the purposes that were indicated by this Council when it was passed, as a very important measure to deal with blatant falsehoods and irresponsible reporting.
MR. MARTIN LEE: Sir, is the Attorney General refusing to answer my question earlier asked? Is he saying the news has not been false; is he saying there has been no sufficient publication; or is he saying there is no likelihood to cause alarm to the public?
ATTORNEY GENERAL: If I was in a witness box being cross-examined, I would be enjoying this but whether or not I am refusing is really a matter for the Chair and not for me. I am giving the best answer that I can to assist this Council.
Written answers to questions
Promotion and development of tourism
5. MR. CHEONG-LEEN asked: Will Government inform this Council of its policy objectives for the promotion and development of the tourist industry in Hong Kong, and the strategy it has drawn up to achieve those objectives?
FINANCIAL SECRETARY: Sir, the Government’s policy objectives are, in effect, those laid down upon the Hong Kong Tourist Association in paragraphs (a)—(e) of section 4 of the Hong Kong Tourist Association Ordinance, viz—
(a) to endeavour to increase the number of visitors to Hong Kong;
(b) to further the development of Hong Kong as a tourist destination; (c) to promote the improvement of facilities for visitors;
(d) to secure overseas publicity for the tourist attractions of Hong Kong; (e) to co-ordinate the activities of persons providing services for visitors to Hong Kong.
The Government seeks to achieve these objectives mainly through the medium of the Hong Kong Tourist Association which is a statutory corporation whose board of management consists of individuals from the various sectors of the industry. Although the Government does not involve itself directly in the promotion and development of tourism, it tries to ensure the provision of the necessary infrastructure to meet the tourist industry’s needs, either by providing
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the requisite facilities itself for example, Hong Kong International Airport, or by enabling the private sector to do so, for example, the availability of additional hotel sites.
Neighbourhood Police Units
6. MR. POON CHI-FAI asked: Will Government inform this Council whether, since the abolition in 1984 of the measure to station police officers at Neighbourhood Police Units 24 hours a day, any review or study has been undertaken on the adverse effect, if any, of the abolition of this measure on law and order in the Territory and on the public reaction to it; and whether Government will give consideration to re-introducing this measure at blackspots of crime, densely populated areas and areas remote from police stations, to meet the need in such areas?
SECRETARY FOR SECURITY: Sir, neighbourhood police units (NPU) were set up in 1974, before the police had beat radios, to strengthen police coverage of selected areas and to allow a quick and effective response to reports from the public. Each NPU provided beat policemen and office staff for 24 hours a day.
In 1981 a review of Uniform Branch deployment revealed certain defects in the NPU scheme, particularly the inefficient use of manpower. Shifts in population and crime patterns and improved communications within the police through the new beat radio system had eroded the need for many of the NPU. A study made in 1983 showed that the majority received less than six reports a day. Crimes reported were even fewer, with 68 per cent of the 90 NPU receiving less than four reports each week. To improve the efficiency of NPU, and as part of a larger reorganisation of the Police Uniform Branch, NPU were redesignated neighbourhood police offices in June 1984, with operating hours adjusted to reflect public demand. NPU beat patrols were redeployed to normal patrol duties within their divisions. At the same time, a new category of full-time police community relations officer was introduced to strengthen contact with the community. There are now 82 such neighbourhood police co ordinators, all sergeants, and the aim is to increase this number to around 140.
The effectiveness of the new NPO system was carefully monitored between June and December 1984 and the police completed a review in April 1985.
The great advantage of the new scheme is that divisional commanders have more men available for beat patrol and can deploy them with greater flexibility. Additional beat coverage can be provided in densely populated areas and in particular crime blackspots as necessary or, as in some divisions, task forces can be set up to supplement beat duties and to carry out specific operations. The 1985 review concluded that the NPO scheme, through more efficient deployment of men and resources, had enhanced the overall effectiveness of the police force
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in its fight against crime. Coverage of the former NPU areas had not decreased and public criticism of the new NPO system had been slight. The review did recommend that NPO be equipped with external telephones giving a direct line at all times to either the nearest police station or Regional Command and Control Centre (‘999’). This has been done and any member of the public may now communicate immediately with police even if the NPO is unattended. The control centre can then, as necessary, co-ordinate a quick response from the policemen patrolling in the vicinity using the beat radio system.
A second review of the NPO scheme is nearly complete. It resulted from suggestions by some district fight crime committee that another look should be given to NPU. But it is unlikely that significant changes will be recommended given the favourable findings of the NPO described above.
Statutory age limits for various offences
7. MRS. TAM asked: In regard to offences against children, young persons and juveniles, different statutory age limits are set for various offences, for example, in the Control of Obscene and Indecent Articles Ordinance, a juvenile is defined as a person under the age of 18; whereas in the Protection of Women and Juveniles Ordinance, a juvenile means a person who is 14 years of age or upwards and under the age of 18 years. Will Government inform this Council what criteria and principles are adopted by the authorities concerned to determine the age limits in the above examples and whether Government will consider introducing legislation to set fixed age limits for children, young persons and juveniles in order to achieve uniformity?
ATTORNEY GENERAL: Sir, Mrs. TAM draws attention to the fact that the word ‘juvenile’ is defined to mean different age groups in different Ordinances. I can well understand that this could be confusing.
For the purposes of the criminal law there are a variety of different ages at which young persons are held both to be responsible for their own actions and to require protection. These ages will vary according to the differing concepts and criteria which the underlying policy adopts to achieve its disparate aims.
For example, a child under seven is not capable of committing an offence at all and a person between the ages of seven and 14 is presumed not to have formed the necessary intent to commit an offence.
Different penalties are imposed on persons convicted of sexual offences against young persons, according to the age of those young persons. Thus, unlawful sexual intercourse with a girl under 13 attracts a penalty of life imprisonment whereas unlawful intercourse with a girl aged between 13 and 16 attracts a penalty of five years imprisonment. The intent of the legislature is, of course, to give a greater degree of protection to a girl under 13.
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These few examples illustrate the difficulty of achieving the uniformity to which Mrs. TAM refers.
I think it would be wise to maintain our existing approach, even at the risk of causing some confusion. I believe this approach best enables the criminal law to deal justly with the wide variety of offences and situations involving young people.
Dismissal by reason of redundancy
8. MR. TAM asked: At present, section 31B of the Employment Ordinance provides that if an employer moves the place of work from Hong Kong Island to Kowloon or the New Territories or vice versa, his employee, if dismissed under this situation, is entitled to severance pay as compensation. In view of the fact that under certain circumstances, the changing of the place of work from Kowloon to the New Territories or vice versa may cause even greater inconvenience and losses to an employee, will Government inform this Council whether it will consider making appropriate amendments to the legislation to better serve the need of the employees?
SECRETARY FOR EDUCATION AND MANPOWER: Section 31B(2)(b) of the Employment Ordinance, which deals with an employer’s move from Hong Kong Island to Kowloon or the New Territories or vice versa, describes only one of the situations under which an employee is to be regarded as having been dismissed by reason of redundancy and thereby entitled to severance pay. Section 31B(2)(c) provides an additional circumstance, namely that
‘the requirements of that business for employees to carry out work of a particular kind in the place where the employee was so employed have ceased or diminished or are expected to cease or diminish.’
If, as a matter of fact in any particular case, the changing of the place of work anywhere within the territory of Hong Kong causes so much hardship as to render it impossible for the employee to continue with the employment, the employee would be deemed to have been constructively dismissed. In that case, such a constructive dismissal could amount to redundancy in the circumstances by virtue of section 31B(2)(c).
Adequate protection is therefore available to employees in the circumstances described in the question and there would be an entitlement to severance pay.
Statement
Vietnamese refugees in Hong Kong
1922 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 SECRETARY FOR SECURITY: Sir,
Introduction
During the last adjournment debate on the Vietnamese refugees that took place in this Council on 7 January 1987, Members asked for a progress report in six-months’ time. I will now give Members a summary of developments since then.
Refugee population
The present position is that we have a total of 7 852 refugees in the camps, with 4 613 (59 per cent) in closed centres and 3 239 (41 per cent) in the open centre. At the beginning of January this year we had 8 039 refugees. Of those who are left, about 4 600 have been here for three years and around 3 200 have been here for five years.
Arrivals
In the first five months of this year, arrivals were 28 per cent down on arrivals in the same period of last year. But a sudden increase in June (a total of 405 arriving compared with 191 in June last year) now means that the total number of arrivals so far this year, at 976, exceeds last year’s figure for the same period by four. With the coming of the summer season, we can expect more refugees to reach Hong Kong in the following two or three months. A worrying factor is that about 76 per cent of the arrivals so far this year are from North Vietnam. They tend to be very difficult to get resettled. They often do not have family connections in resettlement countries and thus cannot meet those countries’ resettlement criteria. And there is an understandable reluctance on the part of some of the resettlement countries to take any North Vietnamese at all.
So far this year, the number of births in the refugee camps has been 144 (compared with 181 during the same period last year).
Resettlement
On the resettlement side, only 1 309 refugees have been resettled so far this year compared with 2 372 for the same period last year. If the present trends continue, we estimate that there will be around 2 200 arrivals and roughly the same number of departures for the full year. Thus, adding in births, we can expect the total refugee population to increase towards the end of the year.
The reason for the lower rate of resettlement is that fewer refugees seem to meet the criteria the resettlement countries insist they must meet. Invariably, the main criteria is that the refugees must already have close family connections in their countries. A second reason is that many of the resettlement countries are having quite serious problems with refugees and illegal immigrants from other places in the world, and are having to limit the numbers they can take from Hong Kong. A third reason is the reluctance, to which I have already referred, of some countries to take northerners.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1923
But I must not be too pessimistic. There has been one very encouraging development. As the Minister of State, Home Office, announced on 8 May 1987, Her Majesty’s Government has decided to accept a further 468 refugees from Hong Kong for resettlement in the United Kingdom under the relaxed family reunion criteria which Her Majesty’s Government introduced for the 1985-86 resettlement programme. But, to ensure that United Kingdom reception facilities are not overstretched, the offtake will be at a rate of about 20 a month. Processing of these cases has started and we expect that the first group will leave Hong Kong for resettlement in the United Kingdom later this month.
Following Her Majesty’s Government’s announcement, both the British and Hong Kong Governments have made vigorous efforts to put Hong Kong’s case to resettlement countries, aimed at persuading them to increase the number of refugees they take from Hong Kong this year and particularly those refugees who have been here a long time. Her Majesty’s Government have also asked the United Nations High Commissioner for Refugees to make parallel approaches to resettlement countries to lobby for additional resettlement places for Hong Kong’s refugees. The UNHCR have agreed to treat long-stayers in Hong Kong as a priority in their resettlement efforts.
In Hong Kong, I have met and discussed our refugee problem with the consuls-general and commissioners of 17 countries which have been helping us in resettling refugees. All their initial responses have been sympathetic and they have agreed to pass on our pleas to their governments to consider. It would be premature of me to speculate on what their responses will be. But I would like to repeat our earnest hope that they will once again be able to help us and to take some more refugees from us this year. And it would be particularly valuable to us if they could take some of the long-stayers, those who are not meeting the family reunion criteria most resettlement countries usually apply. May I say again, publicly, how much we have appreciated their invaluable assistance last year. Without the assistance of all the resettlement countries, we would not have started this year with the lowest number of refugees we have had in Hong Kong since 1979.
From my meetings with the Legislative Council Ad Hoc Group on Vietnamese Refugees, I am acutely conscious of the concern of Members at the difficulties we are experiencing over resettlement and at the number of refugees who have been here many years. I am most grateful to the ad hoc group for the suggestions it has made. As examples, the group has recently asked us to re-examine the cases of the 160 or so refugees who have in the past refused offers of resettlement in the United Kingdom. The group is also concerned about the cost to the taxpayer of supporting refugees in the closed camps and has asked whether means could be found of reducing this burden. We are looking at both these suggestions.
But whatever might be done in the short term to improve the prospects of resettlement and to lighten the burden on our community, we are all here in full
1924 HONG KONG LEGISLATIVE COUNCIL-8 July 198
agreement that there has to be a long-term solution. And we are all agreed that the only viable one is to repatriate all those who cannot establish that they are genuine refugees, provided we can be satisfied they will not be treated inhumanely. In this context, we are only too conscious of the way we have to treat illegal immigrants from China. Sir, the Minister of State of the Home Office, in his announcement on 8 May, stressed the importance of concerted international action to find a durable solution and he said that the British Government would be seeking to put to the United Nations High Commissioner for Refugees and the main resettlement countries the case for a common approach. Her Majesty’s Government is doing all it can to help Hong Kong in this respect. But as I have said before, in this Council, the search for a durable solution will be a slow and difficult process.
Sir, given that, as a place of first asylum, Hong Kong has to accept all who arrive illegally from Vietnam, we are continuing to remind London of the considerable concern in Hong Kong at the difficulties we are having in getting Vietnamese refugees resettled and of the wide support among Members of this Council and in the community both for a greater degree of resettlement in the short term and for a long-term solution involving repatriation of those who can not be resettled because they are not in fact refugees. And at the group’s request we shall be briefing and consulting the ad hoc group every two months on progress in respect of both these issues.
Government Business
Motions
BANKRUPTCY ORDINANCE
THE FINANCIAL SECRETARY moved the following motion: That the Bankruptcy (Amendment) (No.2) Rules 1987 and the Bankruptcy (Fees and Percentages) (Amendment) Order 1987, made by the Chief Justice on 25 June 1987, be approved.
He said: Sir, I move the first motion standing in my name in the Order Paper.
Section 113 of the Bankruptcy Ordinance empowers the Chief Justice, with the approval of this Council, to make rules providing for the carrying into effect of the objects of the Bankruptcy Ordinance.
The Bankruptcy (Amendment) (No.2) Rules 1987 amend rule 59 of the Bankruptcy Rules in consequence of the amendment to section 9(1) of the principal Ordinance, effected by the Bankruptcy (Amendment) Ordinance 1987.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1925
These amendments introduce a requirement for the personal service of bankruptcy notices and bankruptcy petitions, with provision for substituted service by court order in appropriate circumstances.
Section 114 of the Bankruptcy Ordinance empowers the Chief Justice, with the approval of this Council, to prescribe a scale of fees and percentages to be charged in respect of proceedings under the Bankruptcy Ordinance.
The Bankruptcy (Fees and Percentages) (Amendment) Order prescribes a new scale of fees to be paid in respect of assets realised and brought to credit in bankruptcy proceedings. These fees are to be charged on the submission of accounts by bankruptcy trustees, at rates similar to the new ad valorem fees laid down in the Companies (Fees and Percentages) (Amendment) Order.
The Chief Justice made the Bankruptcy (Amendment) (No.2) Rules 1987 and the Bankruptcy (Fees and Percentages) (Amendment) Order under sections 113 and 114 respectively of the Bankruptcy Ordinance on 25 June 1987.
Sir, I beg to move.
Question put and agreed to.
COMPANIES ORDINANCE
THE FINANCIAL SECRETARY moved the following motion: That the Companies (Winding-up) (Amendment) (No.2) Rules 1987 and the Companies (Fees and Percentages) (Amendment) Order 1987, made by the Chief Justice on 25 June 1987, be approved.
He said: Sir, I move the second motion standing in my name in the Order Paper.
Section 296 of the Companies Ordinance empowers the Chief Justice, with the approval of this Council, to make rules for carrying into effect the objects of the Companies Ordinance and to prescribe fees in respect of proceedings under the Ordinance.
The Companies (Winding-Up) (Amendment) (No.2) Rules 1987 amend rule 160 of the Companies (Winding-Up) Rules in consequence of the amendments to section 295 of the principal Ordinance, effected by the Companies (Amendment) (No.2) Ordinance 1987.
The Companies (Fees and Percentages) (Amendment) Order 1987 prescribes a new scale of ad valorem fees to be paid in respect of the assets realised and brought to credit in the compulsory winding up of a company. The new fees are payable upon submission of a liquidator’s account to the Official Receiver or, where the Official Receiver is the liquidator, before he is released. Compared with the existing audit fees, the ad valorem fees tend to be marginally higher in
1926 HONG KONG LEGISLATIVE COUNCIL-8 July 1987
small cases and considerably lower in large cases. The replacement of audit fees by the new scale of ad valorem fees would not result in any significant change in total revenue.
The amendment order also provides for transitional arrangements which set out the manner in which liquidators’ accounts that have already been submitted will be treated. The underlying principle is that the fee to be charged should be the lower of the fee calculated under the old scale and that under the new scale.
The Chief Justice made the Bankruptcy (Amendment) (No.2) Rules 1987 and the Bankruptcy (Fees and Percentages) (Amendment) Order 1987 under section 296 of the Bankruptcy Ordinance on 25 June 1987.
Sir, I beg to move.
Question put and agreed to.
TELEPHONE ORDINANCE
THE FINANCIAL SECRETARY moved the following motion: That the Schedule to the Telephone Ordinance be amended—
(a) by inserting, after item 4 of Part VI, the following—
‘5. For international toll free calls from outside Hong Kong—
(a) Registration
(b) Service
(c) International telephone
call
(b) in Part VII—
$2,000.
$9,000 per annum.
Such charges as are contained in the terms referred to in section 25 of the Ordinance.’;
(i) in item 6, by inserting, after paragraph (m), the following—
‘(n) Conquest handset
(o) Inductive coupler
(p) Autodialler
(q) Speakerphone
(r) Pressac tone ringer— (i) rental
(ii) connexion or removal
$168 per annum. (see Note 2.) $72 per annum. (see Note 2.) $444 per annum. (see Note 2.) $132 per annum. (see Note 4.)
$84 per annum.
$250.’;
(ii) by inserting, after item 10, the following— ‘11. For non-standard telephone instruments— (a) Big button telephone $156 per annum. (see Note 4.)
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1927
(b) Executive I telephone (c) Easaphone telephone (d) Satellite telephone
$180 per annum. (see Note 4.) $336 per annum. (see Note 4.) $312 per annum. (see Note 4.)
(iii) in Note 2, by deleting ‘and 6(1)’ and substituting the following— ‘6(l), 6(n), 6(o) and 6(p)’; and
(iv) by inserting, after Note 3, the following—
‘4. In items 6(q), 11(a), 11(b), 11(c) and 11(d) no connexion fee will be charged for a telephone instrument installed at the same time as the related exchange line or for an additional telephone instrument installed at the same time as the related internal extension. A fee of $140 will be charged for changing a telephone instrument and a fee of $50 for changing an additional telephone instrument.’.
He said: Sir, I move the third motion standing in my name in the Order Paper.
The Hong Kong Telephone Company Limited has proposed to provide Services for the Elderly and Handicapped and an International Toll-free Service. The Services for the Elderly and Handicapped comprise items of telephone equipment of particular utility to these groups. These include telephone sets of use to those with dexterity problems and telephone aids for the impaired of hearing.
The International Toll-Free Service will facilitate toll-free calls to subscribers in Hong Kong. It is considered to be of particular value to companies with international business as it enables customers from abroad to ring without their having to bear the charge.
Under section 26(2) of the Telephone Ordinance, all amendments to the Schedule of charges of the Telephone Ordinance require a resolution of this Council. My motion before the Council therefore seeks to add to the Schedule charges for the Services for the Elderly and Handicapped and the International Toll-Free Service. As regards the proposed services for the Elderly and the Handicapped, professional advice in the field of rehabilitation has confirmed that the introduction of such services can be supported. The proposed charges as contained in the resolution accompanying this motion have been examined by the Administration and have been found to be reasonable.
Sir, I beg to move.
(At this point, Mr. David LI, as the Chairman of the Hong Kong Telephone Company Ltd. and Mr. CHAN Kam-chuen, as a director of the Hong Kong Telephone Company Ltd. declared their interest and abstained from voting.)
Question put and agreed to.
1928 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 MAGISTRATES ORDINANCE
THE ATTORNEY GENERAL moved the following motion: That the Magistrates (Forms) (Amendment) Rules 1987, made by the Chief Justice on 24 June 1987, be approved.
He said: Sir, I move the motion standing in my name on the Order Paper.
The Magistrates (Forms) Rules are made under section 133 of the Magistrates Ordinance, Cap. 227. This amendment is no more than a useful housekeeping exercise, tidying up and bringing up to date the various forms used in the magistrates courts. The existing forms 1A and 1B are replaced by a new combined form 1A. The new form simplifies the format and takes into account changes to section 8A(5) of the Ordinance (which increased the amount of costs that a magistrate may order), and the proposed revision of the Fourth Schedule to the Ordinance (which will add references to officers of the Regional Services Department and replace obsolete titles of departments and officers by new terminology).
These rules have been made by the Acting Chief Justice, but before they can become law, they require the approval of this Council, which I now seek.
Sir, I beg to move.
Question put and agreed to.
LANDLORD AND TENANT (CONSOLIDATION) ORDINANCE
THE SECRETARY FOR DISTRICT ADMINISTRATION moved the following motion: That the Landlord and Tenant (Consolidation) Ordinance be amended—
(a) in section 10(1) by deleting ‘30’ and substituting the following— ‘35’; and
(b) in section 74B(1) by deleting ‘1987’ and substituting the following— ‘1989’.
He said: Sir, I move the resolution standing in my name in the Order Paper.
In 1980, in view of the then rental situation, the Government set up a committee to examine the policies and legislation governing rent control and the relationship between landlords and tenants. The committee found that controlled rents for pre-war premises were about 20 per cent of market rents and those for post-war premises about 40 per cent. It was clear that this rent level was unduly low and that this was discouraging investment in housing production and the availability of rental housing in particular. The committee
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concluded that, as soon as circumstances permitted and consistent with the need to avoid social and economic consequences, every effort should be made to accelerate the phasing out of rent control.
This conclusion was adopted by the Government as its long-term objective. Consequently, amending legislation has been passed by this Council each year since 1981 for pre-war premises, and each year since 1983 for post-war ones, in order to raise progressively the controlled rents, bringing them closer to market levels and eventual decontrol.
The first proposal in the resolution, Sir, is a further step towards achieving the Government’s long-term objective. It seeks to raise the rents of pre-war premises, which are covered by part I of the Ordinance, to more realistic levels. Rents of pre-war premises are derived from a standard rent as at 25 December 1941. The current permitted rent is set at 30 times this level, and it is now proposed to increase this to 35 times the standard rent.
This change would bring the average permitted rent of pre-war premises up to 70 per cent of the market level. It would result in an average increase of about $190 per month, or 17 per cent, on current permitted rents and would affect 1 860 domestic premises.
The resolution, Sir, also proposes a further extension of two years to the life of part II of the Ordinance, from 19 December 1987 to 18 December 1989.
Part II of the Ordinance provides the dual protection of rent control and security of tenure to 90 000 post-war tenancies plus an undetermined number of sub-tenancies affecting about 180 000 households or some 650 000 persons. The average controlled rents for these tenancies now stand at about 70 per cent of the prevailing market rent. For about two thirds of these tenancies, however, the ratio is below this overall average and for about two fifths, the rents are less than 60 per cent of market rents. If part II is allowed to expire after 18 December 1987, the tenants concerned will face, on average, an immediate rent increase of more than 40 per cent and a large number will have their rents nearly doubled. The likely hardship and dislocation will be serious and socially disruptive.
Part II of the Ordinance permits a maximum biennial increase of 30 per cent on current rent, provided that the new rent does not exceed prevailing market levels. This will have the effect of bringing rents for part II tenancies progressively closer to prevailing market rents. The current property and rental market is stable and this is likely to continue because of the ample supply of new flats in the next few years. The Government, therefore, expects that it will be possible to phase out rent control in about four years, even if no increase is made this year in the minimum percentage component in the rent increase mechanism for part II tenancies. The Government considers that four years is a reasonable period in which to achieve the aim of eliminating rent control and,
1930 HONG KONG LEGISLATIVE COUNCIL-8 July 1987
therefore, proposes that the life of part II of the Ordinance should be extended for two years in this instance, subject to a further review in 1989.
As Members are aware, the Government reviews the working of the Ordinance annually, taking account of the state of the property market and the social and economic consequences before proposing changes to the Ordinance. Members and the public can be re assured that any further steps towards decontrol will be carefully considered in the light of the situation at the time and will take account of the needs of both tenants and property owners.
Sir, I beg to move.
At this point, the following Members declared their interest:
Miss Lydia DUNN as a director of a company which is a landlord.
Mr. S.L. CHEN as a landlord and a director of a company which is a landlord. Dr. HO Kam-fai as the spouse of a landlady.
Mr. F.K. HU as a director of a company which is a landlord.
Mr. CHAN Kam-chuen as a director of a company which is a landlord.
Mr. CHEUNG Yan-lung as a director and the spouse of the director of a company which is a landlord, a landlord and the spouse of a landlady.
Miss Maria TAM as a landlady.
Mr. Peter POON as a director and the spouse of a director of a company which is a landlord, a shareholder and the spouse of a shareholder of a company which is a landlord.
Mr. Kim CHAM as a director and shareholder of a company which is a landlord. Mr. CHUNG Pui-lam as a landlord.
Mr. Thomas CLYDESDALE as a director of a company which is a landlord. Mr. HO Sai-chu as a director of a company which is a landlord.
Mr. HUI Yin-fat as a landlord.
Mr. Richard LAI as a landlord.
Dr. Conrad LAM as a landlord, a director and shareholder of a company which is a landlord, and as a tenant.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1931 Mr. Desmond LEE Yu-tai as a tenant.
Mr. David LI as a director of a company which is a landlord.
Mr. LIU Lit-for as the Vice-chairman of a company which is a landlord.
Mr. NGAI Shiu-kit as a landlord, a director of a company which is a landlord, the spouse of a landlady, and a director and shareholder of a company which is landlord.
Mr. POON Chi-fai as a tenant.
Mr. Helmut SOHMEN as a landlord and a director of a company which is a landlord. Mr. SZETO Wah as a tenant.
Mr. TAI Chin-wah as a landlord and a tenant.
Mr. LAU Wong-fat as a landlord.
Mr. WONG Po-yan as a director of a company which is a landlord.
Question put and agreed to.
DUTIABLE COMMODITIES ORDINANCE
THE SECRETARY FOR TRANSPORT moved the following motion: That the Schedule to the Dutiable Commodities Ordinance be amended in Part III by inserting after paragraph 2 the following—
‘3. Where it is proved to the satisfaction of the Commissioner that light diesel oil on which duty has been paid under paragraph 1(b) has been used in road vehicles owned and operated by the Kowloon-Canton Railway
(Cap. 372)
Corporation under section 4(1)(d) of the Kowloon-Canton Railway Corporation Ordinance in maintaining bus services within the North-west Transit Service Area, a sum amounting to $0.65 per litre of the light diesel oil so used shall be refunded to the Corporation.’.
He said: Sir, I move the motion standing in my name on the Order Paper.
Under section 4(2)(b) of the Dutiable Commodities Ordinance, this Council may by resolution amend the Schedule to the Ordinance to waive or remit any duty imposed therein to any extent whatsoever.
1932 HONG KONG LEGISLATIVE COUNCIL-8 July 1987
The existing policy is to allow the duty on light diesel oil used in vehicles owned and operated by franchised bus operators to be refunded at a rate of $0.65 per litre. In the Northwest Transit Service Area, the Kowloon-Canton Railway Corporation will operate the Light Rail Transit system and a network of feeder bus services to meet the demand for internal travel. The Light Rail Transit system and its complement of feeder bus services will replace the existing franchised bus services in that part of the Territory. It is therefore proposed that the same current facility for refund of fuel duty be extended to the bus operation of the Kowloon-Canton Railway Corporation in the Northwest Transit Service Area.
Sir, I beg to move.
Question put and agreed to.
First Reading of Bills
HONG KONG COUNCIL ON SMOKING AND HEALTH BILL 1987 BUILDINGS (AMENDMENT) BILL 1987
PRISONERS (RELEASE UNDER SUPERVISION) BILL 1987
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3)
Second Reading of Bills
HONG KONG COUNCIL ON SMOKING AND HEALTH BILL 1987
THE SECRETARY FOR HEALTH AND WELFARE moved the Second Reading of: ‘A Bill to establish the Hong Kong Council on Smoking and Health, to define its functions and powers, to negative personal liability of members and employees, and to provide for matters incidental thereto or connected therewith’.
He said: Sir, I move that the Hong Kong Council on Smoking and Health Bill 1987 be read the Second time.
During the five years since the enactment of the Smoking (Public Health) Ordinance in 1982, the Government’s anti-smoking policies have achieved a considerable degree of success in making the community aware of the dangers of smoking, in encouraging smokers to stop smoking and in discouraging non-smokers from starting to smoke. We realise, however, that smoking and health is a dynamic area which requires prompt and continuous responses to
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1933
new research, changing public attitudes, new legislative requirements and the activities of the tobacco industry. Experience in other countries indicates that the most effective method of keeping abreast of such developments is to set up an independent public body to serve as a focal point for action and information on this subject. The Bill therefore proposes the establishment of an independent statutory Council on Smoking and Health.
The council’s main tasks will be to collate the latest information and research connected with smoking and health, to organise anti-smoking publicity and education programmes, to advise the Government on the implementation and development of anti smoking measures, and to liaise with other local bodies and international agencies on smoking and health matters.
The council has been operating in a provisional form since December last year. It is the Government’s view however that statutory incorporation is desirable in that it establishes the council as a legal entity separate and independent from the Government, provides a formal framework for the council’s operations and confers protection on members and employees of the council against personal liability for any act done by the council in good faith in the course of its operations. This last provision is contained in clause 20 of the Bill.
The Bill follows closely the pattern of other legislation establishing statutory bodies of a similar nature. It sets out the aims, functions and powers of the council, provides for appointment of chairman and member by the Governor, and lays down procedures at meetings. It also empowers the council to appoint its own staff, as well as financial and accounting arrangements. The council will be subvented by the Government and a sum of $1.2 million has been included in this year’s Estimates.
Although the establishment of the council will relieve the Government of some of the executive duties connected with anti-smoking measures, the Secretary for Health and Welfare will remain responsible for formulating the Government’s policy in this area and for ensuring the implementation of that policy. I would like to assure Members that the introduction of this Bill in no way indicates any weakness in the Government’s resolve to continue to deal with the problem of smoking and health.
Sir, I move that the debate on this motion be now adjourned.
Motion made. That the debate on the Second Reading of the Bill be adjourned. Question put and agreed to.
BUILDINGS (AMENDMENT) BILL 1987
THE SECRETARY FOR LANDS AND WORKS moved the Second Reading of: ‘A Bill to amend the Buildings Ordinance’.
1934 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 He said: Sir, I rise to move the Second Reading of the Buildings (Amendment) Bill 1987.
This Bill makes several amendments for the Buildings Ordinance to update it and to achieve greater efficiency in its application.
The Authorised Persons and Structural Engineers Registration Committee comprises three Government and six non-Government members. A quorum for the committee requires six members including all three Government members. This has created some problems of indisposition and has rendered scheduled meetings and other pre-arranged professional interviews abortive. In clause 3 of the Bill, the Ordinance is modified so that the quorum only requires two Government members and is reduced to five.
Although there is a right of appeal against decisions of the Authorised Persons and Registered Structural Engineers Registration Committee, a similar right is not available for deferrals, and as deferrals can be imposed repeatedly this is unfair. In clause 3 of the Bill a subsection is added to the Ordinance which only permits an application to be deferred once.
More importantly, aluminium and other metals, glass, plastic and composite materials are in increasing use in building construction, but do not come within the scope of the Buildings Ordinance. Neither do excavation, piling, and foundation works which warrant tight supervision and monitoring to ensure public safety. Clause 4 of the Bill expands the scope of the Ordinance to include these.
The Building Authority under the Ordinance can carry out various works in the interests of public safety, and can recover the direct costs incurred from persons who have failed to carry out the works themselves. However, incidental costs are often involved which are not recoverable. So clauses 5 and 6 of the Bill amend the Ordinance to include for these. These works and services will, however, be kept to a minimum.
Under the Ordinance, building works, not involving the structure of a building, may be carried out without approval from the Building Authority. But if alteration to existing drains are involved, however minor, the full approval process is required. This reqirement delays the processing of licence applications particularly for restaurants and licensed premises. Clause 8 of the Bill modifies the Ordinance to allow minor drainage works to be carried out without approval from the Building Authority.
Sir, I move that the debate be now adjourned.
Motion made. That the debate on the Second Reading of the Bill be adjourned. Question put and agreed to.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1935 PRISONERS (RELEASE UNDER SUPERVISION) BILL 1987
THE SECRETARY FOR SECURITY moved the Second Reading of: ‘A Bill to provide for the release of prisoners under supervision on the recommendation of an advisory board; and for connected purposes’.
He said: Sir, I move that the Prisoners (Release under Supervision) Bill 1987 be read for a Second time.
The idea of introducing a system of parole in Hong Kong has been under consideration for more than 15 years. We have long considered that there are considerable benefits both for society and for the persons involved in such a scheme. The problem has been, in the past, a lack of experience in this field and a doubt as to whether the public would support it. I am pleased to say that I believe both problems have been overcome.
Briefly, parole involves the early release under supervision of carefully selected prisoners whom it is considered would be most likely to be successfully reintegrated into society. The benefits are—
(a) for the society as a whole, one of the most important requirements of a penal system is to protect the community from criminals. The success of a system largely depends on the extent to which it reduces the number of prisoners returning to crime on release from prison. A parole system, in this context, provides a good opportunity for prisoners to be released into the community at the time when, unless they are hardened criminals, they are most likely to be able to re-establish themselves without reverting to crime. By thus providing for prisoners who are not harden criminals to be released on parole, we should be able to reduce the risk to society of their subsequently misbehaving; and
(b) for the benefit the prisoners themselves, a parole system provides one of the best means to help them to adjust from a highly disciplined prison environment to the freedom of living normally in the community. As a result of this help, they should be in a better position to lead a law-abiding life and not to return to crime again.
With regard to experience in the Correctional Services Department to run aftercare supervision, we are now sure that the department, with almost 35 years of experience in the aftercare of persons who have been in training centres, detention centres and drug addiction treatment centres will be able to render appropriate assistance to the adult prisoners who will be released on parole. Some additional staff will be provided for this purpose.
On the reaction of the public, it is now evident that people here recognise the importance of rehabilitation in treating prisoners. In 1986, in considering the Government’s discussion document on options for changes in the law and in the
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administration of the law to counter the triad problem, members of the public frequently raised the need for more rehabilitative measures in our correctional systems. Indeed many Members of this Council made the same point. Since the Bill was gazetted on 26 June, we have been closely watching the reactions to it. The proposed schemes seem to have been well received as a means better to rehabilitate offenders. Given this public support, we have no doubt that the proposed schemes have a good chance of being a success.
Sir, the object of this Bill is to give legal effect to two proposed schemes for prisoners to be released on parole, namely, the release under supervision scheme and the pre-release employment scheme.
The Bill provides for the establishment of a release under supervision board, which will make recommendations to the Governor on matters which require decisions under the legislation.
Under clause 7, subject to a prisoner meeting basic criteria as to the length of sentence imposed and the amount of it that he has served, the Governor will have the authority to order his release on the board’s recommendation, and to set the conditions of that release.
A released prisoner may be required to reside in a hostel which is under the administration of the Correctional Services Department, and if so, unauthorised absence from the hostel will be punishable. But whether or not he is required to reside in a hostel, he will receive a supervision order from the Commissioner of Correctional Services, which will set out the conditions agreed for his release and will specify the date on which the order will expire. The conditions of his release would include a requirement to meet regularly with his supervisor and to disassociate with criminal elements, and could include a requirement to live in a certain location, to contribute to his family and if necessary to have medical attention.
A prisoner whose application for release under supervision is refused will be able, under clause 12, to apply for a review of the decision to refuse his release.
With regard to part III of the Bill, it provides for cases in which a supervision order may be terminated before its due expiry date. A supervision order will be capable of being revoked by the Governor on the board’s recommendation, or by the Commissioner of Correctional Services in circumstances where the public interest requires immediate action. Also it will cease to have effect in the event of a further sentence of imprisonment being ordered against the same person. The prisoner will then be liable to be reimprisoned for the full remainder of his sentence for the first offence, but will be able to apply to the board for a review of his case.
Sir, we intend to proceed cautiously. We expect that not more than 100 prisoners, or 5 per cent of those eligible, may be initially released under
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supervision. We intend to carry out a comprehensive review three years after implementation, or earlier if necessary. And a report on the board’s work will be tabled at this Council annually.
Sir, I move that the debate on this motion be adjourned.
Motion made. That the debate on the Second Reading of the Bill be adjourned. Question put and agreed to.
BROADCASTING AUTHORITY BILL 1987
Resumption of debate on Second Reading (24 June 1987)
MR. ALLEN LEE: Sir, I rise to support the Broadcasting Authority Bill 1987 as the convener of the Legislative Council ad hoc group to study this Bill.
Members will recall that the setting up of a Broadcasting Authority is among the major recommendations in the Broadcasting Review Board Report. This recommendation was also supported by Members at the adjournment debate in this Council on 19 March 1986.
We therefore welcome this Bill which establishes the Broadcasting Authority and sets out in legal terms its powers and functions. However, in our scrutiny of the Bill, we identified a number of points for clarification with the Administration resulting in improvements to be made to the Bill by way of four Committee stage amendments. I shall deal with them one by one.
First, the membership of the authority. Bearing in mind the importance of the authority whose duty is to ensure the provision of an adequate, comprehensive and balanced service which is responsive to the diverse needs and aspirations of the community, we feel that its membership should consist of as wide a cross-section of the community as possible so that it could carry out its functions effectively. Whilst I am sure the Administration will take this into account in the appointment of the authority’s members, we consider that clause 4(1)(b) should be further qualified by a requirement that non-government members should be persons who have had no less than seven years ordinary residence in Hong Kong prior to appointment. This will ensure that those who serve on the authority will have a good background knowledge of the local community and will be better able to serve the public interest.
The other three amendments are more technical in nature. Clause 6(3) will be amended so that the Standing Orders regulating the procedures of meetings could make reference to other relevant sections of the Ordinance, such as clause 7.
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Members consider that section 36A of the Television Ordinance, Cap. 52, which requires the authority to consult the licensees before any broadcasting is to be prohibited, is sufficiently important for it to be incorporated into clause 9(1)(a). This clause will be amended to make it clear that the obligation to consult before prohibition is also a major function of the authority.
As it stands, clause 13(3) gives the impression that the Commissioner for Television and Entertainment Licensing could decide on his own initiative whether to tender advice to the authority ‘as he thinks fit’. The amendment will refine the wording to make it clear that in fact, to advise the authority is one of the major functions of the commissioner.
There are also a number of other points which we feel that the Administration should bear in mind and take appropriate action in the context of either the implementation of the Broadcasting Authority Bill or in the review of the Television Ordinance and the drawing up of the future Broadcasting Ordinance.
For example, on the question of the renewal of the existing television licences, Members consider that the Administration should ensure that the relevant recommendations of the Broadcasting Review Board would be included as new licensing conditions. We also think that the Broadcasting Authority should be able to impose additional conditions, if necessary, before the licences are renewed.
Members are aware that the responsibilities of the authority will be extended from the wireless television to cover radio and cable television. The Administration should take this opportunity to conduct an overall review of policy considerations associated with the various proposals and their inter-related implications. For example, it is perhaps necessary to consider whether the powers and functions of the Broadcasting Authority should be modified in any way to see if they are adequate or appropriate in the wider context of all aspects of broadcasting.
In conclusion, may I record our appreciation of the Aministration’s prompt and helpful response to our suggestions. I am sure Members will agree that the speedy and smooth passage of this Bill despite the limited time we have, owes much to the spirit of co-operation between the Administration and the ad hoc group. Much credit should also go to members of the ad hoc group for their generous contribution of time and effort to the discussion in pointing out useful areas of possible improvement to the Bill. Finally I wish the Broadcasting Authority every success and good speed in its unenviable task of having to draw up the necessary licensing conditions before the end of this year.
With these remarks, Sir, I support the motion.
DR. HO: Sir, the establishment of a Broadcasting Authority to replace the Television Advisory Board and the Television Authority in the administration of the Television Ordinance is definitely an improvement in two aspects. Unlike
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the Television Advisory Board, the Broadcasting Authority is vested with executive power and thus will be more efficient in the control and regulation of television broadcasting. Greater public participation in policy formulation in the broadcasting industry is made possible by way of a non-official chairman and a majority of non-official members. However, in order for the public preferences and viewing standards to be truthfully and adequately reflected in the policy, the quality of the non-official members to be appointed to the Broadcasting Authority is of primary concern. A much longer period of residence in Hong Kong for a member, say seven years, than the 180-day or 300-day requirement as specified in clause 4(8)(a) and (b), should be considered. This length of residence is necessary for the member to be well acquainted with the social, cultural and moral conditions and standards of the local community. I am glad to say that the Administration has agreed to support amendments to this effect at Committee stage.
The question as to whether persons intimately involved in the electronic media should be made members of the authority, is open to debate. My personal view is that the member’s professional knowledge and practical experiences in broadcasting are valuable to the deliberation of policy issues, but his pecuniary interest should not be allowed to exert undue influence on policy decisions by way of voting. Clause 12 of the Bill provides for the setting up of advisory committees and the appointment of co-opted members. Through this channel of consultation, the necessary expertise and technical input of the industry can be judiciously exploited, without having to run the risk of evoking a conflict of roles in a full member.
The provision of a complaints committee under the authority is a much more desirable option than a complaints tribunal as recommended in the Broad-casting Review Board Report. I recall that at the adjournment debate held in this Council in March 1986, some Members expressed the wish that the redress of public grievances and dissatisfaction in respect of television programmes and advertising should be dealt with in accordance with the normal procedures of our existing judiciary system.
As a means of stepping up the monitoring of television broadcasting, the public must be made aware of their entitlement to make complaints. To this end, the Broadcasting Authority should make it a condition of licence for the television licensees to broadcast such announcements from time to time. In addition, the complaints committee should be advised to attend to complaints as speedily as administratively possible, say within a period of 30 days after the receipt of the complaints, in order to sustain the confidence of the public in the complaints committee.
Sir, with these remarks, I have much pleasure in supporting the Broadcasting Authority Bill 1987.
MR. YEUNG (in Cantonese): Sir, since its formation on 13 February 1984 and up to the completion of its report on 12 August 1985, the Broadcasting Review
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Board had held a total of 112 meetings. The time spent is of secondary importance. It is most pleasing to see that the first step to implement the recommendations of the report has now been formally taken.
The 1987 Broadcasting Authority Bill was introduced to implement one of the major recommendations listed in the report, that is, the functions of the existing Television Authority and the responsibility of the Commissioner for Television and Entertainment Licensing for radio broadcast should be taken over by a Broadcasting Authority. Initially, the authority, established with statutory powers, will be responsible for monitoring and regulating television broadcast. When appropriate legislation is drawn up at a later date, the terms of reference will be extended to cover radio and cable television. The proposed authority received strong support from educational and social groups during the consultation period as well as support from Legislative Council Members during a previous adjournment debate. Hence it can be said that the purpose of this Bill is very appropriate.
Sir, airwaves are natural resources which belong to the whole community. As there is a limit on its availability for use, the Government should make sure that they are utilised in the best interest of the community. Broadcasters who are granted licences to use airwaves should therefore undertake to provide good quality programmes for entertainment, information and for educational purposes. They should also conform to all technical requirements and ensure that an adequate, comprehensive and balanced service is provided to meet the diverse needs and aspirations of the community. In order to ensure that television programmes and broadcasting techniques can reach the right standards and in view of the fact that the present television licences will expire by the end of December 1988, the establishment of a Broadcasting Authority, which will be responsible for regulating television, radio and cable television broadcasting, is a matter of great urgency. Thus the introduction of the Broadcasting Authority Bill is a timely move.
I believe that the selection of programme content should take into account the prevailing standards of our society. Since radio and television broadcasting pervade into almost every household in Hong Kong, it follows that there should be a greater participation by the public in monitoring the broadcasting industry. It is also very wise of the Government to introduce this Bill. Under this Bill, all matters relating to television, radio and cable television broadcasting are subject to regulation and monitoring. The Government should therefore take the second step for implementation as soon as possible, and should make known to relevant bodies and members of the public for their information the timing and procedures for the implementation of this legislation.
Sir, with these remarks, I support the Bill.
CHIEF SECRETARY: Sir, the amendments to the Bill proposed by the ad hoc group as summarised by Mr. Allen LEE are all acceptable to the Administration. In
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addition to the points made by Mr. LEE in his speech, I would like to elaborate on a few points highlighted by the proposed amendments.
First, I agree entirely with Mr. LEE that clause 4(1)(b) should include a residential qualification for a non-official member of the Broadcasting Authority. The Government recognises the important role of the Broadcasting Authority and will ensure that the membership of the authority represents a wide cross-section of the community.
Secondly, we agree that the standing orders to be made under clause 6(3) should be consistent with all the provisions of the Bill, including clause 7 which provides for the disclosure of members’ interest at meetings. I thank the ad hoc group for drawing our attention to this technical oversight.
Thirdly, the reason why the obligation to consult licensees under section 36A of the Television Ordinance, Cap. 52, was not included as one of the functions and powers of the authority under clause 9 was because at the time of the drafting, we intended only to highlight the major functions of the authority. The list was not intended to be exhaustive. We agree, however, that the duty to consult affected licensees before issuing an order under section 35(1) and 36 of the Bill is an important one and should be included into clause 9.
Fourthly, I concede that the original wording of clause 13(3) which provides the principal executive officer of the authority to render advice ‘as he thinks fit’ could conceivably be interpreted to allow him to refuse to give advice to the Broadcasting Authority. I can assure Members that this was never the intention. The proposed refinement to this clause will, Sir, I am sure, remove any such possibility.
Mr. LEE has also drawn attention to a number of points which should be borne in mind when the Television Ordinance is reviewed or when the future Broadcasting Bill is drafted. They have been duly noted by the Administration. As regards the many recommendations of the Broadcasting Review Board, referred to by other Members, I am sure the Broadcasting Authority when it is established will examine them carefully and, where appropriate, include them as conditions in the renewed licenses of the two television stations. The Administration will also carefully consider policies for cable television and radio before drafting legislations to enable the regulation of these broadcasting services.
Finally, Sir, I would like to thank the ad hoc group, and particularly Mr. Allen LEE, for the considerable time and effort they have contributed to enable the Second Reading debate on the Bill to resume within such a short time. It clearly indicates that Members are in strong support of the establishment of the Broadcasting Authority.
Question put and agreed to.
1942 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
PREVENTION OF BRIBERY (AMENDMENT) BILL 1987
Resumption of debate on Second Reading (27 May 1987)
MR. PETER C. WONG: Sir, the OMELCO Standing Panel on Security was consulted by the Secretary for Security in May last year on a paper outlining the main proposals in the Prevention of Bribery (Amendment) Bill 1986 and Independent Commission Against Corruption (Amendment) Bill 1986. The two Bills introduced into Legislative Council on 27 May 1987 incorporated many of the suggestions of the panel. Sir, we welcome the Administration’s continued efforts to review procedures and levels of penalties to enable the Independent Commission Against Corruption to carry out its duties with improved efficiency.
The Legislative Council ad hoc group set up to examine the two Bills supports the proposed legislation in principle. During the many working sessions, Members raised a number of issues and held in-depth discussions with the Administration. As a result, the group and the Administration were able to agree on five amendments which we believe, are an improvement to the already well drafted Bills.
In this speech, Sir, I shall confine myself to the Prevention of Bribery (Amendment) Bill 1987. Clause 4 of the Bill is without doubt the most important. It provides for the making of an order for the confiscation of property or pecuniary resources found to be in the control of a Crown servant who is convicted of a section 10(1)(b) offence, that is, being in control of unexplained pecuniary resources or property disproportionate to his official emoluments. In practical terms, the Bill is to give the court power to order the confiscation of property found at the trial to be in the control of the convicted Crown servant, whether it is in his possession or in the hands of a third party. In introducing the Bill, the Attorney General eloquently argued for the need to introduce this new power. It is necessary for the better administration of justice. While accepting the Attorney General’s arguments, the group paid particular attention to the need to protect innocent third parties and the practical aspects of implementation. After lengthy discussion and deliberation, the group is satisfied that subject to certain amendments, the following limitations and safeguards in the Bill provide sufficient protection for innocent third parties—
—The application for an order for confiscation must be made by the Attorney General within 28 days after the conviction.
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—where the assets are held by a third party, then the third party must be given a reasonable opportunity to show cause why the order should not be made. —No order may be made upon assets held by a third party if the third party satsifies the court that an order would be unjust in the circumstances.
—A confiscation order and a monetary penalty order cannot be imposed in respect of the same assets.
—The third party is given a right of appeal.
Regarding the practical aspects of the implementation of the confiscation order, Members asked for a number of clarifications and put forward several useful suggestions. The group was assured by the Administration that it did not anticipate any serious problems in this regard. However, the Administration conceded that forewarned is forearmed.
Sir, may I now refer briefly to the power to detain a suspect’s travel documents. Under the existing law, the maximum period for which travel documents may be detained is six months with a possible extension for a further three months on application to a magistrate. At the security panel meeting in 1986, the Administration proposed that a further additional three months extension should be allowed where a magistrate is satisfied that an investigation could not reasonably have been completed within the existing time limits of nine months, particularly in the case of complex and extensive corruption-related commercial frauds. The panel at the time was not in favour of the proposed additional extension in view of the fact that the detention of travel documents could cause great inconvenience and hardship to persons such as businessmen who had to travel frequently. I am pleased to note, Sir, that the advice of the panel was heeded and the existing law now remains unchanged. In short, travel documents may only be detained for a total period of nine months.
Another area where the group focussed its attention relates to the new provision whereby income from property may be frozen. In applying this new provision, it is possible that the suspected person may be left without means to support himself or his family or to pay for legal advice or representation. Members’ concern was somewhat allayed by the Administration’s assurance that the commissioner is always prepared to consider sympathetically an application for ‘necessary expenses’. Furthermore, the suspected person may appeal against the commissioner’s decision.
Sir, this is a piece of complex legislation. After detailed examination of the Bill on content as well as legal implications, we have proposed five amendments. These have been accepted by the Administration and I will move them at the Committee stage. In brief, Sir—
—The first amendment deals with the definition of ‘public servant’ in clause 2(a). The revised version makes the definition clearer and easier to understand.
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—The second amendment, in addition to improving the wording in the new section 12AA(4)(b) in clause 4, affords protection to a bona fide purchaser for value and makes it clear that an order should not be made against such purchaser.
—The third amendment inserts a new section 12AA(8) which specifically provides that an order for confiscation may contain practical provisions for its implementation.
—The fourth amendment extends the period within which a third party may appeal against an order for confiscation from 14 days to 28 days. Since the Attorney General may apply for an order for confiscation within 28 days, it was felt that to be consistent, the third party should also be allowed 28 days to appeal. The Crown would not be prejudiced by such extension, as the property in any event would have been forzen.
—The last amendment deals with section 12AB(3). The amended version reflects the normal practice whereby either the court which makes the order or the Court of Appeal may direct a stay of execution pending appeal.
Sir, subject to the Committee stage amendments, I support the motion.
ATTORNEY GENERAL: Sir, I am most grateful to Mr. Peter C. WONG and the other Members of the Legislative Council ad hoc group for their thorough and helpful study of this Bill and its companion measure, the Independent Commission Against Corruption (Amendment) Bill 1987.
Indeed, Sir, as Mr. WONG has indicated, and we are glad that he is back in fine voice with us, the proposals in these Bills have survived a long and exacting process of examination, not only by this group, but also previously by the OMELCO Standing Panel on Security as well as the Bar Association and the Law Society. Many of the suggestions made by members of these bodies have affected not only what the Bills contain, but also what they no longer contain.
The public at large can, I think, now be assured by the fact that all parties are able to support the Bills as amended to incorporate the minor changes proposed by this ad hoc group.
Sir, Mr. WONG quite properly emphasised the concern of Members that the confiscation provisions in the Prevention of Bribery (Amendment) Bill should be carefully drawn to safeguard the rights of innocent third parties.
I am pleased to say that the amendments proposed by the group will improve these safeguards and at the same time enhance the overall effectiveness of the legislation. They are readily accepted by the Administration.
Sir, the latest Annual Report of the Independent Commission Against Corruption which was tabled in this Council only last month reminds us that there has been no drop in reports of corruption. The role of the commission in upholding standards of integrity and trust in the community remains as vital as ever.
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As always, it is necessary carefully to maintain a fair balance between the rights of a law enforcement agency, even one with the high reputation of ICAC, and the rights of the law abiding public going about its business.
I am confident that, with the help of all those who have scrutinised this measure, participated in this discussion, we have been able to maintain that balance.
Question put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
INDEPENDENT COMMISSION AGAINST CORRUPTION
(AMENDMENT) BILL 1987
Resumption of debate on Second Reading (27 May 1987)
MR. PETER C. WONG: Sir, I have briefly touched on this Bill in my speech on the Prevention of Bribery (Amendment) Bill 1987.
The Attorney General in his speech on 27 May 1987 explained in simple terms clauses 4 and 6 of the Bill which provide for new offences and powers of arrest by officers of the commission. The Legislative Council ad hoc group set up to examine the Bill accepts the explanation offered by the Attorney General and is satisfied that—
—the range or scope of the commission’s investigatory powers has not been extended by the inclusion of the new offences under clause 4, and
—the powers of arrest under clause 6 are no more and no less than those exercised by police officers under the Criminal Procedure Ordinance.
Sir, with these remakrs, I support the motion.
Question put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1). SUPREME COURT (AMENDMENT) BILL 1987
Resumption of debate on Second Reading (24 June 1987)
1946 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 Question put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1). PROTECTION OF WOMEN AND JUVENILES (AMENDMENT) BILL 1987 Resumption of debate on Second Reading (1 July 1987)
MR. HUI: Sir, the Portection of Women and Juveniles (Amendment) Bill 1987 represents a timely step taken by Government to update an obsolete Ordinance. The Bill, which streamlines procedures for handling child abuse cases, wins plaudits from the social work field for its liberal, flexible and comprehensive provisions.
Members may recall our discussion of the KWOK Ah-nui case this time last year when the anomaly of the principal Ordinance enacted in 1951 was first brought to light. While appreciating the rationale behind the original provisions, attention was focussed on the power of the Director of Social Welfare in effecting entry into premises by the use of force. Members of the social work profession joined the public in questioning the extent to which authority could be exercised without inducing the abuse of power and infringing upon human right. Clause 7 in the new Bill, based on the recommendation of the Working Group on Child Abuse, offers a solution to the problem raised. It stipulates that before forcibly entering into premises, the Director of Social Welfare must obtain a warrant issued by a magistrate, juvenile court or district court acting as the third party in a move that affects the well-being of the family involved. Since the court can only issue a warrant on reasonable grounds, its decision would lend support to the professional judgement of social workers. We welcome this amendment that only upholds the client’s dignity but also facilitates our work in handling child abuse cases.
With regard to clause 3 which requires children aged seven or above to give evidence in court and provides the court with the discretion to bring younger children before it if necessary, we acknowledge the law drafters’ intention to avoid emotional trauma for young children. However, our concern is not so much whether children under seven are competent to give evidence, but whether under certain circumstances it is suitable for some older children to appear in court. We believe that instead of taking age as the only criterion for court appearance, the mental, psychological and social conditions of abused children should be taken into consideration as well.
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The other sections of the Bill, which provide for prompt medical treatment for both the physical and mental condition of children in need of care and protection, further provide detailed, necessary revisions of an outdated legislation. Sir, it remains for me to urge the Government to speed up the exercise on a comprehensive review of the principal Ordinance enacted almost four decades ago, in the light of rapid social changes that are taking place in Hong Kong.
MRS. TAM: Sir, the Protection of Women and Juveniles Ordinance was first enacted 36 years ago and last revised some nine years before. Its effectiveness has long been open to doubts. The ‘KWOK Ah-nui case’ of last year only exposed its inadequacies in clear terms. It should, however, be commendable that the Government is able to respond promptly by firstly introducing the more urgent amendments to the Ordinance, while at a later stage, it will conduct a comprehensive review of the Ordinance.
I support in principle the four amendments in the Protection of Women and Juveniles (Amendment) Bill 1987, which is presented to this Council for Second Reading today. It is believed that these amendments will facilitate the enforcement of the law and improve its effectiveness. In support of the Bill, Sir, I would like to make two points. First, it is wise not to enlist the hospital as ‘a place of refuge’ under clause 5 of the amendment Bill in proposing to enabling the court to send a child direct to a hospital. Such measure is only a temporary arrangement for the child to receive medical examination or treatment in the hospital. Should a hospital be treated as a ‘place of refuge’, this will put an unnecessary onus onto the hospital for supervising the child. Second, in relation to appearance of children in court proceedings. It is in principle, a reasonable requirement in the amendment Bill, that only those children aged seven or above should appear before the court. It should, however, be noted that some people may neglect these legal procedures so that unco-operative parents may ignore such court notifications, resulting in the child’s right not being safeguarded. The possibility of such a situation should warrant the attention of the relevant authority.
After today’s piecemeal amendment, may I urge the Government to conduct as soon as possible a comprehensive and in-depth review of the Protection of Women and Juveniles Ordinance, with particular attention to such aspects of the Ordinance as the spirit, the scope of protection, consistency with other related Ordinances and the adequacy of panelties.
Sir, with these remarks, I support the Bill.
SECRETARY FOR HEALTH AND WELFARE: Sir, I would like to thank Mr. HUI and Mrs. TAM for their remarks in support of the Protection of Women and Juveniles (Amendment) Bill 1987. It is most gratifying that this important Bill has received a general welcome and that it will be in effect before the end of the present session.
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I take Mr. HUI’s point about the question of whether under certain circumstances it is appropriate for some children over the age of seven to appear in court. The main purpose of this provision is to enable the court to take the child’s views into account. But I understand that the child need not attend the entire hearing, and the judge also has discretion to require the parent or guardian to withdraw from the court, if he wishes to hear the child’s views on his own. We shall observe carefully how the amended provisions operate in practice, and if necessary further amendments can be considered as part of the comprehensive review.
This comprehensive review will amount to a major overhaul of the legislation and will inevitably take some time to complete. But I can assure Mrs. TAM and Mr. HUI that it will not be unduly delayed.
Question put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
WEIGHTS AND MEASURES BILL 1987
Resumption of debate on Second Reading (10 June 1987)
MR. PETER C. WONG: Sir, I welcome and fully support Government’s move to provide modern and effective legislation on weights and measures. The Bill now before Council is the latest example of government’s efforts to promote fair and orderly trading. It will be welcomed by housewives and shoppers, providing as it does greater protection against those who set out to defraud in one form or another. It will also, I believe, be well received by manufacturers and traders. This Bill, together with the Trade Descriptions Ordinance, will now provide clearer guidance on how to conduct trading and manufacturing business in an orderly and straightforward manner.
Sir, the existing Weights and Measures Ordinance enacted more than 100 years ago and last amended in 1937 is totally inadequate for the complex society in which we now live. The Ordinance is just three and a half pages long, carries maximum penalties of $200 for using or manufacturing false weights and measures, and makes the Commissioner of Police the custodian of sample weights and measures. The present Bill, in contrast, takes a comprehensive approach to the subject. Its English text is 25 pages long and includes three schedules along with provision for regulations. It prescribes maximum penalties
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of six months imprisonment and a $20,000 fine for offences containing an element of fraud. The Bill puts the main responsiblity for implementing and enforcing the legislation in the hands of the Commissioner of Customs and Excise, whose department has considerable expertise and experience in handling offences connected with trade.
The other important difference, Sir, between the present Bill and the one it repeals— and indeed every Bill passed by this Council during the 145 years of its existence—is that the Bill has been drafted and gazetted in both English and Chinese. This afternoon, we are only concerned with the English version of the Bill, since the Chinese version is the first of a series of test runs in the bilingual laws project and is not intended to become law. Nevertheless, this historical step deserves some comment. I shall do so later in my speech.
Sir, the ad hoc group set up to study this Bill is fully in support of Government’s efforts to provide more effective consumer protection. Although the main concept is straightforward, the Bill itself is not. It contains a number of technical and trade-related terminologies which are by no means easy to understand. These, Sir, were carefully examined by the group. One of the group’s tasks was to ensure that legislation designed to deter and penalise dishonest trading would not cause undue hardship or injustice to the honest trader. The group followed certain guiding principles, which reflected our various concerns. The Bill should be easily understood by those subject to its provisions or responsible for enforcing them. Innocent and harmless deviations from some of its less important requirements resulting from ignorance or confusion should be treated leniently.
Finally, Sir, the very thorough and comprehensive provisions of the Bill should not stifle trade and thereby threaten our prosperity by penalising specialised trades which have been using, in a perfectly honest and acceptable way, measures or weights not specified in the Bill.
Sir, our first area of concern has produced a number of textual amendments to the Bill, which I shall move at the Committee stage. Four of the five agreed amendments are intended to make the drafting clearer and more consistent. The Administration, Sir, will also move a number of textual amendments to improve the drafting of the Bill.
Our second concern, that of ensuring that there should be no injustice to the trader, has led us to examine very carefully the powers conferred by the Bill on the enforcement authority and the penalties prescribed. Since it would be very difficult to prove criminal intent in, say, the use of a false or defective weighing machine for trade, we accept that some of the offences in the Bill must carry strict liability. It is worth noting that imprisonment is only available for offences with an element of fraud, that is, where there is an intention to deceive. In order to avoid penalising the honest trader who unwittingly uses established and
1950 HONG KONG LEGISLATIVE COUNCIL-8 July 1987
accepted symbols that are not listed in the schedules, I shall move a Committee stage amendment to clauses 11(1)(a) to make it clear that a person only commits an offence if he uses a symbol or abbreviation of a unit of measurement not specified in the Second Schedule with intent to deceive. This will allow, Sir, among other things, the use of the time-honoured symbol of the apostrophe and double apostrophe to indicate feet and inches respectively where there is no intention to deceive.
Sir, our third concern, that the Bill should not hinder free trade, has been echoed by representations from a local oil company and the Federation of Hong Kong Industries. The oil company maintains that, in accordance with international practice, aeroplane fuel sold at Kai Tak Airport is measured in US gallons. Since the use of US measurements for trade is not authorised by the Bill, the oil company is concerned that unless airport fuel is specifically exempted, oil companies using US measures would be breaking the law. The federation is further concerned that the new legislation might create difficulties for manufacturers using fast-filling equipment to package goods. This equipment sometimes produces slight variations in the net weight of the packed goods. To ensure reasonable and realistic enforcement of the law, the federation argues for clear regulations to be made under clause 37(1) relating to the methods of sampling and the tolerance limits for pre-packed goods. There may well be other practical difficulties in respect of other trades or manufacturing undertakings, which may emerge after the Bill has been enacted.
Sir, these are legitimate concerns and both the group and the Administration have given them serious consideration. Fortunately, the Bill allows for flexibility. There is provision for exemptions of certain goods or classes of goods and for making regulations. In the 12 months between the passing of this Bill and the proposed enforcement of the Bill’s provisions, I am confident that Government will systematically and energetically consult and educate traders and traders’ organisations, listen with understanding to cases for special allowances to be made, and respond sympathetically and positively, and with a degree of flexibility, where a case can be made. In doing this, Government should bear in mind both the interests of the individual consumer and the fact that our prosperity as a community owes much to our policy of minimal interference in trading practices.
Sir, bilingual legislation is a new experience in the Hong Kong context. Our aim is to establish a working procedure whereby bilingual legislation may effectively be passed into law without undue delay and without sacrificing our usual detailed scrutiny of proposed legislation. Since the present Bill is only a test run, we have, as a matter of priority, completed our examination of the English version, which, I hope, will be passed into law this afternoon.
Sir, to the Chinese version, a preliminary study shows that the Chinese text very closely reflects that of the English version. However, the Chinese text is by
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1951
no means perfect and more concerted effort has to be directed towards the linguistic aspect. One simple example is the definition of ‘premises’—
English text—’premises’ means any building, place, stall, vehicle or vessel. Chinese text—‘樓宇’指任何建築物,場所,攤檔,車輛或船隻.
Obvioulsy, the English text is perfectly acceptable, but the Chinese text has raised quite a few eyebrows. It is difficult to envisage that a building could mean a vehicle or a vessel. Sir, we shall have to search for a better translation of the word ‘premises’. There are other examples, but I shall not bother Members with details in my speech.
The group proposes to continue its work during the summer recess and we look forward to useful exchange of views with the Administration. Members will be pleased to know that a refined version of the Chinese text, incorporating the agreed amendments, will be published for public information in due course.
Sir, in conclusion, I would like to congratulate the Legal Department for producing two versions of the Bill, either of which appears to reflect consistently and accurately the provisions contained in the other. This is certainly no mean achievement. Anyone with knowledge of bilingual texts will readily acknowledge that the present exercise cannot be an easy task.
Sir, with these remarks, I support the motion.
MR. CHEONG: Sir, in relation to Hong Kong’s reputation in the international trading community, the use of internationally accepted units of measurement is recognised to be important. In this regard, industry agrees that there is an obvious need to replace the limited and out-dated provisions of the existing Weights and Measures Ordinance by a new one.
Industry supports the spirit of the Bill in regulating trade transactions regarding goods supplied by weight or measure. However, legislation can serve its intended purpose only if compliance and enforcement are made practicable. In this connection, I would like to draw this Council’s attention to some of the practical aspects regarding implementation of the Bill which would need to be resolved before the Bill takes effect.
First of all, the Bill stipulates under clause 16 that goods have to be supplied by net weight or measure. In the case of pre-packed goods, especially where the food industry is concerned, the use of high speed fast-filling equipment may result in unintentional slight variations in the net weight of individual prepacked items. To allow for realistic and practicable enforcement of the law, industry definitely prefers net weight to be interpreted as average net weight within acceptable deviation limits for specified sample sizes. Although clause 37(1) empowers the Governor in Council to make regulations to provide for, inter alia, tolerances for the amount of variation in the net weight of pre-packed goods, permission for the supply for trade of prescribed goods by
1952 HONG KONG LEGISLATIVE COUNCIL-8 July 1987
average quantity, and the methods of statistical sampling and tolerances for classes of goods, such regulations cannot be made until after the enactment of the Bill. while urging for the speedy introduction of such regulations, I fear that in the interim period, consumer complainants’ insistence on taking action in cases of slight weight deviations could bring hardship to manufacturers. I understand that in overseas countries, enforcement authorities of weights and measures legislation usually make allowances for quantity deviations up to a specified tolerance level. I should think that the adoption of similar enforcement guidelines by the Customs and Excise Department and the communication of these guidelines to the trade would be a sensible move.
Secondly, under the existing Ordinance, the use of traditional United States units of measurement is allowed. However, such units of measurements will be excluded from the Second and the Third Schedules of the Bill and their use will thus become illegal in Hong Kong when the new Weights and Measures Ordinance comes into effect. This will render imported goods which are labelled in traditional United States units, even those indicated in parallel with metric units, illegal. To take account of the latter cases, consideration should be given to making the expression of weights and measures in systems of units outside those stipulated under the Bill legal if they are indicated in connection with units of measurement permitted under the Bill.
Thirdly, clause 13(1) makes it an offence for anybody to possess for use for trade any weighing or measuring equipment that indicates units of measurement unauthorised under the Bill. I think it is only reasonable that exemptions should be given to traders who possess measuring equipment calibrated in units other than those authorised under the new Ordinance if the equipment is used to weigh or measure goods intended for export or re-export to places outside Hong Kong where other weights and measures systems are used. For example, at least one oil company is presently using an equipment which is calibrated in United States gallon readings for measuring aviation fuel in the Kai Tak Airport. Similarly, manufacturers or testing laboratories which possess such measuring equipment for quality control or testing purposes should also be exempted from the coverage of this clause.
Fourthly, clause 37(3) states that regulations shall not come into operation before the expiration of three months after they are gazetted. I would like to seek clarification as to whether this clause can be interpreted as the minimum grace period given to the trade. Obviously, manufacturers will have to re-calibrate their measuring equipment or import new ones to meet the required standards. Moreover, account should be taken of the lead time needed for them to make relevant labelling and packaging adjustments. A three months’ grace period would probably be insufficient in most cases. In order to minimise the difficulties posed to the trade, I would suggest that, should any of the regulations be drawn up, the trade should be involved from an early stage of the drafting process and consult the trade on a reasonable time-table for implementing the request.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1953
Lastly, clause 3(2) of the Bill defines the scope of application under the future Ordinance. However, clause 3(2)(b) fails to give a clear definition as to what ‘capacity’ means. It does not indicate whether measurements for energy units such as horsepower or joule will be outside its coverage. Moreover, for certain products, a stated volume or capacity, say, a cubic metre of gas, is not meaningful without relation to a specified temperature and pressure. In the cases where the quantity of goods can be subject to variation by means of controlled adjustments in the temperature or pressure in the manufacturing environment rather than by climatic influences, provisions stipulating the temperature and pressure under which quantity should be measured would be necessary.
In reiterating the industry’s willingness to comply with the provisions of the Bill, I wish to emphasise that its ability to do so is, to a large extent, dependent on whether practical implementational problems can be satisfactorily resolved. I sincerely hope that the above points in my speech would be given due consideration.
Sir, I support the motion.
MRS. CHOW: Sir, I welcome this Bill as a long overdue move to update and modernise weights and measures legislation and in particular to protect consumers from fraudulent or unfair trade practices in connection with quantity. As early as 1975, a working group was set up by Government to review the antiquated Weights and Measures Ordinance originally enacted in 1885, and after continuous rounds of deliberation, with the help of overseas expertise as well as local input including views from the district boards and the Consumer Council, the Administration has at last come up with the Bill before us.
I therefore support wholeheartedly the passage of this Bill, and urge the Government to spare no effort in public education in the next 12 months to ensure that the details and practical application of its content will be clearly understood, especially amongst hawkers and street traders, whose daily dealings are necessarily concerned. Government must take positive steps to make sure that all those affected must be given every opportunity to understand their legal obligation.
The Consumer Council, on its part, is looking into the possibility of installing a calibrated weighing machine in every district advice centre, so that consumers can resort to a dependable standard when they suspect fraudulent trading.
A point on enforcement. While I agree the direct control on weighing devices may be difficult to impose, enforcement staff should have the power to demand a certificate of calibration on instruments which are suspect. The Calibration Laboratory of the Industry Department should be able to handle this with ease. This could serve as an effective deterrent against temptation to tamper with weighing instruments.
Sir, I support the motion.
1954 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 MR. CHEONG-LEEN: Sir, I would like to give my full support to this Bill.
It will replace the existing Ordinance—a very much out-of-date Ordinance— which was first enacted 102 years ago.
The new Weights and Measures Bill 1987 after more than 10 years in the making is now before us as—to use the words of the Secretary for Trade and Industry when he introduced the Bill on 10 June 1987, and I quote—
‘... a modern legal framework to facilitate the orderly conduct of trade, safeguarding the interests of both traders and consumers. It will also enhance Hong Kong’s reputation overseas as a trading community that uses modern, internationally accepted standards’.
As this is the first Bill drafted and gazetted in both English and Chinese, I would urge that the widest possible and sustained publicity be given to the contents of the Bill.
Active co-operation from bodies such as district boards, area committees, MACs, the Urban Council, Regional Council, Consumer Council, commercial and industrial associations, hawker associations, retailer associations and so on, would be most helpful. I have in mind, Sir, the kind of support which was given to the Metrication Committee when it was promoting certain aspects of this Bill. The Urban Council, for example, have agreed to have properly calibrated metric weights put up at a certain number of markets.
A simpler bilingual version of the Bill would also make the contents more digestible.
I am glad to hear of the setting up of some sort of co-ordinating committee under the aegis of the Trade and Industry Branch to ensure that publicity will be sustained and effective before the Bill is finally brought into effect 12 to 18 months from now.
SECRETARY FOR TRADE AND INDUSTRY: Sir, I would like to thank Mr. WONG, Mr. CHEONG, Mrs. CHOW and Mr. CHEONG-LEEN, for their support for this Bill. I would also like to thank members of the ad hoc group for the time spent examining the Bill and for their pertinent and helpful comments on it.
Sir, Members of this Council were advised when the Second Reading of this Bill was moved that a number of clauses would benefit from improved drafting. These amendments, which amount to little more than textual improvements to achieve consistency, will be moved in the Committee stage. In addition, I would like to lend my support to those amendments to be moved by Mr. Peter C. WONG.
Sir, the Government has come across two main criticisms of the Bill since it was published. First, there have been comments that the Bill is somewhat
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1955
technical and difficult to understand. This is accepted, but with a Bill of this nature such criticisms are probably difficult to avoid. To help overcome this problem, the Government will over the next year or so organise appropriate educational publicity to explain the Bill and how it will affect traders and consumers, and we look forward to working closely with the Consumer Council and other organisations.
Secondly, concern has been expressed by certain trading groups that some provisions of the Bill will outlaw their established trading practices. Some of this concern has been reflected by Mr. WONG and Mr. CHEONG. The space of at least 12 months between enactment and the legislation being brought into force is evidence that there is no intention to disrupt trade. I can also confirm that the three months’ grace period for any regulations made under clause 37 is a minimum. The Government is aware that, in a limited number of cases, certain trade practices may need to be exempted from the full rigours of the legislation. Certain clauses already provide for exemption where it is clear that exemption is both necessary and justified. In addition, further exemptions may be allowed by regulations made under clause 37. Any trader or group of traders may seek clarification from the Customs and Excise Department regarding the status of their trade practices, and they may propose that regulations be made to exempt them from the legislation altogether. The onus will be on those affected to make a case that to conform with the legislation would cause undue hardship or difficulty, but careful consideration will be given to any such proposal.
Turning now, Sir, to the points raised on specific clauses in the Bill, I would like to reassure Mr. CHEONG that, in accordance with international practice in the enforcement of weights and measures legislation, the Commissioner of Customs and Excise will permit, by administrative means, a tolerance on net weights or measures for most commodities. Secondly, in circumstances where scheduled units of weight or measurement are used in parallel with non-scheduled units, particularly in the case of certain imported goods, there would be no case for prosecution. Thirdly, as I mentioned earlier, it should be possible to make regulations under clause 37 to enable traders to possess weighing or measuring equipment in respect of non-scheduled units, in order to cover those situations where goods have to be marked in such units for export or re-export. Finally, it is not considered necessary to define ‘capacity’, as the Bill relates to goods and not to units of energy or other services, and the Schedules make clear the context in which the term ‘capacity’ is used in the Bill. Thus, for example, the Bill will cover the correct expression of the weight or volume of gas in a cylinder of LPG, but it is not concerned with the physical properties of that gas and, as I mentioned earlier, there is adequate scope for permitted tolerances up to certain levels.
Question put and agreed to.
Bill read the Second time.
1956 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1). EMPLOYMENT (AMENDMENT) BILL 1987
Resumption of debate on Second Reading (1 July 1987)
Question put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1). 4.42 pm
HIS EXCELLENCY THE PRESIDENT: There is still a good deal on the Order Paper. I am sure that Members will wish to take a break at this point.
5.05 pm
HIS EXCELLENCY THE PRESIDENT: The Council will now resume.
Committee stage of Bills
Council went into Committee.
BROADCASTING AUTHORITY BILL 1987
Clauses 1 to 3,5,7 to 8,10 to 12 and 14 to 17 were agreed to.
Clauses 4,6,9 and 13
MR. ALLEN LEE: Sir, I move that the clauses specified be amended as set out in the paper circulated to Members for the reasons I have explained in my speech.
Proposed amendments
Clause 4
That clause 4(1)(b) be amended by inserting after ‘Hong Kong’ the following— ‘and who have been so resident for at least seven years’.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1957 Clause 6
That clause 6(3) be amended by deleting ‘section’ and substituting the following— ‘Ordinance’.
Clause 9
That clause 9(1)(a) be amended by inserting after sub-paragraph (viii) the following—
‘(viiia) consultation with licensees under section 36A of that Ordinance in respect of the issue of orders under section 35(1) or 36 thereof;’.
Clause 13
That clause 13(3) be amended by deleting ‘and report on the implementation of its decisions and may tender such advice as he thinks fit’ and substituting the following—
‘,tender advice and report on the implementation of its decisions’.
The amendments were agreed to.
Clauses 4,6,9 and 13, as amended, were agreed to.
Schedule was agreed to.
PREVENTION OF BRIBERY (AMENDMENT) BILL 1987
Clauses 1,3 and 5 to 14 were agreed to.
Clauses 2 and 4
MR. PETER C. WONG: Sir, I move that clauses 2 and 4 be amended as set out in the paper circulated to Members for the reasons as explained in my speech.
Proposed amendments
Clause 2
That clause 2(a) be amended in paragraph (c) of the definition of ‘public servant’ by deleting ‘by virtue of the definition of “public body” in this section’.
1958 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 Clause 4
That clause 4 be amended
(a) In new section 12AA(4)(b) by deleting ‘subsequently so acted in relation to the pecuniary resources or property, whether by incurring expenditure or obligations or otherwise,’ and substituting the following—
‘so acted in relation to the pecuniary resources or property’;
(b) in new section 12AA by inserting after subsection (7) the following—
‘(8) An order under subsection (1) may make provision for taking possession of pecuniary resources or property to which the order applies and for the disposal of such resources or property by or on behalf of the Crown.’;
(c) in new section 12AB(1) by deleting ‘14’ and substituting the following— ‘28’;
(d) in new section 12AB(3)—
(i) by inserting before ‘Court of Appeal’ where it first occurs, the
following—
‘court which makes the order or the’; and
(ii) by inserting before ‘Court of Appeal’ where it occurs for the second time, the following—
‘court or the’.
The amendments were agreed to.
Clauses 2 and 4, as amended, were agreed to.
INDEPENDENT COMMISSION AGAINST CORRUPTION(AMENDMENT) BILL 1987
Clauses 1 to 9 were agreed to.
Schedule was agreed to.
SUPREME COURT (AMENDMENT) BILL 1987
Clauses 1 to 45 were agreed to.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1959 PROTECTION OF WOMEN AND JUVENILES (AMENDMENT) BILL 1987 Clauses 1 to 10 were agreed to.
WEIGHTS AND MEASURES BILL 1987
Clauses 1,5 to 10,12 to 15,18 to 20,22,25,29,31,32,34,38 and 39 were agreed to. Clauses 2,3,11,26 and 35
MR. PETER C. WONG: Sir, I move that the clauses specified be amended as set out in the paper circulated under my name to Members for the reasons as explained in my speech.
Proposed amendments
Clause 2
That clause 2 be amended in the definition of ‘quantity’ by deleting ‘weight or mass’ and substituting the following—
‘mass or weight’.
Clause 3
That clause 3(2) be amended in paragraph (b) by deleting ‘weight or mass’ and substituting the following—
‘mass or weight’.
Clause 11
That clause 11(1) be amended
(a) by deleting paragraph (a) and substituting the following—
‘(a) use for trade—
(i) any unit of measurement; or
(ii) with intent to deceive, any symbol or abbreviation of a
unit of measurement,
which is not specified in the Second Schedule;’.
(b) In paragraph (b) by deleting ‘linear, square, cubic, capacity,’ and substituting the following—
‘linear measure, square measure, cubic measure, capacity measure’.
1960 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 Clause 26
That clause 26(3) be amended by deleting ‘seize it and detain it for as long as it is so required’ and substituting the following—
‘seize and detain it’.
Clause 35
That clause 35 be amended by deleting ‘person’ wherever it occurs and substituting the following—
‘public officer’.
The amendments were agreed to.
Clauses 2,3,11,26 and 35, as amended, were agreed to.
Clauses 4,16,17,21,23,24,27,28,30,33 and 35 to 37
SECRETARY FOR TRADE AND INDUSTRY: Sir, I move that the clauses specified be amended as set out in the paper circulated under my name to Members for the reasons given in my speech.
Proposed amendments
Clause 4
That clause 4 be amended by deleting ‘any power, or to perform any function under this Ordinance’ and substituting the following—
‘or perform any function conferred or imposed on the Commissioner or an authorised officer under any provision of this Ordinance except sections 3, 7, 8 and 38’.
Clause 16
That clause 16(1) be amended by deleting ‘shall supply’ and substituting the following—
‘shall in the course of trade supply’.
That clause 16(2) be amended by deleting ‘supply for trade’ and substituting the following—
‘in the course of trade supply’.
Clause 17
That clause 17(1) be amended by deleting ‘who weighs’ and substituting the following—
‘who in the course of trade weighs’.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1961 That clause 17(2) be amended by deleting ‘who sells’ and substituting the following— ‘who in the course of trade sells’.
That clause 17(3) be amended by deleting ‘person sells’ and substituting the following—
‘person in the course of trade sells’.
Clause 21
That clause 21 be amended by deleting ‘who sells’ and substituting the following— ‘who in the course of trade sells’.
Clause 23
That clause 23 be amended by deleting ‘in the course of or for the purposes of supplying any goods for’ and substituting the following—
‘for the purpose of supplying any goods in the course of’.
Clause 24
That clause 24(1) be amended
(a) in paragraph (b) by deleting ‘for’ and substituting the following— ‘in the course of’.
(b) by deleting ‘he may’ and substituting the following—
‘may’.
(c) in sub-paragraph (i) by deleting ‘premises, other’ and substituting the following—
‘premises other’.
Clause 27
That clause 27(1) be amended by deleting ‘or an authorised officer’.
That clause 27(2) be amended by deleting ‘or authorised officer’.
That clause 27(4) be amended by deleting ‘or an authorised officer’ and ‘or authorised officer’.
That clause 27(5) be amended by deleting ‘or an authorised officer’.
1962 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 Clause 28
That clause 28 be amended by deleting ‘section 24’ wherever it occurs and substituting the following—
‘this Ordinance’.
Clause 30
That clause 30(1) be amended in paragraphs (a) and (b) by deleting ‘an authorised officer’ wherever it occurs and substituting the following—
‘the Commissioner or an authorised officer’.
That clause 30(2) be amended by deleting ‘an authorised officer’ and substituting the following—
‘the Commissioner or an authorised officer’.
Clause 33
That clause 33(1) be amended by deleting ‘supplied for trade’ and substituting the following—
‘supplied in the course of trade’.
Clause 35
That clause 35(2) be amended in paragraph (a) by deleting ‘which’ and substituting the following—
‘whom’.
Clause 36
That clause 36(2) be amended
(a) by deleting ‘for supply’;
(b) by deleting ‘supply for trade’ and substituting the following—
‘supply in the course of trade’.
Clause 37
That clause 37(1) be amended in paragraphs (g), (k), (l), (p), (r) and (s) respectively, by deleting ‘for trade’ and substituting the following—
‘in the course of trade’.
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1963 The amendments were agreed to.
Clauses 4,16,17,21,23,24,27,28,30,33 and 35 to 37, as amended, were agreed to. First to Third Schedules were agreed to.
EMPLOYMENT (AMENDMENT) BILL 1987
Clauses 1 to 4 were agreed to.
Council then resumed.
Third Reading of Bills
THE ATTORNEY GENERAL reported that the
INDEPENDENT COMMISSION AGAINST CORRUPTION (AMENDMENT) BILL 1987 SUPREME COURT (AMENDMENT) BILL 1987
PROTECTION OF WOMEN AND JUVENILES (AMENDMENT) BILL 1987 and the EMPLOYMENT (AMENDMENT) BILL 1987
had passed through Committee without amendment and the
BROADCASTING AUTHORITY BILL 1987
PREVENTION OF BRIBERY (AMENDMENT) BILL 1987 and the
WEIGHTS AND MEASURES BILL 1987
had passed through Committee with amendments, and moved the Third Reading of the Bills.
Question put on the Bills and agreed to
.
Bills read the Third time and passed.
1964 HONG KONG LEGISLATIVE COUNCIL-8 July 1987 Member’s Motion
PLACES OF PUBLIC ENTERTAINMENT ORDINANCE
FILM CENSORSHIP REGULATIONS 1987
MR. MARTIN LEE moved the following motion: That the Film Censorship Regulations 1987, published as Legal Notice No. 154 of 1987 and laid on the table of the Legislative Council on 10th June 1987 be amended as follows—
‘In regulation 3A by deleting paragraph (vii)’.
MR. MARTIN LEE: Sir, I move the motion standing in my name on the Order Paper. But first of all, I wish to declare my interest in this matter. I am the President of Studio One, the Film Society of Hong Kong Ltd., but it is a purely honorary position.
This motion is to amend the Film Censorship Regulations 1987 made under the Places of Public Entertainment Ordinance, Chapter 172, by deleting regulation 3A(vii), the effect of which is to revoke the power of the censor to refuse to approve the exhibition of a film when he is of the opinion that the showing of the film in a public place ‘would damage good relations with other territories.’ And for the sake of convenience, I will refer to this paragraph as the ‘good relations clause’ in the rest of my speech.
I intend to divide my speech into three parts dealing with the following matters: (1) why this motion is necessary when the Film Censorship Bill 1987 is still pending;
(2) political censorship of films; and
(3) the incompatibility of the good relations clause with Article 19 of the International Covenant on Civil and Political Rights.
Timing of the motion
Sir, I think that I owe it to my hon. Colleagues in this Council to explain to them why I think it necessary to move this motion to delete what has been called an interim measure when the Film Censorship Bill 1987 is still being considered by the public. My reasons are as follows:
First, this is a matter of principle as it concerns a fundamental freedom, namely, the freedom of expression. I therefore feel that the loss of such a freedom even for one day is one day too many and I urge my hon. Colleagues to ask themselves this question: What will we think if it is suggested that we must surrender one of our basic rights for one week or even one day, for example, the right not to be unlawfully arrested? Will any of us in these circumstances say that as this is only for a short duration, we should not make a fuss about it?
HONG KONG LEGISLATIVE COUNCIL-8 July 1987 1965
Secondly, during one of our earlier ad hoc group meetings with the Administration, I indicated that I would be willing to accept a compromise as an interim measure, that is, if the Administration agreed to restrict the good relations clause to the three exceptions allowed for in Article 19 of that international covenant and relied upon by the Foreign and Commonwealth Office justifying the existence of this particular provision. The relevant part of the FCO opinion reads:
‘Restrictions on the right to freedom of expression, ect. may be justified in the case of particular films on the basis of at least three criteria in Article 19(3). These are:
(i) ‘rights or reputations of others’, which may be relevant in the case of films attacking public figures in another country;
(ii) ‘the protection of national security’ which should be interpreted as covering the security of Hong Kong which may be exposed to either external or externally inspired threat. The degree of such a threat and the need to anticipate such a possibility are matters of perception by the Government concerned; and there is, as I have earlier said, a margin of appreciation.
(iii) ‘the protection of...public order’ would also be available if there was reason to suspect that a particular film could lead to public disturbances or public disquiet leading to disaffection on the part of local public officials.’
My proposal was to add a proviso to regulation 3A(vii) as follows:
‘provided that the censor shall not ban a film or any part thereof unless he is satisfied that the film or any part thereof:
(i) infringes the rights or reputations of others including public figures in other countries; or
(ii) threatens or is likely to threaten the territorial security of Hong Kong’.
This amendment would have taken care of two of the three criteria of the FCO. As for the third criterion, protection of public order, it is separately dealt with under paragraph 8 of regulation 3A, that is, ‘encourage public disorder’. The Secretary for Administrative Services and Information lost no time in telling our ad hoc group that such an amendment would be unacceptable to the Administration, because it would mean that the banning of such a film would be more difficult to defend in a court of law in Hong Kong and more importantly, because the Administration would not like its power of censorship to be limited to the very narrow areas set out in my proviso. I submit that the first point is a thoroughly bad one because we believe in the rule of law and if a power is wrongly exercised by the Administration, then it is in the public interest that such an abuse of power be put right by judicial review. As to the second point, a simple example will illustrate that it, too, is a thoroughly bad one. Suppose I need $3 from a friend in order to buy a MTR ticket and I say to him: ‘May I
1966 HONG KONG LEGISLATIVE COUNCIL-8 July 1987
have your wallet so that I can have $3 to buy myself a ticket? But I must say that once I have your wallet, I will take more than $3.’ Will my friend in these circumstances let me have his wallet?
Sir, I am shocked by the bold stance taken by the Administration. This Council is being asked to allow the power given to the censor to continue, on the basis that it can be justified under Article 19 of the covenant in only three areas, and yet this Council is told that once the power is left intact, it will be applied to other areas not mentioned in Article 19. Is the Administration not insulting the intelligence of Members of this Council?
My third reason for moving an amendment to these interim measures is due to the Administration’s failure to show that the restriction is necessary, principally because of the unlawful exercise by the censor of a power which was never given to him for over 30 years. During this period, many films have been banned on political grounds, with the result that the public cannot judge for themselves what effect these films would have had on our community. If my motion is carried, at least until the Film Censorship Bill 1987 is presented to this Council in a few months’ time, there will be no political censorship of films of Hong Kong. The public can then judge for themselves whether we need a similar provision in the Bill, namely, to ban a film which is ‘seriously prejudicial to good relations to territories outside Hong Kong.’ But if my motion is defeated today, we will never know whether there is a real necessity for it.
Sir, I do not see any danger in suspending such a power for such a time because it is inconceivable that a film which offends this regulation and which is shown in a Causeway Bay or a Hung Hom cinema will bring the People’s Liberation Army to Hong Kong.
For these reasons, Sir, I believe that it is necessary for me to move this motion even during the pendency of the Bill.
Political censorship of films
As we are moving towards 1997, the people of Hong Kong are extremely concerned about any legislation which has a likely effect of infringing any of our freedoms.
We are today concerned with a fundamental freedom, the freedom of expression, which has been enshrined in Article 19 of the International Covenant on Civil and Political Rights, which provides:
‘1. Everyone shall have the right to hold opinions without reference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.
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3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restriction but these shall only be such as are provided by law and are necessary:
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public order, (ordre public), or of public health or morals.’
As we all know, this international covenant has been enshrined in the Sino-British Joint Declaration. No doubt it will also be incorporated into the Basic Law.
It is important to bear in mind that freedom of expression constitutes one of the essential foundations of a free society and one of the basic conditions for its progress and for each individual’s self-fulfilment. It applies, not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no true free society.
In this regard I wish to pose the following questions for my hon. Colleagues’ consideration:
(1) Do we really need political censorship of films today?
(2) If we allow political censorship of films to exist today, what safeguard can there be that political censorship will not in the future be extended to cover television, theatre, as well as the print media?
Sir, we must guard against starting a bad precedent which may well be followed in a few years to come. If one freedom is lost today, no other freedom is safe in the future.
And in this regard, may I refer to a letter to the Editor of the South China Morning Post, published today by Dr. JAYAWICKRAMA, otherwise affectionately known to his law students as Dr. J, a law lecturer of the University of Hong Kong. In this letter he refers to the Administration’s reliance on the fact that a similar restriction exists in other countries. One of these countries is Sri Lanka. Dr. J says:
‘It is interesting to note that Sri Lanka has progressed beyond the stage of political censorship of films. Apart from the fact that the major national newspaper group is by law under government control and pre-publication censorship of news and comment is commonplace, it is now a criminal offence in that country, punishable with imprisonment, to make a statement which is defamatory in nature concerning the conduct of a member of parliament, or which brings the president into contempt, or which attempts to excite feelings of disaffection for the Government. The snowballing Sri Lanka experience,
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with which I can claim a special familiarity, should alert Hong Kong’s legislators to the dangers inherent in the proposal to take the seemingly innocuous first step of legitimising political censorship of one medium of expression.’
Dr. J ought to know—he hails from Sri Lanka—indeed he was once the Acting Attorney General of Sri Lanka in 1970; and from 1970-77, he was the Permanent Secretary, Ministry of Justice, in Sri Lanka.
Please let us take heed and learn from the example of Sri Lanka.
Incompatibility of the good relations clause with Article 19 of the International Covenant for Civil and Political Rights
It is for the Administration to show that the good relations clause is necessary before it can be allowed to exist as an exception to the freedom of expression under the said Article 19. And in this respect, I must emphasise that the general rule is the protection of the freedom and that its restrictions are only exceptions. The restrictions therefore may not be applied in a way that completely suppresses the freedom.
In this context the word ‘necessary’ does not mean useful, reasonable or desirable. The leading cases in this respect all show that no matter how useful, reasonable or desirable a particular restriction is in the view of the government concerned, it will be considered to be an infringement of the said Article 19 unless it has been established that there is ‘a pressing social need’ for it. I repeat, ‘a pressing social need’ for it.
Further, the leading cases demonstrate that the reasons given to justify a restriction must be relevant and sufficient, in other words, not mere speculation. Up to now, we have not been given any good or sufficient reason by the Administration as to the necessity of such a provision, namely, that there is a pressing social need for it.
It is also well-established in the leading cases that all exception clauses must be strictly interpreted and no other criteria than those mentioned in the clause itself may be the basis of restrictions on the right protected.
Sir, while it is perfectly true that the contracting state does enjoy a certain ‘margin of appreciation’ or discretion in deciding whether a particular restriction should be imposed, the leading cases show this margin of appreciation or discretion is certainly not unlimited in scope and that it will depend on the nature of the restriction in question. For example, the contracting state will be allowed a wider margin of discretion in imposing restrictions on moral grounds than on political grounds.
Sir, it has been suggested that Hong Kong is in a very unique position and that we are so close to China as well as Taiwan and that if there is no political
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censorship of films, then a number of political films will be produced, not for the purposes of profit but for the purposes of advancing the political objects of a particular government, thus causing instability to Hong Kong.
Sir, I must say that such a scenario is possible, but I am not at all convinced that it is likely; and in the absence of any concrete evidence produced by the Administration, the suggestion is merely speculative and certainly does not fulfill the test laid down by the authorities, namely, that the reasons must be relevant and sufficient.
We must not forget that the people of Hong Kong are entirely free to go or not to go to a particular cinema and watch a particular political film; and most people believe that political films will not attract a large audience. Is it, therefore, conceivable that the exhibition of one or more political films will really bring about instability in Hong Kong?
Two nights ago, more than 10 Members of this Council saw two films at the private cinema of Sir Run Run SHAW. As a matter of fact, all the non-government Members of this Council had been invited. The films were entitled, ‘The Coldest Winter in Peking’ and ‘If I were for real.’ Both were produced in Taiwan and both use life within the PRC as their setting. These two films were shown because I had been told by the Chief Censor that of all the 11 political films banned out of consideration of China, these were considered to be the worst, that is, they deserved banning more than any other film.
Having seen them, I cannot understand why they have been banned. I do not believe that any of us leaving the Shaw Studio bore any feeling of animosity towards the PRC, the Chinese Communist Party or the people of China. Sir, it is a great pity that the people of Hong Kong are unable to see these films. I completely fail to see how each of these two films can be said to damage the good relations with the PRC. Indeed, it may be thought by the people of Hong Kong, rightly or wrongly, that it is the PRC Government that does not wish them to see these films and it would put China in an unfavourable light with the people of Hong Kong. And during this transitional period, our Administration must not second guess China and ban a film merely because it thinks that China would be embarrassed by its exhibition in Hong Kong.
The Administration sought to justify this provision by relying on a legal opinion given by the Legal Adviser of the Foreign and Commonwealth Office, the most relevant part of which I have already read. I must however sound a word of warning here because the track record of the United Kingdom Government itself before the European Court of Human Rights is not very reassuring in that since 1967, of a total of 27 cases submitted to the European Court of Human Rights by the European Human Rights Commission, judgment was given against the United Kingdom Government in 14 of them whilst six are still pending.
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In relation to the two films which we saw, neither constituted an attack upon the reputation of public figures in the PRC as the principal characters were all fictional: nor do they expose Hong Kong ‘to an external or externally-inspired threat’ from the PRC. It is really stretching one’s imagination too far to say that if these films were shown in a Causeway Bay or Sham Shui Po cinema, or if a series of them were to be shown in Hong Kong, the PRC would be provoked to such an extent that she would send her army to attack Hong Kong. Indeed, Sir, I submit this is a ridiculous and fanciful suggestion, even though allowing for a certain ‘margin of appreciation’—particularly after the signing of the Sino-British Joint Declaration.
Nor can it be argued that the exhibition of either of these films ‘could lead to public disturbance or public disquiet leading to disaffection on the part of local public officials’. After all, the learned Attorney General saw the first film and will in due course demonstrate his loyalty to the Administration by speaking against this motion.
Sir, of course, we have been only two of these 11 banned films; but since we saw the worst two, I am confident that there would be even less excuse in banning the other nine.
Sir, the PRC is pursuing an open policy. The horrors of the Cultural Revolution which were depicted so vividly in ‘The Coldest Winter in Peking’ have been openly condemned in China for the past 10 years. The abuses of privileges enjoyed by some top party cadres and their children which were so well exposed in ‘If I were for real’ have likewise been condemned by the Chinese Communist Party in recent years. Sir, against this background, is it being suggested by the Administration that the PRC is so bankrupt in self-confidence that she would not allow the people of Hong Kong to be told about the dark years of the Cultural Revolution or the excesses of some of her cadres? By second guessing the PRC, does the Administration realise that it is unwittingly putting the PRC in a very unfavourable light with the people of Hong Kong?
Sir, the issue before this Council today is not whether the public should have a wider choice of films to see, for most people in Hong Kong would not mind if that choice is somewhat narrowed down. But it concerns a much/wider principle—the pre-publication censorship of films. Before this Council votes on the motion, it is important to ask ourselves these questions: Where are we going from here? Are we going forward towards a government with a high degree of autonomy or are we entering an era when a nod or a shake of the head from someone in the New China News Agency will decide what the people of Hong Kong may or may not see?
Further, once we allow pre-publication censorship in films, there is no way to arrest the tide of political censorship from overflowing to the theatre, television and to the print media.
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We have seen what happened in Sri Lanka. Let us stop it from happening in Hong Kong.
Sir, I beg to move.
ATTORNEY GENERAL: Sir, I should like to intervene at this stage of the debate to deal with the matters of law that Mr. Martin LEE has raised. Others, including my friend the Chief Secretary, will deal with the more general arguments that have been advanced and the political considerations that justify the regulations in the form in which they have been tabled. Members will wish no doubt to have early assurance from the Government that these regulations do not breach international law in that form.
Sir, I am sure all Members appreciate the trouble that Mr. Martin LEE has taken over this matter. It is now some three months since Dr. J at the Hong Kong University, if I may so refer to him, suggested that the form of legislation proposed in the White Bill was not compatible with Article 19 of the International Covenant on Civil and Political Rights. Mr. Martin LEE has demonstrated his own concern by arranging to obtain a legal opinion on the point from a leading academic writer, Dr. Eric BARENDT.
Sir, the question that is raised in this debate is not whether any restrictions can lawfully be placed upon the enjoyment of those rights because Article 19 itself sets out the restrictions permitted by international law. The question is whether the proposed power to restrict the exhibition of films could fairly be regarded as falling within the scope of the restrictions permitted by Article 19.
The question whether a particular course of action provided by legislation is consistent with Her Majesty’s Government’s obligations under international law, is a matter for Her Majesty’s Government in the United Kingdom. If there were a breach of the covenant in Hong Kong, it would be Her Majesty’s Government who would have to answer for it in the committee of the United Nations that is responsible for monitoring adherence to international covenants and for determining whether there have been departures from its obligations.
All the arguments that have been raised in Hong Kong, including Dr. BARENDT’s opinion, have therefore been referred to the Foreign and Commonwealth Office by my chambers and considered by their lawyers and experts in this field.
Members will have seen perhaps two documents put into circulation by my chambers which set out in some detail the view taken by the Administration on the legal issues in the light of the advice we have received from the Foreign and Commonwealth Office as well as comments on the arguments deployed by Dr. BARENDT. I commend them to this Council as the basis for my assurance on behalf of the Administration that these regulations will not lead to any breach of the United Kingdom’s obligations under the International Covenant on Civil and Political Rights.
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Sir, I think it might damage my good relations with Members of this Council if I were to address them as if they were a body of judges. The sound of the clash of counsels’ opinions tends to excite lawyers, but it also tends to weary those who prefer to look for the good sense of a matter and for a reasonable assurance of legality.
Let me try to put the matter very shortly for it is in essence quite straight-forward. First, the rights in Article 19 to express views and the right to receive them in the form of films or otherwise can never be absolute, can never be unlimited. They are ordinarily restricted in law in a variety of ways that are freely accepted, for example, to protect the interests of others, as in the law of libel or copyright, or to protect the interests of the community as a whole as in the law of sedition or in the case of obscenity. Such restrictions are clearly contemplated by Article 19.
Next, Article 19 lays down three criteria for the restrictions which it permits. The first of these is that they must be provided by law and that is clearly satisfied; we are debating a restriction which will have effect under regulations that will have the force of law if this Council rejects the motion proposed by Mr. Martin LEE.
The second of these is that the restrictions imposed must serve the purposes mentioned in Article 19. These include, respect of the rights or the reputations of others and protection of national security or of public order, otherwise interpreted as ordre public. Sir, it is the considered view of the Administration, based on the advice we have received that if the censor were to ban a film that the censor thought likely to damage good relations with other territories and therefore warranted restriction, his decision would fall within the scope of those purposes. Their ambit is quite wide. In particular the concept of ordre public, and I think Mr. Martin LEE perhaps failed to take account of this point. Ordre public is not a concept with which lawyers in the common law tradition are familiar. It is much wider than the English term, public order, which he has used. Dr. BARENDT suggests that it is perhaps synonomous with public policy or the national interest. One could not dispute his view that is has a wide meaning, somewhat elusive to capture in the English or indeed in the Chinese language.
Sir, I would stress the point made in the document circulated to Members, particularly because of the way in which Mr. Martin LEE has held the regulations up against the requirements of the covenants, that it is these regulations or the prospective Bill that can be called into question as breaches of international law. A breach could only arise if someone is denied the right to express his views or the right to receive views and whether at that point the censor’s decision would violate the United Kingdom’s obligations under international law, will naturally depend upon the particular circumstances of that case. All that one can say at this stage is that a censor who conscientiously
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decided that a film or a particular series of films could not be shown without damaging good relations with other territories would be acting within the scope of the restrictions permitted by the covenant.
Sir, the third of the criteria in the covenant relates to necessity. The restrictions must be necessary to achieve the purposes that are permitted. Necessary. I agree it is not enough as Mr. Martin LEE said merely to show that they would be useful or desirable. But it doesn’t have to be shown to be indispensable. They must be necessary. Here again there is scope for different views. Some might argue that there ought to be some universal test which strikes a constant balance between individual rights on the one hand and their restrictions on the other. But this, Sir, is not the way of the world. A concept such as the needs of national security in public policy vary from place to place, and from community to community. And so with the consequent necessity for restrictions upon the rights of the individual. And Members will not be surprised to find that a sensitive approach to this test, this judgment of necessity, has been adopted in a number of cases. It has been recognised that a contracting state has a margin of appreciation as to whether it is necessary to apply an authorised restriction, and if it is, how far it needs to go to reflect its assessment of the need.
I think Dr. BARENDT has acknowledged the validity of this approach and indeed Mr. Martin LEE acknowledged it too. But Dr. BARENDT went on to suggest that if a state believes it necessary to restrict the right of self-expression for a particular purpose, then a restriction on films could only be justified if it can be shown that similar restrictions have been imposed on the right of expression across the board in the media. But, Sir, it is our considered opinion that this view is not correct in law, and in particular that it is at variance with the decision known as the Handyside case, which is referred to in our comments on Dr. BARENDT’s opinion, which illustrates how a community may properly deem it necessary to restrict an offensive publication in particular ways short of a total ban. So the fact that Hong Kong provides this form of censorship for the exhibition of films only would not undermine the case that the restriction was in comformity with Article 19. That is Hong Kong’s appreciation of the special needs and the circumstances of this Territority.
Sir, I do not propose to take up time pointing to other communities which have similar powers of censorship to prevent damage to relations with other states or offence to their peoples. Examples have been given in our comments on Dr. BARENDT’s opinion. Some of these have been in statutory form, sometimes in a voluntary code. Some are now in force and some have been repealed. It is sufficient to remark however that Hong Kong is not unique in seeking to use powers of censorship to prevent damage to its relations with other territories and so far as our researches go, no one, no one has previously sought to make the case that Article 19 would be infringed by censorship for such a purpose.
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Sir, to be fair to Dr. BARENDT, I do not think he takes up a dogmatic stand. He has recognised that Hong Kong’s position at the moment is one that has to be treated with some sensitivity. He said in a broadcast interview on the 25 June that it is possible that the Courts of Human Rights would take a sympathetic view of the position of the Hong Kong Government and has readily conceded that there is a lot to be said for the case that I have presented. I mention that, not to suggest that Dr. BARENDT’s view is to be discounted or that he is not himself convinced of his point of view. But it shows that these are matters on which even experts in the field are forced to acknowledge the difficulties of a cut and dried judgment, given the very few cases that have been the subject of detailed analysis and the need in each particular case to focus on the element of local necessity.
I would like Members to reflect on the essence of the stance that the critics have taken up. Mr. Martin LEE would seem to take up the position that there should be no censorship of films on what he calls political grounds or putting it in the form appropriate to the present debate, on the ground that the showing of a film could seriously prejudice or damage good relations with other countries. He would go so far as to argue, so I follow his position, that films that are blatantly hostile to an overseas government or the morals or culture of another sovereign state, must be permitted to be shown in a territory that adheres to the international covenants, at least up to the point when their exhibition provokes an army sent to attack or public disturbances to take his particular examples.
Sir, it would seem to me odd if that were the result of an international covenant of this kind. It is, after all, an agreement between sovereign states who come together in an honourable accord, promising to enforce individual rights in their respective territories. The basis of international law is the comity of nations, their desire to live peaceably together and to diminish the scope for hostility or international recriminations. It would therefore be surprising to find that they have bound themselves by agreement to tolerate in their respective territories, attacks upon each other of a blatantly propagandist or hostile character.
The point I make is that good relations between territories is the fundamental basis of all international law and I should doubt whether the acceptance of the right of film-makers to express ideas is intended to be carried so far as to enable those good relations to be undermined by means of political propaganda that is likely to cause offence in overseas territories.
Of course, a balance has to be maintained and that is the approach of these regulations which give to a censor a discretion, for he may not disapprove a film for exhibition unless in his considered opinion there is a likelihood that its showing in a public place would damage good relations with other territories. In that way, the balance is struck between individual rights on the one hand and the need to maintain public order, security and the interests of the community on the other. Political responsibility for ensuring that the balance is
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correctly struck here in Hong Kong, lies with the Government of Hong Kong and ultimately on the power responsible for Hong Kong’s foreign relations, with the United Kingdom Government. Their position on the matter is clear and I hope I have made it plain, Sir, that the position of both Administrations on this point is not only clear but also well justified in terms of international law.
Mr. Martin LEE’s arguments, Sir, in my submission, do not demonstrate that the regulations which are now in question would be any breach of international law. I invite Members of this Council to approve these regulations without amendment, not only for good legal reasons, but because they represent good common sense.
DR. HO: Sir, the question as to whether or not the good relations clause of the Film Censorship Regulations contravenes the International Covenant on Civil and Political Rights is best assessed by reference to the legal opinion of the Foreign and Commonwealth Office, because the United Kingdom being a signatory to the international covenant will have the obligation to defend any allegation of breach. The opinion of FCO is that the good relations clause is not inconsistent with or in violation of the international covenant.
The European Court of Human Rights and the Human Rights Commission have ruled in previous decided cases that a state is entitled to a margin of appreciation and is permitted to take into account the particular circumstances in determining what is necessary for achieving certain goals, considered essential for the peaceful function of the community. Given its extreme vulnerability to external influences, Hong Kong must maintain cordial relationships with other territories or countries, in order to sustain its economic and political stability. The right to freedom of expression is not an absolute right. It is subject to certain restrictions and must have proper regard to public interests. Public interest must override sectarian interests. Comparable provisions on film censorship on good relations grounds do exist in other countries which are party to the covenant.
Sir, the Television Ordinance Cap. 52, a provision requires that all film material intended for broadcasting shall be subject to the scrutiny and approval by a panel of censors established under the Film Censorship Regulations. Thus banning a film for exhibition in a cinema will result in its ban on television. In view of the pervasive influence of television, the absence of censorship restrictions on good relations grounds in the press and the other forms of media should not lead to an argument against the necessity of similar restrictions on film and television, as implied by Professor BARENDT, on whose opinion Mr. Martin LEE in part relied when moving his resolution in this Council.
Sir, in my view, once the Legislative Council is satisfied that a certain piece of legislation is necessary for attaining specified social goals and is not incompatible with an international covenant, he should assess the law with the greatest interest of the community, not sectarian interests in mind. I had an opportunity
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to view one of the films mentioned by Mr. Martin LEE. Whether the contents of the film ‘The Coldest Winter in Beijing’ would be construed as provocative and offensive to the country to which the film refers is a matter for that country to judge. Perceptions and reactions are quite subjective, Sir. The censors must act cautiously and prudently when accepting a film of this sensitive nature in order not to prejudice our good relations with other countries. However, if a film distributor is aggrieved with the decisions of the censors, he can resort to the provision in the Film Censorship Regulations which provides for appeals to a board of review. On these grounds, Sir, I oppose the resolution moved by Mr. Martin LEE.
MR. CHEONG: Sir, the Film Censorship Regulations 1987 were introduced into this Council under very unfortunate circumstances.
If they were introduced prior to the Sino-British negotiations, I dare say hardly a murmur would have been raised. What seems to be a refinement and improvement of existing regulations and guidelines has somehow been cleverly used by some as a tool in their efforts to continuously sow seeds of distrust of the Administration in Hong Kong. In the midst of the newsworthy furore that has been created, the fact that the old regulations and the guidelines have been in smooth operation for over 13 years has been completely overlooked. More importantly, the ironic part is that those who vehemently oppose regulation 3A(vii) or the good relations clause of the new regulations have conveniently overlooked the fact that there was apparently no serious complaints lodged against the actual administration of the old regulations and guidelines throughout the years. The film industry accepted them, the theatre operators accepted them and the majority of the people of Hong Kong accepted them. In fact, all available evidence points to the fact that hardly anyone in Hong Kong had complained in the past 13 years about the regulations and guidelines having the effect of suppressing freedom of expression in Hong Kong.
Why is there a sudden change of attitude? Some have reasoned that they can most probably trust the Administration under the British flag, but they do have serious reservations about the Administration after 1997, for it is feared that it could then indiscriminately apply such censorship regulations to suppress freedom of expression in Hong Kong. Hence, the question of whether regulation 3A(vii) would contravene the International Covenant on Civil and Political Rights becomes a tool in a bid to influence this legislature, to erase certain provisions of the new regulations which, as perceived by some, will surely be misused after 1997.
It is perhaps understandable, or even natural, for some of us to have reservations about the situation after 1997. However, it will be disastrous for the future of Hong Kong if we were to take on every issue only with the attitude of unmovable distrust whilst shunting off the value of objective pragmatic analysis of the issues involved.
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Sir, the interim measures recently introduced were unanimously accepted by all but a handful of my hon. Colleagues. These handful of my hon. Colleagues specifically declared in the in-house meeting that they only wished to reserve their position until a later date. Prior to the introduction of the interim measures, as a member of the ad hoc group set up to study the issue of film classification and censorship, I can recall that the question of possible legal contravention of the international covenant has already been raised. The FCO legal analysis was already available to us. The unique circumstances of Hong Kong that necessitate the Administration to have a stopper on films that might inflict damage to Hong Kong’s stability and prosperity were also known to us. Whilst I recognise that each and every one of us has the right to accept or not to accept the Administration’s arguments, the hon. Martin LEE’s sceptism on the intentions of the Administration in general and in particular the FCO’s opinion were also made known to us. Thus, the group did not come to the decision lightly in recommending the interim measures to other hon. Colleagues of this Council. It has done so after a lot of work, deliberation, as well as thought, by Members.
6.00 pm
HIS EXCELLENCY THE PRESIDENT: It is now six o’clock. Under Standing Order 8(2), the Council ought now be adjourned.
CHIEF SECRETARY: Sir, with your consent, I move that Standing Order 8(2) should be suspended so as to allow the Council’s business this afternoon to be concluded.
Question put and agreed to.
MR. CHEONG: Sir, I am grateful for the opportunity to pause for a moment. [laughter] To illustrate this point further, it is perhaps fitting to be made known that an urgent late afternoon meeting of the ad hoc group was called specifically to discuss the legal opinions of both FCO and Mr. BARENDT as soon as they were received, because all the members of the ad hoc group were very concerned that there would have been any contravention whatsoever of the covenant which is enshrined in the Joint Declaration. As the meeting was long and technical it would not serve any useful purpose to go into details of the discussions now, but what is important is that there seems to be a concensus of understanding reached at least amongst the majority of non-lawyer members of the group, and the concensus is that the two seemingly different legal opinions represent different angles of emphasis and different approaches in the interpretation of the new regulations vis-a-vis the violation or otherwise of the international covenant. No clear cut case, sir, has been or can be established beyond doubt as to which approach is the only right approach. Under that circumstances, in having to exercise judgment on this issue, we can only be guided by our own perception of what is and what is not in the best interests of Hong Kong as a whole.
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Sir, as I mentioned before, the question of whether the interim measures or indeed the new regulations, if adopted, would contravene the provisions of the international covenant seems to me to be no more than a tool deployed to consolidate, or perhaps even to propagate one’s own distrust of the post-1997 Administration. This approach, in my view, is not in the best interests for Hong Kong’s future. Too deep-seated a distrust could easily lead to unwarranted imaginations and suspicions which in turn would create unnecessary barriers to smooth solutions of any future differences of opinion between Hong Kong and the sovereign state.
No one would deny that in the post-1997 era of Hong Kong, there will be differences of opinion over many issues between Hong Kong and the central authority of the sovereign state. These problems have got to be addressed and resolved, yet we must ask ourselves what is the best way of solving such problems. Should it be through mistrust, suspicion and open confrontation, or should it be through sincere, frank yet firm and skillful negotiations? In my humble opinion, Sir, the motion proposed this afternoon, if adopted, would run a great risk of leading Hong Kong down a path of open confrontation. This approach is certainly not conducive to Hong Kong’s future stability and prosperity. And I therefore have no hestitation in opposing the motion.
Last but not least, Sir, I was one of the 10 who attended the private showing on Monday. My conclusion, unfortunately, was the opposite to that drawn by the hon. Martin LEE. Mr. LEE repeatedly stated that PRC would not send in armies, even if these two films were shown. Maybe they will not. But would it be our assessment, as responsible councillors, that the people of Hong Kong would wish to run even the slightest risk of military interference? The films, in my opinion, could well depict some grains of truth in the chaotic years of the Cultural Revolution. Yet, given nearly everyone in Hong Kong has reservations, and perhaps even fears, about PRC the subtle message that the films carry could well be instrumental in confusing the audience into thinking, or even believing that what is depicted in the films is what the general situation was, or may be even is, inside China today. This would certainly increase and propagate ones own fears and misunderstanding of the PRC. Is this really good for Hong Kong as a whole? Would this enhance our stability? I really wonder. I wonder how it would do good to the Hong Kong people, especially those who cannot leave or do not wish to leave by 1997, through the installation of more fears and more distrust on China.
Sir, Hong Kong faces a lot of problems in the years to come. We simply cannot hope to arrive at sensible solutions through the routes of distrust, suspicion and open confrontation.
MR. CHAN YING-LUN (in Cantonese): Sir, I believe that regulation 3A(vii), that is the clause on damage to good relationship between Hong Kong and other countries is a diplomatic issue and not an issue of freedom of expression. If we agree that we should censor films on moral grounds, then we should also agree
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that films should be censored on diplomatic grounds. One of the chief contributing factors to our stability inprosperity is our good relationship with other countries and so how can we allow Hong Kong to become a diplomatic battlefield?
In the past, 18 films have been banned because of the reasons mentioned, that is, they are causing damage to good relationship between Hong Kong and other countries. Most of these films are produced in foreign countries and I think they should be subject to restrictions. Foreign producers can enjoy entire freedom of producing any films they like, but if they want to show these films to Hong Kong, in Hong Kong, I think they should be subject to our censorship regulations, in particular regulation 3A(vii).
As I said before, this is chiefly a diplomatic question and not an issue on freedom of expression. I think the film makers have been enjoying freedom of expression all along and I believe that they will enjoy the same freedom in future, and so I hope that our film industry will take regulation 3A(vii) as a provision to ensure our good relationship with other countries and not a measure to suppress freedom of expression in Hong Kong.
Sir, I oppose the motion.
MRS. FAN (in Cantonese): Sir, Mr. Martin LEE proposes the deletion from the Film Censorship Regulations the clause concerning films which will damage the good relations with other territories. His reasons have to do with the legal opinion that the provision would contravene the International Covenant on Civil and Political Rights, and that it infringes the principle of freedom of expression. I respect Mr. LEE’s opinions but I hold a different view.
I would like to stress that the 1987 Film Censorship Bill is still in the consultative stage. In other words, whether the provision would be retained or in what form it would be retained has yet to be decided. Therefore, if we are to delete the provision of ‘damaging good relations’, we are, in fact, coming to a decision before the consultative exercise is over. This contravenes the spirit of consultation. Besides, it is debatable as to why we are in such a hurry to delete this clause. The existing regulation is only an interim measure. What we are doing is, in fact, converting the former film censorship standard into regulation in order to eliminate the doubts over the legal status of the practice of film censorship. As a matter of fact, existing regulation is exactly the same as measures adopted in the past, and the purpose of so doing is to avoid unnecessary confusion during the interim period. Therefore in my opinion, there is really no need to amend the interim regulation, nor is it appropriate. Why is there such urgency and necessity to propose the deletion of that clause immediately? Mr. LEE explained that this particular clause violates the international covenant on freedom of expression, so it cannot be allowed to remain on the law books for even one day. He also compared this clause to ‘illegal detention’. I must say this is a bit of overstatement. In fact, these regulations had already come into effect a few weeks ago, and in the interim we had a number of meetings of this Council. Mr. LEE is raising the
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motion today, does this indicate that there is no urgency in the matter? Or does it appear that Mr. LEE is a very tolerant person so he was able to tolerate the situation for 20 odd days. Anyway, I thank Mr. LEE for raising this motion today, thus giving me an opportunity to express my views on political censorship before the debate on the Film Censorship Bill takes place. Sir, hon. Colleagues, we can regard this debate as a preview to the later debate.
I do not refute the importance of freedom of expression, thoughts and creativity. As a matter of fact, I treasure very much the freedom we are already enjoying, and because of this, I would like to urge the Government to give an assurance not to extend political censorship to publications, television and drama.
In order not to damage our good relations with other territories, we have been banning the public exhibition of some films. This has been the practice in Hong Kong for some time. And so I feel that when one is considering abandoning such practice to strive for more freedom, Hong Kong’s realistic situation must be borne in mind. Hong Kong is a trading centre. We need to maintain very good relationships with other countries so as to foster trade. Therefore we must avoid getting ourselves involved in controversy involving political ideologies. And because of this, if there are films which over exaggerates the negative aspects of another with the aim of criticising and discrediting that country, those films should be banned. Internally, Hong Kong is densely populated and our citizens should work together in full co-operation. What we need is stability. We have no intention of becoming victims of political struggle. If we are to ban political censorship we will gain the applause from people in the film industry as well as the general public. However, the deletion of the provision might enable some people to make use of films to achieve political and economic goals. And this move might cause Hong Kong to be a forum for political struggle between foreign influences. It might also place Hong Kong in political turmoil thereby damaging our good relations with other countries and affecting our trade and economy. So, is it really worth it, we need to think it over.
During the 14 years between April 1973 and March 1987, a total of 9 887 films have been shown in Hong Kong. During the same period, only 21 films were banned on political grounds, and 18 films were banned on the basis of damaging good relations with other territories. The ratio is in fact two to one thousand. Under such circumstances, would the members of the public be willing to take the risk of damaging Hong Kong’s economic prosperity and social stability in exchange for a little bit more freedom which is not very significant? I am sure people would weigh the pros and cons, and make a sensible decision ultimately.
Some people mentioned that political censorship is to please China, and make it easy to exercise more control over the freedom of expression after 1997. Is this really true? Of the 18 films I mentioned, there was one produced in China. How then would this please China? There were also four other films which were produced in communist countries. Their criticisms were not directed at China,
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but at another country which has a close trading relations with Hong Kong. To illustrate my point more clearly, I have attached a list of the 18 films including the places of production as well as the countries which these films were aiming at for Members’ reference.
From this, it is noted that the purpose of political censorship is to protect Hong Kong so that the territory would not be affected by unnecessary political struggle. This is so now and it has been so in the past. Our community places a lot of importance on social stability and we do not want to lose a ship for a half penny worth of tar. We cannot just talk about principle and overlook the realistic situation and we have got to avoid getting ourselves involved in unnecessary political struggle. What we want in future regarding political censorship will be decided when the Film Censorship Ordinance is enacted. Today, and the consultative period ahead, we must watch out for specious comments, avoid being affected by the ‘1997 syndrome’ as well as ‘conspiracy complex’. To imagine that there is a snake in your cup just because of a shadow over the cup is negative and unnecessary, and it will do Hong Kong no good.
Sir, having said this I oppose the motion.
MR. YEUNG (in Cantonese): Sir, the Legislative Council in-house meeting endorsed a replacement of paragraph 5 of the Film Censorship Standards with a set of regulations as an interim measure before the Film Censorship Bill comes into effect at the end of May. The meeting also agree that this will only be a temporary measure and the Film Censorship Regulations 1987 were gazetted on 5 June this year by the Administration. As an interim measure, before the enactment of the Film Censorship Bill, the Administration also pointed out that the provisions of the Bill will not be affected by the regulations and the regulations will be revoked upon the enactment of the Bill. Up till today, we are still in the consultative period.
Mr. LEE raises a motion that regulation 3A(vii) should be deleted from the regulation. The provision stipulates that unless in the considered opinion of the censor that the showing of a film in a public place would damage good relations with other territories, otherwise he must not exercise authority to ban or excise the film. Under normal circumstances, this provision will give rise to two different sets of opinions. One view is that we are enjoying less and less freedom during the transition period. Hong Kong is becoming more political. It is not possible to subdue films on politics. Another view is that for the past several decades, Hong Kong has been enjoying political stability and this is beneficial to economic prosperity. And in fact, all along, we have political censorship. This is nothing new. Maintaining a good relationship with other territories will facilitate the smooth administration of Hong Kong and during the sensitive transitional period we should avoid political disturbance. As a matter of fact, since 1973, a total of 18 films have been banned for reasons that they would damage good relations with other territories. Eight of these films were produced in Taiwan, three in Hong Kong, one in China and three in North Vietnam. There
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are also films produced in Italy, France as well as a joint production between Japan and USSR. And the themes of these banned films vary. Some of them might involve political propaganda, others were anti-Communist or politically sensitive. These films might arouse radical reaction among the audience, or perhaps the country concerned might not favour Hong Kong showing these films. Therefore, when weighing these factors the Administration must exercise caution, bearing in mind the different nature, situation and timing involved when making a decision. Before coming to the decision, TELA should consult government departments concerned and to ensure that the showing of a film will be harmful to Hong Kong. In view of the fact that Hong Kong’s external economic relations are of vital importance to us, the Administration must not allow the showing of a film which bring tension to, or which damages our relations with other territories because in the final analysis, the loss will outweigh the gain. We must appreciate that communist as well as the democratic countries are all our trading partners. They should be treated the same as far as co-operation is concerned. This is a fact and this is also the most important factor in maintaining the Territory’s stability and prosperity. With this in mind we should avoid showing films which might bring unnecessary political controversy.
Sir, argument does not confine to the contents of the films. There are differences of opinions on legal interpretation. The compatability of regulation 3(A)(vii) of the Film Censorship Regulations with Article 19 of the International Covenant on Civil and Political Rights is a good example. According to the Foreign and Commonwealth Office, the regulation will not contravene Article 19 of the international covenant. Human rights expert Prof. Eric BARENDT of Oxford University makes two assumptions under the laws of Hong Kong. First, there are no provisions similar to regulation 3A(vii) of the Film Censorship Regulations which applies to other mass media such as newspaper and drama. Second, there are no provisions in our criminal law making it an offence to damage good relations with other territories through whatever form of media. Prof. BARENDT is of the opinion that if his assumptions regarding Hong Kong criminal law and press law are correct, then the provision will be incompatible with the international covenant. However, he went on to point out that human rights court is very sensitive to special political situation. Also based on the present situation in Hong Kong, we must act cautiously. This is beyond doubt. He also points out that the court might express appreciation on the provision in question.
Sir, the Legislative Council Building once housed the Supreme Court, a place where members of the legal profession frequented. It was also a place where there were display of talents, eloquence and rhetoric. But rulings would finally rest with experienced judges. Today, we are at the same venue but the subject matter is the same and the situation is different. Debate over legal viewpoints is not meaningful, nor would it bring about satisfactory results. Therefore, bearing in mind we are still in the consultative stage and also the regulations would only be an interim measure, I am afraid I cannot accept the deletion of regulation 3A(vii) of the Film Censorship Regulations.
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MR. CHEONG-LEEN: After much soul-searching I rise in support of the position that the Film Censorship Regulations 1987 be retained without deletion of regulation 3A(vii).
Two legal opinions have been expressed. One is that regulation 3A(vii) which has to do with the censorship principle relating to damage to good relations with other territories breaches the International Covenant on Civil and Political Rights. This is the view enshrined in an opinion by Mr. Eric BARENDT, a barrister. The other opinion is that the regulation in question does not breach the covenant, and such is the view both of the Attorney General and the Foreign and Commonwealth Offices.
I am of the view that at this point of time there is need to retain this regulation in the interests of the political security and well-being of Hong Kong.
In the case of this particular piece of legislation, I do not think that we should be excessively worried that Hong Kong will become a special administrative region 10 years from now. The Hong Kong Government has been following the spirit of this regulation by way of a guideline for over 13 years already, and it has not done damage to Hong Kong’s political, economic, social or cultural viability, nor violated individual liberties, as far as I can ascertain. I would agree, however, that as we move forward towards 1997, Members of this Council can monitor the manner of enforcement of the regulation and if, at any time, the Administration should seem to be acting excessively or unreasonably in the enforcement of this regulation, thus causing much public concern about the violation of civil liberties, especially freedom of though and expression, the legislature by majority vote can at any tiem rescind regulation 3A(vii).
The regulation I believe, is enacted in the light of Hong Kong’s circumstances and with Hong Kong’s best interests in mind. And I will therefore vote against the motion to do away with the regulation today.
DR. LAM (in Cantonese): Sir, two days ago I went to see two films which were regarded as the worst of the banned films. They were: ‘If I were real’ and ‘The Coldest Winter in Beijing.’ Now, if the regulation is passed, it can easily be abused and the citizens will be deprived of their right to know. The themes of these two films reflect history and human nature. Members of the public do not have the chance to watch these two films. It is their loss. In fact, in the development of human history, we have the bright side as well as the dark and ugly side. If we report only on happy incidents, but omit all the sad events, or if we do the opposite, this is inappropriate. Just because we are afraid that we may do damage to good relations with other territories, we should not treat some media in a different way. There are a lot of films portraying the violence of Nazi Germany and imperialist Japan during the Second World War. People who are sensible and unbiased will not be prejudiced against modern Germany and Japan just because they have watched those films. So we should not exercise any favouritism. Now, if the regulations are pased, who can guarantee that the same
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excuse will not be used to extend censorship to other forms of media. By that time, the freedom of speech and the freedom of expression will be lost. And the concept of one country two systems will no longer be with us.
Sir, I believe that Members here, whether they are in favour of the motion or against it, base their judgment on the interest of the people of Hong Kong. Before the Government comes to a final decision, will the Government consider giving members of the public a chance to go and watch the movies that have been banned on political grounds, and then listen to the views expressed by members of the public.
Sir, Mr. PANG Chun-hoi is ill, he is therefore not with us this afternoon. He authorisd me to speak on his behalf in support of Mr. LEE’s motion. I also support the motion.
MR. DESMOND LEE: I would prefer to see an absence of advance censorship of publications and other forms of expression including movie films. Any form of control should be exercised through punitive measures which are imposed by law after the event. In order to obviate the risk of being punished, the publisher or producer may, if he so wishes, submit the publication or production for advance scrutiny or classification on a voluntary basis. This principle is used in the Control of Obscene and Indecent Articles Ordinance and should be applied to the Film Censorship Regulations.
Nevertheless, as advanced censorship of movie films has been the practice for many years, I do not propose to remove it completely at this stage, but would like to see the criteria concerning relationship with other territories excluded. I am not prepared to go into the argument of debtails about the International Covenant on Civil and Political Rights. Indeed, a lot of things can and should be decided by common sense, without reference to professional experts. Nobody would ask a dietician to analyse the nutrition value of a meal before taking it. If we know what food is good for our body we should also be able to determine what publications are good for our mind and soul. We want creative work which is freely expressed and which is not inhibited by excessive restrictions. Any steps which move towards political censorship, whether real or imaginary, will be viewed with suspicion by the people of Hong Kong, particularly at this sensitive time.
Some people are mindful about possible reactions from China. I accept that we should improve communication and mutual understanding with the mainland, but we must present the true position of Hong Kong to the Chinese authorities so that they understand the Hong Kong people and how we operate the place. It is wrong to anticipate what the Chinese leaders would be happy to see and hear and then do and say things to please them. Such action is measuring a gentleman’s stomach with a small man’s heart (以小㆟之心，度君子之腹). Chinese leaders have repeatedly stated that people can criticise the
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communist party. Why should we not be forthcoming with honest views and present the truth to these leaders? Why is it necessary to exercise self-censorship?
The present regulations are intended as a temporary measure. The draft Bill for film censorship is still in its consultation period with two more days to run. This is a golden opportunity to try out whether or not deletion of the so-called political censorship would cause any harm to external relations of Hong Kong. If things run out of control, this kind of censorship can be considered for reinstatement in the main legislation. Otherwise the draft Bill should be amended to excluded political censorship.
Sir, I would consider contravention of human rights and unnecessary restriction of freedom not merely as undesirable at this time but as a backward step in human civilisation.
With these remarks, Sir, I support the motion.
MR. SOHMEN: Sir, I must confess I did not go to the movies on Monday. I oppose the motion introduced by Mr. Martin LEE but I do so with some reluctance. I am uneasy about censorship for political motives since the judgments which have to be made by the censor are more difficult and more prone to abuse than, for example, restraints imposed on the freedom of expression for moral reasons. History is full of examples of political censorship leading at best to the suppression of unorthodox ideas and at worst to persecution, torture or death. Pressures to conform have not and never will stimulate progress nor increase happiness. In retrospect mankind has always discovered that such measures have produced the very opposite effects. We should also not forget that censorship is an administrative device but not, at least in the first instance, a subject for adjudication by independent tribunals.
Mr. Martin LEE must be given credit for highlighting the problems inherent in this issue, and I must frankly confess that if this was totally new legislation we were considering— rather than a question of legitimising, as an interim measure —a practice that has been going on for some time, I would in all likelihood vote against the introduction of such new provisions.
I am not, of course, saying that Mr. Martin LEE’s arguments are correct or fully valid. He has approached the issue in too legalistic a fashion, in that he has only focussed on the format and not on the substance of what need to be the limits of permissible censorship for the reasons contained in regulation 3A(vii). Mr. LEE’s reference to the possibility of regulation 3A(vii) not being capable of being brought within the exemptions provided in Article 19(3)(b) of the International Covenant on Civil and Political Rights, only deals with the question of whether the censorship authority can be seen to be meeting the covenant’s definitions of being ‘necessary for the protection of national security or of public order’. This is not just a matter of legal interpretation but clearly requires a political evaluation as to whether the restrictions imposed upon the
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freedom of expression are sufficiently and justifiably in the public interest, taking into account all the objective and subjective factors governing a particular situation, both as to time and place.
Even more simplistically put, the covenant has drawn us a square which can be left entirely blank or which we can fill in with as many colours as we choose, all the while accepting the fact that the borders of the square only determine the limits of the painted area and not necessarily the choice of colours.
Hong Kong, as we all know and as has been stressed by other Members, is in a rather peculiar situation, claiming an economic, social, political and cultural background quite different from the country to which ethnically and geographically the Territory is very close and of which it legally soon will be an integral part. The maintenance of good relations with China, especially during the transition period leading up to the change in sovereignty, is of paramount importance to Hong Kong. A change away from established practices, in particular when these do touch very directly on national political sensibilities elsewhere, in and by itself might be seen as a deliberate act intended to be prejudicial to good relations, irrespective of whether the need for change is imposed on us from the outside, is justified as a logical result of intervening developments or new circumstances, or which has no inherent harmful consequences.
After all, in this context we are dealing not only with a domestic perception of what expressions are obviously, or possibly, prejudicial or not prejudicial but have to face the possibility that the interpretation, or misinterpretation, put upon them externally could also give rise to unwanted friction. These assessments deal with subtle nuances, they are by their very nature political, and the answers obtainable are never fully in the affirmative or in the negative. Hence the discretion allowed governments under the covenant and whose determination is before us in this debate. I also believe, incidentally, that one can validly deferentiate films from other forms of expression for the purposes of this censorship, so that the singling out does not necessarily weaken the compat-ability argument.
It may well be, and I wish this could be the case, that the fears of possible prejudice to good relations through the content, artistic expression, or visual presentation of cinematographic material are exaggerated. But, Sir, this again depends upon political judgment rather than on legal definitions. We should, of course, bear in mind that the reactions, in China, to comment from abroad have of late become less defensive, and that the country’s open-door policies have led not only to greater confidence at home but also to the better recognition of the existence in other places of many different views and approaches and a belief in the intrinsic value of criticism. However, in the absence of clear signals to the effect that tolerance is unlimited, particularly as regards comment